Tagish dog rescue owner Shelley Cuthbert says the September 2017 trial that resulted in an injunction ordering her to get rid of all but two of her dogs was “one-sided.” (Jackie Hong/Yukon News file)

In factum, Tagish dog rescue owner Shelley Cuthbert says trial was ‘one-sided’

Cuthbert’s appeal of her neighbours’ successful lawsuit is scheduled to be heard in May

Tagish dog rescue owner Shelley Cuthbert says the September 2017 trial that resulted in an injunction ordering her to get rid of all but two of her dogs was “one-sided.”

In a factum filed to B.C./Yukon Court of Appeal March 22, Cuthbert states that Justice Leigh Gower, who presided over the trial triggered by a lawsuit against Cuthbert by several of her neighbours, failed to consider factors that would have bolstered her case. Among those factors were his own bias, treating Cuthbert’s evidence fairly, the impact that the injunction would have on Cuthbert and the public benefits that come from the rescue.

In a case management conference in August 2017, the factum says, Gower said he had “some concerns” with presiding over the trial as he had also presided over another trial involving Cuthbert when she was president of the Yukon Humane Society and said “some not so nice things” about her in his decision. At the time, the factum says Cuthbert “was in fear of repercussions of asking for a new trial judge” and claimed she didn’t think Gower would be biased.

However, the factum continues, Cuthbert’s evidence was treated differently than her neighbours’, noting that while the neighbours’ lawyer was able to read his closing arguments in full, Gower cut Cuthbert off when she started reading hers and told her that her case law was irrelevant.

“Instead, the appellant had to speak (off) the top of her head and was berated by questions from the trial judge. This lead to much confusion and emotional upset for the appellant,” the factum says.

“…The trial judge is required to ensure a fair hearing. Unfortunately the appellant is unrepresented and admitted to having difficulty finding case law that was relevant to the trial especially when dealing with live animals.”

Gower also did not allow Cuthbert to submit two videos that showed how quiet it was in a neighbour’s house as evidence, claimed Cuthbert had not challenged her neighbours’ contradictory testimonies when she had and did not take into account that the neighbours were inciting the dogs to bark, the factum says.

The factum also takes issue with the evidence submitted by the neighbours, noting that they “have not submitted any evidence from any experts on the actual impacts of the noise, decibel levels etc in the whole area.” Gower also accepted evidence related to one of the neighbour’s diaries about the noise, the factum says, when the version of the diary used during trial was different from the one previously provided to Cuthbert.

As well, the factum says that the injunction granted by Gower, which gave Cuthbert four months to reduce the number of dogs on her property from 60 to two, was “not reasonable” on account of it being winter — the ground was frozen and the dogs require “special owners” to adopt them. The injunction also effectively shut down the kennel, the factum says, “which caused economic hardship, and finally dogs ultimately losing their lives by being euthanized.”

“The remedy was draconian and has caused many impacts to the appellant both economically and emotionally,” the factum says, adding that Cuthbert was never asked or given an opportunity to suggest alternative remedies.

In ordering an injunction that shuttered the kennel and, by extension, Cuthbert’s dog-catching service, Gower failed to take into account testimony from Carcross/Tagish First Nation, which stated that Cuthbert was providing a “necessary service” for the area, as well as testimony from an RCMP officer who said Cuthbert had assisted police on several occasions with picking up dogs and ensuring community safety.

“The rescue also provides a public service for the Yukon as a whole and provides the services across Canada and the USA … but also (for) Yukon stray, abandoned, behaviourally challenging dogs,” the factum states.

Cuthbert is requesting three possible remedies — that Gower’s judgement be set aside, that the injunction “be amended to less draconian measure,” a new trial with a different judge — as well as costs and damages.

Cuthbert’s appeal is scheduled to be heard in May.

Contact Jackie Hong at jackie.hong@yukon-news.com

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