Yeung v. City of Toronto

577/07

20080208

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT - TORONTO

KITELEY, CUMMING AND SHAW J.J.

BETWEEN: )

Sheila Yeung and Angela Feng ) Terrance Green, solicitor Applicants ) for the Applicants

AND )

City of Toronto ) Leslie Mendelson and Respondent ) Kirsten Franz, solicitors ) for the Respondent

) HEARD: February 5, 2008

ENDORSEMENT

BY THE COURT:

1. On October 2, 2007, Toronto Animal Services Manager Mary Lou Leiher made a decision pursuant to the Animals for Research Act[^1] (ARA) that a dog named "Munchie" would be destroyed. After giving an opportunity to respond and receiving written submissions from a lawyer on behalf of the applicants (the owner and the person who was in control of Munchie at the critical times), Ms. Leiher made a second decision dated October 10, 2007 confirming her initial decision. The applicants seek a judicial review of those decisions.

Standard of Review:

2. We agree with counsel for the respondent that the standard of review applicable to a pound operator's decision under the ARA is one of reasonableness[^2].

Issues and Analysis:

3. The Notice of Application and the factum filed on behalf of the applicants raised issues about procedural fairness and about compliance with the Dog Owners Liability Act[^3] ("DOLA"). However, the only issue before us was whether Munchie is a "restricted pit bull" within the meaning of DOLA.

4. Section 1 of DOLA defines "pit bull" to include:

(a) a pit bull terrier,

(b) a Staffordshire bull terrier,

(c) an American Staffordshire terrier,

(d) an American pit bull terrier,

(e) a dog that has an appearance and physical characteristics that are substantially similar to those of dogs referred to in any of clauses (a) to (d).

5. Section 2 of DOLA provides that in determining whether a dog is a pit bull within the meaning of the Act, a court may have regard to the breed standards for the three breeds named above established by the Canadian Kennel Club, the United Kennel Club, the American Kennel Club or the American Dog Breeders Association.

6. Section 7(1) provides that a dog is a "restricted pit bull" if it was owned on the day the amendment to the legislation came into effect.

7. Section 5.1 requires owners of dogs (of all breeds) to exercise reasonable precautions to prevent the dog from biting or attacking a person or domestic animal or behaving in a manner that poses a menace to the safety of persons or domestic animals.

8. By all accounts, on September 20, 2007 Munchie escaped from Ms. Yeung's backyard and attacked another dog. Based on the witness statement of the alleged victim, Munchie also attacked the owner of the other dog. Ms. Yeung takes issue with the involvement of the alleged victim. But the escape and the attack on the other dog are not contradicted.

9. As a result of a call from the female owner of the victim dog to Toronto Animal Services (TAS), an Animal Care and Control Officer (ACCO) attended and spoke with Ms. Yeung and others. Because Munchie had bitten the other dog and apparently had bitten the male owner, the ACCO took Munchie into custody. The investigation continued.

10. In a letter dated October 2, 2007, Ms. Leiher, on behalf of Toronto Animal Services informed Ms. Yeung that in her opinion, Munchie was a restricted pit bull, that the owner had allowed the dog to be out of control, and that the dog had attacked and bitten a person and that person's dog. Ms. Leiher informed Ms. Yeung that she had an opportunity to satisfy TAS that the dog was not a pit bull or was a restricted pit bull and that she had complied with DOLA and the Regulations. Failing being satisfied as to those matters, Ms. Leiher indicated an intention to destroy the dog.

11. Ms. Yeung and Ms. Feng received that letter on October 2nd when they attended at the TAS office.

12. In a letter dated October 10, 2007 a lawyer for Ms. Yeung and Ms. Feng challenged the information on which Ms. Leiher had relied with respect to Munchie having attacked a dog or a person and asserted that Ms. Yeung had exercised reasonable precautions with respect to leashing and muzzling and fencing.

