Emotions ran high in a Whitehorse courtroom Sept. 22 as both sides in the trial over a Tagish dog rescue delivered their closing submissions on why the operation should — or shouldn’t — be shut down.
The proceedings marked the end of a four-day trial that saw six residents of the rural Tagish Estates neighbourhood, represented by lawyer Graham Lang, square off against their neighbour and dog rescue owner Shelley Cuthbert. The six, citing unbearable, around-the-clock barking, are seeking an injunction against Cuthbert to limit her to keeping a maximum of two dogs on her property, a significant decrease from the 50 to 60 dogs she currently has on site. They’re also seeking to have Cuthbert turn her generator off, which they say is another source of constant noise.
In his closing, Lang highlighted the consistency in testimony of the seven witnesses, all Tagish Estates residents, he had called to the stand over the course of the trial. They all spoke about how the noise from the shelter has prevented them from making the “most basic use” of their properties, he said, including being able to sleep through the night and relax.
Cuthbert “appears to be willfully blind” to the issue, Lang continued, apparently ignoring previous complaints and signals from her neighbours that the operations may not be a good fit for a residential area.
“She knows she’s got a problem… It’s clear that the neighbours have an issue with her. What does she do? She doubles down on the number of dogs (she has),” Lang said, noting that Cuthbert did not call any witnesses from Tagish to refute the complainants’ claims that the noise at the core of the lawsuit was coming from her property.
Although Cuthbert may be providing a valuable dog-catching service to Carcross/Tagish First Nation and other communities, Lang said, it’s not fair that her neighbours have to deal with the nuisance of the noise from the rescue, especially when they’re not benefitting from it at all.
“Carcross/Tagish First Nation is dumping its (dog) problem in Tagish,” he said.
Several Tagish Estates residents who were sitting in the gallery, all of them witnesses or plaintiffs on the lawsuit, nodded or sighed in agreement as Lang spoke.
Lang proposed that, if granted, the injunction take effect four months following the signing date, which would give Cuthbert the time to pare the number of dogs on her property. She could achieve this simply by not taking in any new animals while continuing to adopt out the ones currently in her care, he said, and also pointed out that Cuthbert’s property is connected to the grid — she can just turn her generator off.
For her closing, Cuthbert requested that the injunction be dismissed, arguing that no one can put a price on animals’ lives and that the injunction would cause “irreparable harm.” While she acknowledged that her dogs bark, Cuthbert said when she moved in, she didn’t find any bylaws or zoning requirements that would have prevented her from starting her rescue and added that she’s been met with resistance every time she’s tried to work with her neighbours to find a solution.
Cuthbert, who was representing herself in court, at times verbally and legally stumbled during her closing, at one point having her case law — previous judgements on cases meant to illustrate legal precedents — dismissed as irrelevant by Justice Leigh Gower. Gower was also critical of Cuthbert’s assertion that she had done everything she could to prevent her neighbours from being disturbed by noise from the rescue, which he said was a “due diligence” argument that did not meet legal standards for a valid defence.
At one point, after Cuthbert said she couldn’t control what happens when she isn’t home and that she’d “cleaned out” her life savings to buy the land and build the rescue, Gower asked if she saw herself as the victim.
“Everybody’s a victim here,” Cuthbert responded. “This is a no-win situation.”
If she was running the rescue for herself, Cuthbert continued, she would have left long ago — but she hasn’t, because she’s doing it for the dogs, and, unlike her “rich” neighbours, can’t afford to move elsewhere.
“I’m not a horrible person … I don’t know what to tell you,” Cuthbert said, beginning to cry.
“It’s a damned-if-I-do, damned-if-I-don’t situation … I can’t go on anymore, your honour. I’m sorry,” she said, before taking her seat and burying her face in her hands.
Gower said he would reserve his decision on the case, explaining that he needed time to look over all the evidence Lang and Cuthbert had submitted.
As court adjourned, some of Cuthbert’s friends who had been sitting in the gallery walked up to the front of the room to comfort her.
Contact Jackie Hong at email@example.com