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4. Dogs and Cats in Pounds

(a) Overview

. General

This is the 'hard-place' of dog and cat law in Ontario: the pound system and its relation to euthanasia and the sale of animals for research.

As has been mentioned several times elsewhere, cats and dogs enter the 'pound' system by virtue of having been seized under either a municipal by-law or DOLA legal authority and then delivered to 'premises'. By that fact alone those premises meet the definition of being a "pound". While placement in a pound is not necessarily a one-way trip to a research sale or euthanasia, pounds procedures ARE governed by the Animals for Research Act ("ARA") - which is not a reassuring start.

This section explains what may be considered the 'normal rules' of 'redeeming' (recovering) a cat or dog from a pound, and the various other fates that can arise, including: adoption out, non-research sale, research sale, euthanasia and various transfers.

In 2005 the law in this area was significantly modified by the introduction in Ontario of a broad pit bull (dog) ban, which took several forms, the most significant for present purposes being ownership. The treatment of pit bulls [indeed, dogs that look like pit bulls] in pounds and through the various subsequent stages that can occur is very different from that applicable to cats and other breeds of dogs. For that reason I have treated pit bulls and their relation to the pound system in their own section [s.7, below]. As well, the pit bull ban and its intricacies is explored thoroughly on its own in Ch.5: "Pit Bulls". Anyone seriously examining the situation of a pit bull in a pound in Ontario should read both the present s.4 (to understand the 'normal rules'), s.7 (to understand the special pit bull rules laid overtop of the normal rules) - and Ch.5 to understand the main pit bull ban and its exceptions.

. Communicable Diseases Exception

A cat or dog is exempt from ARA s.20 [practically all of the pound law covered in this chapter] if it "by reason of being suspected of being infected with any communicable disease is confined in a pound pursuant to the Laboratory and Specimen Collection Centre Licensing Act [Ontario] or the Animal Disease and Protection Act (Canada)" [ARA s.20(13)].

These are very rare circumstances, and I will not explore the law relating to these statutes for the purposes of this Guide.

(b) Pound Duties to Notify OSPCA and to Try to Locate Owner

This sub-section starts at the point the dog or cat is admitted to the pound - and explains why you should license your cats and dogs - or at least tag them. You should ALWAYS microchip your pet for both practical reasons and the following legal reasons.

If a pound admits a dog or cat "that has a tag, name plate or other means of identification", then specific - and mandatory - notification and search duties are placed on the pound. These duties, which DO NOT arise where there is no such identification means [though see the below note], include [ARA s.20(4)]:
  • notification of the nearest OSPCA (or affiliate) office (unless of course the pound IS such an office) of the impounding;

    and

  • taking "all reasonable steps to find the owner of the dog or cat", including "forthwith" notification of the impounding to the owner if they are located.
Note:
Given the rapid growth of accessible and cheap photographic technology (esp. cell phone cameras), and the deep penetration of internet access into Ontario society, it is now quite possible - and in practice often done - to post pictures of pound animals on a pound or shelter website. This ability opens the legal argument that the physical representation of an animal (ie. a picture) is now an available "other means of identification" under ARA s.20(4), which - if correct - in turn invokes the pound's duty to notify the OSPCA and to try to locate the owner for ALL pound-admitted animals. Thus it may be that "reasonable steps to find the owner" would always include the maintenance of a promptly updated website with pictures of the animal, listed with any relevant identification information (as is listed below).

Failure of pounds to avail themselves of these novel means when they are available and affordable may open the pound operator to civil liability where an animal is unnecessarily lost to its owner, and particularly where it suffers as a result.

Author Note:
I am interested in hearing of any such situations and considering the case for civil liability. Contact me through the sidebar link.
What specific information must be relayed to the OSPCA or affiliate is informed by the required identification and record-keeping duties of pounds, as established under the ARA Pound Regulation. Note that these identification and record-keeping duties (listed here) apply regardless of whether any "means of identification" is found on them [ARA s.20(12); AR Reg 23.90, "Pounds", s.10]:
s.10(1)
Every dog or cat in a pound shall be identified by a neckband, individual tag, physical mark or a tag or marking on the cage in which the dog or cat is kept.

s.10(2) [in part]
The operator of every pound shall maintain within the pound a record of every animal in the pound and shall preserve the record within the pound for at least two years from the date that the animal was last in the pound and the record shall include:

(a) the sex of the animal;

(b) the estimated age and weight of the animal;

(c) the colour, markings and any physical abnormalities of the animal;

(d) the breed or type of the animal;

(e) a record of the circumstances under which the animal came to be in the pound;

(f) the time, date and place where the animal was found;

(g) the date and time at which the animal arrived at the pound;

(h) a record of any tag, name plate or other means of identification on the animal when it came into the pound; .....
Certain minimum conclusions can be logically drawn from the above requirements, including:
  • Given the short time allowed for redemption periods (see below), the above notification and owner-search duties should be complied with by the pound immediately. To do otherwise is to defeat their purpose to the extent of the delay. A conservative governing principle would be to suspend the start of the running of the redemption period until they are complied with.

