Companions
| Author | Lesli Bisgould |
| Profession | Adjunct Professor, Faculty of Law |
| Pages | 127-160 |
127
CHA PTER 5
COM PA NIONS
Animal s have these advantage s over man: They have no theologian s
to instruct t hem, their funerals cost them noth ing, and no one starts
lawsuits over thei r wills.
— Vol ta i re
Voltaire was right about the theologians. As for the funer als and the
wills, th ings have changed since the eighteenth century. Animal s might
not be troubled with making ar rangements of their own, but their hu-
man companions certa inly are. Millions of cats and dogs, together with
a wide variety of other animals, live in Canadi an homes now, and a
multi-billion dollar industr y has grown around breeding, feeding,
dressing, grooming, training, boarding, walking, and otherwi se caring
for them, both in life and in death.1 Modern household pets have been
singled out for special treatment as the beloved animals. Our attach-
ment to them can be so strong that it ha s begun to manifest in a variety
of new legal problems that are explored in this chapter.
Still, there is a di stinct tension between the love for these ani-
mals and all t he strings attached to it. Domestic pets occupy a unique
conceptual space where they are expected to not rea lly be like ani-
mals at all. They are not overtly treated like Cartesian m achines in
1 In 2007, there were approximately 7.9 million c ats and 5.9 million dogs in
Canadia n homes; see discussion in Joh n Sorenson, About Canada: A nimal Rights
(Winnipeg: Fer nwood, 2010) at 105–6.
ANIM ALS AND THE LAW128
the way commercially-used ani mals are, but in many ways they have
been, and continue to be, manipulated to accord with human prefer-
ences. Over thousands of year s of domestication, their biological and
physical makeup has been mod ified. They have been selectively bred
to diminish their size (the word “pet” is a diminutive of “petite”); to
favour juvenile traits, such as large eyes a nd floppy ears, which make
them appear more dependent than their wild progenitors; and to make
them more submissive.2
In modern times, they a re subjected to a variety of surgical pro-
cedures, whether to make them less a nimal-like, such as cutting dogs’
vocal cords or removing cats’ claws, or to make them conform with
popular trends and status symbols, such as the removal of unseemly
tails or cropping ears to make them stand up again. They are often
expected to behave more like mach ines than animals — machines that
walk, stop, and sit according to a person’s commands, and do not bark
or jump. Harsh methods of traini ng and control are sometimes used.
Pets can be perpetually confined in the backyard or in i ndoor cages so
as not to cause a mess while they are alone; they can be abandoned at
the humane society or just abandoned. They are beloved companions,
but we hold fast to our place as their masters.
In this context, as in others, law struggles w ith the ambivalence.
Pets are now the subjects of custody disputes, housing confl icts, and
estates problems. The industry t hat breeds them is awash in public
criticism and law i s called upon to respond. When these animals c ause
harm to others, both d amages and liability concerns rais e atypical legal
issues. When these a nimals are hurt them selves, meaningful compen-
satory damages are sought. But what are meaningful compensatory
damages in this context? Who is being compensated, and for what?
Lawyers and court s wrestle in thi s realm with the thematic ques-
tions: What is an anim al? Is it a thing or a being? What is its value — c an
it be replaced like a commercial good, or is it unique? The answers to
date have conflated these idea s. Some courts openly begrudge wast-
ing resources on conflicts related to a nimals. Others apply trad itional
property law principles, while l amenting that law has not yet developed
a framework within which to give more serious regard to the animals
that are so importa nt in people’s lives. Either way, even as pets receive
more legal attention than other anim als, it has largely been on the same
basis: it is the person’s interest to be protected, whether inst rumental
or emotional. Even here, animals matter because and to the extent that
they matter to us.
2 Erika R itter, The Dog by the Cradle, the Serpent Beneath : Some Paradoxes of
Human-Animal Relat ionships (Tor onto: Key Porter, 2009) at 239–4 0.
Companions 12 9
However, in some cases, the pressure to shift law’s emphasis and
incorporate new notions of respect for animal s is apparent. Some
courts are making way for incremental changes which promote their
status, whether by rejecting the an achronistic classific ation of animals
as commercial goods or by import ing notions of “custody” and “best
interests” from family law to a nimal problems, thereby acknowledging
that the person’s interests are not the law ’s only concern. The status of
a pet begins to change from an ow ned thing to a being towards whom
people have dut ies.
As new areas of law emerge or as the beloved an imals enter the fact
situations of traditional a reas, there are opportunities to move away
from the animal-a s-thing approach. It is therefore important that when
a legal problem is conceptualized, the implications are carefully con-
sidered from the outset: Do they reinforce old ideas that t he value of an
animal is for his ow ner to decide, or do they foster recognition that the
animal matters for his own sake?
Of the non-exhaustive range of legal problems around companion
animals, t hree categories are discus sed below. The first part considers
the industry that breeds them; the second part di scusses legal issues
that arise when people and their pets cause harm to one another; a nd
the third part reviews issues related to animals in the family that arise
in housing, family, and estates law. Various aspects of the use of lost,
unwanted, or abandoned pets as research subjects are discussed in
Chapter 7.
A. COMMERCIA LLY PRODUCED
COMPANIONS
1) Breeding Operations
Overall, the industr y that produces these ani mals treats t hem as com-
modities, in accordance with e stablished legal and industri al norms. It
both creates and respond s to fluctuating demands for particul ar types
of animals that represent status or power. Purebred dogs are selectively
bred to meet market demand for size, temperament, secur ity, and con-
venience. While there are some reputable small-sca le breeders, most
dogs sold in Canadian pet stores are from facilities that have come to
be known as “puppy mill s.”3 Their practices are ai med at producing the
3 Puppy mill dogs a re also advertised in lo cal newspapers, and sold at flea m ar-
kets and in other c ircumstances.
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