MOTION FOR JUDICIAL REVIEW AND FOR AN ORDER TO STAY EXECUTION (Art. 20, 46, 846 C.C.P.) ______________________________________________________________________________ IN SUPPORT OF HIS MOTION, THE PLAINTIFF RESPECTFULLY SUBMITS: Plaintiff is faced with an order by the Defendant to have his dog, Rumby, euthanized within 48 hours of the delivery of the order, dated April17, 2013 (hereinafter the “Order”), the whole as appears from a copy of the Order attached hereto as Exhibit P-1; Plaintiff has maintained that the Order is without merit, has refused to conform to it, and has sought a way to appeal it; The Defendant issued the Order without questioning the Plaintiff or examining the dog, and without giving the Plaintiff an opportunity to be heard on the matter; Background The Plaintiff has never been found to have committed an infraction relating to his dogs, up until April17, 2013; On Easter weekend, the Plaintiff’s dog, Rumby, was suspected to have bitten another dog belonging to the Plaintiff’s neighbours; Rumby was in custody of a friend while the Plaintiff and his spouse were on vacation. When the police arrived at the scene, the Plaintiff was not present; The police officers did not cite the Plaintiff’s friend with an infraction but reported the case to the City Inspector at the Canine Control Department; On April15, 2013, an official from the Canine Control Department visited the Plaintiff’s domicile and left a letter ordering the Plaintiff to muzzle his dog, Rumby, for 90 days while the dog is outside the Plaintiff’s domicile; On April18, 2013, the same official came back to the Plaintiff’s house, at which point he served the Plaintiff with the Order; Authority to Make the Order The City of Montreal By-law concerning Dog and Animal Control, R.B.C.M. c. C-10 (the “By-law”) attached hereto as Exhibit P-2, authorizes the Director of the Service des permis et inspections to order that a dog be euthanized, if he is of the opinion that the dog constitutes a health or safety hazard, as per sections 1 and 19 of the By-law; The Defendant has overstepped its authority in making the Order, because it is not authorized by the By-law to make such order; Procedural Justice The Order, Exhibit P-1, is judicial in nature because it is based on the opinion of the Director of the Service des permis et inspections as to whether a dog constitutes a health or safety hazard; The Order gravely affects the rights of the Plaintiff as it orders him to end the life of his pet; The Order is tantamount to expropriation of property as it has the effect of depriving the Plaintiff of his property; The Order does not indicate a file number associated with the decision it carries; The Order was made without questioning of the Plaintiffs, nor an examination of the dog ordered to be euthanized; The Order mandates compliance within 48 hours and does not indicate any means of appeal; The Plaintiff has been denied a fundamental right to his property without due process and without being given a right to be heard; The Plaintiff made an Access to information request to the Defendant, requesting all the documents and reports in relation to the Order, the whole as appears from a copy of said request dated May 2nd, 2013, attached hereto as Exhibit P-3; Following such request, the Defendant transmitted to the Plaintiff the following documents: a) undated inspection report; b) notice dated April 15, 2013; c) notice dated April 17, 2013; d) letter dated May 27, 2013 refusing access to Police report; the whole as appears from a copy of such documents, attached hereto en liasse as Exhibit P-4; The transmitted documents in no way provide a sound basis on which to arrive at the decision pronounced in the Order; Following the receipt of these documents, Exhibit P-4, the Plaintiff was assured that the Order is without merit and, proof in hand, decided to institute the present proceedings; Exercised discretion violates Charter rights Although the Defendant enjoys certain discretion in ordering that a dog be euthanized due to public safety concerns, it must nonetheless exercise it while respecting the Plaintiff’s fundamental rights pursuant to the Charter of human rights and freedoms, and notably the right to the peaceful enjoyment and free disposition of one’s property; The Defendant has exercised its discretion in a grossly unreasonable manner, depriving the Plaintiff of his property without due process and without proof of public safety concerns; Punitive damages The Defendant has been chastised by this court on several occasions for violating procedural fairness in applying the By-law, Exhibit P-2, particularly in not giving the opportunity to a dog owner to be heard prior to issuing a euthanasia order; In view of the foregoing, the violation of the Plaintiff’s fundamental right to procedural justice constitutes an unlawful and intentional violation susceptible of punitive damages; Order to stay execution Unless this order is stayed, the Plaintiff risks losing his dog, which would render the present procedure moot; The Plaintiff’s motion is well grounded in facts and in law; FOR THESE REASONS, MAY IT PLEASE THE COURT: STAY the execution of the order of the Defendant to euthanize the Plaintiff’s dog, dated April17, 2013 (the “Order”), until a decision is rendered by the Court on the merits of the case; GRANT the present Motion for judicial review; QUASH the Order of the Defendant; QUASH all the citations against the Plaintiff relating to the non-compliance with the Order, if applicable; CONDEMN the Defendant to pay to the Plaintiff the amount of $5,000 in punitive damages, with interest at the legal rate, as well as the additional indemnity provided for in article 1619 of the Civil Code of Quebec, to accrue from April 17, 2013; THE WHOLE with costs. Montreal, June11, 2013 __________________________ Réal Ferland, Plaintiff rick.cognyl-fournier/3940
Posted on: Wed, 12 Jun 2013 23:08:50 +0000
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