2019 QCCA 653, 2019 QCCA 653

Road to Home Rescue Support c. City of Montreal 2019 QCCA 653 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-028213-197 (500-17-105390-184) MINUTES OF THE HEARING DATE: April 9, 2019 THE HONOURABLE NICHOLAS KASIRER, J.A. PETITIONERS COUNSEL ROAD TO HOME RESCUE SUPPORT CHRISTA FRINEAU Mtre ANNE-FRANCE GOLWATER (Goldwater, Dubé) RESPONDENT COUNSEL CITY OF MONTREAL Mtre ALEXANDRE PAUL-HUS (Gagnier Guay Biron) IMPLEADED PARTIES COUNSEL SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS Mtre Marie claude st-amant (Melançon, Marceau, Grenier & Sciortino) ATTORNEY GENERAL OF QUÉBEC ABSENT – NOT REPRESENTED

DESCRIPTION: Application for leave to appeal from a judgment terminating the proceeding rendered on March 26, 2019 by the Honourable Lukasz Granosik of the Superior Court, District of Montréal. Clerk: Alya Elisio Courtroom: RC.18 HEARING 11 : 21 Commencement of the hearing.

Exchanges between the judge and Mtre Alexandre Paul-Hus. 11 : 23 Exchanges between the judge and Mtre Marie-Claude St-Amant. 11 : 25 Exchanges between the judge and Mtre Anne-France Goldwater. 11 : 32 Submissions by Mtre Goldwater. 11 : 57 Exchanges between the judge and Mtre Paul-Hus. 12 :02 Exchanges between the judge and the parties. 12 : 13 Suspension of the hearing. 1 : 07 Resumption of the hearing. Comments by the judge. BY THE JUDGE: Judgment- see page 4.

End of the hearing. (s)Alya Elisio Clerk BY THE JUDGE JUDGMENT [ 1 ] WHEREAS Road to Home Rescue Support and Christa Frineau seek leave to appeal from a judgment of the Superior Court, District of Montreal (the Honourable Lukasz Granosik), rendered on March 26, 2019, which, inter alia , dismissed their application for judicial review; [ 2 ] WHEREAS Road to Home Rescue Support and Ms.

Frineau have also filed a notice of appeal against the same judgment in which they assert that the judgment a quo is, in part, susceptible of appeal as of right; [ 3 ] WHEREAS the Superior Court rejected the applicants’ arguments made in support of their application for judicial review that sought a declaration that ss. 36 and 49 of the Animal Control By-Law (18-042) of the City of Montreal are invalid and without effect; [ 4 ] WHEREAS the Superior Court also rejected the applicants’ arguments made in support of their application for judicial review that sought a stay of the respondent City of Montreal’s order to euthanize a dog known as Shotta (hereinafter the “dog”), and further sought an authorization that the dog be evaluated, transported to Road to Home Rescue Support’s refuge premises in the United States and adopted by the latter;

[ 5 ] CONSIDERING that the appeal from the conclusion of the judgment as it relates to the validity of the By-law is, according to the applicants, susceptible of appeal as of right, pursuant to

article 30, para. 1 C.C.P ., in that it pertains to the validity of a municipal by- law that may be interpreted as an “ acte normatif ”: see

article 529, para. 1

(1) C.C.P. as interpreted by the Court in Fraternité des policiers de Châteauguay inc. v. Ville de Mercier , 2017 QCCA 1251 , especially at paras. [11] , [72], [77] and [79]; [ 6 ] CONSIDERING that the appeal from the conclusion of the judgment as it relates to the legality and the susceptibility of immediate execution of the decision of the Direction de l’Arrondissement de Montréal-Nord of the City of Montreal, dated August 22, 2018, declaring the dog to be dangerous and that it be euthanized is, according to the applicants, susceptible of appeal with leave only, pursuant to

article 30, para. 2

(5) C.C.P. , in that it pertains to an administrative decision of a public body which may be interpreted as an “ acte administratif ”: art. 529, para. 1

(2) C.C.P. as interpreted in Fraternité des policiers de Châteauguay inc. , supra , especially at paras. [11], [78]; [79] and 7718284 Canada inc. v. Complexe Cité du Havre II inc. , 2017 QCCA 1668 ; Tcheng c. Coopérative d’habitation Chung Hua , 2016 QCCA 461 (Bich, J.A. in chambers) and Juste Investir Inc./Just Invest inc. c.

