Exotic Animals - By-Laws
Stadium Corp. of Ontario v. Toronto (City), 1993 CanLII 8681 (ON CA)
GRANGE J.A.:--The City of Toronto, by by-law enacted in 1986 and particularly by the amendments to that by-law in 1992, has prohibited circuses and similar shows exhibiting what are referred to as "exotic animals" from performing or being exhibited within the borders of the city unless the performance is related to certain film or educational activity.
The by-law was attacked on constitutional, statutory and discriminatory and subdelegation grounds, all of which were rejected by the Divisional Court on an application for judicial review [(1992), 1992 CanLII 7475 (ON SCDC), 10 O.R. (3d) 203, 11 M.P.L.R. (2d) 68]. An appeal is now taken from that decision by leave of this court.
A by-law must be passed for the purpose allowed by the statute, and council must not seek, in enacting a by-law, to accomplish indirectly that which cannot be directly accomplished in the manner provided by the Legislature.
In my view the legislature in enacting s. 210(1) did not intend the city to use it to control the conduct of circuses. What was intended instead was that the by-laws passed under the section would control the keeping of exotic animals such as, perhaps, the tiger associated with the dancer at Jilly's Tavern and would restrain the activities of persons who fancied boa constrictors or barracudas as domestic pets.
For these reasons, I am of the opinion that council of the city exceeded its powers in attempting to prohibit the use of exotic animals in circuses visiting the city. The aims of city council may well be commendable but those aims must be legislated or fulfilled by the appropriate authorities.
Xentel DM Inc. v. Windsor (City), 2004 CanLII 22084 (ON SC)
[24] Here, the power to pass a by-law for public safety is expressly conferred, and therefore it must be viewed not by implication, but rather within the context of the circumstances which caused Council to pass it in the first place. In the case at hand, an attempt to legislate for animal welfare by clothing the By-law with the trappings of public safety without ever having undertaken even a reasonable minimum of due diligence investigation or review, is clearly in my view, ultra vires Council’s power as defined in s.236(7) of the Municipal Act.
[25] The City of Windsor had the power conferred upon it by s.236(7), but the basis on which it exercised that power in passing its by-law was flawed. We are not, here, seeking to imply on a reasonable or deferential basis the power to pass a public safety by-law and therefore deference must give way to a critical analysis of Council’s action and to confine its authority to the powers expressly conferred, namely, for public safety. [See R.. v. Sharma, supra]
[34] The court cannot legitimize an ultra vires exercise of council’s power where it merely describes its By-Law in terms of the relevant section. The pith and substance of this By-law in my view is animal welfare and not public safety. To give support to the defence argument in the Shell case requires, in my view, that there be some factual or contextual underpinnings which might support Council’s best intentions. But as stated earlier, there was no evidence of Council having directed its mind to the causal connection between public safety and the performance of exotic animals. If anything, there is ample evidence to suggest it failed its due diligence obligation which in my view, existed in the circumstances. Expressed another way, what the By-law attempts to do is simply prohibit the activity (exotic animal performances) without responding to the core issue, namely whether public safety was adversely affected..
[153] Again, had Council arrived at the decision to ban the performances of exotic animals using sufficiently probative evidence, the effect of this by-law would likely be proportionate to the restrictions placed upon the Circus. The by-law does not prevent the Applicants from expressing the circus culture through the use of non-exotic animal and human performances. Thus, contrary to the Applicants‘ submission, the Circus’ freedom of expression is not completely limited and would be proportional to the salutary effects of public safety. However, because the By-law was passed for the ulterior purpose of animal welfare the Respondent City failed to provide at least a reasonable degree of evidence to causally link exotic animal performances to public safety. There was insufficient examination of any evidence to rationally support the secondary purpose of protection of the public and therefore I cannot find a proportional relationship between the deleterious and salutary effects of the measures.
The answer to this question is Yes.
DISPOSITION
[154] In conclusion, I find that the City of Windsor By-law was ultra vires Council and must be struck down for the reasons given. Should I be mistaken with respect to my application of McLachlin J.’s dissent in Shell, I find that in any event the By-law violates the Applicant’s s. 2(b) Charter right in that there is no rational connection between the By-law and its objective as there is no evidence that the animal performances in question create a danger to the public.
Cowles v. Balac, 2005 CanLII 2038 (ON SC)
Tiger Attack...
