The new legal hot topic: animal law
REBECCA DUBE

From Tuesday's Globe and Mail

July 15, 2008 at 9:05 AM EDT

'The question is not, 'Can they reason?' " philosopher Jeremy Bentham
famously wrote in his 18th-century defence of animal
rights, "nor, 'Can they talk?' but, 'Can they suffer?' "

The new question might be: Can they sue?

Animal law classes are the hot new offering at Canadian law schools.
The University of Toronto and Queen's University will both start
teaching animal law this fall, joining at least six other Canadian
universities where dogs and cats are already on the curriculum.

Before you reel at the notion of Rover retaining a lawyer to petition
for 10 walks a day or the fish suing the cat for harassment, fear
not. It's a serious field of study; even in the U.S., where animal
law is more developed and lawsuits are much easier to pursue, courts
have not been overrun by frivolous Fido filings.

Some experts compare animal law today to environmental law in the
1970s - just emerging from its reputation as a special-interest niche
(with a tinge of left-wing loony) to become a solid discipline that
is widely accepted and potentially lucrative for practitioners.

Prominent Toronto lawyer Clayton Ruby favours another
comparison: "It's much like gay rights were 25 years ago. People
sense this is going to be an area of importance in the future."

Lesli Bisgould, a lawyer who focused on animal-rights law for years,
will teach the University of Toronto class. "All of a sudden the tide
has turned and people are saying, 'This is important,' " Ms. Bisgould
says. "Right now is the birth of this concept in Canada - it's really
coming to life."

The concept of animal law is almost as broad as that of "people law,"
encompassing everything from veterinary malpractice and custody cases
(when couples split, who gets the pets?) to more philosophical issues
of animal rights and personhood.

Many of these issues are hypothetical right now in Canada. Despite
recent efforts to change the law, animals are still legally property
in Canada, and the courts have been reluctant to humour would-be
petitioners who view their pets like furry children.

Toronto-area plaintiff Christopher Warnica spent thousands of dollars
in a legal bid for visitation rights with Tuxedo the mutt after he
and his girlfriend split in 2004 - all for naught, as a judge threw
out his claim, saying, "This case must end here."

But there have been signs of change. In 2006, Ontario courts awarded
emotional damages for the loss of a dog; a boarding kennel that lost
a dog while its owners were vacationing in Hawaii was ordered to pay
the couple $1,417.12 for pain and suffering.

In 2002, the Canadian Supreme Court considered the status of
the "OncoMouse" - a mouse that had been genetically engineered to be
prone to cancer for research purposes. Researchers applied for a
patent, which raised some interesting philosophical questions.
Patents are reserved for things that have been invented: So can one
claim to have invented an animal? Is a mouse a thing?

The Supreme Court allowed Ms. Bisgould and Mr. Ruby to intervene in
the case on behalf of several animal-rights organizations; Ms.
Bisgould says just getting a spot at the table was a big deal.

"That was a fundamental moment in the development of animal-rights
law in Canada," Ms. Bisgould says. "It was a huge victory just that
the court said, 'We agree that the animal-rights perspective is one
that has to be heard.' "

(The court rejected the patent application, and later approved a much
more limited patent for the luckless rodent.)

Post-breakup battles about who should get the dog or cat may not seem
to have much in common with lofty debates about the nature of
property and consciousness. But they both speak to the question of
how, exactly, courts should treat animals, a question that is far
from settled in Canada.

"There's this growing recognition that they're not just like a
couch," says Daphne Gilbert, an assistant professor who teaches
animal law at the University of Ottawa, offered for the first time in
2007. "Animals are treated as property - we buy them and we own them -
and yet family law is starting to talk about them as a special kind
of property."

Law students say the uncertainty surrounding animal law is one reason
why it is so interesting. There are very few Canadian precedents to
study in animal law, which is rather ... well, unprecedented.

"That's the excitement, in that a lot of the decisions haven't really
been made yet," says Andrew Brighten, a McGill University law student
with a clerkship this summer at the California-based Animal Legal
Defense Fund. Though he's never considered himself a pet person, Mr.
Brighten says he's drawn by the possibilities of animal law. The
field appeals to his idealism, too.

"You can really feel good about what you're working on, and that you
might be making a real difference," Mr. Brighten says. "Being a
lawyer, I suppose, is inherently about representation, and animals
are beings who are unable to represent themselves. ... So I think, as
a lawyer, it's one of the best jobs you could have."