Dog and Cat Control Law (Ontario)
Chapter 3 - Pounds, Shelters and Research
(b) Applicable Law
- Pounds versus Shelters
. Municipal Regulation
. OSPCA Shelters
. Private Shelters
- Dogs and Cats in Shelters
. Possession, Ownership and "Finders"
. Municipal By-Law
. OSPCA Act
(c) Dog Misbehaviour
(d) Pit Bulls in Private Shelters
- Dogs and Cats in Pounds
. Communicable Diseases Exception
(b) Pound Duties to Notify OSPCA and to Try to Locate Owner
(c) Redemption Periods
. No Destruction During Redemption Period
. Length of Redemption Period
. Counting Days
. Pound Open Hours
. "Damages, Fines and Expenses" on Redemption
(d) After the Redemption Period Expires
. Disposition Options After Expiry of Redemption Period
. Exceptions Allowing Euthanasia After Redemption Period
- Research Use
(b) Redemption by Research Facility
(c) Post-Experiment Return to Pound
. More Research or Death
. Back to the Pound or Owner
. Pound Options on Return
. Understanding Discretion
(d) Advocacy Comments
(b) Euthanasia Methods
- Pit Bulls in Pounds
(b) Defining Pit Bulls
(c) Special Pit Bull Pound Rules
(d) Judicial Review Cases
This chapter explores the tricky and uncertain situation of a dog or cat "in custody" in any sort of public or private facility (ie. pound or shelter), for reasons relating to animal control (straying or misbehaviour) or abandonment.
The issues involved are sometimes crucial for the animals as outcomes can in some circumstances include euthanasia - and even the sale of the animal to a research facility.
Factors which determine the outcome can be many, including: the manner in which the animal came to be in the facility (ie. seizure or surrender), the nature of the facility (ie. 'pound' or 'shelter'), any 'misbehaviour' by themselves or their owners (if any), and the practical issue of the predisposition of the facility operator to the animal's welfare interests. As well for dogs, their breed status as a pit bull (or even physically resembling a pit bull) is highly relevant.
Note: (b) Applicable Law
Animals in custody under the statutory authority of the OSPCA for care/distress-related purposes are not covered in this chapter, but will be included in a future Isthatlegal.ca "Animal Welfare Law (Ontario)" Guide, to be written if and when the current [at Auguust 2008] Bill 50 amendments to the OSPCA Act are settled.
Sources of law relevant to these custodial situations include:
The common law of "ownership" can involve interesting and often uncertain issues of whether an animal has been 'surrendered', 'abandoned', sold, gifted or otherwise transferred in 'title' to another person or legal entity such as the municipality or non-profit corporation which operates the facility.
- the common law of ownership;
- applicable municipal animal control by-laws;
- the Dog Owners Liability Act (Ontario)("DOLA");
- the Animals for Research Act (Ontario)("ARA").
Municipal animal by-laws have traditionally engaged with animals on a number of issues, usually relating to control. These include: licensing (of both animals and breeding/boarding establishments), pounds, leashing and muzzling, public safety, 'dogs running at large', public health, residential occupancy limits and the now uniquitous 'pooper-scooper' laws. These topics are addressed more extensively in Ch.8: "Dogs, Cats and Municipalities".
The Dog Owners' Liability Act governs both civil and regulatory liability of dog owners for damage caused, and as well of course the pit bull "ban". It is most relevant for present purposes for the search and seizure authority that it grants to peace officers in certain dog situations [see Ch.2: "Seizures"], and the availability of dog destruction and control orders [see Ch.4: "Dog Destruction and Control Orders"].
The Animals for Research Act (Ontario) ("ARA") is largely concerned with the licensing, registration and inspection of of various research and animal "supply" facilities. However, its key "pound" provisions are considered in this chapter, along with the important ARA procedures and considerations that a pound-owner must have regard to in the disposition of seized dogs and cats.
It is important to note that in 2005, by virtue of (then) Bill 132, both DOLA and the ARA were significantly amended to impose a province-wide ban on 'new' (ie. new born and imported) pit bulls, stiff restrictions on pre-existing (or more properly: "restricted") pit bulls (including leashing, muzzling and mandatory sterilization) - and very harsh measures on 'misbehaving' pit bulls (usually euthanasia or research). The pit bull ban in its several aspects is explored thoroughly in Ch.5: "Pit Bulls", though their status in pounds and shelters is considered in the present chapter.
