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.