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Simon Shields, LLB

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Simon Shields,
LLB

Barrister and Solicitor
(Retired)
LSUC #37308N


simonshields@isp.com

Legal Writing and Research


Feral Cats in Ontario


This is the text of a talk I gave at the Feral Cat
Conference at North York Civic Centre on 22 November
2008.

______________________________________


1. Overview

This presentation is devoted to the legal status of feral cats in Ontario - and in particular to legal issues touching on their caregivers. By ferals cats I mean once-domestic housecats 'gone wild', and their wild-born offspring. I distinguish them from strays in that they either lack owners, or lack any reasonable prospect of being reunited with their owners - for whatever reason.

Two important themes to keep in mind during this discussion are firstly, that the legal status of feral cats is quite ill-defined, and must necessarily be developed and inferred from legal first principles. The law tends to focus on either 'domestic animals' or 'wild animals', two categories which ferals straddle. There is next to no case law on this issue that I am aware of in Ontario.

Secondly, legal 'rights' are only as good as remedies available. Lawyers are constantly having to explain to their clients that what the law says is a 'right' on paper may often be quite unattainable in practice for procedural or financial reasons. The struggle to have legal rights asserted is largely, if not primarily, procedural in nature rather than a matter of good evidence and being 'on the side of the angels'.

Animal rights lawyers will also tell you that another difficult aspect of asserting animal rights is often the need for legal 'standing' to advance or defend the animal 'right'. Our law does not recognize the right of an animal - even through a human representative - to commence lawsuits or lay charges. Part of my presentation today is to advocate for a workable legal model to attain such standing on a practical basis.


Essential preliminary reading for this essay is Ch.9 ["Cat Law"] of the Dog and Cat Control Law (Ontario) Legal Guide.

Then I will address the following two topics in turn:
  • the cat/human legal relationship

  • feral cat rights and caregiver rights and liabilities

2. The Cat/Human Legal Relationship

(a) Overview

Generally, humans can have any of four legal relationships with cats: ownership, custodians, strangers and fiduciaries.

'Ownership' is usually - but not always as I will explain below - a fairly straightforward concept, and applies to most of us with companion cats at home.

'Custodians' turns on the legal concept of possession: ie. you might board my cat while I'm away on vacation - and thus be it's 'custodian', but I remain its owner. A pound holding a cat, is - at least for the duration of the pound redemption period - a "custodian" of the cat. I note that the Toronto Animal by-law purports to assign ownership of any impounded cat to the City after the redemption period has expired, a claim which may be dubious as a matter of law.

'Strangers' means essentially no legal relationship, and it is into this legal 'non-'relationship that most humans fall with respect to feral cats.

'Fiduciaries' is a legal concept drawn from trust law that many of you will be familiar with as a legal term, some if not almost all of you will have had practical experience with it if you have ever acted as executor to a will, trustee under a trust, held a power of attorney - or even raised a child for that matter. A 'fiduciary' is one who owes a special, heightened duty of care to the 'beneficiary' of 'trust'. It is in this category that I place most cat caregivers.

If you read the chapter on "Cat Law" you have already heard about some of the implications of the different legal relationships that humans can have with cats. Owners and custodians have duties of providing basic care and sustenance to their cats - but strangers don't. Owners may redeem cats from pounds, while strangers - and perhaps even fiduciaries - may not.

(b) 'Finder/Keeper' Ownership

"Finders and Keepers" is a relevant side issue on the status of "owner".

Typically, cat 'ownership' is held and transferred in the same fashion that people own and transfer chattel property tables, chairs and computers. Aside from normal run-of-the-mill human property disputes, the fact of who owns a cat is typically straightforward and uncontroversial.

However, that is not the only way one can come to own chattel property. What about that snow shovel at the end of my lane that the spring reveals, and no one claims after a few weeks? What about that box of CDs that my neighbour puts on their front step for all and sundry to pick through? And what about that bedraggled tabby kitten that's squatting beside the Don Valley bike trail one cold October day? [my own latest cat acquisition]

These examples trigger consideration of other ways in which ownership can be established under the common law: ways which can conveniently be labelled under the terms 'abandonment', 'surrender' and 'finding'.

