Legally Speaking with Michael Mulligan
Legally Speaking with Michael Mulligan
The Legal Case of Ferb: A Dangerous Dog on Trial
What does it take to sentence a dog to death? Far less than you might think. In our latest deep dive into fascinating legal territory, we explore a heartbreaking case from Kamloops where a pit bull named Ferb faced the ultimate penalty under BC's dangerous dog laws.
The story weaves through a tragic background - Ferb, stabbed five times as a puppy before being rescued, later found himself implicated in the killing of a neighbour's collie. What makes this case particularly compelling is how it illuminates the stark difference between animal and human justice systems. While humans receive the protection of "beyond a reasonable doubt," Ferb's life hung on the much lower "balance of probabilities" standard. Through expert testimony on pack mentality and circumstantial evidence, the court determined Ferb's fate in a process that raises profound questions about how we balance public safety against animal welfare.
We also unpack a creative but unsuccessful class action against ICBC that claimed drivers were overcharged for cross-border liability insurance during COVID travel restrictions. The case's dismissal reveals the complex regulatory framework governing insurance rates and the limited recourse available to consumers who feel they've paid for services they couldn't legally use. Finally, we examine a fascinating business dispute involving proprietary nasal spray technology that demonstrates unique aspects of injunctive relief when enforcing negative covenants. Together, these cases paint a vivid picture of our legal system's intricate balance of competing interests and the frameworks created to resolve conflicts across vastly different contexts.
Follow this link for a transcript of the show and links to the cases discussed.
It's time for our regular segment with Barrister and Solicitor, with Mulligan Defence Lawyers. Michael Mulligan, with Legally Speaking on CFAX hey, michael, how are we doing?
Michael Mulligan:Hey, I'm doing great. Always good to be here.
Adam Stirling:Some interesting topics on the agenda today. Where shall we begin?
Michael Mulligan:I think we can start with the case involving a death penalty for a dog on a balance of probabilities.
Adam Stirling:A standard lower than other death penalties and perhaps other jurisdictions, one would think.
Michael Mulligan:That's true. So this particular case and it just came out it's actually a case out of Kamloops and it involved a dog by the name of Heidi who was very sadly killed in her fenced backyard. Killed in her fenced backyard and the issue involved three dogs that were suspected of doing that to Heidi, killing Heidi. The dogs' names were Snoopy, bella and Ferb. Now the way this plays out is in BC we've got authority under the community charter.
Michael Mulligan:It's a piece of legislation that delegates authority to well, communities, municipalities, to do various things, including deal with the issue of dangerous dogs, and that legislation, in section 49, defines what a dangerous dog is. It's an interesting definition. A dangerous dog means a dog that's killed or seriously injured. A person that's not applicable here, really B has killed or seriously injured a domestic animal while in a public place or while on private property other than property owned or occupied by the person responsible for the dog. That's the one that's applicable in this particular case. Also, interestingly, you can have proactive action if an animal control officer has reasonable grounds to believe it's likely that a dog would kill or seriously injure a person. Although, I must say rather amusingly, the legislation requires the animal control officer to consider whether the action of the dog would be while attempting to prevent a person from committing an unlawful act. Boy, that's a complicated concept for a dog, but it requires some consideration as to whether the dog is trying to stop shoplifting or something. Anyways, that's how they've, that's how they've drafted it, and so when you have a dog that is apprehended, they would ordinarily be put in like a dog jail kennel and then eventually there can be an application made to a provincial court judge to determine whether the provincial court judge is satisfied. It beyond all reasonable doubt. It's only necessary that a provincial court judge be satisfied, on a balance of probabilities, that the dog is a dangerous dog, and if so, the judge can then go on to analyze whether the dog would present a quote, unacceptable risk to the public, close quote. And if it gets over those two thresholds on a balance of probabilities, then the provincial court judge is authorized to this is a language order that the dog be destroyed in the manner specified in the order, which it doesn't provide any guidance on. So you know, while you would hope that the provincial court judge would pick euthanasia rather than firing squad, that's up to the provincial court judge, and so that's the legal fact pattern or legal basis of this case proceeded on.