13. In a letter dated October 10, 2007, Ms. Leiher acknowledged that correspondence, confirmed her belief that Munchie was a restricted pit bull, refused to release Munchie because she considered that the dog was a menace to the safety of persons and animals, and reiterated that Ms. Yeung had failed to comply with the Regulation. Ms. Leiher indicated her intention to destroy the dog on October 24, 2007.

14. Ms. Yeung and Ms. Feng commenced this application and their counsel obtained an interim injunction prohibiting the destruction of the dog.

15. The thrust of Mr. Green's submissions was that Munchie is not a restricted pit bull. He had served a report authored by Ms. MacBeth, a Canadian Kennel Club licensed confirmation judge. During submissions, he offered a brief of documents that was described as a supplemental book of authorities. Ms. Mendelson observed that it contained material that was not appropriately described as authorities. She objected to the Court receiving it. Mr. Green refined his request and asked that the Court receive the section on the qualifications of a licensed confirmation judge. That document had been referred to by Ms. MacBeth in her report but had not been attached. In view of the understandable objection by Ms. Mendelson, we declined to accept the material.

16. Suffice it to say that in her report, Ms. MacBeth opined that Munchie is not a pit bull. Mr. Green urged us to accept Ms. MacBeth's report and challenged the qualifications of Ms. Leiher to make an assessment of Munchie. He referred to passages in the cross-examination of Ms. Leiher where she had been questioned about various characteristics of pit bulls.

17. Counsel for the applicants argued the application on the basis that Munchie was not a pit bull and therefore the legislation did not apply. We do not agree that that is the appropriate approach.

18. The issue is whether the decisions made by Ms. Leiher in her letters dated October 2 and October 10, 2007 were reasonable. We agree that her decision that Munchie was a restricted pit bull was reasonable for these reasons. First, there was an expired dog licence on file for Munchie that listed the owner as Ms. Feng's brother and that identified Munchie as a pit bull. We acknowledge that the applicants assert that that identification was suggested by the staff at the TAS at the time of licensing but there is no affidavit or statement from the brother to support that assertion. It was reasonable for Ms. Leiher to rely on the licence.

19. Second, in the letter from the lawyer dated October 10th, Ms. Leiher received a sterilization certificate and a vaccination certificate in both of which the veterinarian had indicated that Munchie was a pit bull. Third, the notes of the ACCO indicate that Ms. Yeung told the ACCO on September 20, 2007 that Munchie was a pit bull-lab cross. Fourth, in the October 10th letter from the lawyer, Munchie was described as a restricted pit bull.

20. Fifth, based on her comparison of Munchie to the breed standard of the United Kennel Club for an American pit bull terrier, Ms. Leiher concluded that he was a pit bull because he has an appearance and physical characteristics that are substantially similar to an American pit bull terrier.

21. As mentioned above, the applicants obtained an affidavit from Madge Margaret (Mike) MacBeth who opined that Munchie did not display the characteristics of the banned breeds. She asserted that Munchie is a mongrel, with predominantly Labrador Retriever characteristics. Counsel for the applicants would have us accept this opinion. While the issue before us is not whether Munchie is a restricted pit bull but whether Ms. Leiher's decisions were reasonable, considerable focus was placed on this issue so we respond, albeit briefly.

22. We do not accept that the opinion of Ms. MacBeth undermines the reasonableness of the decisions made by the Supervisor of Animal Services for the South Region of Toronto. First, we consider it unfortunate and unprofessional that, in expressing her opinion, Ms. MacBeth quoted from the American Pit Bull Terrier standard but omitted an important passage that did not support her opinion.

23. Second, in her cross-examination, she confirmed that she has been asked to examine eight dogs at the request of various lawyers for the purpose of challenging the dogs' designations as pit bulls under DOLA. In all of those cases, Ms. MacBeth has opined that they are not pit bulls. That consistency suggests that her evidence is questionable. Indeed, in Exhibit A to her affidavit, where she outlined her qualifications as an international all-breed dog show judge, she also described how she and other CKC judges had withdrawn from participating in training workshops for Animal Shelter Administrators after the legislation was passed because of concerns that she identified. The Exhibit notes that the teaching manual (to which she objected) had "led to many dogs erroneously accused of being 'pit bulls' ". The consistency of her record as an expert and her criticism of the training materials raise the prospect of bias against the identification of a dog as a pit bull.

