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Dog and Cat Control Law (Ontario)
(August 2008)

Chapter 7 - Dogs, Cats and Municipalities

  1. Overview
  2. 'Traditional' Municipal Animal Jurisdictions
  3. The "New" Municipal Animal Jurisdiction
    (a) Some Old Powers Expressly Preserved
    (b) New General "Animal" Jurisdiction
    (c) The Future?
  4. Conflict Between Municipal Animal By-Laws and Other Animal Laws

1. Overview

The involvement of municipalities in dog and cat control, indeed in aspects of law relating to all animals, has been of long-standing in Ontario.

Of course each of Ontario's hundreds of municipalities has passed different animal by-laws, so no consideration of any specific dog or cat control situation in Ontario is complete without a thorough review of the animal-related local by-law (often by-laws).

The City of Toronto's current animal by-law, admirably consolidated into one document (mostly), is a good example:

City of Toronto Animal By-law, c.349

The multitude of different by-laws has also made it necessary to address the situation of when local animal by-laws come into conflict with provincial and possibly even federal laws. This issue is also addressed in this chapter.

2. 'Traditional' Municipal Animal Jurisdictions

The 'old' Municipal Act [RSO 1990, c.M45 - repealed and replaced 01 January 2003] contained a range of specific animal-control by-law authorities, including those relating to:
  • Prohibiting/Regulating Species and Numbers

    "prohibiting or regulating the keeping of animals or any class thereof within the municipality ..., the number of animals or any class thereof that may be kept by any person, or that may be kept in or about any dwelling unit ..." [s.210, c.1]

  • Regulating Breeding and Boarding

    "for regulating establishments for the breeding or boarding of animals, ..." [s.210, c.2]

  • Establishment of Pounds

    "for providing sufficient yards and enclosures for the safekeeping of such animals as it may be the duty of the poundkeeper to impound" [s.210, c..3]

  • Animals at Large and Trespassing (emphases are mine)

    "prohibiting or regulating ... the being at large or trespassing of animals, OTHER THAN DOGS, and for providing for impounding them and causing them to be sold, if they are not claimed within a reasonable time or if the damages, fines and expenses are not paid according to law" [s.210, c.4]

    "for prohibiting or regulating the running at large of dogs in the municipality ..., for seizing and impounding and for KILLING, whether before or after impounding, dogs running at large contrary to the by-law, and for selling dogs so impounded" [s.210, c.13]

  • Animal Identification Systems

    "for providing for animal identification systems including tagging, tattooing or microchip implantation" [s.210, c.5]

  • Leashing Dogs in Public

    "for requiring ... an owner of a dog to keep the dog leashed and under the control of some person when the dog is on land in the municipality other than that of the owner" [s.210. c.8]

  • Pooper-Scooper

    "for requiring an owner of a dog to remove forthwith excrement left by the dog anywhere in the municipality" [s.210, c.9]

  • Muzzling and Leashing Dogs After Violence

    "for requiring the muzzling or leashing of a dog after it has bitten a person or a domestic animal" [s.210, c.10]

  • Dog Licensing

    "for licensing or regulating and requiring the registration of dogs" [s.210, c.11]

  • Neutering Dogs and Cats

    for "establish[ing] clinics for the spaying or neutering of dogs and cats"

    Efforts under this old regime to pass by-laws directed at animal welfare have had only limited success: Stadium Corp v Toronto (municipal by-law to prohibit the performance or exhibition of circus animals in the city quashed as being ultra vires). As will be seen below, this has probably changed under new legislation.

3. The "New" Municipal Animal Jurisdiction

(a) Some Old Powers Expressly Preserved

The "new" [post-01 January 2003] Municipal Act, RSP 2001. c.25 still expressly addresses some of the above-listed 'traditional' animal control jurisdictions - though with some modifications. These include:
  • muzzling of dogs [MA, s.105; CTA s.107]

  • seizing, impounding and sale of animals at large [MA, s.103; CTA s.106];

    The 'killing' of such dogs is no longer included in this authority, and now appears to be reserved entirely to the Dog Owners' Liability Act and Animals for Research Act [see Chapters 2 and 3];
(b) New General "Animal" Jurisdiction

However a "new" [post-01 January 2003] general Municipal authority over animals, is now located in both the generic Municipal Act RSO 2001, c.25 and the specific City of Toronto Act, 2006.

It is disarmingly simple. Most Ontario municipalities now may now [MA, s.10(2)9; s.11(3)9; CTA s.8(2)9]:
"... pass by-laws respecting ... animals."
This broad by-law authority seems certain to encompass - minimally - the traditional municipal-animal control areas listed in s.2 above in relation to the old Municipal Act.

That said, it does however appear that the express mentions listed in (a) above were made for the purposes of modifying those traditional authorities, particularly to limit the authority to pass by-laws providing for the killing of "at large" dogs.

(c) The Future?

How municipalities and the courts will interpret this new general "animal" jurisdiction is unclear. While it is a standard principle of jurisdictional interpretation in the Canadian federal system to view legislative topics as separated in 'watertight compartments', not tolerating cross-over, this is excepted where long-standing cross-over has already existed.

At least in the area of "animal welfare" - which was argued in part in the above-mentioned Stadium Corporation case - such cross-over has long been the case with the federal criminal involvement with animal cruelty laws [see the] "Animals and the Criminal Law" Guide and the express animal welfare jurisdiction contained in the Ontario Society for the Protection of Animals Act [OSPCAA].

Telling of present provincial government intention on this issue is a provision located in the Bill 50 amendments to the OSPCAA, which looks like [at August 2008] it will soon be law. That proposed provision, expressly anticipating municipal-OSPCAA conflict, reads:
The Act [OSPCAA] is amended by adding the following sections:

In the event of a conflict between a provision of this Act or of a regulation made under this Act and of a municipal by-law pertaining to the welfare of or the prevention of cruelty to animals, the provision that affords the greater protection to animals shall prevail.
As the OSPCAA is a provincial law, as municipalities are "creatures of the province" and as the province has already legitimately occupied the area of "animal welfare" - this provision (when passed into law) is plain authority for the proposition that municipalities have jurisdiction to pass by-laws respecting animal welfare.

4. Conflict Between Municipal Animal By-Laws and Other Animal Laws

The broad new municipal jurisdiction over animals is certain to lead to more conflict with traditional areas of animal law such as the Criminal Code and the OSPCAA. While the law of resolving such conflicts can be quite complex at times [particularly federal v provincial/municipal], the province at least has made some efforts to clarify the matter.

In addition to the immediately above-mentioned Bill 50 conflict provision (greater protection to animals prevails), the province has provided with respect to pit bull laws that [DOLA s.11]:
Despite section 14 of the Municipal Act, 2001 and section 11 of the City of Toronto Act, 2006, if there is a conflict between a provision of this Act or of a regulation under this or any other Act relating to pit bulls and a provision of a by-law passed by a municipality relating to pit bulls, the provision that is the most restrictive in relation to controls or bans on pit bulls prevails.

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