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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 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 'Old' Municipal Act Animal Jurisdiction The 'old' Municipal Act [RSO 1990, c.M45 - repealed and replaced 01 January 2003] contained a range of specific animal-control by-law authorities, and included those related to:
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:
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.18As 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:
holding that:
Grange JA for the Court of Appeal stated that [at para.17]: In my view the legislature in enacting s. 210(1) did notFurther, 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 theOther 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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