  • All pounds should be equipped with microchip implant readers (as an aspect of their mandatory duty to take all reasonable steps to find owners).

  • Mandatory notification to the OSPCA should include all of the above-required information and recorded information [under Pound Reg s.10(2)] relevant to the search for the animal's owner: including physical description; time, place and circumstances of the finding of the animal; available means of identification such as tags. Otherwise the purpose of the notification duty would be defeated or hindered. It is a standard principle of statutory interpretation that all provisions should be given interpretations consistent with their purpose.

  • Part of the 'reasonable steps' to locate the owner would logically include a check of any municipal licensing records, which would be assisted by suitable databasing allowing field-searching on names, breeds, gender and neutering, neighbourhood, colour, etc. Also, as noted above, many pounds and shelters now post pictures of impounded animals online, which arguably in this day and age is a "reasonable [and therefore mandatory] step" as well.
(c) Redemption Periods

. No Destruction During Redemption Period

A "redemption period" is defined as "that period of time within which the owner of a dog or cat that has been impounded has the right to redeem it" [ARA s.1(1)]. 'Redeem' means release of the animal back to its owner, subject to payment of any applicable "damages, fines and expenses" [see that topic below].

Subject to the exceptions explained below ["Exceptions Allowing Euthanasia During Redemption Period "], no impounded cat or dog shall be destroyed during the redemption period [ARA s.20(5)].

. Length of Redemption Period

The ARA establishes a standard MINIMIUM three-day redemption period.

Municipalities may set longer redemption periods by by-law (which, as they govern pounds, are applicable to both DOLA and by-law seizures) [ARA s.20(2)] - so it is important to check your local animal by-laws for this. At the date of writing (July 2008) the redemption period in the City of Toronto was a MINIMUM of five days: Municipal Code s.349-13C]
Note:
The "Animals for Research Director" has the right to veto changes or repeals of any such municipal by-laws [ARA s.20(3)]. Note also that longer redemption periods MAY also be set by Cabinet in the regulations for any class of animals, but this has not been done yet) [ARA s.20(1); 23(k)].
By stating the redemption period as a 'minimum' the law plainly both the statute and the Toronto by-law (at least) allows the pound operator to extend it at their discretion, either as a matter of general policy or on a case-by-case basis. That said, persons involved in any specific impoundment cases should clarify 'their' redemption period with the pound as soon as possible. On this crucial animal 'rescue' issue communication is key.

Further, if a pound has suspended the redemption period for an indeterminate period (for example, to facilitate appropriate alternate arrangements being made for an animal), natural justice calls for the animal owner to be advised promptly of any 'new' decision to re-invoke the running of the redemption period.

. Counting Days

The redemption period is counted as follows [ARA s.20(1)]:
  • do NOT count the day on which the cat or dog was impounded (ie. when it was admitted to the pound facility, which may or may not be the same day that it was seized);

  • do NOT count non-holiday days on which the pound is closed [Pounds Reg s.8(4)]

  • do NOT count holidays [Legislation Act, s.89(1)].

    Holidays in Ontario include [Legislation Act, s.88]:

    - Sundays

    - New Year's Day

    When New Year's Day falls on a Sunday, the following Monday is the holiday.

    - Good Friday

    - Easter Monday

    - Victoria Day

    - Canada Day

    When July 1 is a Sunday, Canada Day is 02 July.

    - Labour Day

    - Thanksgiving Day

    - Remembrance Day

    - Christmas Day

    When Christmas falls on a Saturday, the following Monday is also a holiday. When Christmas falls in a Sunday, the following Tuesday is also a holiday.

    - Boxing Day

    - Family Day

    NEW: 3rd Monday in February.

    Example:

    A dog is seized late in the evening on Wednesday 05 May and delivered to the pound in the early morning of Thursday 06 May. The pound operates on a three-day redemption period.

    Start counting at Friday 07 May. Friday is 'one', Saturday is 'two'. Sunday is a holiday and does not count. Monday is 'three' and is the last day of the redemption period.

    IF any of the counted days is also a holiday - or if the pound is closed ALL that day - do not count it.
. Pound Open Hours

The ARA Pounds Regulation [Reg 23/90, s.8(2)] requires that the pound's open hours for redemption be posted 'conspicuously' outside the pound, and that "every pound shall be open for such purpose [redemption] at least once every day while there is a dog or cat in the pound" - excepting that it may close on holidays and one day a week that is not a holiday [Reg 23/90, s.8(3)].

Failure of a pound to comply with these requirements is reasonable grounds for arguing that the redemption period should be extended, at least to the extent that a redemption oppourtunity was denied.

. "Damages, Fines and Expenses" on Redemption

"Redemption" of an animal within the redemption period (indeed at any time later as well) is invariably stated in law to be "subject to the payment of such damages, fines and expenses as are required by law" [eg. ARA s.20(5); 20(6)(a); 20(7.3)].

