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) Document History (0) Cited documents (56) Cited by (11) CanLII Connects (0)

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Date: 2004-09-07 File number: 03-CV-000781 Other citations: 243 DLR (4th) 451 — 123 CRR (2d) 137 — [2004] OJ No 3656 (QL) — 50 MPLR (3d) 165 — 133 ACWS (3d) 557 Citation: Xentel DM Inc. v. Windsor (City), 2004 CanLII 22084 (ON SC), <http://canlii.ca/t/1hrhc>, retrieved on 2020-03-30 COURT FILE NO.: 03-CV-000781

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

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XENTEL DM INCORPORATED, OUTDOOR AMUSEMENT BUSINESS ASSOCIATION, TZ PRODUCTIONS, AND GARDEN BROTHERS

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Stanley M. Makuch, Signe B. Leisk, Cassels Brock & Blackwell LLP, for the Applicant

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Applicants

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THE CORPORATION OF THE CITY OF WINDSOR

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Mark P. Nazarewich, Office of the City Solicitor, Solicitor for the Respondent

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Respondent

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HEARD: March 22, 23, 24, 25, 30, 31, and April 1, 2004

Richard C. Gates

A. INTRODUCTION

[1] This application is brought by Xentel DM Incorporated (the Applicant) against the City of Windsor (the City). The applicant is seeking a Declaration that City By-law No. 298-2002 (the By-law) passed by Windsor City Council (Council) is invalid and a further Order enjoining the City and its employees and agents from taking any action to enforce the By-law as it relates to the participation of an animal or animals in live public entertainment in the City.

B. BACKGROUND

[2] This action is based upon a by-law passed by the City which prohibits the conducting, operating, taking part in or carrying on of any entertainment whatsoever which involves the participation of exotic animals, as defined therein.

[3] Xentel is a circus producer and is responsible for the logistics of “bringing the circus to town”, such as the one involved here. It arranges the venue and obtains all the necessary permits, to ensure compliance with animal protection legislation, for the care of performers and to ensure public safety. Outdoor Amusement Business Association (“OABA”) is a trade association for the outdoor amusement industry and has more than 5000 members. The OABA is involved in establishing industry-wide safety guidelines and regulations; it lobbies governments; it established a code of ethics and assists its members to speak as one voice. TZ is a member of the OABA and is a family of circus performers, which since 1763, and has travelled all through Europe, Africa, and North America. Garden Brothers another family organization was established in 1938 and is the largest three-ring circus in North America. It is owned and operated by the third-generation of members of the Garden family and is also a member of the OABA.

[4] The Applicants contend that a vital component of the circus entertainment produced by them is the use of live exotic animal performers. They maintain that the use of exotic animals is an integral part of the traditional circus culture as well as an important feature to circus patrons.

[5] The Respondent City of Windsor passed the By-law in question, it argues, for the purpose of protecting the citizens of the City of Windsor from animal attacks, and for no other improper purpose.

[6] The By-law is as follows:

By-law A BY-LAW TO PROTECT PERSONS WITHIN THE CITY OF WINDSOR FROM HARM FROM PERFORMING ANIMALS:

WHEREAS Section 236.7 of the Municipal Act, R.S.O. 1990, c. M.45 provides that a municipal council may pass by-laws prohibiting or regulating menageries, circus-riding and other like shows usually exhibited by showpersons;

AND WHEREAS the Council of the Corporation of the City of Windsor wishes to ensure the safety and well-being of its residents and visitors by prohibiting certain animal performances within its boundaries;

NOW THEREFORE, the Council of the Corporation of the City of Windsor enacts as follows:

DEFINITION

1. In this by-law

a. “animal” means a mammal, bird, reptile, amphibian, fish or insect but does not include human being.

b. “performance” means a circus, carnival, show, form of entertainment, exhibition, menagerie or act of showmanship.

c. “person” includes a corporation and the heirs, executors, administrators or other legal representatives of a person.

PROHIBITED PERFORMANCES

2. No person may conduct, operate, take part in or carry on a performance, or assist in conducting, operating or carrying on a performance that involves the participation of an animal or animals.