'Finding' is a notoriously uncertain doctrine, highly dependent on the circumstances of the finding and the intention of the original owners (assuming they can be located). Occasionally 'push will come to shove' over the ownership of a found animal in a shelter situation, or where a 'new' owner has subsequently taken adoption of the so-disputed animal - but usually a cat is simply taken in and treated from that point as one's 'owned' pet.

As a practical legal matter, a de facto 'adverse possession' may take effect over the animal in Ontario after two years of formally uncontested possession by virtue of the Limitations Act [s.4]. That legislation bars the commencement of proceedings to recover such 'lost' property two years after knowledge of the loss, and (probably) knowledge of the identity of the "finder" (or subsequent possessor) has come to (or should have come to) the attention of the 'loser'. In determining ownership for these purposes, a significant practical consideration will be whether the 'loser' searched for their dog in logical places such as a local shelter or pound. Failure to do so may contribute towards an strengthened 'abandonment' defence on the part of the finder or subsequent possessor (legally an 'estoppel').

That said, the law of limitations and finders is certainly more complex that the brief discussion above, and I will not delve further into it at present.

The end result is that the ownership of 'found' animals in shelters [a term which I distinguish from "pounds"] may remain uncertain for quite some time, and usually for ALL of the time that a shelter will end up involved with the animal before it is adopted out, as is usually the case. During this time the concept of 'custodian' of the animal will almost always be much more appropriate.

In contrast to 'finding', 'surrender' is a relatively more straight-forward legal concept. It is akin to a gifting by one person to another. Many cats and dogs are 'surrendered' to shelters and pounds by owners who are giving them up for one reason or another. While it also involves property title conveyance ['vesting of ownership'], with animals it is much more similar to the assignment by one party of care responsibilities onto the other, almost a transfer of fiduciary responsibilities.

(c) Fiduciaries

The status of a 'fiduciary' is one that is highly relevant to the assertion by feral cat caregivers of legal 'rights', either their own or the 'rights' of the cat. It ties directly to the earlier point I made about the difficulty of asserting animal rights due to the lack of legal 'standing' that animals have.

A fidiciary relationship with cats can be established in two different ways, corresponding to the two main areas of trust law: these are private trusts and charitable trusts.

As to private trusts, think 'Leona Helmsely's dog'. Private testamentary trusts have been established to care for beloved pets after one passes on.

Regarding charitable trusts, Canadian law has recognized animal welfare as a legitimate charitable purpose akin to relief of poverty and the advancement of religion [Generally see Commissioners of Income Tax v Pemsel (HL, 1891); specifically see Re Smith Estate (BCCA, 1953) and Granfield Estate v Jackson (BCSC, 1999)]. This area of law is essentially the legal origin of the OSPCA in Ontario.

Aside:
There is a relevant aside on this issue in current Ontario law. Section 10 of the OSPCA Act presently outlaws animal welfare groups that are not affiliated with the OSPCA. However that provision is due to be amended out of existence under the pending Bill 50. At that time I can't see any further procedural barriers to the incorporation or establishment of Ontario-based animal welfare organizations.


3. Feral Cat Caregiver Rights and Liabilities

(a) Overview

In law, rights and liabilities are largely flip sides of the same issue. What you can 'get away with' is a typically a right, and what you can 'get in trouble for' is typically a liability.

Other than common law property rights over cats, and the statutory regimes respecting general animal welfare and small animal control law, there is no significant body of law governing feral cat caregiver rights and liabilities. It is necessary to look to each specific fact situation and assess it in its own merits, in light of general legal principles.

Here I consider the following issues in turn:
  • caregivers and property trespass

  • caregiver interference with owned cats

  • harassment of feral cats by third parties

  • feral cats and pounds
(b) Caregivers and Real Property Law

. Overview

Real property law (ie. land law) can have signficant impact on feral cat caregiving activities. The legal situation will be essentially determined by whose property disputed caregiver activities are taking place on. I will consider these each in turn.