As neither the ARA nor the ARA Regulations set out the manner in which these amounts are to be calculated seems to be reserved to municipal by-law. This authority is comfortably included within the 'new' general municipal by-law jurisdiction over "animals" [see Ch.8: "Dogs, Cats and Municipalities"]

Further, the phrase "required by law" in the above-quoted phrase militates against any ad hoc administrative determination of the amounts. Therefore the failure of a municipality to set out a plain means of determining these charges in a by-law will likely undermine their legal authority to demand them. For example, I note that the City of Toronto has done just that [Toronto Municipal Code, c.349, s.13,20 and 24] (this by-law is linked at Ch.8].

Lastly - and perhaps most importantly - is the issue of whether the payment of these "damages, fines and expenses" is a pre-condition of the redemption (ie. physical return of the animal), or merely incurs a debt owing to the City which does not impede the animal's release.

In my view, given the common law's strong prejudice in favour of ownership rights, a better reading of these identical (above-cited) ARA 'costs' provisions [the key phrasing being: "subject to the payment of ..."] connotes a reservation of a debt rather than a condition of release by the pound. The quite serviceable word "condition" would be appropriate if a pre-payment requirement was intended under the law, and it is one quite well-known to legislative draftspersons. On the other hand: "subject to" is entirely consistent with an intention to allow a release without payment, but to obviate any waiver assertion respecting the costs.
Note:
I am interested of hearing of anyone's experience on this issue. Contact me through the sidebar link.
. Exceptions Allowing Euthanasia During Redemption Period

Despite the general rule that no animal may be euthanized during a redemption period, an animal may be euthanized during the redemption period if ANY of the following apply:
1. The owner of the cat or dog (ie. the person who owned it before it came into the possession of the pound) has so requested, in writing [ARA s.20(7)(a)].

2. The dog or cat is ill or injured, the pound operator is of the opinion that it "is incapable of being so cured or healed as to live thereafter without suffering", AND the operator has satisfied all research requisitions (see "Research, below"). [ARA s.20(7)(d)] ["injured and surplus to research need euthanasia"].

3. An ARA inspector or veterinarian has so ordered because the dog or cat is "ill or injured and, in the opinion of the inspector or veterinarian, is incapable of being so cured or healed as to live thereafter without suffering" [ARA s.20(7)(b),(11)(a)] ["compassionate euthanasia"].

Note:
The use of the term 'order' in respect of option #3 above suggests that a pound has no discretion to withhold euthanasia if so 'ordered'. Options #1 and #2 on the other hand are discretionary to the pound operator, the operative word in the preamble to ARA s.20(7) being "may".

Further, in any case where there is a reasonable concern that an animal is experiencing pain, suffering or injury, any delay in prompt veterinary assessment (as per #3) may invoke criminal liability for either causing unnecessary pain, suffering or injury or for failure to provide adequate care. See the Isthatlegal.ca Animals and the Criminal Law (Canada) (Cruelty) Guide Ch.3, "Main Offences".
(d) After the Redemption Period Expires

. Disposition Options After Expiry of Redemption Period

After the redemption period has expired, the pound operator has the several discretionary options with respect to the animal [ie. "may"]. Euthanasia is not one of these options unless one of the "Exceptions Allowing Euthanasia After Redemption Period" (below) are met. The non-euthanasia discretionary options are [ARA s.20(6)]:
  • Redemption

    Despite the expiry of the redemption period, the pound may still redeem the animal to its original owner (at the time of seizure), again subject to payment of any applicable "damages, fines and expenses" [as discussed in (c) above].

    Note:
    Actually such return may even take place after the animal is sold for research. In an exception to the 'closed loop rule' [ARA s.14(2); see s.5 "Research", below] - under which animals owned by research facilities may only be transferred to other research facilities - the research facility may still return (at their discretion) an animal to the original (pre-seizure) owner [ARA s.14(3)(b)] - except pit bulls [ARA s.20(7.1)(a)]. This exception applies AT ANY TIME, regardless of whether the animal has undergone experimentation yet or not.

  • Sale or Gift for Pet/Hunting/Working Use

    The pound may sell or gift the animal - or hold it for future good faith sale or gifting - either as pet, for use in hunting, or for working.

  • Research Sale

    If they have been so requisitioned by a registered research facility, sell the animal to them.

    Note re research sale:
    Where research sale is still engaged in, it is the practice of research facilities to place 'standing requisitions' with pounds for animals of certain descriptions and characteristics. See s.5 "Research", below.

    Note re discretion:
    When legislation (as here) uses permissive or discretionary language [ie. "may"], it does not thereby leave the decision to the simple whim of the delegated decision-maker. Such decisions must still be made in light of factors relevant the purpose and spirit of the legislation. Thus while such discretionary decisions are given significant deference by a reviewing court, they are still subject to judicial review - and in some cases can ground civil liability in the decision-maker.
. Exceptions Allowing Euthanasia After Redemption Period

An animal may be euthanized AFTER the redemption period if ANY of the following apply:
1. The owner of the cat or dog (ie. the person who owned it before it came into the possession of the pound) has so requested, in writing [ARA s.20(7)(a)].

