February 23, 2018
Marcotte, Schrager, Hogue
Appeal from a judgment of the Superior Court allowing an application for a permanent injunction. Dismissed.
The trial judge found that the appellant had violated the municipal by-law concerning cats since 2009, and the by-law concerning dogs until January 2016, by keeping more than two animals of each species in her home. As for the license to keep 15 to 49 cats issued to the appellant by the Ministère de l’Agriculture, des Pêcheries et de l’Alimentation du Québec (the MAPAQ), the judge found that it could not take precedence over the municipal by-law because the Act did not expressly provide for this. He therefore allowed the respondent’s application for a permanent injunction and ordered the appellant to, among other things, dispose of the cats and dogs she was housing (twenty-seven cats and two dogs at the time of the hearing), except for a maximum of two cats and two dogs. At the same time, the judge granted the respondent’s inspectors access to the premises to seize the animals in the event that the appellant failed to comply with the orders rendered.
Complying with the MAPAQ regime means complying with safety and welfare standards and not housing more cats or dogs than is permitted. Complying with the municipal by-law requires keeping no more than two cats and two dogs in the same home. Because it is possible to comply with the requirements of both laws at the same time, they are not irreconcilable. In addition, obtaining a provincial license does not justify non-compliance with a municipal by-law. Thus, the judge did not err in failing to declare the municipal by-law inoperative. The power of a municipality to restrict the number of animals per home falls under its jurisdiction in matters of nuisance (s. 4 of the Municipal Powers Act (CQLR, c. C-47.1)). The scope of this jurisdiction did not change with the adoption of the Animal Welfare and Safety Act (CQLR, c. B-3.1) or with the recognition that animals are not property but rather, sentient beings that have biological needs. Despite this change in status, animals remain a possible source of nuisance. Accordingly, the municipal by-law in this case remains valid. Moreover, in light of the case law, the power to inspect set out at s. 5 of the respondent’s by-law 1668 concerning the custody of animals is not abusive, and the inspection of the premises in this case was not conducted in an abusive manner. In the circumstances, the respondent did not violate the appellant’s right to protection against unreasonable searches in exercising its inspection power. Finally, the order rendered by the judge permits the respondent to seize the cats if the appellant refuses to comply, which is also set out in by-law 1668 concerning the custody of animals.
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