The owner of a Tagish dog rescue will have to get rid of all but two of her dogs after a judge sided with her neighbours in a lawsuit over the “unbearable” noise coming from Shelley Cuthbert’s property.
In a decision made public Oct. 16 but dated Oct. 11, Yukon Supreme Court Justice Leigh Gower wrote that Cuthbert’s neighbours in Tagish Estates, six of whom were plaintiffs in the lawsuit, “more likely than not … suffered a substantial interference with their enjoyment of their respective properties as a result of Ms. Cuthbert’s dogs barking.”
As a result, Gower ordered a permanent prohibitive injunction to take effect in four months that will limit Cuthbert to keeping two pet dogs on her property that must be inside her residence between 10 p.m. and 7 a.m., a significant decrease from the 50 to 60 animals she reportedly has on her property now.
The injunction order brings a tentative end to what started as a neighbourhood dispute in 2012 and culminated with Cuthbert’s neighbours bringing her to court last month.
During the four-day trial in mid-September, the court heard that Cuthbert moved into her lot in 2012, bringing a dog rescue operation with her. The rescue transformed the quiet, rural residential neighbourhood into one filled with the loud, incessant noise of dogs barking, seven of Cuthbert’s neighbours’ testified, which severely impacted their abilities to enjoy their own properties.
Cuthbert, who represented herself in court, argued that her dogs do not constantly bark, that the rescue provided an essential service and that she was being singled out by her neighbours, who she accused of aggravating and provoking her dogs.
In his decision, Gower wrote that he found the testimony of Cuthbert’s neighbours — Gerry McGraw, Anne Middler, Stefan Angerer, Ursula Angerer, Stefan Landfried, Leopold Selinger and Edeltraud Selinger — largely credible, and that Cuthbert’s cross-examinations of them did not significantly impact that credibility. All of them were plaintiffs on the lawsuit except for Middler.
“(All of the witnesses) testified to their sleep being disturbed by the barking dogs and a general loss of enjoyment of outside activities such as barbecuing, gardening and entertaining,” Gower wrote.
“It is sufficient for the plaintiffs to have established that that particular sources of annoyance is more than trivial.”
Gower dismissed the plaintiffs’ complaints about the smell of dog feces and the noise of Cuthbert’s generator also being disruptive, writing that there was not sufficient evidence to establish either claim.
On Cuthbert’s defences, Gower wrote that she “(missed) the point” in arguing that her dogs aren’t always barking and that she can’t control what happens when she’s not on her property. He also took issue with her claim that her dog rescue was essential to the safety of Carcross/Tagish First Nation, for which she’s a contracted dog catcher.
“Ms. Cuthbert cannot justify the infliction of significant harm upon the plaintiffs simply by urging that there is a greater benefit to the public at large from her conduct … (because) the plaintiffs receive no benefit from her business but shoulder virtually all of the associated injurious effects,” Gower wrote, adding later that Cuthbert had failed to provide a viable legal defence to the lawsuit overall.
Gower also addressed Cuthbert’s “carelessness,” agreeing with the plaintiffs’ lawyer, Graham Lang, that Cuthbert “appears to have been wilfully blind to the disturbance her business has caused to the neighbourhood.”
“In this case, there is no question that the nuisance will continue if there is no injunction, just as it has continued, and indeed increased in severity, over the last five years,” Gower wrote.
In a phone interview Oct. 16, Lang said the plaintiffs were relieved with the decision and “ready to put this behind them.”
“This type dispute between neighbours leaves a bad taste in everybody’s mouth,” Lang said. “That being said, obviously, the noise and disturbance coming from Ms. Cuthbert’s lot was, to say the least, extreme, and the amount of relief felt by her immediate neighbours can’t be understated. They’re going to be able to enjoy their properties again, they’re going to be able to sleep again.”
Reached for comment via email, Cuthbert said she plans to file an appeal.
Contact Jackie Hong at jackie.hong@yukon-news.com