3. Nothing in this by-law prohibits or restricts the following:

a. Displaying or showing animals in agricultural fairs;

b. Horse races;

c. Rodeos;

d. Magic acts using birds, domestic dogs, domestic cats, or rabbits;

e. Horse or pony riding;

f. A performance whose main object is for educational purposes and does not involve the participation or inclusion of any of the following;

i. Felids, except the domestic cat;

ii Canids, except the domestic dog;

iii. Gorillas;

iv. Ursidae, except koala and panda bears;

v. Elephants;

vi. Rhinoceri;

vii. Hippopotamuses;

viii. Crocodilians;

viii. Ungulates, except domestic goats, sheep pigs cattle

           horses, mules and donkeys;

x. Hyaenas

g. Domestic dog or domestic cat shows.

GENERAL

4. Where the provisions of any other by-law are inconsistent with the provisions of this by-law, the provisions of this by-law shall prevail

5. Any person who contravenes the provisions of this by-law is guilty of an offence and on conviction is liable to a fine as provided in the Provincial Offences Act.

At this point it would be helpful to outline the chronology of events that preceded the passing of the By-law, before proceeding to identify and discuss the issues.

CHRONOLOGY OF EVENTS

April 29, 2002 Staff Report recommending issuance of permit

                                                           subject to conditions, for Circus at Riverfront

                                                           Festival Plaza.

May 6, 2002 Council Meeting which adopts Staff Report

                                                           approving issuance of permit, subject to con-

                                                           ditions.  Representatives from ARK II, Youth for a

                                                           Better World and Shrine Circus (TZ Productions)

                                                           make deputations.

June 17, 2002 Letter from Zoo Check respecting the issue of wild

                                                           animals in circuses and travelling shows.

July 8, 2002 Council Meeting. Zoo Check correspondence on

                                                           agenda.  Motion passed requesting legal opinion on

                                                           restricting performing animal acts.

July 25, 2002 Legal Report Prepared.

In and around this time, materials prepared and delivered

to council by animal rights organizations.

August 21, 2002 Xentel correspondence to Council.

August 22, 2002 Outdoor Amusement Business Association

                                                           correspondence to Council.

August 26, 2002 Council Meeting. Representatives from TZ

                                                           Productions, Outdoor Amusement Business

                                                           Association, Zoo Check, ARK II, Jazzpurr Society

                                                           For Animal Protection.

September 20, 2002 Correspondence on behalf of Outdoor Amusement

                                                           Business Association from Cassels, Brock &

                                                           Blackwell to Members of City Council.

September 23, 2002 By-law read three times and passed.

C. ISSUES

[7] While the By-law does exempt certain entertainment involving animals, including domestic cat and dog shows, rodeos and agricultural fairs, the Applicants argue that it is invalid for the following reasons:

a) The By-law was enacted for an improper purpose; (paragraphs 9-45)

b) The By-law unlawfully discriminates in the municipal law sense because it bans circus entertainment using exotic animals and no other entertainment, without authority or purpose.

c) The passing of the By-law violates the doctrine of fairness by denying the Applicants’ right to continue to provide exotic animal entertainment without providing them with an opportunity for a hearing; and (paragraphs 46-48)

d) The By-law is in pith and substance an attempt to regulate public morality by banning entertainment with exotic animals and as such involves the exercise of the criminal law power exclusively vested in the Parliament of Canada pursuant to s. 91(27) of the Constitution Act, 1897; (paragraphs 86-103)

e) The By-law is void for vagueness in that it exempts performances, such as agricultural fairs and those for educational purposes, without any attempt to define or establish the meaning of these terms; (paragraphs. 49-85)

f) The By-law contravenes the freedom of expression guaranteed to the Applicants and others under section 2(b) of the Canadian Charter of Rights and Freedoms (the Charter) which cannot be justified under section 1. (Paragraphs 104-130)

[8] I shall now deal with all of the above issues in the same order.

(D) ANALYSIS

(A) Did the City enact the By-law for an improper purpose?

[9] The Applicants maintain that although the stated purpose of the By-law is the protection of residents and visitors, the actions of Council reveal that the true purpose of the By-law is the protection of exotic animals. Further, they argue that since the City does not have the authority to regulate for the purpose of animal welfare, the By-law is ultra vires and invalid.

