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Home My WebLink AboutPD-105-91 REPORT #4 • �'""'W""'lyl TOWN OF NEWCASTLE REPORT � D Res. # -.1 1 �. -- --_- -- _ - By-Law # MEETING: REPORT TO COUNCIL DATE: APRIL 29 1991 REPORT #: PD-105-91 FILE #: SUB,ECT: REIMBURSEMENT FOR CUSTODY OF ANIMALS RECOMMENDATIONS: It is respectfully recommended that Council: 1 Receive report PD-105-91; 2 . Authorize the payment of the invoice provided as Attachment #2 to Report PD-105-91; and 3 . Appropriate the necessary funds from the Contingency Account #7007-X-298 . BACKGROUND: Attachment #1 provides a letter from the Town's Solicitor to the Director of Planning and Development outlining the series of events which led to the keeping and feeding of certain animals and fowl by one of the Town's Pound Keepers . The circumstances outlined in Attachment #1 are self-explanatory and conclude that Council authorize the reimbursement of various costs incurred by the Town's Pound Keeper in accordance with Attachment #2 to this report. Respectfully submitted, Recommended for presentation to Council Franklin Wu, Director Lawrence E. Kotseff Planning and Development Chief Administrative Officer ATTACHMENT #1 TO REPORT PD-105-91 S H I BLEY RIGHTON BARRISTERS 6 SOLICITORS RICHARD C SHIBLCY1 O.C, RUPERT E RIGHTON. O.C. HAROLD H.ELLIOTT. O,C. TELEPHONE (416) 363.9361 DENNIS C mcrrr RON JOHN O,BOGART, O.C. DONALD K R061NSOK O.C. RICHARD C ANKH,O.C. BARRY S,WOPTIMAH,O C. LESLIE S.MASON MICHAEL GORDON DCZ WINOISCHMANN JOHN P DELL TELECOPIER (416) 366.1717 MICHACL FITZPATRICK,O C GEORGE CORN PETER H 50411H BRIAN M.CAMPBELL V ROSS MORRISON P JOHN PITCHCR GCORGC A RODCRTSON ALAN L DROMSTCIN MICHAEL C.DIPLCY PCTCR C WILLIAM', RICHARD A 0 DEVENNEY MICHAEL L PATCRSON J PAUL WCARING PAUL C MtINHIS DCRNARO MtOARVA PCIER G NCILSON CLIrrORO I COLC JONATHAN H /IANOCRS CHANLCS SIMCO THOMAS A STt CANIK DAR@ARA P.C. DOHERTY 9OX 32-401 DAY STREET R MCCREOY-WILLIAMS WILLIAM I. NOUTHCOTC JAMES ROSSITCR CAPOL A STRCCT HCLOCR M 104AWASSOS PETER M.WHALEN TOTtC�:STd, CANADA PCTCR V RAYTCK J JAY RUDOL.PH SANDRA C. SWY%TVN BRIAN W CHU CYNTHIA J GUNN MARLIN J MENOCRSON ANITA T ,AIN NICKp4_Aw, T MACO* W►RR{N !$ hA!*pPORi M511 21ZI RICHARD C COLCS CHRI Gt OPHCR 0 LOBS MCRLC M.HCtZLMAN M^kTIN PCTCRS ALL%ANOCR h TORGOV SEAN M 11OPAN CK40LCI3 M.GATSTLC PHILIP P HCALCY R PETER ACDON ALD DONALD A MCNCILL SHhLA M OVIGLCY SEPT.. A WART TIMOTHY J O HILL JUL R HOWARD D O MI SON SUITE 1000 LCONAPO ROONCSS NCTANUS T RUTHCRIORO THOMAS 0.WH/TDY CHHISIONC M, SILVCRSIOCS LINDA q.^pV iT LNyI ST q1 JRP.YPISINA THE SIMPSON TOWER JOHN O HISCOCK i1�CAR J ALA DRIA�I. N COVNa1kL MARTIN L O'TIRICN,O.0 BARRY O LIPSON,O,C. April 25 1991 Mr. Franklin Wu, Director of Planning and Development Town of Newcastle 40 Temperance Street Bowmanville, Ontario MC 3A6 Dear Mr. Wu: Res Reimbursement of Wotten Farms for the cost of keeping and feeding certain animals and fowl I understand that on December 8 1989, Constable J. S. Hooper of the Durham Regional Police Force responded to a call from a complainant who advised him that several animals and fowl at the residence of Mr. and Mrs . L. George, 481 Townline Road West were neglected and in a poor condition. Constable Hooper attended at 481 Townline Road West and noted that food and water was not accessible to the animals and fowl in the barnyard area, that they were in poor condition, and that some of the animals were digging through the snow to eat dead grass . One ram was in a particularly bad condition. I am advised that Constable Hooper called Police Communications who in turn requested the assistance of the Town's Animal Control Officer. Constable Hooper had concluded that the ram was in such poor condition that he felt he would have to destroy it to put it out of its misery. SHIBLEY RIGHTON Both the Town's Animal Control Officer and Senior By-Law Enforcement Officer attended at 481 Townline Road West together with other Regional police officers. Constable Hooper shot the distressed ram. The Town officials and the other police officers assisted Constable Hooper in rounding up the remaining animals and fowl. I understand that Constable Hooper advised the Town's Senior By- Law Enforcement Officer to contact a Pound Keeper of the Town to remove the animals and fowl and take them into custody. The Town's Officer contacted Mr. S. Worden, one of the Town's Pound Keepers to pick the animals up. Unfortunately, Mr. Worden was not available to do so. The Town's Officer then contacted Wotten Farms . (Mr. Arnot Wotten also is a Pound Keeper of the Town. ) A truck owned by Wotten Farms was dispatched to pick up the animals and fowl. They were kept and fed by Wotten Farms from December 8 1989 until August 15 1990 when they were trucked to the Durham County Sale Arena and sold by auction. Wotten Farms ' cost of transporting the animals and fowl and keeping and feeding them from December 8 1989 to August 15 1990 was $9,693 .00. The sale by auction realized $1, 614 . 