2012 QCCA 1318, 2012 QCCA 1318

Papakostas c. Montréal (Ville de) 2012 QCCA 1318 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-022843-122 (500-17-072497-129) DATE: JULY 23 rd 2012 IN THE PRESENCE OF THE HONOURABLE FRANÇOIS DOYON, J.A. CHRISTOS PAPAKOSTAS PETITIONER – Plaintiff v. VILLE DE MONTRÉAL RESPONDENT - Respondent JUDGMENT [ 1 ] The petitioner Mr. Christos Papakostas seeks leave to appeal a judgment of the Superior Court that dismissed his motion for the issuance of a safeguard order. The essence of his motion was to solicit an interim stay of a decision of Mr.

Benoit Lacroix, director of the Direction de l'aménagement urbain et des services aux entreprises of the City of Montreal, rendered pursuant to

article 19 of the By-law Concerning Dog and Animal Control that ordered the American Staffordshire Terrier the petitioner owns to be euthanized within 48 hours of the order. [ 2 ] Mr. Lacroix is of the opinion that the dog constitutes a danger for public health and security. His opinion is based on a police report, an inspection report of Mr. Jonathan Sirois and meetings he had with the latter. [ 3 ] The motions' judge refusal to grant a safeguard order results from the exercise of judicial discretion, which is entitled to deference by an appellate court.

For that reason, leave to appeal such judgments is rarely granted. [ 4 ] The petitioner argues that the Superior Court judge erred in fact and in law, especially since the procedure leading to the administrative decision did not respect the rules of fairness in that the petitioner was not provided with an opportunity to explain his position to the decision-maker, and because the relevant provisions of the By-Law are unconstitutional. [ 5 ] In my opinion, the allegations in the motion do not show that the Superior Court judge erred in fact or in law, or that the judgment is affected by any apparent weakness.

The motion before me should therefore be dismissed. [ 6 ] According to the evidence adduced at the hearing, the dog bit two persons in less than an hour, without being provoked or for any obvious reason, despite being on a leash. Without deciding the merits of the case, but only for the purpose of this motion, a brief review of how witnesses and the inspection report describe the incidents shows this to be the case. [ 7 ] With respect to the first incident, the complainant called the police who arrived a few minutes later and interviewed the witnesses.

The woman was walking on the sidewalk and, according to the police report, " passe sur la

partie gauche du trottoir afin d'éviter l'homme et le chien. Arrivé à égalité avec la bête, le chien saute sur la dame et la mord et la graffigne […] Elle est lacérée sur le torse du côté gauche. Elle saigne et est graffignée ." Photographs of the woman confirm the accuracy of this description, and the approximately six cm tear on her blouse at the level of her abdomen, as well as three scratches, are visible. One of the scratches is much more significant than the others, with the abdominal skin slightly open.

Another witness stated that: " the dog jumped up and bit her ." Consequently, Urgence Santé was called to the scene. [ 8 ] With respect to the second incident, the ambulance technician who arrived on the scene sought to speak to Mr. Papakostas to inquire about his dog's state of health. According to his written statement, without warning, " le chien a bondi et mal tenu par son maître et m'a agrippé la fourche de mon pantalon avec sa gueule, j'ai réussi à reculer. […] Pas de blessure mais très surpris : petit trou sur les pantalons. […] Chien très imprévisible.

Pas de grondement ou de dents sorties ." He afterwards experienced pain in one of his testicles. [ 9 ] The conclusion at which Mr. Lacroix arrived that the dog is a danger to public health and security is therefore not unreasonable, and as the Superior Court judge observed, the City is not obliged to await " une récidive avant d'agir afin d'assurer la protection des citoyens ." [ 10 ] I would also note that the municipal inspector on the scene, Mr. Sirois, obtained Mr. Papakostas' version of events and transmitted it to Mr. Lacroix. After the petitioner received the notice to euthanize the dog, Mr.

Sirois also conveyed to Mr. Lacroix Mr. Papakostas' offer to muzzle the dog and get an evaluation of the dog's behavior. Mr. Lacroix refused it. In such circumstances, the Superior Court judge could reasonably conclude that the rules of fairness had been respected.

[ 11 ] Finally, the Superior Court judge considered all the relevant criteria that govern the issuance of safeguard orders, and he cannot be said to have erred in law in that analysis. [ 12 ] As the judge emphasized, we can easily conclude that " devoir faire euthanasier son chien apporte une grande peine affective ". Such a reaction, however, cannot justify endangering public health and security.

In the circumstances, the balance of convenience and the interests of justice weigh as well in favor of the dismissal of the motion for leave to appeal. [ 13 ] FOR THESE REASONS : [ 14 ] I dismiss the motion for leave to appeal, without costs. FRANÇOIS DOYON, J.A. Mtre Elaine Rosenberg WILRC INC. For the petitioner Mtre Simon Jolin-Barrette Mtre Eric Couture For the respondent Date of hearing: July 18 th 2012