Québec (Procureure générale) , 2016 QCCA 1174 (Bich, J.A., in chambers); [ 7 ] CONSIDERING, therefore, that the appeal of the judgment as it relates to the validity of the By-law shall be heard by the Court as an appeal of right; [ 8 ] CONSIDERING that even if the appeal of the judgment as it relates to the validity of the By-law is not an appeal of right, and that it is therefore improperly initiated, only the Court, and not a judge in chambers, has jurisdiction to dismiss the appeal on that basis:

article 365, para. 1 C.C.P .; [ 9 ] CONSIDERING the respondent City of Montreal’s intention to file a motion to dismiss the appeal announced by its counsel at the hearing before me today; [ 10 ] CONSIDERING that it is in the interests of the efficient administration of justice that the application for leave to appeal be heard at the same time and by the same panel of the Court as the appeal of right and the motion to dismiss relating to the validity of the By- law, such that the application for leave be referred to the Court; [ 11 ] CONSIDERING that the judge of the Superior Court recorded in paragraph [2] of his judgment that the City of Montreal had agreed not to act on the administrative decision to euthanize the dog until the Superior Court rendered judgment in the matter; [ 12 ] ACKNOWLEDGING the undertaking by the City of Montreal that during the appeal of the judgment of the Superior Court, and until such time as this Court renders final judgment in the appeal, the City of Montreal shall not act on the administrative decision to euthanize the dog; [ 13 ] ACKNOWLEDGING the undertaking of the mise-en-cause Society for the Prevention of Cruelty to Animals (S.P.C.A.) to continue to provide care and custody for the dog until final judgment of this Court on the appeal, and further ACKNOWLEDGING the request of the S.P.C.A. that the hearing be held as soon as possible given, in particular, the declining health of the dog; [ 14 ] ACKNOWLEDGING the applicants’ undertaking to increase the amount on security for costs referred to in paragraph [48] of the judgment of the Superior Court by $2,000 for a total amount of $5,000 to be held in trust by Goldwater, Dubé, to pay, prior to other expenses, the expenses for the care and custody of the dog incurred by the S.P.C.A.; [ 15 ] CONSIDERING that the dangerousness of the dog and the conditions in which it is kept, as determined by the judge of the Superior Court, and its declining health require that the appeal be heard with due dispatch, and that the case be managed to that end; [ 16 ] CONSIDERING that the parties present have agreed to argue the appeal, and the leave to appeal, including, should the panel of the Court so require, the merits of the appeal, based on the materials submitted along with memoranda argument of no more than fifteen (15) pages in length, not including authorities; FOR THE FOREGOING REASONS , the undersigned: [ 17 ] REFERS the application for leave to appeal to the panel of the Court that will hear the appeal relating to the validity of By-law 18-042; [ 18 ] ACKNOWLEDGES the undertaking by the respondent City of Montreal not to act on the administrative decision of the Direction de l’Arrondissement de Montréal-Nord to euthanize the dog during the time the appeal before this Court is pending and ORDERS the City to respect this undertaking; [ 19 ] ACKNOWLEDGES the undertaking of the mise-en-cause Society for the Prevention of Cruelty to Animals to continue to provide care and custody for the dog until final judgment of this Court on the appeal; [ 20 ] ORDERS the parties not to remove the dog from the care and custody of the Society for the Prevention of Cruelty to Animals unless authorized to do so by the Court or by one of its judges; [ 21 ] FIXES the hearing of the appeal and the application for leave to appeal on May 31, 2019 at 9:30 a.m. in the Antonio Lamer Courtroom for a period of 90 minutes (45 minutes for appellants/applicants Road to Home Rescue Support and Christa Frineau and 45 minutes for the respondent City of Montreal) and AUTHORIZES each of the parties to file in the Office of the Court, with copies notified to all other parties, a memorandum of argument of no more than fifteen (15) pages, not including authorities; [ 22 ] ORDERS the appellant, after having notified a copy upon the respondent, to file in the Office of the Court, no later than April 25, 2019, five copies of a written argument not exceeding 15 pages.

All documents necessary for the adjudication of the appeal (judgment under appeal, pleadings, excerpts from depositions, etc.) shall be attached;

[ 23 ] ORDERS the respondent, after having notified a copy upon the appellant, to file in the Office of the Court, no later than May 7, 2019 , five copies of a written argument not exceeding 15 pages and of its supplementary documents; [ 24 ] DIRECTS the parties’ attention to

section 376 C.C.P . and

article 55 of the Civil Practice Regulation , which read as follows: 376. The appeal lapses if the appellant does not file a brief or a memorandum within the time limit for filing. The appellate clerk issues a certificate of lapse of appeal, unless an appellate judge is seized of an application for an extension. A respondent or any other party that does not make a timely filing of its brief or memorandum is precluded from filing and cannot be heard at the hearing unless so authorized by the Court of Appeal. 55. Format. The memorandum shall include a title page, a table of contents and be paginated consecutively.

The provisions relating to briefs (including the final requirements) apply to memoranda with the necessary adaptations. [ 25 ] DIRECTS the parties’ attention to Practice Direction G-3 (last amendment: February 27, 2017) encouraging them to attach a technological version to each paper copy of their brief, memorandum and book of authorities. Such technological version should preferably be in Word format but may also be in PDF format enabling key-word searches.

The USB drive is the format preferred by the Court, but CD / DVD-ROM are also accepted ; [ 26 ] ACKNOWLEDGES the applicants’ undertaking to increase the amount on security for costs referred to in paragraph [48] of the judgment of the Superior Court by $2,000, for a total amount of $5,000, to be held in trust by Goldwater, Dubé, to pay, prior to other expenses, the expenses for the care and custody of the dog incurred by the Society for the Prevention of Cruelty to Animals; [ 27 ] Legal costs to follow suit. NICHOLAS KASIRER , J.A.