The tension between the pound role under the shelter role has been quite political within the recent past, primarily for the potential for research sale.
In Re Public Trustee and Toronto Humane Society (Ont HC, 1987) then directors of the THS came under legal attack for being too 'political' in wanting to abolish research sale under the ARA ('political activities are generally inappropriate for a charity'), and some of them for being in a conflict of interest for a dual 'director/paid staff' role. The court ordered a new, independently supervised member meeting to elect a new board.
More recently in Roden v Toronto Humane Society (Ont Sup Ct, 2003; Ont CA, 2005) a former shelter manager and former shelter supervisor of the Toronto Humane Society sued THS unsuccessfully for wrongful dismissal over a disagreement as to the legality of adopting out received strays outside of a shelter contract with the City.
During the employment of both plaintiffs THS lost the shelter contract from the City of Toronto, under which municipally-seized animals were delivered to THS for adoption out (thus making THS - respect to those animals - a "pound" under the ARA). The plaintiffs were concerned that the change in status left THS with no legal authority to take in strays, and such authority was not to them plain under the OSPCA Act (at material times the THS was an OSPCA affiliate). The court did not delve into that argument directly, but supported management's right to assert its own view of the law as a workplace duty. [Note: I have no problem viewing the OSPCA Act, as it then stood, as authorizing the OSPCA and its affiliates to have a purely shelter (ie. non-pound) role].
2. Pounds versus Shelters
A legal distinction can be drawn between "pounds" on the one hand, and "shelters" on the other, although 'shelter' is not a recognized legal term.
Roughly, a "pound" is a municipally-run facility which 'detains, maintains or disposes' of dogs and cats which have been placed there after legal seizure under the legal authority of either a municipal by-law or the Dog Owners Liability Act ("DOLA") [ARA s.1(1)]. Indeed, any facility that receives such seized animals is by that fact - at least with respect to that animal - legally a "pound".
On the other hand, a "shelter" is basically any other premises where a dog or cat (or any animal for that matter) is held, if it has been received by the shelter in any manner OTHER THAN resulting from legal seizure. The classic example would be a stray dog brought to an OSPCA (Ontario Society for the Prevention of Cruelty to Animals) facility by a member of the public who picked it up. As there has been no legal "seizure" of the dog in that example, it should avoid 'pound' status.
Non-OSPCA 'shelters' of all sorts can exist as well, from loosely organized groups of animal 'rescuers' working from their homes, to larger rented or owned premises where animals are kept either permanently or temporarily pending adoption out.
A practical distinction can usually be drawn between pounds and shelters in that animals in "pounds" are typically there for control purposes (eg. misbehaviour, picked up by small animal control officers) while animals in "shelters" are typically there for compassionate reasons, brought in by owners or members of the public who find them stray. That said, and as is further discussed below, a single facility may have inter-mixed pound/shelter functions under one administration.
The ARA defines "pounds" as follows [ARA s.1(1)]:
"pound" means premises that are used for the detention, maintenance or disposal of dogs or cats that have been impounded pursuant to a by-law of a municipality or the Dog Owners' Liability Act, but does not include any premises, or part thereof, that are not used by any person or body of persons, including the Ontario Society for the Prevention of Cruelty to Animals or any society affiliated therewith, for the detention, maintenance or disposal of dogs or cats so impounded;This awkwardly-worded definition first adopts the physical concept of 'premises' [as in rented or owned 'premises'] as its defining feature, and then identifies "pounds" as premises which are used for "the detention, maintenance or disposal of dogs or cats that have been impounded pursuant to a by-law of a municipality or the Dog Owners' Liability Act" [these legal seizure authorities are discussed in detail in Ch.2: "Dog and Cat Seizures"]. It is important to note that it is the "use" to which the premises are put that defines a pound, not the purpose or intended 'use'.
The above "pound" definition is muddied by the convoluted attempt to except OSPCA facilities "not used ... for the detention, maintenance or disposal of dogs or cats so impounded" from the definition. In my view, this is an entirely unnecessary and confusing semantic exercise because - if premises are NOT used for these purposes - then they run no risk of falling into the main definition in the first place.
