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OF TIGERS, BY-LAWS AND CIRCUSES

The Impact of Bill 50 (Provincial Animal Welfare Act)
on the By-Law Jurisdiction of Ontario Municipalities


25 January 2009
Simon Shields, LLB
Toronto, Ontario

1. Background
2. 'Old' Municipal Act Animal Jurisdiction
3. Present Municipal Act Animal Jurisdiction
4. The Effect of Bill 50

1. Background

The subject of this memo is the present (with the passage of Bill 50
the "Provincial Animal Welfare Act") jurisdiction of Ontario municipalities
to make by-laws respecting animal welfare, particularly respecting the use
of animals in transient entertainment such as circuses.

The historical context of this issue is set by the 1993 Court of Appeal
case of Stadium Corp v Toronto [reviewed in detail in Appendix A].
The jurisprudential result of Stadium Corp was that the Municipal
Act's [then] 'circus regulation' jurisdiction (which at the time was held
by the upper-tier Municipality of Metro Toronto) had an underlying 'public
safety' purpose, and that the primary municipal animal authorities [see s.2
below] then held by the City of Toronto had an underlying purpose of
controlling 'nuisances'. The Court of Appeal held that 'animal welfare'
purposes as such were NOT a legitimate municipal concern as they lay with
the province under the OSPCA Act, and - at least with respect to animal
cruelty - also with the federal government's criminal law power.

This memo demonstrates that this law is now changed. Ontario municipalities
now plainly have 'animal welfare' by-law authority. This new authority allows
for the making of by-laws regulating, prohibiting and licensing both with
respect to circuses, and - for that matter - ANY 'animal welfare'-implicated
activity.

Below I review in turn the 'old' [pre-01 January 2003] Municipal Act
animal-related by-law authorities, the present [post-01 January 2003]
Municipal Act animal-related by-law authorities, and the impact of Bill 50
(aka the "Provincial Animal Welfare Act").


2. 'Old' Municipal Act Animal Jurisdiction

The 'old' Municipal Act [RSO 1990, c.M45 - repealed and replaced 01 January
2003] contained a range of specific animal-control by-law authorities, and
included those related to:
  • Prohibiting/Regulating Species and Numbers

    "prohibiting or regulating the keeping of animals or
    any class thereof within the municipality ..., the
    number of animals or any class thereof that may be kept
    by any person, or that may be kept in or about any
    dwelling unit ..." [s.210, c.1]

  • Regulating Breeding and Boarding

    "for regulating establishments for the breeding or
    boarding of animals, ..." [s.210, c.2]

  • Establishment of Pounds

    "for providing sufficient yards and enclosures for the
    safekeeping of such animals as it may be the duty of
    the poundkeeper to impound" [s.210, c..3]

  • Animals at Large and Trespassing

    "prohibiting or regulating ... the being at large or
    trespassing of animals, OTHER THAN DOGS, and for
    providing for impounding them and causing them to be
    sold, if they are not claimed within a reasonable time
    or if the damages, fines and expenses are not paid
    according to law" [s.210, c.4]

    "for prohibiting or regulating the running at large of
    dogs in the municipality ..., for seizing and
    impounding and for killing, whether before or after
    impounding, dogs running at large contrary to the
    by-law, and for selling dogs so impounded" [s.210,
    c.13]

  • Animal Identification Systems

    "for providing for animal identification systems
    including tagging, tattooing or microchip implantation"
    [s.210, c.5]

  • Leashing Dogs in Public

    "for requiring ... an owner of a dog to keep the dog
    leashed and under the control of some person when the
    dog is on land in the municipality other than that of
    the owner" [s.210. c.8]

  • Pooper-Scooper

    "for requiring an owner of a dog to remove forthwith
    excrement left by the dog anywhere in the municipality"
    [s.210, c.9]

  • Muzzling and Leashing Dogs After Violence

    "for requiring the muzzling or leashing of a dog after
    it has bitten a person or a domestic animal" [s.210,
    c.10]

  • Dog Licensing

    "for licensing or regulating and requiring the
    registration of dogs" [s.210, c.11]

  • Neutering Dogs and Cats

    for "establish[ing] clinics for the spaying or
    neutering of dogs and cats"
As can be seen, these authorities are primarily nuisance-directed, with the
sole exception perhaps being the muzzling/leashing authority which might be
more better characterized as having a 'public safety' purpose. Consistent
with the court's reading in Stadium Corp, none of the above have an
overt 'animal welfare' purpose -although animal welfare may be an incidental
result of breeding regulation and licensing activities.


