Part II: Reece v Edmonton: What a 36-Year Old Elephant Teaches Us About Our Relationship to Animals, and to Our Government
Last week, TheCourt.ca glossed a case heard at the Alberta Court of Appeal, which essentially blocks animal activists from seeking a court declaration that the City of Edmonton is mistreating Lucy, the lone elephant in the zoo. Justice Slatter, with Justice Costigan concurring, penned the reasons for judgment of the majority of the bench. The dissent, which will be the focus of this post, comes from Chief Justice Fraser; she takes issue with the narrowness and nearsightedness of her colleagues’ decision. For Chief Justice Fraser, it is not our relationship to animals on the line; it is really our relationship to our government. Not only does Justice Fraser tackle additional issues in the case, but her dissent is also arguably more compelling. One prominent lawyer hailed her dissent as, “the best written dissent I’ve ever seen.”
Putting the Cart Before the Horse, or Elephant?
Both the chambers judge and the majority of the bench on the Alberta Court of Appeal skirted around the issue of standing, specifically whether Zoocheck Canada and PETA, the applicants, had public interest standing to seek a court declaration in the case. Rather than beginning with standing, the lower court and the majority of the appeals court began with an assessment of whether the originating process could be considered an abuse of process. If it could, then the pleadings would be struck and the case dismissed. And that was precisely what happened:
The chambers judge struck the originating notice on the basis that it constituted an abuse of process. He found that he did not need to address the issue of public interest standing in any detail… 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 his view, this was not permitted absent a private interest in the proceedings, and he determined that the appellants had none.
Methodologically, this is completely flawed, according to Chief Justice Fraser. Determining whether the applicants have public interest standing was the “central” task before the court. In some cases, a lack of standing amounted to an abuse of process or, for that matter, no reasonable cause of action. However, a finding of abuse of process cannot be used to deny standing. “This is putting the cart before the horse,” Justice Fraser summarizes.
Public Interest Standing
Even before the Charter, the Supreme Court had expanded the rules for public interest standing to permit constitutional challenges to government legislation in a trilogy of cases – Thorson v Attorney General of Canada,  1 SCR 138, Nova Scotia Board of Censors v McNeil,  2 SCR 265, and Canada (Minister of Justice) v Borowski,  1 SCR 575. This trilogy created a three-part public interest standing test: (1) Is there a serious issue raised about the limits of administrative of statutory authority or the invalidity of legislation? (2) Does the plaintiff have a genuine interest in the issue? And (3) Is there another reasonable and effective way to bring the issue before court?
Before the chambers judge, the City essentially conceded the first two parts of the test. Regarding the first part of the test, the City’s challenged actions did indeed constitute an exercise of administrative authority. Moreover, it cannot be denied that the issue of the limit of the City’s authority is serious. Our government’s compliance with the law is key to proper democratic governance.
There is also no doubt that the applicants, Zoocheck and PETA, have a genuine interest in the well-being of the lone elephant in the Edmonton zoo. Both are organizations that are devoted to the protection of animals and that have taken a special interest in Lucy’s care in particular.
This test, therefore, hinges on the third part: is there another reasonable and effective way to bring the issue before the court? Chief Justice Fraser argues that the issue – whether a civil declaratory judgment is available against the City based on its alleged unlawful conduct in its treatment of Lucy the elephant – warrants only one consideration: can the challenged conduct be subject to attack by a private litigant? The courts reason that they should have the benefit of the contending views of the persons most directly affected by the issue. It does not come down to whether the Attorney General can prosecute the City for an offence under the Act or whether the existence of that option bars a civil action against the City. This is what her colleagues focused on — mistakenly — in their decision. They enumerated other avenues that Zookeeper and PETA could have taken that would not have warranted a court declaration. In the opinion of Chief Justice Fraser, this was wholly misguided.
The final point that Chief Justice Fraser makes in her dissent is important. By applying the three-part test for public interest standing, she was able to determine that the appellants should have been granted standing. However, even if she were wrong in making a preliminary determination on this issue at this stage, it is apparent – at the very least – that the present case was not one in which standing could be denied summarily. As Chief Justice Fraser had already noted earlier, a hearing with full evidence, argument and deliberation would have been the only way to resolve the issue of public interest standing.
Abuse of Process
Even though Chief Justice Fraser details a list of woes and errors with her colleagues’ legal reasoning, it is not productive to summarize each of them here. Rather, we will target the issue of abuse of process. By concluding that the applicants were trying to act as private prosecutors, which would be an abuse of process, the chambers judge struck the pleadings. This is why Lucy never got her day in court.