[10] The Applicants support their position with the affidavit of Len Wolstenholm and the transcripts of various City of Windsor Council Meetings. They demonstrate, through Mr. Wolstenholm’s affidavit, that in the spring of 2002 the Shriners applied for a permit to hold a Shrine Circus (the “Circus”), which included exotic animal performances, in the City at the River Front Festival Plaza. Up until this time there had never been any issues or concerns with respect to the Circus applications, and Council had previously approved these applications without controversy. The evidence establishes that the Shrine Circus had performed in Windsor for 18 years previously without any incidents whatsoever related to public safety, or for that matter, to the welfare of the animals. The evidence also establishes that Garden Brothers has operated its Circus across Canada for 54 years likewise without any incidents pertaining to its patrons. At the meeting of May 6, 2002, however, various animal rights activists attended, voicing their opposition to the Circus application on the basis that the Circus uses exotic animals for entertainment.

[11] It is, I believe, important to note that notwithstanding the concerns expressed by the animal rights’ activists, Council approved the 2002 permit application. In so doing, Council required the Circus to enter into a standard Parks Use Agreement wherein it agreed to comply with all by-laws, provide an emergency response plan, and allow random inspections by the Windsor-Essex County Humane Society. According to the transcripts and the affidavit of Len Wolstenholm, the decision to approve the Application was based upon the following information:

a) In 2001, the Circus had been inspected by members of the Windsor Fire Department, who were satisfied with the Circus’ Emergency Response Plan.

b) The Windsor Humane Society confirmed that there had been no incidents or evidence of abuse with respect to the circus animals and,

c) The Circus would not receive its permit unless the Police and Fire Departments approved the Emergency Response Plan.

[12] Therefore in 2001 the Circus fulfilled all conditions of application approval, and both the Police and Fire Departments were satisfied with the Emergency Response Plan. Accordingly a permit was issued and the Circus performed with exotic animals during that year, again without incident. This demonstrates that in the past the City was content with the safety measures and plans established by the Circus and approved by Police, Fire and Sanitation authorities.

[13] In 2002 another permit was routinely requested on behalf of the Shrine Circus to be held at the Riverfront Plaza between May 31st and June 2nd.

[14] A brief review of the chronology, supra, leading up to the 2002 By-law prohibiting the Circus, would, I believe, be helpful.

(1) Following receipt of the Shrine Circus request for a permit for 2002 and as a result of discussions originally held at the time it issued a permit for 2001, the City Parks Department convened a meeting on April 29, 2002 of some of the interested parties on both sides of the animal issue, including ARK II (an animal rights advocacy group) and Xentel D.M. the Circus Performance Company and one of the Applicants herein. As a result of that meeting certain agreements were reached:

▪ Applicants with animal acts were to inform the Windsor Essex County Humane Society so that inspections would be carried out.

▪ The applicants would have an emergency response plan in place that is reviewed by the Windsor Police Service and Fire Chief.

▪ That ARK II would provide information to the local Shrine Club for events without animals that could be explored in addition to events already conducted.

▪ That ARK II provide information to the Windsor Essex County Humane Society that may be beneficial to the inspection staff.

(2) It was therefore recommended by the City administration that a permit be issued for 2002 to the Shrine Circus subject to it executing a City of Windsor Parks Use Agreement, which it did. The relevant clauses of this Agreement are as follows:

▪ To indemnify and save harmless the Corporation, from and against all damages which it may suffer and against all claims or actions which may be made against the corporation, arising from the use of the Park or from any non-compliance with or violation of the terms of this Agreement;

▪ To provide and maintain public liability and property damage insurance containing endorsements naming the Corporation, as an additional named insured, in the amount of $5,000,000 satisfactory to the Commissioner of Legal and Human Resources;

▪ To comply with all Police, Fire, safety and sanitary laws, By-laws and Regulations of the Corporation, the Police Services Board, any Provincial or Federal authority, or made by Fire Insurance Underwriters.