2. An ARA inspector or veterinarian has so ordered because the dog or cat is in their opinion "not suitable for use in research by reason of ill health, injury, malnutrition, excessive age or other infirmity" [ARA s.20(7)(b),(11)(b)] ["unsuitable for research by reason of condition"].

3. The pound has satisfied all outstanding research requisitions [ARA s.20(7)(c)]. ["surplus to research need euthanasia"].

4. The animals "do [] not conform with the requirements specified" in the research requisitions. ["unsuitable for outstanding research requisitions"] [AR General Reg s.11(1)].

Note:
The use of the term 'order' in respect of option #2 above suggests that a pound has no discretion to withhold euthanasia if so 'ordered'. Options #1 and #3 are discretionary to the pound operator, the operative word in the preamble to ARA s.20(7) being "may". Option #4 is similarly discretionary to the pound operator as it is structured as an exception to the ARA s.20(6) prohibition on euthanasia, thus re-asserting euthanasia as one of the discretionary [ie. "may"] options listed in s.20(6).

IMPORTANT
In any case where there is a reasonable concern that an animal is experiencing pain, suffering or injury, any delay in prompt veterinary assessment (as per #3) may invoke criminal liability for either causing unnecessary pain, suffering or injury or for failure to provide adequate care. See the Isthatlegal.ca Animals and the Criminal Law (Canada) (Cruelty) Guide, Ch.3: "Main Offences".

5. Research Use

(a) Overview

This can be the scariest animal fate, worse - given the cold and prolonged premeditation involved - than even sport hunting or slaughter for food.

The ARA defines "research" as [ARA s.1(1)]:
"research" means the use of animals in connection with studies, investigation and teaching in any field of knowledge, and, without limiting the generality of the foregoing, includes the use of animals for the performance of tests, and diagnosis of disease and the production and testing of preparations intended for use in the diagnosis, prevention and treatment of any disease or condition;
While medical testing is plainly encompassed within this definition, the human purpose behind research is by no means limited to that. There is no requirement that the "field of knowledge" be pressing for human purposes, and it is quite arguable that cosmetics research is included as a legitimate "field of knowledge".

As noted, this is a very broad definition which - by itself - places no moral limits or means/end balancing on the human purpose whose pursuit may cause animal pain, suffering or injury.

(b) Redemption by Research Facility

Note that a research facility may return an animal to the original (pre-seizure) owner [ARA s.14(3)(b)] - except pit bulls [ARA s.20(7.1)(a)]. This exception actually applies at ANY TIME [ie. before OR after experimentation], while the following considerations [(c) below] apply only post-experimentation.

(c) Post-Experiment Return to Pound

. Overview

Once a cat or dog has been 'sold for research', we generally expect that is the last we will see of them.

Perhaps the least known, and certainly the least applied by research facilities, are ARA provisions anticipating the re-emergence of such animals - capable of living without undue suffering - after the research experience.

As a practical matter it should come as no surprise that this can happen. Not all research requires maiming or death of the animal. There will be some - perhaps many - animals that emerge capable of living happy pain-free lives. Whether these animals are needlessly euthanized by research facilities is little known.

In any event, the following - such as it is - is the law of these post-research 'surplus' cats and dogs.

. More Research or Death

The situation of 'surplus' animals starts out pessimistically enough, suggesting their mandatory cycling back into research, or what I have above called a "closed loop rule" [ARA s.14(2)]:
s.14(2)
No operator of a research facility shall sell or otherwise dispose of any dog or cat purchased or otherwise acquired under section 20 to any person other than the operator of a registered research facility in Ontario.
Under the "closed-loop rule", a research facility with post-experimental, reasonably healthy 'surplus' animals is thus faced with the following three 'animal-unfriendly' choices:
  • maintaining the animals in accordance with ARA standards [set out in Reg 24/90: "Research Facilities and Supply Facilities"] in the hopes that they might be suitable for future experimental use (experiments often have specific breed, size, age and other requirements);

  • transfer or sale of the animals to another research facility [under ARA s.14(2), quoted above] [note that transfer to an ARA "supply facility" (breeding for research) is apparently barred under that same provision].

  • killing them out of convenience.

    For a discussion of the legality of this option, at least with respect to chemical euthanasia, see the "Animals and the Criminal Law", C.3, s.6 : "Main Offences: Administering Poisonous/Injurious Substances to Domestic or Captive Wild Animals and Birds". I note however that under Reg 24/90 [s.31-32] acceptable euthanasia practices for cats and dogs include - in addition to chemical poisoning - exsanguination (bleeding) under anaesthesia, and electrocution (dogs only).
. Back to the Pound or Owner

However, an 'animal-friendly' option exists [in addition to the (b) "Return to Owner" option above], and along with it a slight glimmer of hope for post-experimental dogs and cats. However it is hope ironically controlled and meted out at the discretion of the the very research facility that has used them for experimentation.