The underlying concept of 'premises' is additionally problematic in that shelters and pounds are not always separate facilities. Mixed use facilities, as for instance where an OSPCA shelter takes on a municipal "pound" contract, convert the pound-shelter distinction into one that attaches more to individual animals rather than physical 'premises'.
Note:A much clearer functional distinction would be based on the MANNER on which the animal came into custody of the facility. That is, if the animal is seized pursuant to either a municipal by-law or DOLA then it is a 'pound animal' animals, and if not then it is a 'shelter animal'.
Indeed, a quite plausible statutory interpretation of the above ARA "pound" definition is that ANY use of 'shelter' premises to 'detain, maintain or dispose' legally-seized animals renders ANY (even non-seized) animals so dealt with to be IN a "pound" and therefore subject to the harsh Animals for Research provisions discussed below in this chapter. Presumably OSPCA shelters providing pound services for municipalities have attempted to address within their contracts.
Some mixed pound/shelter facilities at least apply this far more practical definition in their day-to-day activities, tagging all animals [as they must legally do with pound animals under Reg 23/90 - the ARA "Pounds" Regulation, s.10(2)] in accordance with "the circumstances under which the animal came into the pound". Thus, a legally 'seized' animal is a 'pound' animal. Other animals - surrendered, brought in as found by members of the public, and otherwise obtained - are 'shelter' animals.
As is explained below, the fate of a pound animal - particularly a pit bull dog [see s.7: "Pit Bulls in Pounds", below] - is usually much more complex and troubled than that of a 'shelter' animal. That said, it is doubtful that this legal distinction is observed in all small animal control facilities - particularly ones not operated by staff sympathetic to animal welfare or rights ideologies, as can be the case in smaller rural municipalities.
As noted above, and unlike the situation with "pounds", "shelter" is not a legally-defined term. A 'shelter' is pretty much any Ontario public or non-profit facility or premises where lost or unwanted animals are kept, where they have come into its custody by any means OTHER than by-law or DOLA seizure. In short, if it's not a pound, it is likely a shelter.
Shelters can be run by non-profit 'humane society' organizations affiliated as members with the OSPCA [OSPCA s.4], but also can include any form of private informal or incorporated organization devoted to animal rescue, care and adoption.
. Municipal Regulation
No matter what the 'type' of shelter, it needs to be aware of basic issues of municipal dog and cat regulation - typically through animal and zoning by-laws.
In Toronto for instance, no more than a total of six combined "dogs, cats, ferrets and rabbits" may occupy a "dwelling unit" - and no more than three of these may be dogs [Toronto Municipal Code, s.349-4, 349-17: "Animals"]. For these purposes a "dwelling unit" includes [c.349-1]:
"dwelling unit"Thus a very small rescue shelter operation may be operated from one's home, increased perhaps by networking amongst other like-minded individuals.
One room or a group of rooms, occupied or capable of being occupied as the home or residence of one or more persons, and containing only one kitchen or other facility for the preparation of meals;
However anything taking more than these limits will quickly find itself engaged with local zoning laws, likely those revolving around the legal definition of "kennel".
Buried deep within Toronto's voluminous collection of zoning by-laws are numerous complex zoning categories, each applying to various areas of the City. Some of these categories will allow "kennel" use, no doubt in isolated areas. With exceptions for continuous pre-existing legal use (ie. "legal non-conforming"), those zoning rules govern the establishment of animal shelters within the municipality.
Municipal jurisdiction over animal issues is considered at further length in Ch.8: "Dogs, Cats and Municipal Law".
. OSPCA Shelters
While the OSPCA Act establishes the OSPCA as a "body corporate" [OSPCAA s.2] - and sets out it's (and its affiliates) distress-related seizure, entry and order provisions - it does not directly address the establishment of OSPCA (or it's affiliates) shelters. As such, they fall under its general corporate power to own or rent real estate [OSPCAA s.8(a)]. In that sense at least OSPCA "shelters" - as such - are legally indistinct from private shelters.
That said, the legal authority of the OSPCA to take possession of an animal for care or distress-relief purposes [OSPCAA s.14(1)], logically calls for the establishment of shelter facilities in which these animals may be housed.