76, leaving a balance that has not been paid to date of $8,078.24 . Wotten Farms has submitted a detailed invoice to the Town in the latter amount. While the animals and fowl were in Wotten Farms ' custody, Wotten Farms was unable to reach their owner to remove them and pay for the cost of keeping them. Wotten Farms also sought instructions from the Durham Regional Police Force who suggested that although they were not in a position to contact the owner, Wotten Farms might be able to do so and obtain compensation. The Police Force also suggested as an alternative that the animals and fowl might be sold in order to produce a sum of money from which Wotten Farms might be partially reimbursed. Since your staff were involved in the matter, you asked me to review the facts and advise you whether the Town has any financial responsibility in the circumstances to Wotten Farms . The Ontario Society for the Prevention of Cruelty to Animals (the "Ontario Society" ) was ,incorporated in 1919 and was continued by the Ontario Society for the Prevention of Cruelty to Animals Act R.S.O. 1980, c. 356 ( "The Act" ) . Its object is to facilitate and provide for the prevention of cruelty to animals ( including fowl) and their protection and relief therefrom. Since an affiliated society of the Ontario Society does not function in the Town of Newcastle, the Act provides that any Police Officer having jurisdiction in the Town may exercise any of the powers of an inspector of agent of the Ontario Society under the Act (Section 11 (3) of the Act) . SI-III3LF-Y RIGHTON In the circumstances under consideration, Constable Hooper in fact exercised the powers of an inspector or agent of the Ontario Society under the Act. As such, he is not personally liable for anything done by him in good faith under or purporting to be under the authority of the Act. (Section 19 of the Act) . In my opinion, Constable Hooper had authority in the circumstances described above to seize and have removed from 481 Townline Road West, the animals and fowl in question. In doing so, he acted as an inspector or agent of the Ontario Society under the Act. He had reasonable grounds for believing the animals and fowl in question to be in distress and the owner or custodian of them was not present and could not be found promptly. (Section 14 ( 1) of the Act) . If Constable Hooper had dealt with Wotten Farms directly, there would be no question that Wotten Farms would have a claim for compensation in the circumstances against the principal in the matter, the Ontario Society. However, Constable Hooper advised the Town's Officer to make the arrangements with Wotten Farms and The Town's Officer did so. Wotten Farms appears to have relied upon his apparent authority to make arrangements with Wotten Farms in accepting, transporting and caring for the animals and fowl in question. In my opinion, the arrangement made with Wotten Farms by the Town' s Officer was within his apparent authority as Senior By- Law Enforcement Officer of the Town. I am of the view that the Town is legally responsible for the arrangement in question made on its behalf by an official acting within his apparent authority. In effect, the Durham Regional Police Force has denied any responsibility in the matter. In my opinion, the position of the Durham Regional Police Force in this regard is not unreasonable. I understand that the Ontario Society has not accepted financial responsibility in the matter. Although the Society's position is a technical one, it might well be found meritorious by the Court if it was to be tested. Clearly, with the benefit of hind sight, if similar circumstances were to occur again, the responsible Town Officer should insist that arrangements be made directly by the Durham Regional Police Force with the individual who is to be requested to take custody of animals and fowl which are to be seized. Unfortunately, of course, this was not done in this case. z SSIBLEY RIGHTON In these circumstances, subject to prior Council authorization being granted, it would be fair and appropriate for the Town to pay the invoice submitted by Wotten Farms. Your truly, Dennis Heffero cc: Mr. L. E. Kotseff, Chief Administrative Officer i ATTACHMENT #2 TO REPORT PD-105-91 Phone:416-263-2512 WOTTE N FARMS R.R. NO. 1, HAMPTON, ONTARIO LOB 1)0 LIVESTOCK DEALERS- FERTILIZERS Date.............................. 19....... m /i � 12e--6!Jam A/-,I i'` s 6-&--adz- -s- /3gG-I.,-j66 7 /ys L° LC /jl L a/t. �7t�/S —t;'urt•[S` 5NG`'� G�1 AA .5 A-a P-A, ,OA k -z &'w 7 �8•rG Cow `t G A� 6"Y OAt S- X X-11 .2 a/l o,vU S4&6:rlS19-4 /o o•o-o /q. 74- v. 7 /�,9c.,q,✓c,� go�8. z TOTAL