Take a Walk on the Ferae Naturae Side

In East Fork Enterprises Ltd. v. Saskatchewan Government Insurance, 1997 CanLII 11022 a spepekunk stunk up a farmer and his dressed poultry.  He filed an insurance claim.

The insurance company spoke up in the skunk’s defence.  It argued that what the poultry farmer characterized as an “attack” (covered by the insurance policy) was not an attack but an uninsured “defensive maneuver.”

But who is left to speak for the poultry?  The Court declared that “if the frozen poultry could speak they would respond by saying that they were “attacked” by the portion of the spray that went beyond Mr. Schulz with the resulting contamination.  I therefore hold, that the defendant is liable for the damage caused to the dressed poultry.”

As I wrote recently, law is fixated with timing; it is also obsessed with categories, the more Latin, the better.  A key requirement when it comes to determining liability for animals is how the creature is categorized:  there are “ferae naturae,” animals that are naturally dangerous, and “mansuetae naturae,” the naturally harmless.

If you own a “naturally dangerous” animal that hurts someone, you are strictly liable (a version of “no questions asked”) for the harm it causes. For instance, you’re liable when your 5′ tall, 200 lb pet chimpanzee, Heidi, bites a small child while you have Heidi out for a walk in Toronto (R. v. Petzoldt, 1973 CanLII 1446).

raccoonYou’re also liable when your pet raccoon escapes your basement and attacks a jeweler in his shop. Earlier in the day, before things went south, the raccoon had wandered into a hotel bar, where it sniffed peoples’ feet, and then “jumped on a chair and looked out of the window and otherwise becomingly conducted itself” (Andrew v. Kilgour, 1910 CanLII 315).

Bengal tigers in wildlife parks?  If they get through the window of a 1988 Honda Prelude and attack the occupants, that’s on you (Cowles v. Balac, 2006 CanLII 34916 (ON CA)).

Closer to home, the owners of Simba the Goat were liable to the tune of $1,525 for the damage Simba did to a vehicle it rammed while pursuing a screaming child.  Although I question the aptness of the comparison of goat/tiger, as the arbitrator states, “I suggest there is only so far you can go to training an animal like a goat. The same could be said for a tiger. While they may be well trained they are wild animals. … even if the owner believes in his own mind that the animal is harmless” (Pittman v. Morin, 2010 NSSM 56).

Part of the legal analysis may also ask if the animal was behaving in expected or unexpected ways, or whether the injured person was acting like an idiot.  When Hector the Siberian Tiger injured plaintiff Lewis, an employee at an Alberta game farm, it was August, when tigers “can be ‘crotchety.'”  The Plaintiff walked into the enclosure to retrieve a cap that was on the ground. Hector attacked (Lewis v. Oeming, 1983 CanLII 1017 (AB QB)). 

The Court is just a bit giddy in its introduction:  “It is not very often that a member of the Court of Queen’s Bench of Alberta gets an opportunity to hear a civil trial where a Siberian tiger mauls a man.”  Lewis was found to have assumed a known risk when he voluntarily entered the enclosure.  Al Oeming, who owned the game farm, was a local legend, who attracted controversy associated with animal-keeping.  Animals were his passion and priority; apparently, “he and his first wife separated after he spent a large sum on a polar bear compound.”

Hector was by nature, in the Alberta heat, “crotchety.”  When it comes to doing what comes naturally, Letweniuk’s bull impregnated four of Popowich’s  heifers (1971 CanLII 761 (SK QB)).  No one was surprised by this except maybe the heifers:  “the accident was due to something which might reasonably be anticipated as a result of the animal being at large, having regard to its normal tendencies.”  Letweniuk should have anticipated that the bull running at large would molest the cows (court’s words).  $500 damages were awarded, because Popowich’s heifers lost value, being pregnant and all.

A subsequent “gender reveal” event resulted in even further property damage, when the bull broke down his enclosure upon being startled by a display of pink and blue fireworks.

And here’s a bit of a twist:  to sue for animal injuries, you need an animal owner to haul into court, because animals themselves tend to be judgment proof.  Enterprising folks have tried to claim that wild animals are owned by the government, so it should be responsible for the damage they wreak.  In George v. Newfoundland and Labrador, 2016 NLCA 24, George tried unsuccessfully to hold the provincial government responsible for moose/vehicle collisions.