Care must be taken however to distinguish the three different custodial roles that the OSPCA can have with respect to animals. These are:
. OSPCA Act Care/Distress Custody . Private Shelters
This is possession of an animal taken under the above-mentioned OSPCAA s.14 care and distress provisions. Such animals are subject variously to:
- destruction (on owner consent or compassionate need)[s.14(2)];
- return to the owner once the immediate care/distress needs are resolved
(this is standard OSPCA legal interpretation, it's not set out expressly in the OSPCAA - AND it is set to change under Bill 50, which allows a justice of the peace to order an animal be kept in OSPCA custody)
- "sale" by the OSPCA, under a statutory grant of power of sale [OSPCAA s.15(2)], if the owner does not pay the care expenses incurred by the OSPCA.
The status of cats and dogs seized by the OSPCA or OSPCA affiliates under this animal welfare "distress" jurisdiction - and then incidentally placed in an OSPCA 'shelters' - is not covered in any further detail in this Isthatlegal.caDog and Cat Control Law (Ontario) Guide. It will be covered in a new Guide: "Animal Welfare Law (Ontario)" after the status of the Bill 50 amendments to the OSPCA Act is settled. The present Guide is concerned with control law relating to dogs and cats, including the fate of such animals once impounded - and with the related law of private rescue and shelter efforts to aid such animals.
. Found/Surrender Custody
These are usually the bulk of the animals held in OSPCA shelters, and are mostly public-delivered strays and public-surrendered animals.
It is in this capacity that OSPCA shelters are practically identical to private shelters (below).
. OSPCA "Pounds"
As is discussed in (b) ["Pounds"] above, OSPCA affiliates sometimes contract with municipalities to fulfil the municipal "pound" role under the Animals for Research Act ("ARA"). In this capacity they are subject to very specific ARA rules, sometimes influenced by municipal by-laws. This "pound" status is the topic of most of the remaining chapter.
As noted above, a "shelter" is basically any facility taking animals for care purposes. Private shelters can be furthered narrowed to those that are not OSPCA-affiliated. Readers interested in this topic should also review the "Municipal Regulation" dicussion above.
In a legal anachronism soon to be corrected, a technical challenge can be advanced to the status of such non-OSPCA affiliated groups (and thus their 'private' shelters) by virtue of s.10 of the OSPCAA:
s.10That said, this provision is almost universally ignored [except by incorporation authorities when examining corporate "objectives"], probably because of its highly dubious constitutional status in light of the freedom of association guarantees in the Canadian Charter of Rights and Freedoms. Further, the now-pending [at August 2008] Bill 50, which promises wide-ranging amendments to the OSPCA Act, is set to remove this objectionable aspect of the legislation.
No society, association or group of individuals, whether incorporated or unincorporated, that is established after the 30th day of May, 1955 shall profess to function as a society having for its object the welfare of or the prevention of cruelty to animals unless it is incorporated and becomes affiliated with the Society in accordance with the by-laws of the Society.
For the reasons explained above - in terms of the animal's best interests - it is usually far better to be a "shelter" animal than a "pound" animal.
That said, mere "shelter"-status is no guarantee of a happy fate, particularly where ownership ('title') is effectively transferred to the shelter. At that point the shelter - perhaps only limited by some municipal by-law regulation or (less certainly) by written terms of surrender - moves into the same legal 'shoes' as a 'regular' owner [see s.3(b): "Dogs and Cats in Shelters: Ownership", below]. Not all owners are as beneficent as we could hope for.
Further, for the practical purpose of plainly ascertaining an individual animal's pound v shelter status at the beginning it would be nice if the difference between pounds and shelters were reflected in distinct and discrete physical facilities: ie. municipally-run 'pounds' versus OSPCA-affiliated 'non-pound' facilities - but that is not to be. The status of a single facility is frequently mixed or uncertain: ie. OSPCA-affiliated facilities often contract with municipalities to accept seized animals and thus run their "pounds" for them, while sometimes municipal facilities operate 'shelter' services for surrendered animals which are legally distinct from - but often operated in common with - their 'pound' role.
Much work for the animal advocate lies in drawing this distinction plainly and favourably for their 'client'.
3. Dogs and Cats in Shelters
As noted elsewhere, the situation of a 'found/surrender' shelter-status cat or dog - as opposed to a pound cat or dog - is usually legally simpler, though it is not always without complexity. Complexities in the shelter situation, such as they are, usually revolve around the issue of 'ownership' of the animal.
