Articles / Blogs

Horse Shoes & Fine Prints

 

Horses play an interesting role in Canadian society. Viewed as vehicles to some, athletes to others, and pets to many, equine law – although a niche – contains many specifics which overlap in other areas of the law (namely Contract Law) and is much more complex than it appears. Disputes may arise within a purchase agreement during a sale. Disputes may arise when an athlete is injured, or even killed, while riding. Disputes may even arise within boarding and leasing agreements. Gartner & Associates have successfully handled a variety of the contractual equine law disputes mentioned above, as well as many others.

Before the common law developed to what it is today, agreements were settled based on the parties’ words and handshakes. Written contractual agreements are now often required, and when not, strongly advised. If you are thinking of purchasing or selling a horse, it is important to remember that a written purchase and sale agreement may be necessary! The lawyers at Gartner & Associates have successfully assisted many soon-to-be-horse owners as well as current horse owners with negotiating the transaction with their respective buyer or seller. Our lawyers helped outline the identity of the horses, agree to a purchase price, come to an agreement with the terms of the sale, establish warranties, determine the time, and method of delivery, as well as develop general purchase contracts to protect and keep every party involved happy.

In addition to agreements of purchase and sale, the lawyers at Gartner & Associates have assisted many clients with boarding and leasing agreements. Remember, it is important to contact a lawyer who is experienced and knowledgeable in the field. It is even better to contact a lawyer who is also passionate in the field. The professionals at Gartner & Associates, as horse enthusiasts, can help you with your breeding contracts, boarding agreements, contract disputes, custody issues, insurance coverage disputes, liability releases, negligence matters, professional horse riding liability, and much more! The farrier to the horse is the lawyer to the contract; when the former takes care of the latter, the ride will be smooth!

Answered: What is Animal Law?

What is Animal Law?

The question, “What is animal law?” has become increasingly popular, both in the pet-owner and legal worlds. Inquirers are often surprised to find that this area has been on the rise for years. With approximately one in every two households in North America sharing their home with a cat or dog, this development comes as no surprise.

In a nutshell, animal law deals with how the law relates to, or impacts, animals and their guardians. Although animal law cases typically involve domesticated animals, such as cats and dogs, this area can apply to other species of animals, ranging from birds to lizards to horses. In fact, there is an entire sub-category of animal law for horses called Equine law! Animal law encompasses companion animals, as well as wildlife, animals used for entertainment, those raised for food and research, and animals used in professional settings such as the horse racing industry.

One of the unique things about animal law is that it combines several different legal areas and deals with issues that can affect even the most diligent pet guardian. Examples of when an owner may need to retain a lawyer include the following situations: alleged dog bite incidents, veterinary negligence claims, determining what will happen to a pet upon the death of their owner, establishing pets in wills, insurance claims, breed discrimination, condominium disputes, and so much more.

An example of breed discrimination is the Pit Bull Ban, which came into effect in Ontario in 2005. The implementation of this law means that if a dog in Ontario is found to be a “pit bull” or has “substantially similar” characteristics, unless the owner can prove otherwise, the dog can be relocated out of the province, or worse, euthanized. In cases like these, a lawyer can assist in contesting the “breed” determination that has been made and/or fight to ensure that the dog is not seized.

Another situation in which pet guardians may require legal assistance is in pet custody disputes. According to an American study, more than fifty percent of pet parents would prefer the company of their pet to that of a human if they were stranded on a desert island. In fact, a San Diego court case gained fame in 2000, due to the two-year custody battle and over $100,000.00 in legal fees spent by a divorcing couple over a Pointer Greyhound dog named Gigi. These custody disputes are not restricted to marriage. Courts have dealt with pet custody cases between family members, former partners, boyfriends and girlfriends and even roommates. In Canada, pet custody disputes typically arise when one guardian claims the other gave the pet to them as a gift. Although Canadian courts were originally dismissive of such claims, the tides are beginning to change as more pet-related cases are brought forward. In these cases, it is important to have legal representation with lawyers with expertise in animal law to properly assist in the custody determinations of people’s beloved animals.

Although pets are still treated as property in the eyes of the law, there is a consensus amongst both animal advocates and legal practitioners that this needs to change. To many guardians, pets are as important as children and as society’s values change, animals are increasingly being viewed as sentient. It is imperative that legal guardians are made aware of their legal rights and obligations associated with pet ownership to ensure the well being of their companions.

Gartner & Associates has specialized knowledge to assist you with your animal law concern. You can schedule a consultation to discuss your legal concern with our legal team.

Man’s Best Friends Can Sometimes Cause Harm to Others: Dog Bites in Ontario.

By Suzana Gartner and Daniel Fin

Dogs have always been a source of love and affection for their families. They have been man’s best friend for thousands of years! Dogs can be trained to perform and obey certain commands and they will always love you more than they love themselves. However sometimes, taking care of a dog becomes a huge responsibility and dog ownership can be a source of frustration as the law can require their human guardians to pay large fines in consequence to their actions when their dog has bitten another domestic animal or human.

Dogs come in a range of different shapes and sizes. Usually larger dogs can cause larger bites and result in more profound consequences. Dogs can seriously injure an individual or another domestic animal with just a single chomp! In some extreme cases, dogs have caused permanent physical and emotional injuries and even caused the death of an individual or an animal.