No more successful was Mr. Cadman (1988 CanLII 5298 (SK QB)).  The Wildlife Act of Saskatchewan does declare that the Crown owns “all wildlife within the province.”

Image result for white tailed deer
Not actual offending deer

In 1984, Cadman had harvested and stacked 90 bales of alfalfa in his field. In November, he “discovered that the bales had been damaged by white-tailed deer. Some of the damage consisted of the deer eating some of the hay, and scattering other hay about. The bulk of the damage consisted of the deer excreting on the bales rendering them unfit for feed for domestic animals.”

Cadman sued the government for $1,350 in damages, a prior claim under a compensation scheme having been denied.  Wary of a floodgate of people suing over crops eaten by flocks of exotic migrating birds on stop-over in Saskatchewan, the Court found that animal ownership in this case was legislated for wildlife management, and the government,  having no actual “control” over the peeing deer, was not liable.

So if you control a naturally dangerous animal, you’re liable. And some combination of wild and tame is likely to be presumed wild.  Just ask the Thompsons, owners of a wolf/Malamute hybrid who bit a visitor:  the research cited by an expert confirmed that “Whether I am 98% wolf or 2% wolf, I am still a wolf hybrid. I am not a dog and I do not act like a dog, I act like a wolf” (McLean v. Thompsons, 2009 BCPC 415).

What is the liability for naturally harmless animals?  Those “cross-over” creatures that appear to be domesticated until they aren’t?  Owners of the housecat have all experienced that instant transition from innocent to banshee.  Mice can turn into smiling, pugilistic kangaroos or tweetie birds become Trumpian hair-do-wearing monsters.

Which leads to the doctrine of scienter: sometimes explained as the rule that “every dog is entitled to one bite.” If your dog’s had its “one bite,” or you know that it poses a risk of some sort, you have a heightened responsibility to control the dog.

And so, is scienter sauce for the gander?  What about when geese go bad?

Photo credit CBC

A gaggle of “Sullivan’s Pond geese” are well-known Dartmouth summer residents. As noted by CTV, the geese are symbols of Dartmouth, appearing on merch and featuring on websites of Dartmouth attractions.  CTV notes here that there was an “outpouring of grief” two years ago when two of the geese were killed by drivers. Indeed, I was on the scene, and eulogized the geese myself after serving briefly as a goose ambulance driver, if not chaser. And of course reasonable people discuss the ethics of memorializing geese while pedestrians are regularly hit, sometimes killed, by drivers in the HRM, with less acknowledgment.

This month one of the gaggle, a “rogue goose,” attacked and badly injured an 87 year old woman.  The offending goose and its gaggle have been given an “early winter time-out” and removed to Hope For Wildlife for “assessment.”   Particularly so for the one identified as the “problem goose.”  The geese are owned by the HRM.

18th century Nova Scotia had laws to deal with roaming livestock, including “Swine, or goats, going at large in the lanes, streets or suburbs, of Halifax”.  Two-thirds of the confiscated (presumed butchered carcasses) went to the poor.  Later legislation permitted municipalities to “make by-laws for the … going at large of dogs or vicious animals and of geese and may fix penalties for breach of such by-law.”  

HRM By-Law A-700 “Respecting Animals and Responsible Pet Ownership” deals with geese:  “livestock” includes “poultry” and “poultry” includes both “goose” and “gander.” “Animal” includes “any living bird.”  It is an offence for owners of an animal “not being a cat or dog” to allow said animal to roam untethered, to defecate on, or to do damage to, public or private property.

This bylaw does not apply to bees for obvious enforcement reasons.

Under A-700, the owner of any animal that attacks a person is guilty of an offence.  So in this case, is the HRM called upon to enforce its bylaw against….itself?  Naturally harmless and entitled to one bite? Or Ferae Naturae? What did the owners know and when did they know it?  From the observation of Hope Swinimer, this goose was acting exactly as could be anticipated, and removal of the goose will not solve the problem:  “‘Another goose will just step up and take the leadership role…. It’s just how nature works.'”

I believe we call it the pecking order.

In other news, you are cordially invited to participate in the annual HRM Christmas goose raffle.  For tickets, please email me. I’m barbara@darbylegal.ca or www.darbylegal.ca.  Thanks for reading.

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