Occasionally as well, dogs in shelter custody can become involved with special Dog Owners' Liability Act ["DOLA"] proceedings applicable to situations of alleged dog misbehaviour, and to alleged pit bull status [see Ch.4: "Dog Destruction and Control Orders"].
The impact of both of these issues on the status of animals in shelters is discussed below.
Few dogs and cats, except perhaps show-animals and those with pedigrees, are formally transferred 'in title' from one person (or corporation) to another with any degree of paperwork. The vast majority are informally sold or gifted from person to person much like any form of chattel property (such as furniture or books): this is essentially what 'pet stores' are about. In law, there is no legal requirement that such conveyances be in writing. The lack of formality in most transfers usually has little effect on the legality of the transfer, and in most cases common sense will prevail.
However, as most animals come to shelters (as opposed to pounds) by 'walk-in' from members of the public who find stray dogs - or by the dogs being 'given up' by their previous owners - "sale" as such is not usually involved. Instead, the predominant methods of shelter acquisition raise two other common law 'ownership' issues: ie. "abandonment/finding" and "surrender". Further, and as will be seen below, we can add to these 'ownership' established by legislation, in this case by municipal by-laws and the OSPCA Act.
Note:From the shelter's point of view, ownership gives it great freedom. Owners can transfer title (ie. adopt out) as they see fit. Further, ownership resolves often messy 'we changed our mind' situations in favour of the shelter's title, and that of subsequent 'adopters'.
As a matter of interest, the present law places rudimentary care 'minimum standards' requirements on SELLERS of cats and dogs [OSPCA s.15.1]. The legal situation of such 'for sale' animals can be expected to improve (under regulations) if and when the pending Bill 50 is passed into law.
In short, a shelter that "owns" a cat or dog is essentially in the same legal position as a private pet owner. On the positive side, this gives them the greatest latitude in establishing a suitable and comfortable future for their animals.
On the negative side, owners are not always humane or generous and it is commonly viewed that one entitlement of ownership is the right to euthanize an animal - even without the presence of suffering or an irremedial medical condition [for a contrary discussion of this see the Isthatlegal.ca "Animals and the Criminal Law" Guide, Ch.3, s.6: "Main Offences: Administering Poisonous/injurious Substances to Domestic or Captive Wild Animals"].
Further, animal owners are also legally entitled to 'donate' their dogs and cats for research [ARA s.14(3)(a)].
Note: . Possession, Ownership and "Finders"
As a practical note, should either euthanasia or - especially, research donation - occur with respect to animals given to the shelter under a reasonable
expectation of maintenance of well-being and/or eventual adoption (which preferrably should be documented), the shelter could open itself to significant civil liability under the doctrine of negligent misrepresentation, seeking both mental anguish and punitive damages.
Ownership by 'finders' (who then give or "surrender" the animal to a shelter) is a notoriously uncertain doctrine, highly dependent on the circumstances of the finding and the intention of the original owners (particularly 'abandonment'). Occasionally 'push will come to shove' over the ownership of a found animal in a shelter situation - particularly if abuse is suspected by a non-OSPCA shelter (which lacks legal seizure authority), or where a 'new' owner has subsequently taken adoption of the so-disputed animal - though normally a shelter will be only too happy to return a lost/found animal to its previous situation. In such situations the lawyers amongst you may wish to dust off old tomes on the law of "bailment", but I will spare present readers that joy.
As a practical legal matter, a de facto 'adverse possession' may take effect over the animal in Ontario after two years of formally uncontested possession by virtue of the Limitations Act [s.4]. That legislation bars the commencement of proceedings to recover such 'lost' property two years after knowledge of the loss, and (probably) knowledge of the identity of the "finder" (or subsequent possessor) has come to (or should have come to) the attention of the 'loser' [in limitations law this is called "discoverability"]. In determining discovery for these purposes, a significant practical consideration will be whether the 'loser' searched for their dog in logical places such as a local shelter. Failure to do so may contribute towards an strengthened 'abandonment' defence on the part of the finder or subsequent possesssor (legally an 'estoppel').
That said, the law of limitations and finders is certainly more complex that the brief discussion above, and I will not delve further into it at present.
The end result is that the ownership of 'found' animals in shelters may remain uncertain for quite some time, usually ALL of the time that a shelter will end up involved with the animal before it is adopted out, as is usually the case.