24. Third, Ms. Leiher has extensive expertise with mongrel dogs, in particular pit bulls. Her evidence of her assessment of Munchie is compelling.

25. Munchie was born before DOLA was amended. He is a "restricted pit bull" in accordance with s. 7(1) of DOLA. A person may own a restricted pit bull but the owner must ensure compliance with the requirements of DOLA and the Regulations. Regulation 157/05 requires the owner to ensure that the pit bull is at all times equipped with a muzzle and secured by a leash. If the pit bull is within an enclosed property, those conditions need not be met. An "enclosed property" is one that is "enclosed in a way that can be relied on to prevent the pit bull from breaking out of the property".

26. The respondent takes the position that the applicants failed to comply with the Regulation. The photographs of the fence in the back yard demonstrate that the fence could not be relied on to prevent Munchie from escaping. Ms. Leiher had a sufficient basis for concluding that Munchie had attacked another dog and the male owner and that there had been a report of an incident two weeks earlier. The record supports the opinion of Ms. Leiher that the owner had failed to comply with the Act and the Regulation and that Munchie was a menace.

27. The provisions under which Ms. Leiher exercised her authority are in section 20(7.2) to (7.4) of the ARA which provides that the operator of a pound who believes it has possession of a pit bull, shall not return the pit bull but shall take one of four actions: destroy the dog; transfer the dog to a person who is resident outside Ontario; sell the dog to a registered research facility; or transfer the dog in accordance with section 9 of DOLA. Ms. Leiher exercised the authority she had when she made the decision that Munchie should be destroyed.

28. We are not persuaded that that decision was unreasonable.

29. Counsel for the respondent brought a bill of costs. On a partial indemnity basis, it totalled $22,827.50 in fees and $1,910.08 in disbursements including transcripts of cross-examinations in the amount of $1,376.03. Mr. Green had not had an opportunity to review it and could not comment without access to the dockets. Mr. Green took the position that if the application was successful, he would ask for costs in the amount of $15,000.00 including disbursements for experts and for transcripts plus travel costs since his office is in Ottawa. Ms. Mendelson objected to travel costs on the basis that they were not allowed by the tariff. If the applicants were successful, Ms. Mendelson did not object to costs in the amount of $15,000.00.

30. A considerable effort was made by counsel in this application. Ms. Mendelson pointed out that she and Ms. Franz had divided the responsibilities so that they did not both perform the same work.

31. Ms. Mendelson pointed out that in the Ochoa decision on costs[^4] the Divisional Court had awarded fees in the amount of $35,000.00 and disbursements of $1,679.75 plus GST. We note that the dockets for the Respondent were approximately $92,000.00 and Ms. Mendelson reduced the docketed time to approximately 1/3.

32. Ochoa was the first such case after the amendments to the legislation. As counsel gain more experience with the issues in these cases, the time and effort will be reduced as is apparent here where the dockets total almost $23,000.00.

33. Docketed time is not the only factor in fixing costs. Reasonableness and the expectations of the parties are equally as important. We agree with Mr. Green that a reasonable and fair fee for the successful respondent is $15,000.00 including disbursements and GST.

ORDER TO GO AS FOLLOWS:

The application for judicial review is dismissed. The applicants shall pay the costs of the respondent fixed at $15,000.00.

DATED AT TORONTO THIS 8th DAY OF FEBRUARY, 2008

__________________________

Kiteley J.

__________________________

Cumming J.

_________________________

Shaw J.

[^1]: R.S.O. 1990, c. A.22 [^2]: Ochoa v. Toronto (City) [2006] O.J. No. 4208 [^3]: R.S.O. 1990, Chapter D. 16 and Ontario Regulation 157/05 [^4]: [2007] O.J. No. 419