That is, a research facility that has acquired ownership of a cat or dog by requisition (and purchase) from a pound [ie. under ARA s.20(6)(c)], is exempted from the above 'closed loop rule' [ARA s.14(2)] - IF ALL of the following circumstances apply [ARA General Reg s.12]:
  • the research use of the dog or cat has been completed;

    There is no implicit limitation of 'research use' to one experiment. 'Completion' would be assessed on a practical standard of lack of immediate further need for the animal, or it being rendered unsuitable for future experimentation.

  • the dog or cat is, in the opinion of the research facility operator, "in a state of good health and suitable for" sale or gifting (or being held for good faith sale or gifting) either as pet, for use in hunting, or for working;

    AND

  • the purposes of the gifting-back are either the pet/hunting/working uses set out in #2 above, or for euthanasia.

    While the research facility may express a 'purpose' to have the returned animals euthanasized [as per above], there is no apparent law binding the pound to this intention. The fact that the General Reg s.12 exception only operates in the event of the 'gifting' of the animal back to the pound may preclude any contractual requirement on the pound to euthanize. Such a requirement would likely render the return contractual (rather than a 'gifting'), with the euthanasia term being the consideration for the transfer [in effect, the research facility is contracting with the pound for euthanasia services, which would void the exception and render the transfer illegal under ARA s.14(2)].
Any cat or dog so returned to the pound may NOT be re-sold or otherwise returned back to a research facility by the pound [AR General Reg.s.12(2)].

. Pound Options on Return

The options facing a pound operator with a returned animal are not plainly spelled out in law, but they can be inferred.

A return to the pound logically places the animals back into an ARA s.20(6) post-redemption period status [as per s.4(d) above], although ABSENT the research option [as per Reg s.12(2), above].

While under ARA s.20(6) the post-redemption period pound options include euthanasia, this ONLY if one of the exceptions explained in s.4(d) (above) is present. While these exceptions allow euthanasia if the animal is 'surplus to research need' or 'unsuitable for outstanding research requisitions' it is arguable if either of these reasons can be used to justify euthanization where the animal is categorically exempt from further research use by virtue of Reg s.12(2).

This leaves redemption (back to the original owner), or sale for pet/hunting/working purposes as the only remaining options. The pet/hunting/working purpose is of course one of the intended purposes which trigger the pound-return option (above) in the first place, so it is plainly an acceptable legal option - though it too could not likely be contractually required by the research facility as per the above note.

So things are looking better for any post-research pound-returned cat or dog, but the remaining choices are still discretionary to the pound operator.

. Understanding Discretion

Note that the exercise of statutorily-delegated 'discretion' is involved here in two key decision points: the decision of the research facility regarding the fate of post-experimental 'surplus' animals, and the similar decision of the pound with respect to 'returned animals'.

While the options facing these entities may not be entirely circumscribed under statute [for example, it is arguable that the decision to euthanize animals that one owns is a common law right], it is important to understand that to the extent that these decisions involve statutorily-delegated discretion that they are not completely unrestricted in law. It is a standard principle of law that any delegated discretion must be exercised in light of both the purpose of the granted authority, and on a fair and unconflicted consideration and balancing of relevant facts.

This raises the issue as to what the legislative intention is with respect to such post-experimental 'surplus' and 'returned animals': ie. is it entirely concerned with the utilitarian use of pound animals for human purposes (which is undoubtedly a concern at least in part), or does it recognize a further animal welfare influence as well. On this the strongest evidence may be Reg s.12(2), the rule prohibiting 'second tours' through the research system for returned animals. This provision seems to reflect an almost sentimental "you've done your duty, now you're free" moral position.

If so, this moral 'duty-fulfilled' factor which must be weighed in any such discretionary decisions. It also speaks against the legitimacy of any 'convenience' euthanasia of the animals by any facilities.

(d) Advocacy Comments

It may be that any animal advocacy challenge to research activities grounded on a 'human benefit' v 'animal suffering' balancing will have to be grounded in the Criminal Code "unnecessary pain, suffering or injury" provisions [see the Isthatlegal.ca] "Animals and the Criminal Law (Cruelty) (Canada)" Guide, Ch.3, s.4: "Main Offences: General Cruelty"]. The upcoming Bill 50 amendments to the OSPCA Act may also assist in this regard, as they also contain the key "unnecessary" qualifier in the "hardship, privation or neglect" distress provision.

Further, animals in the possession of a registered research or licensed supply facility [as defined in the ARA] are exempt from application of the OSPCA Act [ARA s.18(9)] - which includes both its substantive welfare standards and its investigative scrutiny. Compliance investigation of such facilities is entirely the mandate of ARA inspectors, who have "exclusive authority to initiate proceedings to enforce this Act and the regulations" [ARA s.18(1)] (this appears to preclude private prosecutions for ARA violations, though not of course for other legal violations).

While the ARA does require that "animal care committees" be established over research facilities, independent scrutiny of research activities by animal advocates is universally stone-walled. Efforts to use provincial freedom of information laws to obtain government-held pound, research facility and supply facility records are met with broad-exemption claims for such things as trade and third party secrecy.