Dogs bite for a variety of reasons and it is up to us to understand why they bite and when they are likely to bite to avoid being on the wrong end of the teeth! There are many reasons why a dog may bite. A bite may be caused by fear or fear aggression. It may be caused by the dog being placed in a stressful situation. A dog may bite to protect his home or human guardian, or because he/she is sick or not feeling well, or simply because someone touched a sensitive part of their body. Further, dogs may bite accidentally during play, or when they get overly excited. There are many circumstances for dog bites to occur and it is in our best interest to understand the warning signs and prevent certain behavior so that a dog bite does not occur at all.

The best way is through bite inhibition training! Dogs can bite! It is a fact of life. Dogs perceive the world primarily through their nose and mouth and, naturally, things like hands or arms can come into contact with your dog’s teeth. Training a dog not to bite is like training a cat not to purr. It is a natural part of their existence. Instead of preventing dogs from biting, it is better to train your dog to manage their jaw strength. This training is called bite inhibition.

Bite inhibition training is a form of conditioning where one trains their puppy to understand the maximum amount of pressure they are allowed to exert on a human or other domestic animal. It begins by encouraging mouthing but discouraging strong and painful nips. As the nipping becomes less strong and less painful, the owner should then discourage the “strongest” of the nips that the puppy is still exerting on them. This process is repeated until the puppy’s nips are gentle. Then it is a matter of reducing mouthing. This process will help avoid serious dog bites in the future when the dog is fully grown (especially if it is a larger breed).

Other ways to prevent your dog from biting is through proper socialization and dog training. The more positive the dog’s experiences are with other people and other animals at a young age, the less likely it is that the dog will bite or attack when he/she becomes an adult. However, sometimes our efforts are simply not enough and a bite can occur due to a random event.

What happens if your dog bites or attacks another person or domestic animal? The law in Ontario surrounding dog bites is outlined in the Dog Owners’ Liability Act (hereinafter the “DOLA”).

The DOLA is the legislation that governs responsible dog ownership and the law of dog bites in Ontario. It specifies that whenever a dog bites or attacks another person or domestic animal, the dog owner is strictly liable. With strict liability offences, it matters not the fault of the individual responsible. It does not matter whether it was an accident or that the owner was not negligent. Further, it does not even matter whether the owner knew their dog had a predisposition to biting. It only matters that the act occurred. It matters that the dog of the owner bit or attacked another person or domestic animal for the owner to be liable for damages resulting from the bite or attack.

What should a dog owner do if their dog has bit or attacked another person or domestic animal? It is advisable to try to settle cases without going to trial and hiring a lawyer who specializes in dog bite cases can improve the chances of settling out of court without moving through litigation. Unfortunately, some dog bite cases end up with the seizure of a beloved dog and ultimately with a destruction order. The lawyers at Gartner & Associates are adamantly opposed to breed specific legislation and destruction orders. Further, the lawyers at Gartner & Associates have successfully defended many dog owners and their dogs against seizure and from destruction orders under the DOLA.

The DOLA is strict when it comes to the ownership of dogs and dog owner’s responsibilities. It specifies that dog owners must take reasonable precautions to prevent dog bites or attacks. These precautions may involve fencing yards, keeping the dog on leash when outside the property and understanding how the dog reacts to certain situations. If it is proven that the dog owner did not exercise reasonable precautions, he/she will likely be liable and pay the opposing side damages.

Contributory negligence also plays a vital role. If a dog has been accused of biting a person or domestic animal, it does not necessarily mean the owner is fully responsible for the damages that result from the injuries. The victim may have very well contributed to their own injuries by acting in an unreasonable manner. The DOLA fully recognizes this as a mitigating factor when assessing damages. It is usually advisable for the dog owner to seek legal advice when they believe the victim was acting unreasonably leading up to the bite or attack. Sometimes it is not possible to prove that a dog bit the victim when there were two or more dogs involved in the situation leading up to the bite. Contact a lawyer who specializes in animal law and dog bites to receive the best protection for yourself and your dog.

To find out more about dog bites and gain knowledge of the law surrounding them, the lawyers at Gartner & Associates can answer your legal questions. They can be reached at (416) 836-9971 or by email at reception@animallawyers.ca. With many years of experience specializing in dog bites, the staff at Gartner & Associates have successfully represented many clients whose dogs have been accused of biting under the DOLA.

Citations
“Why Do Dogs Bite?” AVMA, www.avma.org/public/Pages/Why-do-dogs-bite.aspx.

Dunbar, Ian. “Teaching Bite Inhibition.” Dog Star Daily, 26 Apr. 2012, www.dogstardaily.com/training/teaching-bite-inhibition.

Dog Owners’ Liability Act, R.S.O. 1990, c. D. 16.

Equine Law and a Shift to Sentientism

By Suzana Gartner & Daniel Fin

Horses can be viewed in today’s society as many things ranging from personal pets, to vehicles, and also as athletes competing for first-place prizes. This is what makes Equine Law so particularly interesting in Canada. Disputes may arise resulting from injuries to a rider and/or their horse. Disputes may also arise within horse sale and purchase agreements, horse boarding and leasing agreements, as well as horse breeding and breeder agreements. Problems may also arise when horse racing leads to injuries or even death. Gartner & Associates have successfully handled a variety of disputes just like the ones mentioned above, however, with all the potential disputes that have arisen, there is one thing in common that is problematic: horses, as all animals (outside of Quebec), are viewed as personal property. This creates an issue when seeking appropriate remedies for horses who have been negligently cared for and neglected.

Horses, who are considered as personal property in legal terms, presently do not have legal standing to enforce their rights as sentient beings. So, what happens when a horse is neglected and suffers under the hands of their negligent owner? The owner is criminally charged but the horse is left alone without monetary remedies to cover the cost of treatment and care to relieve the negative effects of the negligent care. Fortunately, an Oregon court now has the opportunity to revolutionize animal law, help animals enforce their rights, and to allow for animals to seek and acquire appropriate remedies for their mishaps as victims.