Michael Mulligan:Now, the interesting thing about the case is that, well, one of them, at least two of the dogs suspected in the attack, snoopy and Bella, were both put down prior to the trial of Ferb, the dog, who wound up eventually on trial. Snoopy was put down as a result of medical reasons and Bella wound up being euthanized by consent. And I should say the background of the dogs is sad. These three dogs were pit bull siblings and the woman who had them had taken them in when she had heard that Ferb, the one on trial, had, as a puppy, been stabbed five times Not a good beginning for a puppy and so she quote immediately rescued Ferb and took ownership of these three dogs. Immediately rescued Ferb and took ownership of these three dogs. Now, the description of the owner one of the dogs, bella, the one that was euthanized by consent the owner described as an instigator, aggressive and crazy. That's not a great combination. She described Snoopy as more of a follower, but I guess she didn't think that Ferb, the one on trial, would have behaved in this way.
Michael Mulligan:Now, this is why the balance of probabilities, rather than proof beyond a reasonable doubt, is important here, because the case against Ferb was, to a large extent, circumstantial, and this is why the owner of Heidi, the unfortunate 12-year-old female collie that got attacked and killed in her backyard. The owner heard noise and then, when she came out, the attack had essentially concluded and she did observe three pit bull dogs circling Heidi, but couldn't see them any one of the three do anything in particular. The three pit bull dogs then leapt over a fence and ran away. Before they went ran away. They also, unfortunately, started attacking a man on a sidewalk who was described by the owner of heidi as swinging his arms at the three dogs before they eventually before he eventually ran away. The dogs ran away. That person wasn't a witness, and so the issue here, the reason why it was a circumstantial case, is well, what role did Ferb play in all of this right? Did Ferb work with Bella and Snoopy or was Ferb an innocent bystander? Right and in the human context, if the evidence was simply somebody was standing there, that's not going to do it Now.
Michael Mulligan:This particular case, which I should say went on for four days and involved expert evidence in the form of both a veterinarian and another expert on dog behavior, included evidence about how dogs conduct themselves, including evidence about pack mentality and how they could sort of join in and do things together which the judge relied upon. And the other interesting bit of sort of circumstantial evidence was that two of the dogs, or at least one of the dogs, bella, was observed by a vet who examined her to have dried blood on her. That was pretty incriminating, in addition to the very unflattering description by her owner. Snoopy apparently had a metallic smell which is commonly associated with blood, although it was more ambiguous as to whether Ferb had any blood. And there was some evidence of smell. But the owner said no, didn't notice any blood on Ferb.
Michael Mulligan:So you know, was Ferb the innocent bystander dog or did Ferb join? So you know, was Ferb the innocent bystander dog or did Ferb join in the attack on the innocent dog in the backyard? And the judge at the end of the day went over the fact that you know it need only be on a balance of probabilities. There was evidence about Ferb's behavior following apprehension in the kennels, which Ferb was described as agitated, unpredictable and volatile, would growl at people and had to be moved around with what was described as a rabies stick. You know, I guess it was one of those like a rabies pole, you know it couldn't be put on a leash, so obviously bad behavior by Ferb afterwards.
Michael Mulligan:But the judge said he couldn't put much weight on the after behavior and was required to assess whether he was satisfied, on a balance of probabilities, that Ferb had participated in the actual attack.
Michael Mulligan:And on that basis the judge relied on that evidence about pack behavior and how circling around is some indication of participating in it rather than being just an innocent bystander dog and on that basis was satisfied, at least on a balance of probabilities, that Ferb participated in the attack on Heidi the dog.
Michael Mulligan:And because in this case, well, initially there had been another person who had come forward to say that they might be able to take custody of Ferb, which might result then in the Ferb not representing a quote, unacceptable risk to the public, that person, before the trial was out, I guess, backed out and said they were no longer prepared to do that, maybe after hearing some of the evidence.
Michael Mulligan:And the woman who had owned and quote rescued the dogs on the morning in question.
Michael Mulligan:They had escaped her home on the basis that somebody had left the door open while she was having a shower, and so I guess there wasn't much of an issue left about whether, if the dog had participated in this killing, whether they would amount to an undue risk to the public.
Michael Mulligan:And so the net result despite the fact that Ferb obviously had a very bad beginning as a puppy being stabbed multiple times, the judge was persuaded, at least on a balance of probabilities, there was participation and that there would be an undue risk.