This situation renders it difficult to advance the media advocacy which has had success in other animal areas, much less to develop the evidentiary basis upon which private criminal prosecutions may be brought.


6. Euthanasia

(a) Overview

The legal situations in which an animal may be euthanized by pounds, research facilities and others are described in several locations above in this chapter. This brief section simply outlines the methods of euthanasia legally authorized.

Much of this is just extracts from the ARA and its Regulations, but I have inserted legal commentary where appropriate.

(b) Euthanasia Methods

Below are the provisions from the ARA Pounds Regulation [Reg 23/90, ss.20-22] that cover euthanasia methods for dogs and cats in pounds.

Similar provisions, though designed for all species [the ARA covers all non-human vertebrates, including birds, cold-blooded animals and fish: ARA s.1(1)] held in research facilities or supply facilities (breeding for research) are set out in Reg 24/90 ["Research Facilities and Supply Facilities"], ss.28-32. As we are only considering cats and dogs in this present Guide I will not post them.
ARA Pounds Regulation

s.20(1)
Where euthanasia is carried out with respect to any dog or cat in a pound, it shall be carried out,

(a) by a person or persons properly trained in the euthanasia procedure to be used;

(b) in such manner that the death of the dog or cat occurs without unnecessary pain, delay or discomfort;

and

(c) in a manner that does not endanger or disturb other animals in the pound.

s.20(2)
No person shall use an euthanasia procedure with respect to any dog or cat in a pound unless it is a procedure that is permitted under section 21 or 22 and that is carried out with equipment of a type and used in a manner approved by the Director.

s.21(1)
This section applies to euthanasia of dogs or cats other than by the use of chemicals.

s.21(2)
The following euthanasia procedures are permitted:

1. In the case of dogs, killing by means of a captive bolt pistol.

2. Shooting by means of a firearm.

3. Exsanguination, but only where the animal is completely anaesthetized prior to and during the procedure.

4. In the case of dogs, electrocution.

22(1)
This section applies to euthanasia of dogs or cats by the use of chemicals.

s.22(2)
The following euthanasia procedures are permitted:

1. Administration of barbiturates intravenously or intraperitoneally.

2. Slow intravenous administration of Hoechst Pharmaceutical product T-61.

3. Administration of chloral hydrate intravenously.

4. Administration of ether by inhalation.

5. Administration of carbon dioxide by inhalation.

6. Administration of chloroform by inhalation.

7. Administration of carbon monoxide by inhalation but only where substantially all impurities have been removed therefrom and the temperature of the carbon monoxide does not exceed 25 degrees centigrade.

7. Pit Bulls in Pounds

(a) Overview

As noted above in the preamble to s.4, pit bulls are subject to significant variations in their pound treatment compared to other dogs, and cats. As these differences are structured as exceptions to the 'normal rules' explained in s.4, it is best to read s.4 thoroughly so that you can understand how pit bulls are treated differently within that system.

Where a pit bull is in a non-pound shelter, readers should refer to s.3(d) above: "Dogs and Cats in Shelters: Pit Bulls in Shelters".

(b) Defining Pit Bulls

I discuss the legal definition of a "pit bull" in Ch.5, s.2: "Pit Bulls: Pit Bull Definition and Proof".

It is ESSENTIAL to review that discussion, as the statutory definition of "pit bull" has been modified by the courts. The DOLA s.1(1) definition is no longer valid, and the new identification regime must be understood by anyone facing a pit bull "pound" situation.

(c) Special Pit Bull Pound Rules

The special pit bull provisions of the Animals for Research Act [ARA s.20(7.1-7.4)] impose the following modifications on the 'normal rules' of pounds. They are applied in a chronological 'if-then' sequence, in the order set out below.

(i) Non-Redemption or Adoption of Dogs Believed to be Pit Bulls

Any dogs who the pound operator initially "believes" are pit bulls may NOT (unlike other dogs) be redeemed (ie. recovered) by the owner - either before or after the redemption period has expired [ARA s.20(7.1)(b,c)].

As well the pound may not adopt it out [ie. sale or gift for pet/hunting/work purposes (or hold it for such later good faith sale or gifting)] [ARA s.20(7.1)(c)].

(ii) Owner 'Oppourtunity' to Prove Status of Dog

If (i) above is applied [ie. the pound operator believes the dog is a pit bull], the owner will be given an "oppourtunity" to "satisfy" the pound that the dog is either [ARA s.20(7.2)]:
  • not a pit bull (at all), or

  • is a "restricted pit bull".
A "restricted pit bull" is one that has been 'grand-parented' into legality by virtue of having been resident in Ontario on 29 August 2005 [or conceived (anywhere), and then born in Ontario, prior to that date] [see Ch.5 for a full explanation]. Any other pit bulls may be considered "banned pit bulls".