The alternative status to "ownership" in shelter cases is simply that of "possessor", which legally means what it means in lay terms: physicial possession, either directly or through one's agent or employee. "Possession" is a far more fitting legal status for newly-acquired shelter animals that have not been expressly 'surrendered' by their former owners (see "Surrender", immediately below).
Note re DOLA "owner" definition:The net result for shelters then, is that any conveyance of the shelter's legal interest in an animal that they are 'conveying' to adopters (ie. through a written adoption agreements), should qualify the shelter's interest accordingly, or else risk negligently misrepresenting (a tort) to the adopter. A brief recitation of the facts: that the animal was found, turned (or "surrendered") into the shelter as apparently lost or abandoned, and that the shelter claims ownership thereby under the doctrine of the "finder" as a holder in due course - should suffice.
That said, "possession" DOES equate with ownership for most DOLA statutory purposes [DOLA s.1(1)]:
In this Act,
"owner", when used in relation to a dog, includes a person who possesses or harbours the dog and, where the owner is a minor, the person responsible for the custody of the minor;
But it is important to understand that this expanded definition of "ownership" ONLY applies to the statutory uses of that concept within DOLA [ie. civil liability, dog destruction and control orders and the pit bull ban]. It does not modify the common law of ownership, which is the status of most concern to shelters.
As will be seen below, situations of express "surrender" by the original owner make things a lot simpler.
"Surrender", in contrast to finding, is a relatively more straight-forward legal concept. It is akin to a gifting by one person to another, though with an added practical element of typical lack of enthusiasm on the part of the receiving party. While it also involves property title conveyance, with animals it is much more similar to the assignment by one party of care responsibilities onto the other, almost a transfer of fiduciary responsibilities.
Note:Due to the willing status of a surrendering owner, shelters often - indeed usually - require that they execute written documentation plainly clarifying the ownership issue (ie. conveying title and disavowing any later claims for return), or sometimes establishing additional expense/maintenance cost sanctions in the event of reneging. Indeed, 'finders' of such animals will usually find themselves having to execute the same paperwork with respect to 'found' animals brought into shelters, surrendering whatever uncertain ownership claim they may have.
Several legal fiduciary care responsibilities are imposed on animal owners under the Criminal Code, [see the Isthatlegal.ca Animals and the Criminal Law (Canada)(Cruelty) Guide, Ch.3: "Main Offences", and the OSPCA Act
. Municipal By-Law
Municipal animal by-laws may also impact on the ownership of animals in shelters.
For example, in an effort to assist with title clarification, the City of Toronto - at least with respect to legally-seized animals (and thus pound animals, though it could just as easily do the same for shelter animals) - has provided by by-law that [City of Toronto Municipal Code, s.349: "Animals", s.349-13D]:
If a dog is not redeemed within the time period ... the dog shall become the property of the City ...As is discussed in Ch.8 ["Dogs, Cats and Municipalities"] each municipality has different animal by-laws, sometimes several relating to different aspects of animal regulation. The above-quoted by-law ownership provision, while untested in law, may be supported under broad by-law authority granted under the City of Toronto Act [s.8(2)9]. Other municipalities have similar broad by-law authority granted them under the general Municipal Act [s.10(2)9, 11(3)9].
It may be questionable whether the legal authority to issue by-laws with respect to "animals" justifies such property-transferring provisions, and whether it would survive a court challenge as being 'ultra vires' (beyond jurisdiction). 'Property' is a closely-held provincial jurisdiction under the Canadian constitution and it has NOT been expressly delegated to municipalities in this case. That said, pending a court declaring on the issue, the terms of the by-law are binding.
Each local by-law must be examined on its own terms and merits for any property-transfer provisions applicable to pounds, to shelters - or to both.
. OSPCA Act
As noted earler, s.15 of the OSPCA Act sets out a similar provision which, while not expressly allowing ownership transfer, achieves the same essential effect by way of a statutory 'power of sale':
s.15(1) (c) Dog Misbehaviour
Where an inspector or an agent of the Society has provided an animal with food, care or treatment, the Society may serve upon the owner or custodian of the animal, by personal service or by registered mail to the owner's or custodian's last known place of address, a statement of account respecting the food, care or treatment and the owner or custodian is, subject to subsection 17 (6), liable for the amount specified in the statement of account.
