op ONPOINT LEGAL RESEARCH TAK E F IVE Prepare to Win. BRITISH COLUMBIA EDITION September 2019 2019 CanLIIDocs 2610 INSIDE THIS ISSUE: Featured Cases: P2 Civil Practice and Procedure; Property; Public; Torts; Municipal ~ With Counsel Comments P7 Constitutional; Family; Human Rights ~ With Counsel Comments P13 Civil Practice and Procedure; Class and Representative Proceedings; Representative or Class Proceedings under Class Proceedings Legislation; Orders, Awards and Related Procedures; Appeals P19 Alternative Dispute Resolution; Appeal from Arbitration Awards; Question of Law P22 Civil Practice and Procedure; Family; Property 604.879.4280 | [email protected] Santics v. Vancouver (City) Animal Control Officer, 2019 BCCA 294 Areas of Law: Civil Practice and Procedure; Property; Public; Torts; Municipal ~The BC Provincial Court does not have the power under the “dangerous dog” provisions of the Vancouver Charter or identical provisions in the Community Charter to make conditional orders once a dog has been found to be a dangerous dog~ CLICK HERE TO ACCESS THE JUDGMENT he Appellant, Susan Santics, owned a four-year old Australian cattle dog Tthat seriously injured a stranger in an unprovoked attack in a public park in the City of Vancouver. A Provincial Court judge granted the Respondent City of Vancouver’s application for a declaration that the dog was a “dangerous 2019 CanLIIDocs 2610 dog” under s. 324.1 of the Vancouver Charter, S.B.C. 1953, c. 55, and, having concluded that no reasonable alternatives were presented for the dog’s rehabilitation, held there was no choice but to order that the dog be destroyed. The destruction order was stayed to allow Ms. Santics time to appeal. A judge of the BC Supreme Court dismissed her appeal. Ms. Santics then brought a motion for leave to appeal the destruction order and for a stay of the order pending determination of the appeal to the Court of Appeal. The Court of Appeal granted Ms. Santics’ application and also granted leave to intervene to a number of intervenors. LITIGATING OUTSIDE THE BOX. Suite 300 – 1168 Hamilton Street, Vancouver, BC V6B 2S2 T 604 687 7007 TVSBARRISTERS.COM 2 OnPoint Legal Research | Take Five PB 604.879.4280 | [email protected] Santics v. Vancouver (City) Animal Control Officer, (cont.) APPELLATE DECISION he appeal was dismissed. The Court observed it was its first opportunity to Tsubstantively address the dangerous dog provisions of the Vancouver Charter and the identical provisions in the Community Charter, S.B.C. 2003, c. 26. The issues on appeal were 1) whether s. 324.1 of the Vancouver Charter confers jurisdiction on the Provincial Court to make conditional orders falling short of the destruction of a dangerous dog. If so 2) the legal threshold for ordering the destruction of a dog that satisfies the statutory definition of a “dangerous dog” 2019 CanLIIDocs 2610 under s. 324.1 of the Vancouver Charter 3) who bears the onus of establishing the presence or absence of viable alternative measures to the destruction of a dog 3) what principles guide a Provincial Court judge’s discretion in crafting a remedy short of destruction 4) whether the Provincial Court has the authority to not order destruction where the dog in question satisfies the statutory definition of “dangerous dog”. The Court held that so far as Ms. Santics’ dog was concerned, the chambers judge committed no reviewable error in dismissing the appeal from the Provincial Court’s order that the dog be destroyed. However, contrary to the reasoning in Re Capital Regional District, 2006 BCSC 1282, which had been the leading authority on the Provincial Court’s power to make conditional orders, once the Provincial Court has found that a dog is September 2019 3 PB 604.879.4280 | [email protected] Santics v. Vancouver (City) Animal Control Officer, (cont.) likely to kill or seriously injure within the meaning of the Vancouver Charter or the Community Charter, it does not have the jurisdiction to make orders – conditional or otherwise – save for that the dog in question be destroyed. However, there may be circumstances in which a dog that satisfies the statutory definition of “dangerous dog” nonetheless does not pose an unacceptable risk to the public, in which event the Provincial Court must dismiss the destruction application and release the dog to its owner. While there may well be good policy reasons for recognizing conditional orders in certain situations, as legislation in 2019 CanLIIDocs 2610 some Canadian provinces has done, it is for the Legislature and not the Court to determine the framework that ought to apply in British Columbia. Animal control officers continue to have the discretion to craft particular remedies with the dog’s owner rather than applying for a destruction order, including entering into agreements with the owner for rehabilitation plans, neutering, adoption and the like. The animal control officer’s application for a destruction order is usually a matter of last resort after other less draconian measures have been attempted and, in the opinion of that officer, been unsuccessful. 