. Own Property

Firstly, caregiving activities conducted on one's own property, assuming that they are conducted outside of your residence, are not effected by the 'pet maximum' provisions of the City's Animal by-law as this six-animal maximum only applies to animals held within "dwelling units". Further, there are no other statutes which address such activities on one's own property unless you start to keep the animals confined in outside enclosures, in which case you will have to confront the zoning issue of whether your activities constitute the running of a 'kennel'.

Just feeding feral cats, and providing 'come and go' shelters is not expressly prohibited by law. That said, such activities can theoretically attract civil liability for private nuisance and negligence by disgruntled neighbours regarding 'cats in transit' to and from your property - but barring any serious incidents such as disease transmission your liability is relatively minimal. Any such action against you is almost certain to be brought in Small Claims Court, and the quantum of damages - if any - to be minimal. On that note, you may wish to review the Isthatlegal.ca Small Claims Court Guide.

As well, if caregiving for feral cats on your own property it is important to keep in mind the earlier discussion of your legal status in relation to the cats. The Criminal Code makes it an offence for any person [s.446(1)]:
CCC s.446(1):
... being the owner or the person having the custody or control of a domestic animal or a bird or an animal or a bird wild by nature that is in captivity, abandons it in distress or wilfully neglects or fails to provide suitable and adequate food, water, shelter and care for it ...
In short, owners and custodians are under a legal duty to provide a fuller degree of care to such animals than you otherwise might as feral cat caregivers.

As noted above ['Finders/Keepers'], there is no clearcut indicator of when ownership of a formerly feral cat vests in the new 'owner'. However in my opinion the fact of confinement [aka 'exclusive possession'] is a strong indicator that a court would look to when deciding the issue. Another is past behaviour of the human, such as defence of the animal against other's possessory claims, veterinary treatment and - as well - municipal licensing.

. Other Person's Private Property

Generally it is illegal to enter into someone else's private property unless you have some legal right to do so such as: permission, a license, a lease, a warrant or such.

The Ontario Trespass to Property Act ameliorates this a bit by focussing on the concept of 'prohibited entry'. Plain examples of this are "no trespassing" or "do not enter" signs, and less well-known - the marking of property borders with 10-centimetre 'red dots on white backgrounds'. Such prohibitions will also be inferred in law where the land is fenced or under cultivation. 'Cultivation' here includes lawns, and most woodlots.

Prohibitions on entry by specific individuals into areas that are normally open to the public are achieved typically by written 'trespass notices' which are issued to the specific individuals.

In any event, if you are on someone else's property and the owner, or someone acting legitimately on their behalf, directs you to leave - you typically will have liability for trespass if you don't. There are some practical mitigations of these pure property rights, and the most relevant for feral cat activities may be one where an animal is in need of immediate care or rescue and delay would risk further harm to them. Few courts would treat you harshly in such circumstances.

Trespass can attract liability by way of both prosecution under the Provincial Offences Act (basically akin to a speeding ticket type of offence - it's NOT a criminal offence), and - less seriously - civil liability, typically with minor damage amounts only in most cases.

. Public Property

As a practical matter, the activities conducted on public property are much less likely to be problematic for feral cat caregivers. Stewards of public property typically don't get as peeved by a cat peeing in their flowerbeds as do private owners.

That said, trespass laws apply to protect public property as much as they do private property and if push comes to shove you may have to address the issue. Should such an issue ever come to a head, there are interesting and exotic Charter of Rights and Freedoms issues that can come into play. Briefly, there is an argument that activities which express or manifest one's closely-held moral beliefs and practices should be tolerated on public property, as long as they do not interfere with the intended public use.

This is a obviously a larger topic, and I will not go into it further here.

. Summary

People not experienced with the law can obsess on its purity and the social stigma attached to its violation, but in reality minor legal violations such as trespass occur on a frequent basis and are largely tolerated by property owners as a transient nuisance. The issue will typically only come to a head with private landowners who have focussed on your activities and want to use their real property rights to stop your activities. Each of these situations must be addressed on a case-by-case basis that involves practical human communication and negotiation as much as they do the law.

(c) Caregiver Interference With Owned Cats

So, how do you tell a feral cat from an 'at large' cat that might have an owner around the corner? Plainly, if you 'catch/neuter/return' a pedigree cat that the owner intended to breed, you have potential liability [under the civil tort of conversion] - and even in cases of non-pedigree cats the owners are not likely to be amused.