In early May of 2018, the Washington County Circuit court filed a lawsuit for an 8-year-old horse by the name of Justice who is the very plaintiff against his former owner, Gwendoyln Vercher, who negligently left Justice out in the cold winter months without adequate amounts of food or shelter [1]. Justice, upon rescue, was found to be nearly 300 pounds underweight, infested with lice, and suffering from rain rot and severe frostbite. In severe pain, emaciated, and frail, Justice will now require extensive surgery and long-term specialized veterinary care.

The Oregon court responsible for the complaint of Vercher’s negligent care of Justice recognizes that “horses are intelligent animals with capacity for rich and emotional lives…” [2]. Oregon law also “recognizes animals as victims and that victims have a legal right to seek remedies from their abusers.” Justice, however, as an animal, does not have the same perks as individuals do and does not have legal standing to raise this claim. Generally speaking, standing refers to the legal right of a person or group to challenge conduct of another in a judicial setting. In other words, it is the ability of a person to sue another [3]. Persons usually include individual humans and include legal entities which are given the rights of a natural person which may include corporations and estates. Animals, however, do not have the status of persons and remain classified as property. This presently impedes animals like Justice from acquiring justice.

Generally, other than in Quebec after the passing of Bill-54, animals remain classified as, legally speaking, personal property. Justice’s fate, as well as many other neglected animals, will lie with the decision of this Oregon court to progress animal law to be more empathetic to the very creatures it is intended to protect and provide them with the remedies they deserve.

[1] “Groundbreaking Lawsuit Argues Animals Have the Right to Sue Their Abusers in Court.” Animal Legal Defense Fund, 1 May 2018, http://aldf.org/press-room/groundbreaking-lawsuit-argues-animals-right-sue-abusers-court/.

[2] Weiss, Debra Cassens. “Suit Argues Animals Have the Right to Sue Their Abusers.” ABA Journal, 1 May 2018, http://www.abajournal.com/news/article/suit_argues_animals_have_the_right_to_sue_their_abusers/

[3] Barron’s Canadian Law Dictionary, sub verbo “Standing”.

Pet Custody/Ownership Disputes: Who Gets the Dog When Couples Break Up?

Dog Law Custody OwnershipBy Suzana Gartner and Krista Staley

Pets are considered to be integral members of the family unit. They command many different roles in a family’s household including companionship or acting as substitute children. Animals have the capacity to uphold these different roles because, like humans, they have innate personalities, command the ability to think and feel, and they are able to experience a wide range of emotions. In fact, our beloved pets are social creatures; they crave social connection, can experience loneliness, and they form attachments with their human guardians. In a national survey, it was revealed that 61% of Canadians share their home with a pet, and 44% of millennials shared that caring for an animal is akin to ‘practice’ for one day raising children.[1] However, despite the fact that many Canadians view their animal as a family member, the courts do not reflect this way of thinking. In Canada, animals are considered personal property which means that your dog or cat has the same amount of rights as your personal property, such as your kitchen chair or television set. Sadly, your companion animal is granted limited to no rights in the eyes of the court.[2]

What happens when families or partners go through a change and the couple’s relationship ends? When two people separate or divorce, who has ownership of the animal you consider to be your family member, best friend or child? Traditionally, courts have continued to rely on an ownership model that views the individual who purchases the animal as having sole possession over that ‘property.’ Since animals are considered personal property, there is no current law that supports the idea of shared custody in Canada. In the case of Henderson v Henderson,[3] the court argued that pet custody cases were a waste of judicial resources and should be discouraged within our justice system. However, in a more recent case, Baker v Harmina,[4] we begin to see a shifting mindset with respect to the concept of pet ownership in the courts when considering different relationships. Although the traditional model of ownership is restored by the Court of Appeal of Newfoundland and Labrador, the decision made by the dissenting judge in this case is monumental for pet custody law.

The timeline in this case involves an ongoing dispute between a separated couple, David Baker and Kelsey Harmina, over the ownership of a dog named Mya, a cross between a Bernese Mountain Dog and a Poodle. Although Baker purchased Mya, his work took him out of province for 14 days out of every 21, where Harmina would take care of Mya on a full-time basis. Based on Baker’s work schedule, Harmina was under the impression that since she predominately cared for Mya, there was an agreement of joint ownership. However, the small claims judge ruled that Baker was the sole owner of Mya since his purchase of Mya demonstrated that he held the property interest. Harmina’s emotional attachment to Mya and care while Baker was away for work was not determinative of a personal property interest. Harmina appealed this decision to the Supreme Court Trial Division where a provincial Supreme Court judge found that the small claims judge had erred in his reliance on the traditional model of ownership and his omission of any consideration towards Harmina’s relationship with Mya. The appeal judge concluded that the parties had entered into a joint ownership of Mya. Baker then appealed that decision to the Court of Appeal of Newfoundland and Labrador where two of the three judges agreed that Baker was the sole owner of Mya since he was the one who initially purchased her.[5]

Although the ultimate decision can be argued to not be in the best interest of Mya, the dissenting judge, Justice Lois Hoegg, takes into consideration the interest of all parties by arguing for a shift away from the traditional model of pet ownership. In the view of Justice Hoegg, based on how society views household pets, ownership doesn’t just simply equate to the financial purchase of the animal.