It may be that, despite the ambivalent wording, this ARA s.20(7.2) 'satisfaction' (on the part of the pound operator) constitutes in law a "statutory power of decision" within the meaning of the Statutory Powers Procedures Act ("SPPA") - and that the "oppourtunity to satisfy the pound" is similarly a 'hearing', requiring all the attendent SPPA minimum procedural requirements (ie. a 'proper' legal hearing). Readers may wish to review the Isthatlegal.ca Administrative Tribunal Procedures (Ontario) Guide on the nature of such minimum standards.

The function of this "oppourtunity" under these provisions is quite adjudicative in nature, no matter how it is styled. In short, a simple 'sit-down' might not be legally sufficient for the purpose, and anything short of SPPA compliance may undermine the legality of any resultant decision.

I note that hearings in past have been required by statute for such relatively minor things as muzzle orders under municipal by-laws [Municipal Act RSO 1990. M45, s.210(10) (now repealed)]:
s.210(10)
By-laws may be passed by the councils of local municipalities:

10.
For requiring the muzzling or leashing of a dog after it has bitten a person or a domestic animal, but the owner of the dog may request and is entitled to a hearing by the council or a committee thereof or the animal control official of the municipality if so delegated by council, which or who may exempt the owner from the muzzling or leashing requirement, or both.
This being the case requiring a hearing for something as serious as a effective death sentence for a pit bull seems to be legally demanded.

(iii) Redemption Unless Banned Pit Bull or Otherwise "Menace"

If the pound operator is 'satisfied' that the dog is NOT a "banned pit bull" (ie. that it IS NOT a pit bull, OR that it IS a "restricted" pit bull), then they must redeem (return) the dog to their owner [on payment of the "damages, fines and expenses" explained in s.4(c) above] UNLESS "the operator has reason to believe that the return of the dog would pose a menace to the safety of persons or domestic animals" [ARA s.20(7.3)].

On the unfairness of imposing this "menace" barrier to the redemption of dogs found not to be pit bull breed at all, see (iv)B below: "Non-Rdemption Pound Options: Dog is NOT a Pit Bull".

(iv) Non-Redemption Pound Options

A. Dog IS a Pit Bull (either "restricted" or "banned")

If the dog is a pit bull and cannot be redeemed under (iii) above - either because it is a "banned pit bull" or because it is a "restricted pit bull" that poses a "menace" - then the pound has the following options, ONE of which it must choose [ARA s.20(7.4)]:
  • Euthanasia

  • Transfer (sale or gifting) of the dog for pet/hunting/working purposes to a non-Ontario (or non-Canada) resident in a jurisdiction where it's ownership and possession is legal;

    Note:
    Such sale or gifting by the pound WITHIN Ontario is barred by ARA s.20(7.1)(c).

  • Research Sale

    Note:
    Discretionary redemption by the research facility back to the original owner is barred by ARA s.20(7.1)(a)].

    OR - IF the dog is a "restricted pit bull":

  • Transfer (sale or gifting) of the dog to a new Ontario owner under the transfer exception to the DOLA pit bull ban [explained in Ch.4. s.6(c): Pit Bulls: Transfer: Gifting and Bequesting Exceptions].

    This referred-to DOLA [Dog Owners' Liability Act] provision legitimizes transfers of "restricted pit bulls" - by gift or bequest only - to Ontario residents as long as the "acquisition limits" (following) are met:

    - if the 'new' owner owned a pit bull/s on 29 August 2005, the transfer does not increase the number of pit bulls they owned at that date; or

    - if the 'new' owner did not own a pit bull on 29 August 2005, the transferred pit bull must be the first they have ever owned. [Note: review the Ch.4 reference regarding some legislative ambiguity on this issue; it may be interpretable as: 'as long as they do not own any other pit bulls at the time of the transfer']

    Note re "Transfers"

    There is ambiguity regarding both of the above 'transfer' options. While the pound will have possession of the pit bull at this point, it is unclear whether it has "ownership" at that point such as would normally be required for it to then "transfer" title to another person.

    I note that the DOLA/ARA legislation lacks any express 'power of sale' provision similar to the one we find in OSPCAA s.15(2), where non-payment of care expenses justifies sale of a seized animal by the OSPCA - despite the fact that the OSPCA does not own the animal under the common law [this is akin to a mortgage-based 'power of sale' of real estate].

    Further, while the DOLA s.1(1) definition of "owner" includes 'possession or harbouring' of a dog - this not an ARA provision (and the governing law regarding these transfers is ARA law), and - in my opinion - the DOLA definition would likely be viewed by reviewing court as just a legislative regulatory convenience to impose the main pit bull ban on 'possessors' as well as 'true' owners. Typically in law the statutory abrogation of property rights require a much more clearly expressed intention.

    That said, the two transfer provisions referred to above are welcome alternatives to research sale and euthanasia, so true owners facing these stark options should nor argue the issue but should co-operate with any pound that is leaning towards these alternatives - typically by way of written surrender of the animal to the pound, if so required (as pounds may not share my analysis).

