The B.C.-Yukon Court of Appeal has dismissed Tagish dog rescue owner Shelley Cuthbert’s attempt to overturn a Yukon Supreme Court injunction requiring her to get rid of all but two dogs on her property.
In a written decision released May 25, Justice Gregory James Fitch, supported by Chief Justice Robert James Bauman and Justice Susan Cooper, wrote that none Cuthbert’s grounds of appeal had any merit and that the Oct. 11, 2017 decision by Yukon Supreme Court Justice Leigh Gower was valid.
As a result, effective immediately, Cuthbert must comply with Gower’s permanent injunction restricting her to keeping no more than two dogs on her property, and that those dogs must be kept inside between 10 p.m. and 7 a.m.
Whitehorse lawyer Graham Lang, who represented Cuthbert’s neighbours through most of the legal proceedings, said in a phone interview that his clients “are obviously happy with the decision.”
“The decision was expected on our end. The original judgement was well-reasoned by the trial judge…. So it wasn’t a surprise that it came down in our favour but everybody’s relieved that we can start putting this behind us,” Lang said.
“We’re hoping that Ms. Cuthbert takes this judgement to heart and begins acting like a reasonable neighbour.”
In a brief phone interview, Cuthbert, who represented herself in court and at last check had approximately 40 dogs, said that she was still trying to figure out her next steps and that, if she can find a lawyer to represent her, she would take the case to the Supreme Court of Canada. She also told the CBC following the decision that, if she can find a piece of property, “I’ll pack up all the dogs and off we go camping until I find a new home.”
Barring an application to the Supreme Court of Canada, the decision marks the end of a one-and-a-half-year-long legal battle between Cuthbert and six of her neighbours in Tagish Estates, who originally sued her in November 2016 for the excessive noise they said was coming from the up to 80 dogs at her rescue.
The case went to trial in fall 2017, with Gower ultimately ruling in the neighbours’ favour and granting a permanent injunction against Cuthbert, giving her four months to comply with the order.
Cuthbert, however, called the order “draconian” and insisted it would lead to the euthanization of behaviourally-challenged but otherwise healthy dogs. She appealed the ruling, seeking a stay of Gower’s injunction in the interim. An appeal court judge granted her a partial stay in January and instead ordered her to surrender 10 dogs a month to the Yukon government’s animal health unit, an order which Cuthbert ignored and unsuccessfully applied to have discharged or varied.
Cuthbert’s appeal was heard earlier this month.
In his decision, Fitch wrote that the court “would have been justified in refusing to hear this appeal on grounds that the appellant failed to comply with the terms of the partial stay order” and further directions given to her following her unsuccessful attempt to have the partial stay changed.
“The policy animating the Court’s discretion not to hear appeals in these circumstances is based on the concern that hearing an appeal and potentially granting relief to a party who has exhibited disdain for the judicial process may work to undermine the authority of the Court and bring the administration of justice into disrepute,” Fitch wrote. However, he said that the panel of judges in this case decided to hear the appeal on its merits “because the interests of justice engaged by this case encompass more than the appellant’s business and personal interests.
“The determination of this appeal will also affect the welfare of dozens of animals she has taken into her care. The interests at stake and the strong emotions cases of this kind engender support the view that the public interest would best be served by determining this appeal on its merits,” he wrote.
However, the court ultimately found that none of Cuthbert’s grounds of appeal — which included claims that the trial was unfair, that Gower failed to properly consider her evidence, that Gower did not help her enough and that the injunction was unnecessarily harsh — had any merit.
“This appeal does not pose a legal problem in need of a jurisprudential solution; it poses a pragmatic problem in need of a practical solution,” Fitch wrote. “Further, the solution, although it will inevitably be imperfect and emotionally wrenching for the appellant, must come soon.”
In his closing, Fitch acknowledged the “practical problem” raised by the appeal and the court’s decision to make Cuthbert comply with Gower’s injunction.
“I have viewed many of the videos taken by the appellant of the dogs. They come in all shapes, sizes and breeds and appear to be healthy — reflecting, no doubt, the care they have received from the appellant,” Fitch wrote.
“To be clear, no one wants to see any dog euthanized that is capable of being put up for adoption. It is to be hoped that the publication of this decision will encourage individuals seeking to adopt a rescue dog to take immediate steps to contact the Yukon Government’s animal health unit or the Humane Society Yukon.”
Contact Jackie Hong at email@example.com