The leading case on this issue is Toronto (City) v CUPE (Local 79),  3 SCR 77, which states that an abuse of process is within the court’s inherent jurisdiction to stay actions that are “unfair to the point that they are contrary to the interest of justice.”
Instead of assessing the “interest of justice” – the integrity of the adjudicative process, for example – the chambers judge seemed to assessing whether the civil proceeding was the proper way to bring issues of Lucy’s treatment at the zoo before the court. This could be inferred from the chambers judge’s statement that the “real and substantive issue in this application is whether a proceeding before the Court for a declaration is the correct procedure to seek a remedy for the harm alleged to Lucy.” In fact, according to Chief Justice Fraser, the chambersjudge appeared to have confused two tests – that for abuse of process and that for public interest standing. A consideration of whether there was another reasonable and effective way to bring the issue of “harm alleged to Lucy” before the court really falls under the third part of the test for public interest standing, as noted above. (The trial judge also erred in assuming that there is only one correct procedure and that others must be improper.)
The real test for abuse of process, as the dissenting judgment clearly explains, is the plain and obvious test: is it plain and obvious that allowing the appellants’ action to continue would be contrary to the interests of justice? After applying the test, Chief Justice Fraser conludes, “Whether the appellants can pursue and secure a declaratory judgment against the City based on its alleged unlawful conduct in its treatment of Lucy remains an arguable issue.” It is an issue that cannot be resolved without hearing the full evidence and without the full force of the adversarial process.
The Bigger Picture
It is clear from her dissent that Chief Justice Fraser is more perturbed by the larger implications of the decision than by the misapplication and misunderstanding of legal principles by her colleagues. From the outset, she makes it clear that this is not simply a case about civil procedure. Rather, she reminds us that we cannot forget the bigger picture: it is a case about an elephant in a city-run zoo, the government’s responsibility to the elephant in the zoo and our relationship to animals more generally.
She begins her lengthy dissent by painting a picture of the current state of animal protection laws at the federal and provincial levels. It is worthy to note that she includes proposals for reform of these animal welfare laws, reminding us that much work still needs to be done in the area of animal “rights” in Canada. Because the protection accorded to animals from these laws isso limited, “courts should not diminish the full import of animal protection laws by creating unnecessary barriers to those seeking to ensure compliance with them.” Furthermore, the inability of animals to speak for themselves and commence lawsuits makes it even more important for courts to “take a generous, not impoverished, approach to the grant of public interest standing for those attempting to enforce the restrictive animal rights that do exist.” This point is repeated several times in the dissent: since “animals cannot tell someone what has happened to them,” we need to encourage those who are invested in what has happened, and likely is happening, to these animals to give them a voice and to stand up for them. Keeping in mind the precarious position of animals in society, we, as “a civilized society [should] show reasonable regard for vulnerable animals, at least to the degree defined by the [Alberta] Legislature… Then should there not be some effective means of vindication of such laws as exist?”
So, we must now turn those “means of vindication of such [animal rights] laws as exist.” In this case, the City of Edmonton insisted that civil procedure would not be one of those means. It seems natural that the City would be opposed to a civil court, preferring the proof beyond reasonable doubt standard of the criminal courts instead. The City claimed that civil proceedings on these grounds would deprive it of its full Charter rights. However, the purpose of the Charter is premised on the assumption that the state wields substantial powers over its citizens. It is designed for the protection of the people from the state – not the other way around, and certainly not from civil proceedings. So, the claim that the City should be subject only to a prosecution under the Act is really doubling up the power of the municipal government, according to Chief Justice Fraser.
Rather than assessing the best way for us to intervene to protect animals from abuse in the hands of the government, the chambers judge should have asked whether it would be sufficient that the appellants prove – on a civil balance of probabilities – that the City was failing to comply with its obligations to Lucy. And why could this intervention not be achieved through a civil action? These questions are more pressing, in Chief Justice Fraser’s opinion.
The City claims it has so much to lose if it were called on to answer in the civil, not criminal, courts for its actions against Lucy. As Chief Justice Fraser poignantly reminds us though, “This case is not about what the City might possibly lose; it is about the people in a democracy, and the animals they seek to protect, and what they will certainly lose if citizens have no effective way to enjoin a government’s unlawful conduct.”