    Further, if this is done - and assuming my interpretation above is correct - it appears that the pound could then (technically) choose to 'transfer' the dog back to its original owner if all other legal requirements are met (ie. the acquisition limits). In short, it may be a 'loophole' which could be exploited by a dog-friendly conspiracy between the pound and the original owner. While the technique is plainly oppourtunistic, it is no more so than many widespread - and quite legal - tax avoidance schemes.

    Additionally, as the DOLA definition of "owner" "includes ... where the owner is a minor, the person responsible for the custody of the minor", it leaves open an interpretive possibility of transferring title from child to parent (or vice versa) while still maintaining compliance with the Ontario transfer option above.

    In short, with a modicum of good will and flexibility on the part of the pound operators, more creative options may exist in these otherwise dire circumstances than are presently perceived. Such pound operators should also be aware that their exercise of discretion as to the fate of the dog is not ungoverned in law, but must always be made in the context of both the purpose of the legislation and the facts of each situation [this is discussed further at s.5(c) above].

    I welcome any thoughtful feedback on the above analysis.
B. Dog is NOT a Pit Bull

As noted in (iii) above, if the dog is NOT a pit bull (of any kind) BUT "the [pound] operator has reason to believe that the return of the dog would pose a menace to the safety of persons or domestic animals" then it still may not be redeemed to the owner [ARA s.20(7.3)].

Not being pit bulls, they do not fall under the mandatory list of options explained in A above. So what happens to them? All we know is that they cannot be redeemed back to their original owner.

The only logical result is that they default back to the remaining ARA s.20(6) options [for dogs after the expiration of the redemption period: see s.4(d) above]. These include:
  • pet/hunting/work sale or gifting (or holding it for such later good faith sale or gifting); or

  • research sale, assuming a requisition.

    Comment:
    It is not really logical to impose this additional 'menace' redemption-barrier to dogs that are found - after this "oppourtunity to satisfy" - NOT to be pit bulls (banned or not), as this provision does.

    Non-pit bulls that enter the pound system by the 'normal' seizure route - that is WITHOUT them being initially "believed" to be pit bulls - are NOT barred from redemption by virtue of any violence or menace concerns [see s.4 above], but rather must be dealt with under the normal DOLA court order provisions explained in Ch.3: "Dog Destruction and Control Orders" - which require a full judicial hearing. Why should such mis-identified dogs be treated differently?

    This situation is another good reason why the "oppourtunity to satify" should be viewed as an administrative hearing process covered under the Statutory Powers Procedures Act [as discussed in (ii) above], and attended by appropriate levels of natural justice.
(d) Judicial Review Cases

. Ochoa v Toronto

In Ochoa v Toronto (Div Ct, 2006) a dog had been found at large and delivered to a Toronto pound. The case was a judicial review of a pound operator's decision - after she 'believed' under ARA s.20(7.2) that a dog was a pit bull (apparently a "restricted" pit bull) - that the dog was a "menace to the safety of persons or domestic animals". This "menace" decision triggered the pound operator's exercise of discretion under s.20(7.4), which put the dog on the fast-track to the limited and mostly nasty s.20(7.4) options.

At the point that the "menace" decision was reached, the pound sent the owner a letter communicating the decision, and giving him a deadline for the bringing of any legal proceedings to challenge it.

In any judicial review proceeding a preliminary issue is the "standard of review" to be applied to the decision or action being reviewed. In this case the court applied a "reasonableness" standard, which is considered more deferential to the decision-maker than the more stringent standard of "correctness".

While the applicant argued that the dog was not a pit bull, the court deferred to the expertise of the pound operator and stated:
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.
In dismissing the application the court awarded costs of $35,000 to the City.

. Yeung v Toronto

Yeung v Toronto (Div Ct, 2008) was a subsequent judicial review of a pit bull pound case. The allegations were that a restricted pit bull had escaped from its enclosure and attacked another dog and its owner. The pound first sent the owner a notice under ARA s.20(7.2) that it believed the dog to be a pit bull (and that it had engaged in attacks), and gave the owner their statutory s.20(7.2) "oppourtunity to satisfy" that it was not a pit bull, or that it had not engaged in the misbehaviour [in an apparent anticipation of the subsequent ARA s.20(7.3) duty to assess whether the animal was a "menace"]. Written submissions were filed by the owner's lawyer, after which the pound operator re-affirmed their findings and notified the owner that they intended to destroy the dog [under ARA s.20(7.4)]. The court also applied a "reasonableness" standard to the review.

Further documentation was filed and cross-examination on affidavits was conducted in the judicial review proceeding. Although the applicant's counsel apparently raised (unspecified) arguments about procedural fairness, the court held these to be irrelevant. The court focussed simply on whether the findings that the dog was a pit bull - and that it had misbehaved - were "reasonable". The record showed several admissions by the owner (and counsel) that the dog was a pit bull, unchallenged evidence of misbehaviour - and the court treated the evidence of the owner's ID expert as weak and conflicted.

In dismissing the application the court awarded costs of $15,000 to the City.
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