Michael Mulligan:And so the judge ordered that Ferb be hopefully not by firing squad, but be euthanized, although did indicate that that is not to occur for 31 days from the date of the order, which is interesting that this order was made on May the 5th, and the reason for that is that there would be a 30-day appeal period, and so I guess we'll have to wait and see whether FURB has some other benefactor that wishes to continue to litigate. But failing that, that's going to be the fate of FURB, at least on the basis that FURB probably participated in what happened to Heidi, and it certainly wasn't for the purpose of preventing the commission of a defense by Heidi or anyone else. So that's the sad story from Kamloops in terms of the three dogs, the final one of which found to be dangerous, and that'll be the fate of Ferb.
Adam Stirling:We'll take a quick break. Legally speaking, we'll continue right after this. Back on the air here at CFAX 1070 with Michael Mulligan from Mulligan Defense Lawyers. Legally speaking on CFAX Michael up next on the agenda. I'm reading here it says proposed class action against ICBC for overcharging during COVID dismissed. There's a lot there.
Michael Mulligan:There is a lot to unpack there. I thought it was a creative idea in terms of a class action, and here's really what it amounted to. Back in May of 2021, the NDP, of course, switched us over to no-fault insurance in British Columbia, and no-fault insurance means essentially sort of what it sounds like, but really what it amounts to is that you can't sue somebody for bodily injury caused by their negligence or carelessness in a car accident. Right, and prior to that, the type of insurance that we were all required to have in BC included what's called third-party liability insurance, with the idea being that if you're careless and you hurt somebody, you'd have insurance to pay the claim. Right being that if you're careless and you hurt somebody, you'd have insurance to pay the claim. Right, but the way no fault works, because you can no longer sue somebody in that way, the chance of there being a successful claim against you for negligence driving your car is near zero. And despite that, we still have, if you look at your ICBC policy, this idea of liability insurance coverage. Right, and you have a. There's a minimum amount I think it's $200,000, you could purchase more. You might wonder why would you ever have that when we have no fault here, and the answer is that you might drive your car across a border because BC can't stop somebody from suing you in Alberta or in Manitoba or Saskatchewan or Washington State or anywhere else, and so we still have this element of liability insurance in the event that you might cross the border. But of course, what else happened around that time? Covid and one of the things that happened during COVID now, although it's largely a bad stated memory is that there were various periods of time when you were effectively prohibited from leaving the province. Right, there were prohibitions on leaving for reasons that weren't necessary ones. Right, you couldn't go anywhere, and so the claim was premised on the idea that, hey, you've collected money for third-party liability insurance here, on the theory that you know you might cross the border and be liable, but you've also ordered us to stay here, so there's no possible claim, so you've just got a bunch of money for nothing, and so that was the thesis of the claim.
Michael Mulligan:Now the claim was brought against ICBC and the issue on this application. It was an application by ICBC to ask to have that proposed class action case dismissed on the theory that it was quote bound to fail, and indeed there is authority for a judge to dismiss a claim if it's just bound to fail just can't work, even if you accept all the factual things that are alleged and the defense that ICBC was making out here. Their defense amounted to well, yes, it's true that you were purchased this liability insurance which really you could not make any use of, at least for various periods of time, could not make any use of, at least for various periods of time. You know there's restrictions on travel between June 15th and July 1st 2021. Non-essential travel for all BC residents was restricted between March and June, march 19th 2020 and June 15th 2021. And they said look, even accepting that's true, their defense amounted to we, icbc, don't get to set the insurance rates. That's not done by us, which is interesting, and in fact in BC. Well, of course, all various entities involved the provincial government, icbc owned 100% by the government and various other entities involved with the broader process of setting rates.
Michael Mulligan:It is true that ICBC can't just unilaterally change the rates they charge for basic car insurance. We have a utilities commission and there's a process there where they have to assess and approve rates and rate changes. Now I must pause here for a moment to say it's true that we do have this utilities commission, although, on the other hand, we have now experienced I think it's for the fourth time the government rebating money to people, you know, at convenient times like prior to the election. And so I suppose we should be asking ourselves, you know, is the utilities commission really ensuring that rates are set at the correct level when, four times in a row, there's been money left over to send out to people right before an election, or some other in a row there's been money left over to send out to people right before an election or some other you know opportune political time for the government?
