On May 25, 2018, the Yukon Court of Appeal released its decision in Angerer v. Cuthbert, 2018 YKCA 2018. This is a case about claims of private nuisance against a neighboring dog shelter.
For a number of years, Ms. Cuthbert operated one of the only dog rescue shelters in all of Yukon on her five-acre property in Tagish, an unincorporated community. She also operated a private dog boarding business, and provided Animal Control services to the Carcross/Tagish First Nation, who have a problem with abandoned dogs on their streets. At the time of trial, Ms. Cuthbert housed approximately 60 dogs, and would at times have up to 80 dogs. Her neighbors brought an action in private nuisance claiming that noise from dogs barking on Ms. Cuthbert’s property constituted a “substantial and non-trivial interference” with their enjoyment of their properties that is unreasonable in all of the circumstances.
The Trial Judge applied the Supreme Court of Canada decision in Antrim Truck Centre Ltd. v. Ontario (Transportation), 2013 SCC 13, and found her liable to several of her neighbors in nuisance. He granted an injunction preventing Ms. Cuthbert from keeping more than two dogs on her property at any time. Ms. Cuthbert was ordered to surrender all of the dogs, except two, to the Yukon Government’s Animal Health Unit within four months of the order. She then appealed that order to the Yukon Court of Appeal for a number of reasons, including procedural fairness, failure to assist a self-represented litigant, exclusion of evidence, judicial bias, and the most important reason (and focus of this article) being that the Judge failed to properly apply the elements of a private nuisance claim.
The Appeal Court ultimately accepted the Trial Judge’s findings of fact and law that the interference with the neighbors’ use/enjoyment of their properties was both (a) substantial and, (b) unreasonable – two factors that are necessary to support a claim in private nuisance. In regard to substantial interference, Ms. Cuthbert argued that the dogs did not bark as frequently as the neighbors claimed and that the evidence of the dogs barking was a result of the neighbors and others antagonizing the dogs. The Trial Judge dismissed that argument, and the Court of Appeal agreed that the Trial Judge did not err when he found that the barking would be unbearable to any reasonable person in the neighbors’ shoes; as such, there was substantial interference with the use and enjoyment of the neighbors’ properties.
In regard to whether the interference was unreasonable, the Court of Appeal acknowledged that the Trial Judge correctly considered the social utility of Ms. Cuthbert’s conduct, the severity, frequency and duration of the interference, the sensitivity of the neighbors, and the character of the neighborhood.
The Trial Judge considered Ms. Cuthbert’s evidence that: her dog rescue business has social utility in the Yukon and further afield; she takes dogs with behaviour problems who may be otherwise unsafe, and might otherwise have to be euthanized; she rehabilitates dogs and adopts them out to other owners; she provides an essential service to the Carcross/Tagish First Nation. However, the Trial Judge found that the severity of the harm caused by Ms. Cuthbert outweighs the social utility benefit. The Trial Court did not put any weight on the fact that most of these neighbors use their properties for recreational purposes, and for only part of the year.
From an Animal Law perspective, it is troubling to see that the Court of Appeal accepted the Trial Judge’s view of social utility; namely that Ms. Cuthbert’s animal welfare work was not an “essential” service, and that the neighbors received no benefit from her business. This sends a chilling message that it is more important to consider the comfort of some part time residents who do not want to listen to dogs bark, than it is to consider the importance of an animal shelter that helps hundreds of dogs in the community. While it is true that the neighbors did not directly benefit from Ms. Cuthbert’s rescue work, she provided a much-needed service to a community that is in dire need of more shelters for unwanted, abandoned and troubled dogs. Arguably, Ms. Cuthbert’s work in sheltering and rehabilitating dogs provides a benefit to the entire community and Territory.
It is also troubling that the Court of Appeal did not vary the initial order of prohibiting Ms. Cuthbert from having more than two dogs at any time. Currently, Tagish does not have any animal control bylaws, nor any legislation governing the number of dogs people are allowed to have. This is a rural community, with a lot of space between individual properties. The Court of Appeal was attempting to deal with this matter in a practical manner, but the outcome will be anything but that. Going forward, most of these dogs will likely be euthanized. Perhaps more troubling, is that there is now very little (if any) assistance to the hundreds of dogs that will need future care and sheltering. Given this decision, it is unlikely that someone else will open another shelter in that area.
All of that said, there is a silver lining to this case. Ms. Cuthbert intentionally disobeyed the initial Court order, presumably because she could not face the fact that most of the dogs she cared for would now be killed. Normally, an Appeal Court will not entertain an appeal of an order that was wilfully disobeyed. That is because courts are concerned that hearing an appeal and potentially granting relief to a party who has exhibited disdain for the judicial process may work to undermine the authority of the Court and bring the administration of justice into disrepute. In this case, the Court of Appeal exercised its discretion to hear and dispose of the appeal because “the interests of justice engaged by this case encompass more than the appellant’s business and personal interests. The determination of this appeal will also affect the welfare of dozens of animals…”. In other words, the main reason the Court of Appeal decided to hear this case was because it was concerned about the welfare of animals. This sends a strong message that animal welfare should be considered in judicial decision-making.
In its conclusion, the Court of Appeal also noted that “[t]o be clear, no one wants to see any dog euthanized that is capable of being put up for adoption. It is hoped that the publication of this decision will encourage individuals seeking to adopt a rescue dog to take immediate steps to contact the Yukon Government’s Animal Health Unit or the Humane Society Yukon.” This sends another strong message that the highest court of the Yukon is concerned with the plight of these dogs, and animal welfare in general.