4 OnPoint Legal Research | Take Five PB 604.879.4280 | [email protected] COUNSEL COMMENTS Santics v. Vancouver (City) Animal Control Officer, 2019 BCCA 294 Counsel Comments provided by Victoria Shroff, Counsel for the Appellant to demonstrate to the court, with clear acted as co-counsel for the 2019 CanLIIDocs 2610 appellant with David Wu evidence, that what they are wanting to of Arvay Finlay take is absolutely necessary. “Iand Amber Prince of Atira The bar the government must Women’s Resource Society meet, should understandably on a high profile case Santics be high.” We argued that the v. Vancouver (City) Animal threshold when the destruction Control Officer, that will of a sentient being, a dog, is at likely go down historically as stake, the bar should be very one of the important animal high. We argued that there law cases out of B.C. and should be no doubt that a dog specifically about “dangerous Victoria Shroff who is ordered to be destroyed dogs”, ever heard at B.C.’s should be beyond hope of highest court. The issue on appeal was rehabilitation, based on expert evidence the legal test applicable to destruction such as that tendered by an expert orders for dangerous dog applications veterinarian. As Prince said, “ I’d like to in B.C. The case is about Access to think our views on animals in Canada Justice for Animals and the full power have evolved to place where we don’t of the State against Punky the young, just kill dogs unless the State provides small Australian cattle dog at the heart sufficient evidence that a dog is beyond of this case. Punky has been on dog redemption.” death row for over 2 years for biting a person in a Vancouver off-leash park. Susan Santics, our client, was self Punky is Canada’s every dog. Wu represented at trial. Punky was not summed up our case by saying that successful at trial nor on his appeals, whenever the State wants to take away however the August 2019 BC Court of property, “...it is on the government Appeal decision has ramifications for dog September 2019 5 PB 604.879.4280 | [email protected] COUNSEL COMMENTS Santics v. Vancouver (City) Animal Control Officer, (cont.) owners not just in BC, but nationally. I’ve been practicing animal law for 20 years in Vancouver at Shroff & Associates and I also teach animal law at UBC’s Allard School of Law (with Prince) and I have not seen a case like this one. Since losing the appeal on August 9, 2019 we applied for a stay of ‘execution’ while we seek leave to appeal to the Supreme Court of Canada. Our application was opposed by the Respondent. We argued in Court and ultimately, prevailed on the application. Our client was granted 2019 CanLIIDocs 2610 a stay on August 23, 2019, the very day that Punky was going to be destroyed. Our team prepared the written argument and I spoke to the application on August 22, 2019 in the BC Court of Appeal. I stated that there’s an arguable issue of law which would qualify for leave to appeal to the SCC. One of the points we argued was that destruction of a dog is completely irreversible. I read in powerful quotes from dissenting justices from other Appeal Courts throughout Canada to demonstrate that animals matter, including Justice Hoeg’s memorable statement in Baker v. Harmina, 2018 NLCA 15, “But dogs are more than just animate. People form strong emotional relationships with their dogs and it cannot be seriously argued otherwise.” Destruction of a dog should only be done in highly limited circumstances and never in the absence of a cogent factual and evidentiary matrix firmly underlying the case. The rights of animals, animal welfare and social justice are at the center of this important animal law case. The Santics case has garnered a ton of media attention coast to coast for the reason that animals matter beyond simple property rights. I posit that we are in a transformed legal environment where animals matter to Canadians. The fact that Punky’s animal law case has come so far through the legal system and is now taking a run at the Supreme Court of Canada, demonstrates that people are willing to fight for the lives of their dogs.” 6 OnPoint Legal Research | Take Five PB 604.879.4280 | [email protected] A.B. v. C.D., 2019 BCCA 297 Areas of Law: Constitutional; Family; Human Rights ~The Attorney General of British Columbia has the right under s. 204 of the Family Law Act to be added as a party in an appeal under the Family Law Act even where he has not participated in the trial~ CLICK HERE TO ACCESS THE JUDGMENT he Respondent A.B., a On the question of A.B.’s informed Ttransgender youth, brought a consent under s.