Taking into account the strong emotional attachments humans create with their beloved companion animals, the concept of pet ownership should be viewed on a much broader scale. Considered to be integral family members, animals are more highly regarded versus the property status they are currently granted in law. Justice Hoegg is of the belief that when it comes to the custody and ownership of animals it’s not a burden on the justice system and should be placed with more importance than it currently is. When it comes to animal law, a shift in legal thinking is crucial to improve and enhance the way our laws view animal interests. This outcome can be compared to the cliché “we lost the battle but won the war” in that although this case restores the traditional model of ownership, it also introduces the notion of resistance to it. 

At Gartner & Associates Animal Law, we have successfully assisted clients in gaining custody and access to their beloved pets, working with the client to create fair custody arrangements, and drafting pet co-ownership agreements establishing claim and ownership of animals using a mediated approach. We consider the ‘best interests’ of the animals when we advise on shared ownership.

In order to avoid litigating disputes over legal ownership when couples split up and instead of having to proceed to court and allow a judge to make a decision solely based on proof of ownership, we work with our clients to come up with creative solutions through our ADR approach. Our unique tailored approach and expertise in animal law allows us to advise clients on pet custody arrangements and create pre-nuptial agreements that set out terms considering ‘the best interests’ of the animals and assist our clients to prevent future disputes from arising and ending up in the courts. On the other hand, in some situations, shared custody and access is not the best solution or even an option. In these cases, Gartner & Associates can assist clients obtain full ownership claim to their beloved pets by defending our client’s claim. Our companion animals are members of our families, it’s time we put their interests first. For more information and if you are experiencing a difficult situation with an ex-partner, please contact our firm and we can schedule an appointment and advise you: info@animallawyers.ca.

[1] CTV News, Divorcing your dog: Ruling opens door to new view of pets in splits, accessed from: https://www.ctvnews.ca/lifestyle/divorcing-your-dog-ruling-opens-door-to-new-view-of-pets-in-splits-1.3908212.

[2] Animal Justice, Episode 5: Who Gets the Dog? The Battle for Pet Custody, accessed from: https://www.animaljustice.ca/podcast/episode-5-who-gets-the-dog-the-battle-for-pet-custody.

[3] Henderson v Henderson, 2016 SKQB 2016.

[4] Baker v Harmina, 2018 NLCA 15.

[5] The Canadian Press, Who gets the dog? Former couple’s custody battle divides N.L’s top court, accessed from: https://www.thespec.com/news-story/8325029-who-gets-the-dog-former-couple-s-custody-battle-divides-n-l-s-top-court/.

Veterinary Negligence Disputes

Veterinary Negligence Disputes

One of the hardest parts about being a pet guardian is having to take your animal companion to the veterinarian when they become sick or injured.  My dog instantly knew when he was going to the veterinary clinic after we turned right onto the major road near our house instead of left. He would restlessly pace around the back seat and occasionally whimper until the car stopped. It broke my heart every time I lifted him onto the examination table, waiting for the veterinarian to care for his needs that day. The only thing that made me feel even slightly better was my trust in the veterinarian and the knowledge that they always handled my dog with exceptional care; I knew that he would return better than when he first arrived. Unfortunately, not all visits to the veterinarian turn out the way we hope they do.

Veterinary malpractice is a “catch-all” term that refers to an accident or incident affecting your animal companion while they are under a veterinarian’s care. While veterinary malpractice is the issue facing you and your companion animal, your cause of action is usually brought as a negligence or breach of contract claim. For this post, I will briefly discuss veterinary negligence from the perspective of what you need to know before you can bring a cause of action in negligence along with a few comments on the inclusion of mental distress which could increase the number of claims we see in the future.          

In order for a plaintiff to succeed in a veterinary negligence dispute they must prove two elements: (1) that the veterinarian’s conduct fell below what a “reasonable veterinarian” would have done in comparable circumstances, and (2) that the failure to meet the standard of a reasonable veterinarian in comparable circumstances was a contributing cause to the animal’s injury.

Whether a veterinarian has fulfilled their obligations to your animal companion is not always easy to know. For example, in a case from Nova Scotia, the court held that a veterinarian who advised a pet guardian about potential tests that could be ordered without strongly recommending they undertake them did not breach the standard of care: McNeil v. Weste.  The court supported this conclusion by reasoning that tests are often expensive and not always necessary in the circumstances.

As another example, in an Ontario case the court held that where time is a major factor in attempting to save an animal companion’s life, a veterinarian may not be held liable for failing to perform a dangerous procedure before appropriate testing to determine the cause of the animal’s illness has been completed: Willowdale Animal Hospital v. Standefer.  Crucial to this case was the fact that the veterinarian had been in contact with experts at the Ontario Veterinary College during the procedure and the College provided evidence supporting the veterinarian’s decision-making.

As a final example, in Murray v. Mouris, another Ontario case, a veterinarian was found to have breached the standard of care by mistakenly diagnosing a cow as being sterile when the cow was in fact five and a half months pregnant. The owner, believing his cow was sterile, slaughtered the animal. An essential element of this case was two expert medical reports which concluded a veterinarian exercising prudence and diligence would have known that the cow was pregnant.

The message from the case law is clear. In order to win your veterinary negligence dispute, it is absolutely essential that you have enough information about your animal companion’s injury or death to determine whether the veterinarian could, or should, have done something differently.

Sadly, in the McNeil case discussed above, the distraught pet guardians took their deceased animal companion home to be buried before an autopsy could determine the cause of death. The court concluded that without knowing how the animal passed away it was impossible to determine whether the veterinarian had acted inappropriately. As heart-breaking as these moments can be, it is absolutely essential that you know exactly what happened to your animal companion before making arrangements for laying them to rest.      

