Part I: Reece v Edmonton (City): What a 36-Year Old Elephant Teaches Us About Our Relationship to Animals, and to Our Government

Lucy, a thirty-six-year old Asian elephant in the Edmonton zoo, is loved by everyone from William Shatner to Margaret Atwood. For the last few months, Lucy has found herself embroiled in a legal battle in the province of Alberta. Much to the chagrin of her famous friends, animal rights activists and animal lovers, the Court of Appeal of Alberta ruled against Lucy on August 4, 2011. The majority of the Court agreed with the chambers judge that these proceedings were an abuse of process. That is, the application to strike an action for abuse of process was granted. There would be no trial for Lucy.

By drawing this conclusion, the majority of the Court sidestepped the evidence related to Lucy’s inhumane treatment at the zoo as well as the issue of whether the appellants were entitled to standing. That was not regarded favourably by Chief Justice Fraser, who pens a charged dissent in this case. Chief Justice Fraser’s dissent takes up important issues, such as standing, and, more importantly, reminds us that this case is not merely about civil procedure: “Lucy’s case raises serious issues not only about how society treats sentient animals… but also about the right of the people in a democracy to ensure that the government itself is not above the law.”


The issue before the Court was essentially whether the appellants, Zoocheck Canada and People for the Ethical Treatment of Animals (“PETA”), were entitled to seek a declaration that the respondent City is in breach of the Animal Protection Act, RSA 2000, c A-41 [Act].

The appellants are organizations that have had a long-standing concern about the welfare of animals. They had pushed for Lucy’s removal from the Edmonton zoo for numerous reasons: they attributed her serious health problems (from her foot injuries to her obesity) to Edmonton’s inhospitable weather and her isolation at the zoo. As social animals, elephants such as Lucy need to live with other elephants and are accustomed to much more temperate climates (15 to 35 degrees Celsius).

On February 1, 2010, the appellants commenced an action by originating notice for an order, “Declaring that the City of Edmonton is in violation of section 2 of the Animal Protection Act.” The application was supported by a number of affidavits, including affidavits from veterinarians.

The relevant parts of the Act are as follows:

1(2) For the purposes of this Act, an animal is in distress if it is

(a) deprived of adequate shelter, ventilation, space, food, water or veterinary care or reasonable protection from injurious heat or cold,

(b) injured, sick, in pain or suffering, or

(c) abused or subjected to undue hardship, privation or neglect.

2(1) No person shall cause or permit an animal of which the person is the owner or the person in charge to be or to continue to be in distress.

(1.1) No person shall cause an animal to be in distress.

(2) This section does not apply if the distress results from an activity carried on in accordance with the regulations or in accordance with reasonable and generally accepted practices of animal care, management, husbandry, hunting, fishing, trapping, pest control or slaughter.

12(1) A person who contravenes this Act or the regulations is guilty of an offence and liable to a fine of not more than $20,000.

(2) If the owner of an animal is found guilty of an offence under section 2, the Court may make an order restraining the owner from continuing to have custody of an animal for a period of time specified by the Court.

While the Act does not create rights in animals, but it does restrict and control the activities of persons in interaction with animals.

The respondent, the City of Edmonton, brought an application to have the originating notice struck out on the basis that the applicants had no standing, that the proceedings were an abuse of process, or alternatively that the appellants had chosen the wrong procedure. As a result of the nature of the application to strike, the City did not file any affidavits to rebut those of the appellants, even though it disputed the factual basis of the application.

Procedural history

The lower level court granted the application from the City, striking out the originating notice. The chambers judge declared that the proceedings were an abuse of process; a private litigant could not seek a declaration that the respondent was in breach of a penal provision in a statute. By seeking a declaration that the City was in contravention of the Act in a civil proceeding, the appellants were attempting to enforce the criminal law privately. In the chamber judge’s view, this was not permitted absent a private interest in the proceedings, and he determined that the appellants had none.

Moreover, the chambers judge concluded that the application should have been brought by way of statement of claim, not originating notice.

Issues on Appeal

The two issues identified on appeal were:

  1. Did the chambers judge err in denying the applicants standing to seek a declaration?
  2. Did the chambers judge err in concluding that the proceedings were an abuse of process?

Justice Slatter wrote the majority reasons for judgment, with Justice Costigan concurring. The third and last person on the bench was Chief Justice Fraser, who dissented in this case.

