The motion that was used for Tyson

MOTION TO INSTITUTE PROCEEDINGS
AND FOR AN ORDER TO STAY EXECUTION
(Art. 110, 46 C.C.P.)
______________________________________________________________________________

IN SUPPORT OF HER MOTION, THE PLAINTIFF RESPECTFULLY SUBMITS:

1. Plaintiff is faced with an order by the Respondent to have her dog, Tyson, euthanized within 48 hours of the delivery of the order, dated July 14, 2010 (hereinafter the “Order”), the whole as appears from a copy of the order attached hereto as Exhibit P-1;

2. Plaintiff has maintained that the Order is without merit, has refused to conform to it, and has sought a way to appeal it;

3. The Respondent 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

4. Plaintiff is an avid dog lover, and has for the past 17 years rescued hundreds of dogs, nurtured them and found them foster homes;

5. Since 2003, the head of the Canine Control Department of the City of Montreal, Mr. Richard Fortin, has regularly monitored and visited the Plaintiff, searching for any pretext to shut down her dog rescue operation;

6. #ff0000;”>Apart from being cited in 2003 for not having a tag for her dog, the Plaintiff has never been found to have committed an infraction relating to her dogs, up until July 4, 2010;

7. On July 4, 2010, the Plaintiff’s dog, Tyson, bit another dog belonging to the Plaintiff’s neighbours;

8. When the police arrived at the scene, the Plaintiff explained to them what had happened and took full responsibility for her dog;

9. The police officers then went to interview the owners of the dog-victim, and came back to relay to the Plaintiff that the dog had not been badly injured, having suffered two little punctured wounds, some swelling, and a loss of hair in that area;

10. The police officers did not cite the Plaintiff with an infraction but reported the case to the City Inspector at the Canine Control Department;

11. On July 9, 2010, an official from the Canine Control Department, working under Mr. Richard Fortin, visited the Plaintiff’s domicile and left a letter ordering the Plaintiff to muzzle her dog, Tyson, for 90 days while the dog is outside the Plaintiff’s domicile;

12. On July 14, 2010, the same official came back to the Plaintiff’s house, after speaking to her on the phone, purportedly to take pictures of Tyson and to close the file, at which point he served the Plaintiff with the Order;

Authority to Make the Order

13. 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;

14. The Respondent has overstepped her authority in making the Order, because she is not authorized by the By-law to make such order;

Procedural Justice

15. The Order 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;

16. The Order gravely affects the rights of the Plaintiff as it orders her to end the life of her pet;

17. The Order is tantamount to expropriation of property as it has the effect of depriving the Plaintiff of her property;

18. The Order letter, P-1, does not indicate a file number associated with the decision it carries;

19. The Order was made without questioning of the Plaintiff, nor an examination of the dog ordered to be euthanized;

20. The Order mandates compliance within 48 hours and does not indicate any means of appeal;

21. Plaintiff has tried contacting various officials of the City of Montreal in an attempt to appeal the Order, notably by offering additional information in the form of an expert report as to the condition of her dog, but without success;

22. Plaintiff has been denied a fundamental right to her property without due process and without being given a right to be heard;

By-law contravenes Charter rights

23. The By-law has authorized City of Montreal officials to enter the Plaintiff’s domicile, without her consent or a warrant, and goes as far as authorizing them to kill a dog on site, thus violating the Plaintiff’s rights under sections 7 and 8 of the Quebec Charter of Human Rights and Freedoms and section 8 of the Canadian Charter of Rights and Freedoms;

24. The By-law has empowered the agents of the City of Montreal to issue an order, effectively not susceptible of appeal, to alienate the Plaintiff’s property, which is of great value to the Plaintiff not merely as property, thus violating the Plaintiff’s rights under section 6 of the Quebec Charter of Human Rights and Freedoms;

Order to stay execution

25. Tyson, Plaintiff’s dog in question, has been examined by an ethologist, Richard Beaudet, M.Sc., and is in no way a health or safety hazard, the whole as appears from a copy of the examination report dated September 17, ExhibitP-3;

26. The By-law ordinarily mandates the keeper of the dog that bites another dog to muzzle her dog for 90 days when outside, and the Plaintiff has agreed to have Tyson muzzled permanently;

27. The City of Montreal is authorized by the By-law to seize the Plaintiff’s dog and have it euthanized immediately;

28. The City of Montreal has cited the Plaintiff with an infraction for not complying with the Order and threatened to fine her for each day of non-compliance;

29. Unless this order is stayed, the Plaintiff risks losing her dog, which would render the present procedure moot, save the constitutional consideration;

30. 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 Respondent to euthanize the Plaintiff’s dog, dated July 14, 2010 (the “Order”), until a decision is rendered by the Court on the merits of the case;

QUASH the Order of the Respondent;

QUASH all the citations against the Plaintiff relating to the non-compliance with the Order;

DECLARE unconstitutional the sections of the City of Montreal By-law concerning Dog and Animal Control, R.B.C.M. c. C-10, notably sections 12, 16, 18, 19, 20 and 22, which empower City of Montreal officials to enter a domicile and/or seize or euthanize a dog without due process;

THE WHOLE with costs.

Montreal, October 13, 2010