An unfortunate aspect of veterinary negligence cases is that the law and the courts have been slow in recognizing the devastation that losing an animal companion can have on a pet guardian’s family. Very few cases of veterinary negligence actually go through the trial process and produce a reported decision. Most veterinary negligence cases are settled with the involvement of an experienced mediator before they reach the courts in litigation.

A partial explanation for the limited case law is that historically, companion animals have been almost exclusively viewed as property of their human guardian. As a result, courts were often reluctant to award the plaintiff anything more than the replacement cost of the animal or modest amounts to reflect lost wages when the animal was used as a source of income. This meant that the cost of bringing a veterinary malpractice dispute to court would be more expensive than the damage award given to the successful plaintiff.

Fortunately, the law of contract has developed to recognize that when you bring your animal companion to the animal hospital, you are contracting for the “peace of mind” that the veterinarian will act reasonably to ensure that your animal receives the best care in the circumstances. If the veterinarian fails to act reasonably, it is foreseeable that you may experience emotional upset or distress. Damages for mental distress can widen the pool of damages and result in awards that are greater than the cost of litigation. In the future, we may see more veterinary negligence cases going to trial because of this development.

Until more veterinary negligence cases are reported, the lack of guidance from the courts means it may still be difficult to predict whether the plaintiff or defendant will be successful at trial. The safer approach for the time being may be to attempt mediation before turning to the courts for help. 

Gartner and Associates Animal Law has successfully mediated veterinary negligence disputes in the past and our passion for animal welfare guides the service we provide to our clients. Animal law is all that we do. With our firm, you can be assured that our experience will be focused on meeting your animal companion’s specific needs. If your animal companion has been the unfortunate victim of veterinary malpractice, our firm is dedicated to serving you and your animal companion’s best interest.

Pet Condominium Disputes in Ontario

Pet Condominium Disputes in Ontario

Written by David Samuels

When an individual is in the process of purchasing or leasing a condominium unit, there are two governing documents that relate to the rules and restrictions of the condominium: the Declaration and the Rules. In most cases, the declaration takes precedence over the general rules. As such, it is imperative for potential buyers or renters, especially those with animals, to review these documents to identify any pet restrictions that may be incorporated. For example, documented pet restrictions will provide information regarding the number of animals allowed per unit or the type of animals permitted.

If there is a rule that prohibits pets in a condominium’s official declaration, an individual will be more restricted regarding what options they have when trying to dispute the rule. The judge in Staib v. Metropolitan Toronto Condominium Corp reasoned that if a condominium were to rely on a declaration to prohibit pets, the rule must be enforced regularly and consistently; otherwise, the rule may not be valid. Furthermore, although rules in a declaration are often binding, there are human right exceptions which can override the condominium’s declaration and allow an individual to retain their pet; for example, if an individual has a service animal. The decision in Waterloo North Condominium Corp No. 198 v. Donner has substantiated this, where it was concluded that the presence of a dog was necessary if a condominium unit owner is dependent on the dog due to a disability.

When a condominium’s prohibition is contained only as a general rule, and not in its declaration, the case of Waddington and Subsection 58(1) of the Condominium Act states that a condominium typically cannot make a general rule banning all pets. If the rule prohibiting pets is not explicitly set out in the declaration, a rule prohibiting pets is not enforceable as it is not deemed as reasonable. In this case, individuals who are facing action as part of a rule prohibiting pets that are not included in the declaration have a better chance to fight the ruling and keep their pet.

This is why potential condo owners who have pets or would like them in the future should carefully read the condominium’s declaration and rules. For condominiums, it means that they should be mindful of what types of pets should be prohibited from living in the building. The onus is on the condominium to explicitly inform unit owners and renters of the applicable rules, and must consistently and regularly enforce them. Failure to do both of these things puts the condominium at risk of having a court reject the restrictions they have placed on pets.

The substance of this article is designed to present a comprehensive example of the subject matter regarding pet removal in a condominium. Specialist advice should be inquired regarding your particular circumstances. If an individual owns a pet or has an intention of doing so in the future, an owner should seek legal advice from a legal representative to confirm any pet restrictions in the declaration or rules prior to committing to a condominium unit.

1 – Metropolitan Toronto Condominium Corporation No. 1352 v. Newport Beach Development Inc., 2012 ONCA 850
2 – Ontario Human Rights Commission, Policy and Guidelines on Disability and the Duty to Accommodate (2009)
3 – Waterloo North Condominium Corporation No. 198 v. Donner, 1997 Can LII 121177 (ON. S.C.)
4 – Niagara North Condominium Corp. No. 125 v. Waddington

Equine Law In Ontario

Equine Law In Ontario

Written by: Suzana Gartner and Aram Simovonian

One of the most fascinating human-animal relationships is the one which exists between humans and horses. Horses are an integral part of Canadian society[1] and as a response to the important role they play a complex system of rules has been developed to regulate horse related activities.

Equine[2] law is the law which pertains to all matters relating to horses, such as organizations, activities, businesses and industries; legal services offered in the area of equine law may surround contracts, criminal, animal welfare, negligence, gaming, estate law and many others. The practice of equine law is a very specialized field and animal lawyers can handle the complexities and types of cases, including: contracts (purchase and sale agreements; boarding agreements; leasing agreements; co-ownership agreements) and negligence claims (injury or liability). Animal lawyers have expertise training in animal related matters, can handle horse-related disputes with sensitivity for the client and consider the best interest of the horse (s). Further, a collaborative process can help parties settle their horse-related disputes in a timely and less expensive manner than traditional litigation. However, litigation is proposed when parties are not willing or able to resolve their horse-related disputes through a collaborative process.

