Tucker v Minister of the Environment

JurisdictionBermuda
Judgment Date23 January 2004
Date23 January 2004
Docket NumberCivil Jurisdiction 2003 No. 272
CourtSupreme Court (Bermuda)

In The Supreme Court of Bermuda

Kawaley, J

Civil Jurisdiction 2003 No. 272

BETWEEN:
Demian L. Tucker
Plaintiff
and
Minister of the Environment
Defendant

Mr. K Durrant for the Plaintiff

Mr. L Rochester for the Defendant

The following cases were referred to in the judgment:

Simons and Hill Top Corporation v Accountant GeneralBDLR [1999] Bda LR 43

British Oxygen Co Ltd v Board of Trade [1971] C 610

In re FindlayELR [1985] AC 318

Perinchief v GovernorBDLR [1996] Bda LR 67

Bermuda Perfumery v Market PlaceBDLR [1993] Bda LR 12

Minister of the Environment v Barnes and BarnesBDLR [1994] Bda LR 22

R v North and East Devon Health Authority ex parte CoughlanELR [2001] QB 213

Rowland v The Environment AgencyUNK [2003] EWCA Civ 1885

Council for the Civil Service Unions v Minister for the Civil ServiceELR [1985] AC 374

R v Minister of Agriculture Fisheries and Food, ex parte Hamble (Offshore Fisheries)UNK [1995] 2 All ER 714

Care and Protection of Animals Act 1975

Importation of banned dogs — Judicial review — Whether minister acted ultra vires — Legitimate expectation — Can policy be breed specific — Promulgation of policy — Notice — Unfairness — Public policy interests

JUDGMENT of Kawaley, Puisne Judge
Introductory

By an Originating Summons dated July 15, 2003, the Plaintiff sought the following substantive relief:

‘(1) A declaration that upon the true construction of section 4 of the Care and Protection of Animals Act 1975 the Defendant has acted ultra vires his authority by refusing to issue importation permits on the basis of breed of dog;

A declaration that upon a true construction of section 4 of the Care and Protection of Animals Act 1975 the Defendant has acted ultra vires his authority by enacting a policy of banning dogs from importation on the basis of breed …’

The Plaintiff's application was principally supported by his affidavit sworn on July 14, 2003 (‘the First Tucker Affidavit’), while the Defendant's case was supported by affidavits sworn by Dr. Jonathon Nesbitt on September 26, 2003 (‘the First Nesbitt Affidavit’) and October 27, 2003 (‘the Second Nesbitt Affidavit’).

At the directions hearing before me on October 2, 2003, a direction was made that any judicial review points should be argued on the trial of this action and leave was given for further evidence to be filed to deal with the legitimate expectation argument which seemed to me to arise for determination. This direction was made in order to avoid a multiplicity of proceedings and to enable all matters in controversy between the parties to be resolved as far as possible in the context of the present action.

In effect, following the approach taken by Justice Vincent Meerabux in Simons and Hill Top Corporation v Accountant GeneralBDLR[1999] Bda LR 43, it was agreed that the Crown would be bound by any public rulings made by this Court absent a formal adjudication of an application under the Administration of Justice (Prerogative Writs) Act 1978.

The Plaintiff's Evidence

The Plaintiff deposed in the First Tucker Affidavit that in December 2002, he telephoned the Defendant's offices and spoke to a dog warden about importing a Cane Corso breed dog. He was told there were no restrictions in force and that he simply had to meet the conditions for entry (‘the Conditions’). He was also told that importation was only possible from the United States after the dog reached 10 months in age. In January 2003, he went into the Ministry and again obtained verbal confirmation of the position from a dog warden in addition to collecting a copy of the Conditions.

In May 2003 the Plaintiff purchased a 14 month old male Cane Corso dog for $2000 plus an additional $300 for boarding. He complied with the requirements set out in the Conditions and on June 25, 2003 made an application for an import permit. On June 26, 2003, Mr. Benevides the head dog warden called him and advised that a committee had been formed which had recommended the banning of certain dog breeds including his own. (In his November 7, 2003 Affidavit he deposed that Mr. Benevides told him the application would be deferred). On or about June 27, 2003, he was advised by Dr, Sleeter, the Director, that a new policy had been developed which banned certain breeds of dog including that which formed the subject of his import permit application. He was invited to write in and seek an exemption from the new policy. The Minister himself spoke to the Plaintiff on or about June 30, 2003, both confirming the existence of the new policy and asserting that any exceptions would only be authorized if dogs of the prohibited breeds were neutered or spayed. He deposed that this condition would still constitute a bar to his own application because neutering or spaying was in-appropriate for display or show dogs.