Abuse of Process

While Justice Slatter singled out these two issues, as noted above, he devoted most of his attention to the second question of whether the judge erred in concluding that the proceedings were an abuse of process.

A leading case for abuse of process, which falls under the doctrine of issue estoppel and res judicata, is R v Scott, [1990] 3 SCR 979 [Scott], where the Court laid down the test:

… Abuse of process may be established where: (1) the proceedings are oppressive or vexatious; and, (2) violate the fundamental principles of justice underlying the community’s sense of fair play and decency. The concepts of oppressiveness and vexatiousness underline the interest of the accused in a fair trial. But the doctrine evokes as well the public interest in a fair and just trial process and the proper administration of justice (1007).

The most curious part about the entire judgment is the majority’s handling of the Scott test. Although the test is cited directly, Justice Slatter seemed to skirt around it: “Just because a particular proceeding does not fit into a particular authoritative recitation of the test for abuse of process does not mean that no abuse is present. Procedures that can “bring the administration of justice into disrepute” can take many forms.” Without any further explanation as to why the Scott test would be inappropriate for the case at hand, or elaboration on how the trying of the case at hand would “bring the administration of justice into disrepute,” Justice Slatter swiftly moved on.

Awkwardly, the majority turned to the categories in which cases on abuse of process tend to fall next: re-litigation of settled issues, fairness of trial procedures, delay in proceedings, etc. Justice Slatter pointed to one category of abuse of process, namely proceedings used to enforce or engage punitive penal statutes, other than by charging the party allegedly responsible with the applicable offence. “Sometimes the court reaches that result [abuse of process] by finding that the applicant has no standing to apply for the requested relief,” Justice Slatter stated.

He continued: “The law has long recognized a limited ability to grant equitable or declaratory relief to a private litigant respecting a public wrong, provided that the applicant has also suffered some private wrong” (Gouriet v Union of Post Office Workers, 1978 AC 435 [Gouriet]). The central principle of Gouriet is that the applicant must have some private interest in addition to any public interest.

While caselaw has since eased the test for standing in public law matters, Slatter noted that, “none of the leading cases on standing involves an attempt to obtain a declaration that a particular respondent was in violation of a penal statute.”

Much like his treatment of Scott, Justice Slatter failed to really engage with the leading cases he cited. Specifically, Justice Slatter failed to investigate whether PETA and Zoocheck fit the principle from Gouriet – whether they have some private interest, in addition to any public interest, in Lucy’s well-being at the zoo.

Instead, Justice Slatter focused on why the courts are reluctant to grant a declaration when someone is in breach of a penal statute or other similar civil remedies. In his opinion, one compelling reason is that the burden of proof in civil proceedings is on a balance of probabilities, whereas the burden of proof in penal regulatory proceedings is proof beyond a reasonable doubt. Therefore, “the presumption of innocence in penal proceedings is lost or undermined in a declaratory action.”

The rest of the majority decision concerned other remedies available to the appellants, besides penal proceedings. For example, the applicants could file further complaints to the Edmonton Humane Society or alternatively bring the issue to the Attorney General. Justice Slatter was not convinced that the applicant’s claim should be heard by the superior courts: “It is not appropriate to expect the courts to take over the animal husbandry of the animals at the City zoo through the ability to issue declarations on points of law.”

It is not difficult to understand why Chief Justice Fraser charged Justices Slatter and Costigan with myopic reasoning in her dissent. Certainly there were other avenues for the applicants could have taken; but how does the majority decision re-imagine and re-configure the relationship between citizens and the government, specifically the right of citizens to mount a challenge to unlawful government conduct? She goes so far as to pronounce that it is “contrary to the rule of law to suggest that citizens are without a remedy. It is a central role of the courts to assure the legality of government action.”

Regardless, the majority of the bench came to the conclusion that, “the chambers judge came to the correct conclusion that these proceedings are an abuse of process.” And, in light of the conclusion about abuse of process, it would not be necessary to decide whether the appellants were entitled to standing nor whether the form of procedure used by the applicants could be appropriately amended.

To be Continued…

The reasons for judgment of Justice Slatter definitely leave something to be desired. In the next post, will unpack Chief Justice Fraser’s strongly worded dissent in this case. The dissent does more than sharply criticize the reasoning employed by the majority of the Court. It aptly places the case within a larger context of animal rights and constitutional democracy. Could the government really be immunized from judicial scrutiny of alleged unlawful acts, she – and we – ask?

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