There are a number of Federal and Provincial statutes which address equine related matters; of particular interest is the (i) Horse Racing Licence Act[3] (the “HRLA”), (ii) the Ontario Society for the Prevention of Cruelty to Animals Act[4] (the “OSPCAA”), and (iii) the Criminal Code[5] of Canada (the “CCC”).

1) HORSE RACING

Horseracing is not a new concept and it has been a sport for hundreds of years. Ontario made the decision to regulate the horseracing industry by creating the Ontario Racing Commission[6] (the “ORC”). The ORC’s mandate was to govern, direct, control and regulate Ontario’s horseracing industry.[7]

The ORC was subsequently replaced by the HRLA in 2015. The HRLA dissolved the ORC[8] and transferred all matters pertaining to the regulation of horseracing to the Alcohol and Gaming Commission of Ontario (the “AGCO”). The AGCO has 5 regulatory functions[9] in relation to the horseracing industry, specifically:

1.     Officiating Races The AGCO will appoint 3 Judges/Stewards to supervise horseraces, enforce the Rules of Racing, conduct investigations and impose prohibitions when violations have occurred by way of fine or license suspension.

 

2.     Ensure Compliance Investigators/Compliance Officers will administer drug and breathalyzer tests on humans, conduct searches for prohibited items as well as assure compliance with racetrack security standards.

 

3.     Conduct Investigations The Investigation and Enforcement Bureau (the “IEB”) may investigate racing violations such as fraud, animal abuse, animal death and will also monitor equine medication programs and enforce orders or rulings made by Judges/Stewards.

 

4.     Issuing Licenses The AGCO is responsible for the issuance of licenses to persons and business as they relate to the horse racing industry.

 

5.     Regulation of Racetracks The AGCO also licenses, reviews the business plans, and fire safety and health plans of racetracks as well as approves the race dates requested by the racetracks.

The AGCO has established the Rules of Racing (the “Rules”) which have been developed as per s.5(1) of the HRLA; these Rules are enforced by Judges/Stewards appointed by the AGCO. There are two sets of Rules, (i) Rules of Standardbred Racing,[10] and (ii) Rules of Thoroughbred Racing.[11]

As with all areas of life, the world of horseracing is not free from dispute. There are two adjudicative bodies which hear horseracing disputes as they relate to the HRLA; (i) the Horse Racing Appeal Panel[12] (the “HRAP”), and (ii) the License Appeal Tribunal[13] (the “LAT”).

1.1) THE HORSE RACING APPEAL PANEL

A person who considers themselves aggrieved by a decision of a steward, judge, veterinarian, race track official, racing association official, licensing agent or office or employee of the AGCO, may appeal the decision to the HRAP.[14]

For instance, in a 2017[15] decision, the AGCO imposed conditions on Mr. Fuller’s license because he administered illegal substances to his racehorse, “Saintpaddysboy”. Amongst other things, the conditions included the following; (i) the obligation to keep the peace and be of good behaviour (ii) the obligation to allow AGCO Investigators access to Mr. Fuller’s stable area at any time in order to conduct searches for illegal medication or drugs and (iii) the obligation to allow the AGCO Investigators to seize any illegal drugs which may be found. Alongside the conditions placed on his license, Mr. Fuller was fined and his license temporarily suspended; “Saintpaddysboy” received a temporary suspension from being able to race.[16]

1.2) THE LICENSE APPEAL TRIBUNAL

The LAT’s mandate is to adjudicate appeals involving compensation claims and licensing disputes. The LAT adjudicates licensing appeals which pertain to over 25 statutes, including the HRLA.

2) ANIMAL WELFARE

The people of Ontario…believe that how we treat animals…helps define our humanity, morality and compassion as a society.[17] Horses are legal defined in a number of ways, they may be athletes, vehicles, livestock and even law enforcement animals. The protection the law offers horses is entirely dependent on their classification, meaning, the level of protection may be low or high depending on the categorization of the animal.

Below is an examination of the protections offered to horses under the CCC and the OSPCAA.

2.1) THE CRIMINAL CODE OF CANADA

Causing unnecessary suffering to animals is prohibited under the CCC by way of s.445.1; this section is purposely broad and explicitly prohibits the encouragement, promotion, arrangement or assistance in activities that would cause unnecessary pain or suffering to a bird or animal. The penalty for this offence ranges from imprisonment of no more than 18 months (summary), and imprisonment of no more than 5 years and/or a fine not exceeding $10,000.00 (indictable).[18]

The scope of s.445.1 encompasses horses, however, due to the unique status, horses are offered further protection than the majority of other animals. The development of this protection was a result of an Edmonton Police Dog, Quanto, being stabbed to death while chasing a suspect in a parking lot. As a response to Quanto’s death, Parliament enacted the Justice for Animals in Service Act (Quanto’s Law),[19] which amended the CCC to add further protection for law enforcement, service and military animals. A law enforcement animal is defined as “…a dog or horse that is trained to aid a law enforcement officer in carrying out that officer’s duties”. Punishment for causing injury to a law enforcement, service or military animal ranges from imprisonment of no more than 18 months (summary), and imprisonment of no more than 5 years with a fine not exceeding $10,000.00 (indictable).[20] Canada recognized the need to offer protection to animals under the CCC and further recognized the need to protect animals which serve a particularly important role in our society, such as horses, at least in their law enforcement capacity.