3. Present Municipal Act Animal Jurisdiction

(a) Some Old Powers Expressly Preserved

The present [post-01 January 2003] Municipal Act, RSO 2001, c.25 still
expressly addresses some of the above-listed 'traditional' animal control
jurisdictions - though with some modifications. These include:
  • muzzling of dogs [MA, s.105; CTA s.107]

  • seizing, impounding and sale of animals at large [MA,
    s.103; CTA s.106];

    Note:
    The 'killing' of such dogs is no longer included in
    this authority, and now appears to be reserved entirely
    to the procedures of the Dog Owners' Liability Act and
    Animals for Research Act [see the Isthatlegal.ca
    Dog and Cat Control Law (Ontario) Legal Guide, Chptrs.
    2 and 3].
That said, it does appear that the authorities listed above were expressly
stated in the legislation for the purpose of both clarity and modification
- particularly to limit the authority to pass by-laws providing for the
killing of "at large" dogs.

(b) New General Animal By-Law Jurisdiction

However a "new" [post-01 January 2003] general Municipal authority over
animals, is now located in both the generic Municipal Act RSO 2001, c.25
and the specific City of Toronto Act, 2006.

It is disarmingly simple. Most Ontario municipalities now may now [MA,
s.10(2)9; s.11(3)9; CTA s.8(2)9]:
"... pass by-laws respecting ... animals."
This broad by-law authority seems certain to be interpreted as encompassing
- minimally - the traditional 'nuisance' municipal-animal control areas
listed in s.2 above in relation to the old Municipal Act [MA 8(2); CTA
s.6(2)].

However, as is argued in s.4 below, with the passage of Bill 50 [3rd
reading passing 17 November 2008, pending Royal Assent and proclamation]
the way now seems clear for the adoption by municipalities of a broad
'animal-welfare' purpose authority.

(c) Licensing

Of course, the authority to pass by-laws includes the authority to both
regulate and prohibit the governed activities altogether [MA 8(3)(a), CTA
s.8(3)(a)], and to pass by-laws licensing them [MA s.8(3)(c), CTA
s.8(3)(c)].

In addition, where animal uses take the form of a "business" [as that term
is defined in MA s.150 and CTA s.85, which includes "exhibitions, concerts,
festivals and other organized public amusements held for profit or
otherwise"] then both the Municipal Act and the City of Toronto Act allow
municipal licensing of such activities.


4. The Effect of Bill 50

(a) Bill 50 Overview

Bill 50 (aka the Provincial Animal Welfare Act) is not a new free-standing
Act. Rather it amends the existing Ontario Society for the Prevention of
Cruelty to Animals Act ['OSPCA/A'], which previously established the OSPCA
as a police-type body with authority respecting animals in defined
"distress" situations.

The pre-Bill 50 OSPCA Act had little substantive animal welfare regulatory
content beyond some cat and dog breeding minimum standards and the generic
'distress' definition which could be enforced by OSPCA orders, breach of
which were a regulatory offence. As well, the old OSPCA Act was often
criticized for restricting warrantless inspector entry (and thus seizure)
of an animal to situations where 'immediate distress' was directly viewed
by the inspector, rather than grounded on such normal evidence as third
party reports or sounds heard.

While Bill 50 amendments do much to expand and rationalize the OSPCA's
institutional and police capacities, they do much more than this. They add
free-standing regulatory offence provisions - provisions NOT exclusively
enforceable by the OSPCA - which now directly trigger on the 'distress'
criteria. Now, causing or allowing "distress" to an animal is an offence in
its own right, punishable by up to a $60,000 fine and/or two years
imprisonment.

That said, these offence provisions will be subject to exceptions for
hunting and 'to be defined' (in the regulations) agricultural and other
animal-use activities.

(b) OSPCA Exclusivity Provision Repealed

In the Stadium Corp case one of the grounds on which the Court of
Appeal held against any municipal 'animal welfare' jurisdiction was an
OSPCA-exclusivity clause, the [then] s.10 of the OSPCA Act. That provision
prohibited the existence of any "society, association or group of
individuals" which had "for its object the welfare of or the prevention of
cruelty to animals".

Bill 50 repeals that provision.

(c) New Conflict Provision

However, most telling of present provincial government intention on the
issue of municipal 'animal welfare' by-law jurisdiction is an otherwise
innocuous Bill 50 'conflict-resolution' provision, which reads:
s.18
The Act [OSPCA/A] is amended by adding the following
sections:

s.21
In the event of a conflict between a provision of this
Act or of a regulation made under this Act and of a
municipal by-law pertaining to the welfare of or the
prevention of cruelty to animals, the provision that
affords the greater protection to animals shall
prevail.
As the OSPCA Act grounds the province's established jurisdiction over
animal welfare, and as municipalities are "creatures of the province", this
provision is plain - albeit inferential - authority a new delegated sharing
of 'animal welfare' jurisdiction with municipalities.