These situations call for the common sense that I'm sure most of you have been exercising to date. In many occasions a plainly lost housecat will be obvious by their fearful, confused behaviour. Check the cat for municipal tags, vaccination tags and try to track the owners down through that. Check them for microchips if you can do so conveniently. In short, do what you reasonably can to determine the ownership status of the cat.

Another tactic might be - if possible - to place your own prominent or ribbon on the cat asking for a callback, or posting photos of it on posts in the areas. Then if you don't hear anything in a while you can feel more comfortable about picking the cat up on another occasion. ALSO - document these efforts to protect against future liability.

Your potential liability in such situations - while usually low to begin with - will be reduced or eliminated to the extent that you act responsibly to determine the status of the cat. As well, the irresponsibility of the owner in allowing an unfixed cat to roam (both for its safety and population control) can be argued in your defence.

People always ask lawyers if they can be sued for this or that. My answer is invariably that you can be sued for anything, anytime, anywhere. The right question is what actual legal exposure do you have - and that is minimized by active, intelligent MANAGEMENT of risk. You don't have to be a lawyer to do this - just possess common sense.

(d) Harassment of Feral Cats by Third Parties

. Overview

One email I received from a feral cat caregiver set out a situation where a neighbour was harassing a feral cat colony with his dog, under the legal belief that because the cats were not owned they were 'fair game'.

There are several laws that bear on this type of situation, and I will review them in turn.

. DOLA

DOLA [aka the "Dog Owners Liability Act"] makes it an offence for a dog owner to allow their dog to menace or attack humans and "domestic animals". Whether a feral cat is a "domestic animal" is not plain in law, as DOLA does not define the term and there is no litigation on the issue to date. But it could be tested through a non-prosecution context by someone applying for a dog control order against the owner - a relatively straightforward process. Anyone with such a fact situation is welcome to contact me through the sidebar link.

. Criminal Code

It is illegal under the Criminal Code to kill an animal that is "kept for a lawful purpose", but of course that does not apply to feral cats as they are not 'kept'.

If a feral cat is harmed through dog or other attacks then the general Criminal Code cruelty provision against causing "unnecessary pain, suffering or injury" would likely be engaged. However it would be much harder, though not impossible, to make out a cruelty charge without physical injury. 'Suffering' is more akin to mental injury, and this is little recognized in animal law yet.

A more appropriate Criminal charge - oddly - might be the 'fighting' offence, which to my knowledge has not been charged in recent history. This offence prohibits people from "in any manner encouraging, aiding or assisting at the fighting of animals". The offence does not on its face call for actual fighting to occur, and even if it did then a suitable alternative form of the charge might be 'attempt fighting'. This is untested law.

Readers can review Ch.3 ["Main Offences"] of the Isthatlegal.ca Animals and the Criminal Law (Canada) Legal Guide on these issues.

. Bill 50

As mentioned earlier, the new Bill 50 will create new chargeable offences against persons causing "distress" to an animal, and owners/custodians 'allowing' distress to be caused to them. "Distress" includes "being abused or subject to undue or unnecessary hardship, privation or neglect". There is also a specific Bill 50 'direct' fighting offence, which requires actual fighting to occur.

These might be the best bet for enforcement against such behaviour. I will write and post a new Isthatlegal.ca Animal Welfare Law (Ontario) Legal Guide once Bill 50 is law.

. Threats

'Threatening' to injure or kill OWNED animals is also a Criminal offence. This would apply even in domestic situations where an animal is co-owned by two spouses, and one of them is doing the threatening.

Threatening owned animals could also ground a civil action for 'intimidation', but the case with threats to feral animals is less certain and would likely have to be tested.

. Poisoning

The Criminal Code makes it an offence to poison of domestic and captive wild animals "without reasonable excuse" [eg. compassionate euthanasia], but that provision may not apply to feral cats. This is a similar legal issue to that I noted above re DOLA's use of the term "domestic animal". This would have to be legally tested.