2.2) THE OSPCAA

Horses are offered protection against harm under the provincial OSPCAA. The Ontario Society for the Prevention of Cruelty to Animals (the “OSPCA”) is governed by the OSPCAA and their mandate is to prevent animal cruelty and provide relief from cruelty to those animals who have been subject to such treatment.[21] In similar spirit to the CCC, the OSPCAA has a general section which prohibits causing or permitting the causing of distress to any animal.[22] The OSPCAA also has a more specific section which is dedicated to prohibiting harm directed at law enforcement animals, specifically horses and dogs.[23]

A person who finds themselves aggrieved by an order made under the OSPCAA[24] may appeal to the Animal Care Review Board[25] (the “ACRB”). When making decisions, the ACRB’s mandate is to ensure that the welfare of animals is of paramount consideration.[26]

CONCLUSION

Although the legal protection offered to horses has developed, unfortunately, there have been instances where these animals may still be categorized as food. For example, in a recent CTV News[27] article, Mr. Scott Vivian, the owner of the “Beast” restaurant in Toronto, served a horse tartar dish which, not surprisingly, resulted in public outrage. Mr. Vivian argued that animals raised for food should not be singled out based on their utility. In other words, she explained that if society is outraged with horse meat on their plate, they should be outranged to discover chicken, pork or beef or on their plate as well. In fact, horse meat is widely unpopular and the majority of Canadians regard horses as companion animals and working animals and find it repugnant to be served a dish with horse meat. As such, horses should be regarded as majestic animals that have served Canadians for hundreds of years. Horses have taken on many guises in Canadian history; they have been in wars, have been used as vehicles, they have been trained for athletic sport and now they protect Canadians as law enforcement animals. Although legal protection for horses has come a long way, the fight for animal liberation and equality is far from over.

[1] https://www.psychologytoday.com/blog/the-truisms-wellness/201607/no-horsing-around-about-the-human-equine-bond; https://www.equestrian.ca/cdn/storage/resources_v2/XTEHyRosaHidTWQeX/original/XTEHyRosaHidTWQeX.pdf. It is estimated that horses and horse related activities contribute more than $19 billion annually to the Canadian economy (a 2010 report finds).

[2] https://www.merriam-webster.com/dictionary/equine.

[3] S.O. 2015, c. 38, Sched. 9.

[4] R.S.O. 1990, c. O.36.

[5] R.S.C., 1985, c. C-46.

[6] The ORC was governed by the Ontario Racing Commission Act, 2000, S.O. 2000, C.20., which was repealed on April 1, 2016.

[7] ibid at s.5.

[8] Horse Racing License Act, supra note 3 at s.43.

[9] https://www.agco.ca/what-we-do-horse-racing.

[10] https://www.agco.ca/sites/default/files/rules-of-standardbred-racing-version-april-2016.pdf.

[11] http://www.hbpa.on.ca/wp-content/uploads/2011/03/Rules-of-Racing-May-2016.pdf.

[12] Horse Racing License Act, supra note 3 at s.7(1).

[13] License Appeal Tribunal Act, S.O. 1999, c. 12, Sched. G at s.2(1).

[14] Horse Racing License Act, supra note 3 at s.8(1).

[15] Fuller (Re), 2017 CanLII 57443 (ON HRAP). Mr. Fuller administered a Class III drug (Hydroxy Metoprolo to the racehorse.

[16] ibid, “Saintpaddysboy” is ineligible to race from August 17, 2017 until October 3, 2017; Mr. Fuller was suspended from August 17, 2017 until September 19, 2017.

[17] Provincial Animal Welfare Act, 2008, S.O. 2008, c. 16 – Bill 50 at Preamble; this Act amended the OSPCAA.

[18] Criminal Code, supra note 5 at s.445.1.

[19] S.C. 2015, c.34.

[20] Criminal Code, supra note 5 at s.445.01(2).

[21] Ontario Society for the Prevention of Animal Cruelty Act, supra note 4 at s.3.

[22] ibid at s.11.2(1).

[23] ibid at s.11.2(5).

[24] ibid at s.17(1).

[25] ibid at s.16(1).

[26] http://www.slasto.gov.on.ca/en/Pages/Animal%20Care%20Review%20Board%20Pages/ACRB-Mission-Mandate.aspx.

[27] http://www.ctvnews.ca/business/horse-meat-reaction-blown-out-of-proportion-toronto-chef-1.3411411

A Sentient Status For Animals: Rethinking Pet Custody And Ownership

A Sentient Status For Animals: Rethinking Pet Custody And Ownership

“In a more perfect world there would be special laws recognizing pets as living, feeling creatures  with rights to be looked after by those who best meet their needs or interests, and  there would be specialized accessible courts to determine the ‘best interest of the dog,’ as there are for children in the family courts…In this less perfect world, there is the small  claims court operating on principles of property law, treating pets as ‘chattels’ not very  different –legally speaking—from the family car.”1

In the recent Halifax case of Kemp v. Osmond, a small claims court adjudicator, Eric Slone, considered a dog’s choice to stay with her owner, in his ruling which awarded custody of a nine-year-old, mixed-breed dog named Lily. The parties were a couple, Sally Kemp and Laurie Osmond, who owned two dogs. Lily, the dog at issue in this case, was purchased by Kemp, prior to  the couple eventually moving in together. When the couple’s relationship ended, they traded Lily back and forth for years. During this time, issues arose about how to handle the health care of Lily, and they increasingly argued about custody. One day, Osmond, tried to pick up Lily  from Kemp’s house and an argument ensued. Osmond called Lily to his car, she eagerly obliged, he drove away and refused to return her. This action is what led to this case coming before the small claims court.

