Ochoa v. Toronto (City)
Ontario Superior Court of Justice – Divisional Court
Date: 2006-09-22
Counsel: Terrance Green, for the applicant; Leslie Mendelson and Kirsten Franz, for the respondent; Michael Doi, for the intervener, the Attorney General of Ontario.
(DV-70-06)
Background
[1] By the Court: In August 2005, the highly publicized "pit bull legislation" came into force in Ontario. The legislation prohibits future pit bull ownership in Ontario and imposes strict requirements on existing pit bulls including a requirement that all pit bulls be sterilized. "Pit bull" is defined in s. 1(1) of the Dog Owner's Liability Act, R.S.O. 1990, c. D-16, as amended (the "DOLA"). Where an existing pit bull does not meet the requirements, the legislation requires a pound operator to exercise certain options which are set out in s. 20(7.4) of the Animals for Research Act, R.S.O. 1990 (the "ARA"). The options are:
"1. Destroy the dog
Transfer the dog to a person who is a resident outside Ontario in a jurisdiction in which ownership and possession of the pit bull is lawful, where the person is acquiring the dog, in good faith, in order that it be used as a pet or in hunting or working purposes
Transfer the dog in accordance with clause 20(6)(c)
Transfer the dog in accordance with the permission to transfer restricted pit bulls given by section 9 of the Dog Owner's Liability Act."
[2] The applicant, Jimmy Ochoa ("Mr. Ochoa") seeks judicial review of a decision by an animal services official, Mary Lou Leiher ("Ms. Leiher") employed at the City of Toronto. This decision was communicated to Mr. Ochoa in a letter delivered to him on January 17, 2006. The letter was signed by Ms. Leiher. She is the Supervisor of Animal Services for the Central Region and is the manager of the shelter to which the dog was brought. As such, she is the operator of a pound under the ARA.
[3] Ms. Leiher informed Mr. Ochoa of her obligations pursuant to the legislation. She informed Mr. Ochoa that Toronto Animal Services Records show:
"1. The dog is a Pit Bull Terrier type dog
The dog was not sterilized
The dog had been at large allowed to stray in the City of Toronto on September 23, 2004. At that time, Toronto Animal Services attended a your (Mr. Ochoa's) address
On and since December 30, 2005, your (Mr. Ochoa's) dog displayed extremely aggressive behaviour to police and to staff of Toronto Animal Services while in their custody. The behaviour fits the description of 'menacing' as outlined in the DOLA."
[4] Ms. Leiher stated that she believed that the return of the dog would pose a menace to the safety of persons or domestic animals. She informed Mr. Ochoa that on the basis of all of these considerations, her decision was that Toronto Animal Services would exercise its authority under s. 20(7.4) of the ARA on January 31, 2006, being to pursue one of the options referred to in s. 20(7.4) of the ARA as outlined in paragraph [1] of these reasons. She further advised that if he wished to challenge the City's authority under the ARA, that he should seek legal advice and any legal proceedings should be served no later than January 31, 2006.
[5] At this point, we mention several points which influence our deliberations in this application:
Subsequent to these issues passing into the hands of counsel, Mr. Ochoa took the position, as he does before this court, that the dog is not a pit bull. Mr. Ochoa asserts that the dog is of the breed, Dogo Argentino. Mr. Ochoa takes this position notwithstanding the undisputed evidence that when he applied for a license for the dog in 2002, he disclosed that the dog was a pit bull. Records at the City of Toronto show that Mr. Ochoa was known to have owned pit bulls in the past.
Mr. Ochoa was incarcerated at the time of the seizure of the dog, on December 30, 2005. Mr. Ochoa was then at the City of Toronto Jail. The letter was hand delivered to him January 17, 2006.
Mr. Ochoa has not sworn an affidavit in this application. There is no evidence from him that is properly before this court.
The Toronto Municipal Code, Chapter 349 provides in Chapter 1 for the temporary keeping of an animal to a maximum of five days, as a result of an eviction, incarceration, medical or fire emergency or any other situation that the Medical Officer of Health deems appropriate. The dog remains in the protective custody of Toronto Animal Services.
The evidentiary record includes affidavits and transcripts of cross-examination of persons with expertise on pit bulls that leads us to the conclusion that the dog was a pit bull. It was admitted that the dog was not sterilized. It was appropriate for Ms. Leiher to conclude that the dog was subject to the ARA. In summary, in our view it was appropriate for her to conclude that the dog was a 'pit bull' within the meaning of the DOLA.
Legal Issues
[6] It is against this background that the legal issues in this application are determined by this court. Mr. Ochoa has raised allegations of bias and of procedural unfairness. He also challenged the substantive decision that this dog is a "pit bull", as defined in the DOLA. The allegations of bias focus on a number of issues which do not survive the scrutiny of the record. These allegations are that Ms. Leiher failed to hear and consider Mr. Ochoa's representations and that the City (and/or its officials) resisted his efforts to have the dog assessed as to breed and temperament. Procedural unfairness is alleged on the basis that the City failed to notify Mr. Ochoa of the location of his dog and that he was not given an opportunity to be heard.
Standard of Review
[7] We consider that there is no basis for the submission that the standard of review is one of correctness. We say that it is one of reasonableness. We say that it was reasonable for the City to decide that the dog was a pit bull that had not been sterilized. We do not accept Mr. Ochoa's allegation that he was not given the opportunity to be heard. The evidentiary record is to the contrary.
[8] On the issue of alleged bias, the record discloses no evidence of bias. On the contrary, the record displays that Ms. Leiher exercised detailed caution when she informed Mr. Ochoa of his options in her letter delivered to him on January 17, 2006.
[9] We reject the submissions that Ms. Leiher had any knowledge of Mr. Ochoa's suspected criminal activity which influenced her decision. Further, Mr. Ochoa was given the opportunity, which he has taken, to have full assessment of the dog. We agree with the submissions of Ms. Mendelson and Ms. Franz that the record displays no procedural defects which resulted in prejudice to Mr. Ochoa. Ms. Leiher followed the statutory scheme established by the legislation. There is no evidence that she failed to fairly consider the expert's assessment obtained by Mr. Ochoa. Ms. Leiher had significant expertise to make the decisions that the dog is a pit bull and that it is a menace. In these circumstances, this court defers to her expertise and experience, all of which is amply demonstrated by the evidentiary record.
[10] Ms. Leiher's decision, combined with its unchallenged evidentiary and underpinnings, leads us to the conclusion that her decision must stand. Her decision was not unreasonable. We agree with the submission that the legislation was specifically designed to put the decision making power into the hands of persons who are best equipped to make the specialized determination as to whether a dog is a pit bull and whether it is in compliance with the legislation. There is a significant public safety purpose which underlies the legislation and which requires the specialized risk assessment contemplated by the legislation.
[11] We also have considered the expertise of persons such as Ms. Leiher and the veterinarian who agreed with her conclusions. A high degree of deference should be afforded to her decision by this court. It is for these reasons that we have analyzed all of the issues raised in this application on the basis that the standard of review is reasonableness.
Disposition
[12] We conclude that the respondent's decision that this dog is a pit bull is reasonable. Further, we are satisfied that Mr. Leiher did not exceed her jurisdiction and accordingly the correctness standard of review is not applicable.
Costs
[13] The parties are invited to make written submissions on costs which are to be addressed to Ms. Sessions, Registrar of this court within 30 days of the release of these reasons.
Application dismissed.