December 01, 2016
Pelletier, Savard, Émond
Appeal from a judgment of the Superior Court ordering the suspension of the coming into force of certain provisions of the By-law concerning Animal Control. Allowed.
On September 27, 2016, the appellant city’s municipal council enacted the By-law concerning Animal Control. This by-law contains various provisions specific to “pit bull-type dogs”, which are at the heart of the current dispute. The following day, the respondents launched an application for judicial review before the Superior Court, seeking to have the contentious provisions declared illegal and null and void. The respondents also made a collateral application to the court to suspend the effect of the contentious provisions until the expiry of the deadline to challenge the decision on the merits. On October 5, 2016, the application for a suspension order was granted.
As for the respondents’ colour of right, the judge failed in his analysis to take into account the judgment in Cochrane v. Ontario (Attorney General), (C.A. (Ont.), 2008-10-24), 2008 ONCA 718, SOQUIJ AZ-50517716, and the Quebec Superior Court judgment in Madronero v. Lachine (S.C., 1990-02-28), SOQUIJ AZ-90021225, J.E. 90-771. Those judgments dismiss on the merits the argument that definitions of “pit bull” with wording similar to that in the appellant’s by-law were subject to being struck down. The respondents therefore cannot claim to have a clear right. As to the issue of irreparable harm, the judge considered the contentious provisions as a whole, without distinguishing those that might cause irreparable harm from those that give rise to an inconvenience or a hypothetical harm. Finally, in his analysis of the balance of convenience, he failed to take it for granted that the by-law at issue was enacted for the public good and that is serves a valid public interest objective. These are determinative errors. In the circumstances, the suspension order should be quashed, and the Court takes note of the appellant’s undertaking to limit the application of certain provisions of the by-law, pending the Superior Court judgment on the application for judicial review.
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