Where the owner or custodian refuses to pay an account under subsection (1) within five business days after service of the statement of account or where the owner or custodian, after reasonable inquiry, cannot be found, the Society may sell or dispose of the animal and reimburse itself out of the proceeds, holding the balance in trust for the owner or other person entitled thereto.
Normally, dog misbehaviour [DOLA ss.13-15] (and sometimes just being 'at large' under municipal by-laws) is grounds for direct seizure of the animal, in which case it falls into the 'pound' system discussed further below [see s.4: "Cats and Dogs in Pounds"; DOLA s.17].
However where a dog is in shelter premises and for that reason may not be in immediate need of 'seizure' by authorities, allegations of serious misbehaviour on the part of the dog, or their owner with respect to the dog, may still be relevant to the dog's situation.
This is because of the legal right of anyone (though usually the Crown) to apply for a court order (formally against the dog-owner) seeking either destruction of the dog or the imposition of safety control measures under DOLA and Part IX of the Provincial Offences Act [DOLA s.4]. These proceedings are the subject of Ch.4: "Dog Destruction and Control Orders".
Note: (d) Pit Bulls in Private Shelters
As a practical matter, ANY dog-owner facing such a court proceeding may want to consider at least temporary voluntary placement of the subject animal with a willing shelter or otherwise in a demonstrably secure environment - if only to avoid the possibility of legal seizure, which automatically places the animal in the normally much less sympathetic pound system [discussed immediately following].
On this topic I also note that the court has authority in such proceedings to make interim orders regarding the situation of the animal pending the outcome of the proceedings: "to take measures ... for the more effective control of the dog". If a court inadvertently orders a dog into a "pound" on an interim basis, a literal reading of the ARA s.1(1) "pound" definition captures that animal as a "pound" animal, technically triggering the starting of pound procedures and timelines that are surely not the intention of the judge.
While ss.4-7 below set out the complex and precarious status of DOLA-seized and by-law seized cats and dogs in pounds (including pit bulls [s.7]) - the status of a found/surrendered pit bull in a private shelter (or an OSPCA non-pound shelter) needs to be specifically addressed.
Firstly note that the main aspect of the 2005 pit bull "ban" explained in Ch.4 is the "ownership" ban [DOLA s.6(a)]. Roughly speaking, "ownership" of pre-existing [at 29 August 2005] grand-parented ("restricted") pit bulls by private persons is allowed. Further, restricted pit bulls may be transferred amongst people as long as the individual "acquisition limits" are not thereby breached [Ch.5, s.6(c)].
However, ownership of 'illegal' pit bulls (ie. one that are not so 'grandfathered') is fully banned.
Next, note that, a private shelter (if incorporated) - and its one or more operators (if it is not incorporated) - are in the identical legal position to individual persons under these "ownership" limits. Shelters may not avail themselves of the "pound" exceptions to the ownership ban [DOLA s.8(1)] or the "pound" exceptions the acquisition limits [DOLA s.9(4)].
Finally note that the DOLA definition of "owner" is [DOLA s.1(1)]:
"owner", when used in relation to a dog, includes a person who possesses or harbours the dog and, where the owner is a minor, the person responsible for the custody of the minor;Regardless of the subtleties of "finding" and "surrender" law discussed above, these provisions combine to render illegal the mere possession of an "illegal" pit bull by a private shelter. Indeed, the mere possession of such an animal is an offence under the law [see Ch.6, s.2(c): "Offences: The DOLA Offences: Pit Bull Ban"].
Practically the only legal recourse of a private shelter in such a situation is to deliver it to a pound, or to a peace officer.
The situation of restricted pit bulls is somewhat more forgiving, as at least a shelter has the acquisition limits to fall back upon [remember: possession is "ownership" for these purposes: DOLA s.1(1)]. Incorporated private shelters (being ONE legal entity), would have of course a very limited acquisition limit, perhaps just 'one at a time'. On the other hand, unincorporated private shelters may be better off in this respect as - arguably - they are a collection of separate individuals, and thus can total their 'acquisition limits' to best effect [again, read Ch.5, s.6(c) - carefully].
That all said, popular resistance to the pit bull ban amongst some is such that "ownership", "transfer" and other 'banned' activities likely take place on an underground basis. Enforcement tending to be reactive only, much of it will go undetected and unenforced.
Continue to Rest of Chapter