▪ To agree to random inspections by the Windsor Essex County Humane Society and co-operate with inspection staff to allow access to these inspections.

▪ To have an Emergency Response Plan and to provide a copy of the plan in confidence to the Chief of Police and the Fire Chief for review, a minimum of 7 days prior to the event.

(3) Subsequently on May 26, 2002, the administration report with its conditions was approved by Council. Up to this point in time, at least, things seemed to be following the course established in previous years. However, this all started to change with the receipt by the City of a letter from Zoo Check Canada, another animal rights advocacy group, dated June 17, 2002, authored by one Kim Robinson, describing herself as Circus Campaigner. In the letter she confirmed that her concerns were primarily the welfare of circus animals and their biological and ethological (behavioural) needs.

(4) Most of the letter catalogues a number of issues relating to animal welfare. She disputes the Circus industry claim to provide an educational benefit to its patrons and states that;

“These educational claims are not based on empirical studies”

However, in a passing reference, later in the same letter on the issue of public safety, she makes a number of critical comments about safety incidents which are alleged to have occurred in Canada and around the world, without substantiating any of them or, to use her own words, providing any proof by way of “empirical studies” that would connect the issue of the use of exotic animals to the issue of public safety.

(5) From the evidence it would appear that apart from its June 17, 2002 letter, Zoo Check itself never bothered to investigate the safety issues with either the City or the Applicant Circus, nor did it examine the Emergency Response Plan required by Council from the Applicant which was executed by it and subsequently approved by the appropriate City authorities.

Zoo Check also took the position that:

“Many performing wild animals in circuses and traveling shows touring Canada endure a life characterized by emptiness, deprivation and brutality. In addition to being degraded through ridiculous performances and stunts, they suffer from extreme confinement, inappropriate social groupings and harsh, sometimes abusive training methods.”

[15] This letter as received, was noted in the Council Minutes of July 8, 2002 and as a result, Councillor Zuk requested a report be prepared concerning the legality of banning animal acts in the City. On July 25, 2002 George Wilkki, the Acting Commissioner of Legal and Human Resources, delivered a report which concluded in part, that a by-law passed for the purpose of protecting animals would be ultra vires the municipal authority, and the only way achieve this end would be to pass a by-law, the object of which would be the protection of the public. In that report, he stated:

It is very clear that council has been pressured by “animal rights” groups/individuals to pass a by-law to restrict animal performances mainly because of the alleged mistreatment of the animals that perform in those shows. A secondary reason put forward has been for the protection of the public.

[16] During the next few months, Council received voluminous amounts of correspondence from animal rights groups and individuals in the form of letters, e-mails and other materials urging the prohibition of animal acts due to the immorality of entertaining with exotic animals. Significantly, none of the communication received from these groups or individuals contained any evidence of a threat to public safety arising out of circus acts in the City of Windsor.

On August 26, 2002 was a further public meeting held in the City of Windsor Council Chambers at which time a number of delegations had registered in order to speak to the issue of the municipal by-law.

Toward the end of that meeting, councilor Zuk proposed a motion, which was accepted that the Administration be directed to develop a by-law that prohibited traveling animal acts within the municipality, recognizing that under the Municipal Act the Council have the authority to pass by-laws to prohibit or regulate circuses for the well being of its residents.

Toward the end of the dialogue between various groups and members of Council, Councillor Cassivi framed a comment, which I believe captures the essence of the discussion that had been ongoing and, as well, the intent of Council when he stated that he would support the motion on the floor;

Because I concluded really that the people of the City of Windsor have reached a level of sophistication where their entertainment no longer has to be at the expense of animal discomfort or distress.

[17] The Applicants contend, and I accept, that Council did not undertake nor did it direct its staff to do so, any consultant studies or reports on the issue of public safety and exotic animal performances. Furthermore it undertook no investigations or risk analysis on the causal connection, if any, between exotic animal performances and public safety. In short, given the nature of the issue, its profile as generated by the animal rights advocates, the narrow scope of its legal authority as defined by in-house counsel, the City failed to exercise the degree (if any) of due diligence, which the circumstances and complexities of the issue required. This failure, for the Reasons expressed below, in my view renders the By-law void as being ultra vires its authority.