If a feral cat were poisoned, any degree of suffering involved could be used to support a Criminal cruelty charge - as, given the existence of the small animal control and pound systems, such poisoning can be argued to be "unnecessary" (and perhaps the animal 'nuisance' could be alleviated by other methods as well). The Bill 50 'distress' prohibitions might also be applied here.

Any situation of poisoning feral cats would be unique and each case would have to be assessed on its own merits.

. Third Party Trapping and Removal of Feral Cats

This is a very interesting topic, as is the similar 'relocation' of wild animals such as raccoons and opposums. There is no 'right' of feral animals against relocation, but - as with wild animals - such activities can have the effect of removing them from known hunting grounds, shelter - and even litters of kittens.

It is these ancillary harms that would be the way to attack relocation. For that purpose the establishment of feral cat caregivers in a more formalized fiduciary role would help to give them the political and legal recognition necessary to advance the interests of the cats.

. Summary

There are several sources of law to address cat harassment of the type mentioned. That said, police will not give such cases high priority and either OSPCA or private enforcement will likely be required.

(e) Feral Cats and Pounds

Note that under Toronto's Animal by-law, cats may be impounded if both the City and the property-owner [presumably of the property on which the cat is taken] BOTH agree that it is "causing damage or creating a nuisance". What constitutes a "nuisance" is quite broad in law, but it is a safe bet that the pound will not seriously question the property-owner on the issue. From one caregiver email I have received it appears that the property owners may simply be trapping the animals and taking them to the pound. Under conventional law - as I interpret it at least, except where the cat is a nursing mother, this may be legally supportable.

Once impounded, it then falls into the ARA pound regime discussed earlier. Under that regime, the original owner may redeem the animal within the redemption period, and then normal ARA procedures for non-redeemed cats are adoption, research sale [not done in Toronto], late redemption - and some circumstances, euthanasia [ARA s.20(6)(7)].

========= CORRECTION: 27 Nov 2008 ===========

Below are both an erroneous passage, which was to have been read continuously with the above text, and a correction of it.

The Prior Version Read:
However in Toronto (at least) normal ARA procedures for cats may be short-circuited. The City's bylaw purports to establish ownership over non-redeemed cats after the redemption period has expired [c.349-20C].

As 'consent of the owner' is one of the ARA euthanasia-allowed circumstances, such 'by-law' ownership is likely the legal claim upon which widespread euthanasia of cats is undertaken in Toronto.

---------------------------------------------

Correction and Comment:

This conclusion was wrong. The 'owner consent' which allows euthanasia only applies to "the person who owned the dog or cat before it came into the possession of the operator of the pound" [ARA s.20(7)(a)]. As the City only takes ownership under the by-law after the redemption period has expired, this provision could not be used to support owner-consent euthanasia in an effort to avoid complying with any research requisitions.

The ownership provision in the by-law is probably meant to help settle ownership disputes when an original 'owner' tries to claim an animal already adopted out.

==========================================

[The correct original text now continues:]

Of course, feral cat caregivers are not normally 'owners' in the conventional sense. Given the potential fate of the cats at the impoundment stage however it might be an appropriate time to assert any 'finders-keepers' ownership claim that you have in order to redeem it (see above).

For this purpose it is important to keep in mind that when a pound receives an animal with "a tag, name plate or other means of identification" it is under a duty to notify the local OSPCA affiliate of that fact, and to take "all reasonable steps to find the owner of the dog or cat". Feral cat caregivers may want to 'tag' their charges with some contact information so that they can respond to impoundments. The obvious tension here is what status to ascribe to themselves, for while 'owners' can redeem the animals, any 'ownership' claim triggers the Criminal Code inadequate care duties.

This is not a simple problem, nor one which I have a simple answer to. In short, there is lots of room for interesting legal work in relation to feral cats.


4. Closing

In closing, I think that the legal situation of feral cat caregivers could be advanced by creative and planned uses of the fiduciary/caregiver concept I have mentioned. This can be achieved in a variety of ways, varying up and down in complexity with the size and character of the groups involved in the caregiving activities.

Greater legitimation of such a legal role would assist both in dealings with the courts - by establishing the legal standing to advance cases on behalf of feral cats, and with municipal authorities involved in interpreting and applying the laws that bear on feral cats.

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