Current Canadian law regards animals as property, so Slone had to decide who had the stronger claim to ownership. Some factors that a  Court considers when determining the ownership of a dog is: Who purchased the dog? Under whose name is the dog registered? Who trained the dog? Who paid for all the expenses (e.g. vet, food, toys). At first, it may seem as if Kemp  had a stronger claim because she purchased Lily prior to them living together. But as Slone explains in his decision, the ownership changed over time. Over the years, Osmond paid thousands of dollars in veterinary bills for Lily, took responsibility of her nutritional needs and became her main caretaker. It was also the view of Slone that Kemp was careless in leaving Lily outside and unleashed on two known occasions. Osmond called Lily to his car at two different times and she went. This eroded Kemp’s claim of ownership because it showed a disconnected bond and lack of responsibility for Lily. In the end, Osmond had the better right to ownership. Slone attributes this final ruling as being made by Lily herself, when she jumped into his car twice. Slone made a point to focus on the nature of a human’s relationship with their pet and contemplated the interests of Lily. This was a fascinating analysis because it was a novel attempt at recognizing pets more as objects of moral concern, rather than seeing them just as their legal classification of property. The decision of who gets custody of a pet should not be discerned by who has a stronger claim to ownership, but rather the best interest of the animal.

Slone mentions that he has ruled on other similar cases and is once again, forced to rule on who gets custody of a pet. This is because there is nowhere else for people to take these disputes. Slone then considers the usefulness of a hypothetical specialized accessible court, to determine the best interest of pets. However, the logistics and details of such courts are not explained. Although access to courts would help shift the focus of the laws from ownership to that of the best interest of the animal, changes in the laws themselves would be a better place to start.

In Canada, pets are considered personal property. The provinces have jurisdiction over animals as part of their power to regulate property laws. Meanwhile, the federal government uses its criminal law power to create offences in the Criminal Code, which categorizes cruelty to animals as “crimes against property.” Although the statutory offences of cruelty to animals have remained stagnant for over a century, their enactment conceded that animals deserve some  sort of legal protection. The controversial question nowadays is what is their appropriate legal status under the law? Arguably, the ability to protect the best interest of animals will continue to be hindered, so long as they are property. This is because the property status of animals will always rise above their welfare, because there is a presumption in the law that people are superior to animals and entitled to use them as a means to their ends.

Unfortunately, animals cannot be both liberated and owned at the same time. There needs to be some middle ground where society can acknowledge that animals are not morally equivalent to tables and chairs, but also not grant them something as supreme as human rights. This  could be a new class of nonhuman rights where animals have more rights than they currently do, but legally are considered something like children. People who choose to have pets  would have a legal responsibility to not mistreat them and to provide a basic level of care. In the same vein as the ruling in Kemp v. Osmond, society needs to make a better determination as to what is our appropriate relationship to pets and all animals. The treatment of  animals must be written in the language of rights, with them being recognized as beings of moral concern with the right to life, protection from injury and suffering and the right to live according to their nature. In other words, animals must be legally recognized as sentient. Merriam-Webster defines the term “sentient” as, “responsive to or conscious of sense impressions;  aware; finely sensitive in perception or feeling.”2

The classification of animals as sentient already exists in some jurisdictions in our country and around the world. In these jurisdictions, there has been a shift from ownership of animals as property, to humans standing in a role of guardian. San Francisco has already declared that pets are not property and that the people with whom they live are not their owners, but their guardians, and are not entitled to dispose of them as they see fit.3 Alaska has also looked to the best interest of pets involved in divorce matters in the newly amended, Amendment HB 147.4 This law is an embodiment of Slone’s vision for the law to move away from placing pets with whomever is deemed to be the more rightful legal owner. The European Union has also reached an agreement that all animals are to be protected and respected as sentient.5

In Canada, Quebec passed Bill 54 which also defines animals as sentient.6 This legislation comes from a province with some of the most flexible animal welfare laws and has long been considered the ‘puppy-mill capital’ of Canada. In contrast, Ontario has some of the strongest animal welfare laws in the country (which regrettably, still is not saying much). This brings hope that our province will follow suit and adopt views like these jurisdictions and Slone, and enact laws affording animals the basic right to be considered sentient. A sentient status will be a move in the right direction away from Courts deciding legal ownership, but rather the best interest of the animal.

[1] Kemp v. Osmond, 2017 NSSM 25 at para 3, 4

[2] Merriam-Webster, definition of “sentient,” accessed from: https://www.merriam-webster.com/dictionary/sentient

[3] National Post, The Sentient Debate: Animal Legal Rights At Centre Of Recent Court Cases, accessed from: http://nationalpost.com/news/canada/the-sentient-debate-animal-legal-rights-at-centre-of-recent-court-cases/wcm/c7963bb3-b78e-4dc7-8ce8-6d580cb748b2

[4] Animal Legal Defense Fund, Alaska Legislature Becomes First to Require Consideration of Animals’ Interests in Custody Cases, accessed from: http://aldf.org/blog/alaska-legislature-becomes-first-to-require-consideration-of-animals-interests-in-custody-cases

[5] European Commission, Animal Welfare, accessed from:
https://ec.europa.eu/food/animals/welfare_en

[6] Assemblee Nationale du Quebec, Bill 54: An Act to improve the legal situation of animals, accessed from: http://www.assnat.qc.ca/en/travaux-parlementaires/projets-loi/projet-loi-54-41-1.html

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