[18] The Respondent conversely asserts that its By-law is intra vires council’s authority as the City is entitled to pass by-laws pursuant to s. 236(7) of the Municipal Act, R.S.O. 1990, c. M.45 which states:

236. A council of a local municipality may pass by-laws regulating:

…

7. Exhibitions of wax works, shows, etc. – For prohibiting or regulating and licensing exhibitions of wax works, menageries, circus-riding, and other like shows usually exhibited by showpersons…

[19] As this is a decision by an elected council, I must consider whether it’s intra or ultra vires. In Shell Canada Products Ltd. v. Vancouver (City) (1993), 1994 CanLII 115 (SCC), 110 D.L.R. (4th) 1 (SCC)(“Shell”), Vancouver City Council decided to make a symbolic gesture against companies with business links to South Africa. It passed resolutions having the force of by-laws that the City would not do business with Shell until that company divested itself of its South African holdings. The city continued to do business with other companies having South African connections. Justice McLachlin wrote a compelling and much-followed dissent in Shell that stated, in essence, Courts should give a “wide berth” to elected councils when making decisions within their authorization. While I accept this, in my view, her opinion in that case would only apply to those decisions made by council that clearly fall within its scope of authority. Justice McLachlin stated in part;

Judicial review of municipal decisions is necessary. It is important that municipalities not assume powers which have not been conferred on them, that they not violate civil liberties, that disputes between them and other statutory bodies be resolved, and that abuses of power are checked. On the other hand, it is important that the courts not unduly confine municipalities in the responsible exercise of the powers which the legislature has conferred on them.

[20] She described two different approaches to the review of municipal decisions – a “pro-interventionist” approach as enunciated in Merritt v. City of Toronto (1895), 22 OA.R. 205, and a “benevolent construction” approach as described in City of Hamilton v. Hamilton Distillery Co. (1907), 1907 CanLII 1 (SCC), 38 S.C.R. 239. The latter she viewed as being more generous and flexible than the former. The classic definition of this approach was stated by Lord Greene M. R. in Associated Picture Houses, Ltd. v. Wednesbury Corp., [1948] 1 K.B. 223 (C.A.) at p. 228 as follows:

It is not to be assumed prima facie that responsible bodies like the local authority in this case will exceed their powers [and]…the court…must not substitute itself for that authority.

[21] Justice McLachlin cited this passage with approval and added:

Judicial intervention, said Lord Greene, would be justified where there was evidence of bad faith or absurdity, where the decision was unreasonable in the sense that no reasonable authority could ever have come to it. But, he said at p.230, “to prove a case of that kind would require something overwhelming….”

[22] She also stated that:

Recent commentary suggests an emerging consensus that courts must respect the

responsibility of elected municipal bodies to serve the people who elected them and

exercise caution to avoid substituting their views of what is best for the citizens for

those of municipal councils. Barring clear demonstration that a municipal decision

was beyond its powers, courts should not so hold. In cases where powers are not

expressly conferred but may be implied, courts must be prepared to adopt the

“benevolent construction” which this Court referred to in Greenbaum, and confer the

powers by reasonable implication. Whatever rules of construction are applied, they

must not be used to usurp the legitimate role of municipal bodies as community

representatives.

[23] In her dissenting opinion of that case she also stated that the benevolent construction approach serves a number of purposes, not the least of which is that courts must accord proper respect to the democratic responsibilities of elected municipal officials and the rights of those who elect them. Justice McLachlin concluded her discussion of the issue of judicial review by stating:

It may be that, as jurisprudence accumulates, a threshold test for judicial intervention

in municipal decisions will develop. For the purposes of the present case, however,

I find it sufficient to suggest that judicial review of municipal decisions should be

confined to clear cases. The elected members of council are discharging a statutory

duty. The right to exercise that duty freely and in accordance with the perceived

wishes of the people they represent is vital to local democracy.  Consequently, courts

should be reluctant to interfere with the decisions of municipal councils. Judicial

intervention is warranted only where a municipality’s exercise of its powers is

clearly ultra vires, or where council has run afoul of one of the other accepted limits

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]