Further, conflict resolution between these now shared authorities is
structured in the form of a 'floor', not a 'ceiling', analogy. Now
municipal by-laws may even surpass the animal welfare protections embodied
in the new (Bill 50-amended) OSPCA Act. Thus, even should a (new Bill 50)
OSPCA regulation exempt some animal uses from the regulatory offence
provisions, municipalities may enter even into these exempted areas and
regulate, prohibit or license such animal use activities for 'animal
welfare' purposes.




Appendix A -
Stadium Corporation v Toronto


The historical context of this issue is best illustrated by the case of
Stadium Corp v Toronto [10 OR (3d) 203 (Div Ct, 1992)], which was
ultimately resolved in 1993 at the Court of Appeal [12 OR (3d) 646].

In 1991 a stripper who used a Siberian tiger in her act tied it up outside
a Toronto strip club [Jilly's, corner of Broadview and Queen E]. In response
to resultant public concern, in 1992 the City broadened a pre-existing by-law
that banned the keeping of exotic animals as pets to plainly also include the
use of exotic animals in entertainment such as circuses.

The applicant Stadium Corp, along with co-applicants the Ringling Bros and
Barnum and Bailey Circuses, applied by way of judicial review to quash the
by-law on several grounds - all of which were dismissed at the first-level
Divisional Court.

Both courts that considered the matter held that the intended purpose of
the by-law was to protect public safety and to advance animal welfare.

Amongst the several grounds advanced to quash the by-law, the Divisional
Court dismissed arguments that:
  • the by-law entered into criminal law jurisdiction over
    public morality,

  • that the City lacked Municipal Act authority for such a
    by-law;

  • that the upper tier (at the time) Municipality of Metro
    Toronto had more direct authority to make by-laws
    respecting circuses and had indeed already 'occupied
    the field'.
The Court of Appeal however disagreed on effectively all of these,
holding that:
  • in the relevant Municipal Act grant of authority to the
    City, which allowed it to make by-laws "prohibiting or
    regulating the keeping of animals or any class thereof"
    [then s.210(1)], the term 'keeping' did not apply to
    govern any and all use of animals within the City
    [Grange JA for the court stating at para.11]:

    While "keeping" can have a very broad meaning, I
    think here it is very limited. It refers to looking
    after or being responsible for animals within the
    municipal area. It is not confined to domestic
    animals or pets but it does not permit the
    municipality (Toronto) to control all animals and
    the treatment of animals in all circumstances within
    its borders.

  • the 1992 amendment to the by-law, which added the words
    "either on a temporary or a permanent basis" was
    plainly targeted at circuses, and as such was ultra
    vires in that the upper-tier Municipality of Metro
    Toronto had specific Municipal Act authority to
    regulate circuses for the purpose of 'public safety',
    and in fact had done so;

  • 'animal welfare' regulation was already manifest (thus
    excluding further municipal regulation in that area) in
    the form of the province's Ontario Society for the
    Prevention of Cruelty to Animals Act (and as well in
    the federal government's criminal anti-cruelty
    provisions), which had an exclusivity clause barring
    other organizations from having the same objectives;

  • the City's Municipal Act authority over animals was
    limited to the control of nuisances.
Ironically - given the tiger/stripper origination of the whole issue -
Grange JA for the Court of Appeal stated that [at para.17]:
In my view the legislature in enacting s. 210(1) did not
intend the city to use it to control the conduct of
circuses. What was intended instead was that the by-laws
passed under the section would control the keeping of
exotic animals such as, perhaps, the tiger associated
with the dancer at Jilly's Tavern and would restrain the
activities of persons who fancied boa constrictors or
barracudas as domestic pets.
Further, the declaration issued was not entirely consistent with Grange
JA's above comment (nor his reasoning) as noted above, as in its final form
it was not limited to circuses [at para.19]:
... a declaration that the prohibition against the
keeping of animals used in live public entertainment in
the City of Toronto under City of Toronto By-law No.
812-86, as amended, is ultra vires the legislative
authority of the city of Toronto and is therefore of no
force or effect
Other grounds to quash the by-law advanced in the case included: Charter
freedom of expression, that the by-law was a de facto zoning by-law, and
that a film industry exemption rendered the by-law invalid as
'discriminatory' (as that concept has applied in municipal law). These
grounds were dismissed at the Divisional Court level, and - given the above
treatment at the Court of Appeal - were not considered by that higher
court. The Court of Appeal also found that while the by-law did exceed the
City's jurisdiction under the Municipal Act as it read at the time, it was
not enacted in bad faith.

One net result of the Stadium Corp case at the Court of Appeal was
to eliminate any claim to 'animal-welfare' by-law authority amongst
Ontario's municipalities, at that time.

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