The Plaintiff deposed that he told Dr. Sleeter that he had ‘made numerous enquir [i]es to the Department from January 2003 onwards and based upon the information received [he] had purchased the Male…’ (paragraph 14 of the First Tucker Affidavit).

In subsequent affidavits, the Plaintiff placed before the Court evidence of the legislative history of the 1975 Act and also deposed that there was no local body which maintained a breed standard or registry for the Cane Corso breed of dog.

The Defendant's Evidence

The First and Second Nesbitt Affidavits depose that at the time of the Plaintiff's initial inquiries in December 2002 and January 2003, the Plaintiff was told the policy position then in force. If the application had been submitted at that time, it would likely not have been refused. However by about mid-June, 2003, the policy was changed by the Minister as a result of concern about the potential danger of such breeds of dog in which there was heightened interest. Mr. Benevides in fact told the Plaintiff when he spoke to him that the Plaintiff's application dated June 26, 2003 had been refused. The First Nesbitt Affidavit exhibits, inter alia, the Plaintiff's application and the “Revised Policies Concerning Dogs published on July 18, 2003” (‘the New Policy Statement’). Dr. Nesbitt ‘does not deny’ that, inter alia, the Plaintiff purchased the dog in question in reliance on the former policy. The Second Nesbitt Affidavit explains that persons caught by the ban (at least two others in addition to the Plaintiff) are being reimbursed the costs of the dogs they were not permitted to import or invited to submit claims. This affidavit also exhibits press articles supporting public concern about injuries caused by Mastiff-type dogs.

Dr. Nesbitt, the Veterinary Officer employed by the Minister in the Department of Environmental Protection also gave oral evidence at the suggestion of the Court as the documentary evidence as to when the Conditions were amended by the New Policy Statement. He explained that he is responsible for dealing with import permit applications in relation to dogs. In early 2003 increased interest in large mastiff type dogs was noticed. These dogs can be aggressive, and are typically over 150lbs in weight. In late may or early June, having previously discussed these concerns with the Director and Minister, the Minister directed the implementation of a policy to restrict the importation of several breeds of dog including the Cane Corso breed. The new policy was implemented in early June 2003; he was unable to explain why the New Policy Statement was only published on July 18, 2003 and stated as coming into effect subsequently on July 21, 2003. However, prior to this published statement, the new policy implemented in June 2003 was not reduced to written form.

Under cross-examination by Mr. Durrant, Dr. Nesbitt stated that the whole purpose of the new policy was to protect health. Pit-bulls were included because, like Mastiffs, of their temperament and body-size. This was the first time breed-specific regulation had been applied. In answer to questions from the Court, Dr. Nesbitt explained that reported statements by him as to a lack of breed-specific legislation in Bermuda reflected the views of a committee, and not the legislature. In answer to questions from the Court, Dr. Nesbitt testified that some people applied for import permits before purchasing dogs and some after. He agreed that the Plaintiff would not have been notified of the change in policy until after he had filed his application.

Plaintiff's Submissions

In comprehensive written submissions supported by oral argument, Mr. Durrant launched a forceful attack on the legal foundation of the New Policy Statement as applied to the Plaintiff's case. There were three main planks to his case: (a) section 4 of the Act did not empower the Minister to refuse applications on the basis of an animal's breed; (b) the Act only permitted the minister to deal with applications on a case by case basis, not by reference to general guidelines such as breed; and (c) (this initially appeared to me to be a judicial review point rather than part of the original private law relief sought) the Minister took into account improper matters or was improperly motivated when enacting the new policy.

His first point may be distilled into the following argument: the Act as a whole deals with animals, and while the Minister may legitimately regulate particular types of animals (e.g. dogs or fish), he may not regulate particular breeds of particular animals as a matter of construction of the 1975 Act. An additional refinement of this primary contention is the following subsidiary point. The determination of what breed a dog is should normally be certified by a local governing body, but no such local body exists for the Plaintiff's breed of dog. There is, accordingly, no legally valid way for the Minister to determine that the dog in question is a ‘prohibited’ breed.

Counsel stated in paragraphs 9–17 of his written submissions as follows:

9.The Defendant having decided that certain breeds of dog may...

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