Michael Mulligan:But leaving that aside, that's the legal scheme in BC, and so the defense that ICBC had is well, look, we don't have control over this. So you know, you're making, you may have a complaint, you may have a valid complaint about the fairness of all this, but don't look at us. Have a valid complaint about the fairness of all this, but don't look at us, we don't get to decide it and you're suing us. And so the plaintiffs, in this case their lawyer, had tried to frame this in various different ways. That can be potentially claims, sort of common law actions, things like negligence or negligent misrepresentation, or there's an attempted claim under the consumer protection legislation in BC or other equitable concepts, like there's a concept of unjust enrichment or a claim that this amounted to a breach of contract. And so the judge on this application had to go through and look at each of those things saying, look, can this, is it possible that you could successfully argue that there was any of these things a breach of contract or an unjust enrichment or any of those things, and ultimately the judge concluded no.
Michael Mulligan:And the judge relied upon some authority for the proposition that where there is a scheme in place, like we have in BC with the Utilities Commission, that is intended to be sort of a quote, comprehensive, close quote scheme for things like setting insurance rates, which has its own mechanism. It's like if you really got some time on your hands and you wanted to go and make submissions to the Utilities Commission about you know how much you're paying for car insurance, or you know how much you're paying for car insurance, or you know how much you're getting charged for electricity or something. You're free to go and do that, although it's very unlikely that for any individual that's going to make any particular sense. You know how much money do you plan to save for the hours you would spend making submissions to the Utilities Commission. But who knows, there it is.
Michael Mulligan:And so the net result of this is that, even though for a period of time people were paying for insurance which it was vanishingly unlikely you could ever make a claim against because the claims were prohibited in BC and you couldn't get out of BC Despite that, because civil claims have to be framed in sort of a way that you know there could be authority for a judge to do something about it. Here there just wasn't, and so that's the end of the class action. And so if you're upset at the fact that you're repeatedly paying insurance rates that seem to leave money left over to send out rebate checks every single year, your recourse is going to be making some submission to the Utilities Commission. You won't be able to wait for the outcome of the class action to determine whether that is legally permissible. That's the latest from ICBC, covid and the unsuccessful attempt to try and get some money back for all of us who paid too much for insurance at the time.
Adam Stirling:All right, we have two minutes left.
Michael Mulligan:So, final case, I think it's just worth touching on briefly. It's a case that involves the concept of applying for an interim injunction for what's called a negative covenant. What does that mean? Well, first of all, an interim injunction is like a request for an order from a judge to stop something from happening until a trial is concluded right, Put something, sort of put the brakes on it while we're sorting out whether the claim is good or not. And the particular case involved a dispute between two people a doctor and another fellow over what amounted to businesses relating to, I think a nasal spray is ultimately the product, and the person who was being sued was a person who was involved with an earlier incarnation of a business, although under a different name, and that person the previous business partner, fellow, previous business partner, fellow what had allegedly sent a demand that the doctor pay $150,000 by a certain date, or else the other person would publish and make available a bunch of data and information that they had about the business. I guess that would interfere with the nasal spray technology or whatever it might be, and so the doctor who was the owner of the more recent incarnation of the company was applying for an interim injunction to stop the man from doing that.
Michael Mulligan:It seems sort of straightforward, but there are a couple of wrinkles. One is that this concept of a negative covenant is like a agreement not to do something, and in this case that came into effect when there was previous litigation between the man who had the information and was allegedly asking for money to not release it and the previous version of this company, which no longer existed. And so one of the first issues there is well, can you enforce something when you're not really a party to the contract? Right, the settlement agreement was with respect to a company that no longer existed in this man. Can the new company enforce that? That's an interesting point, and the judge found that at least that's arguable.
Michael Mulligan:And to get an interim injunction you need not establish that you will win. You just need to show that there's a serious issue to be tried, and so it got over that hump. And then the next step there and this is the interesting one is that you need to show usually irreparable harm, which is kind of harm that you can't make up for with money, as a reason to get an injunction. But the judge pointed out there's actually authority for the idea that when you're trying to enforce a negative covenant like an agreement, contractual agreement not to do something, you don't actually need to show irreparable harm, and so that's an interesting difference between when you could get an order to stop somebody from doing something generally, as opposed to trying to enforce that agreement not to do something already. And so the net result is the judge ordered the man don't release the information, and so I guess we won't all have published on the internet all of the scientific information about the new high-tech nasal spray.
Adam Stirling:Michael Mulgan, with Mulgan Defense Lawyers, legally speaking, during the second half of our second hour every Thursday. Michael, thank you so much. Pleasure as always. Thanks so much, always great to be here.