Society of the Prevention of Cruelty v. Cape Breton Humane Society

Society of the Prevention of Cruelty v. Cape Breton Humane Society Court Supreme Court Date 2012-03-22 Citation 2012 NSSC 128 Docket Syd 370359 Judge/Registrar/Adjudicator Murray, Patrick J. (Honourable Justice) Document Type Decision Relations Library Sheet - Society of the Prevention of Cruelty v. Cape Breton Humane Society - 2012 NSSC 128 - 2012-03-22 - Library Sheet Decision Content SUPREME COURT OF NOVA SCOTIA Citation: Society for the Prevention of Cruelty v. Cape Breton Humane Society, 2012 NSSC 128 Date: 21120322 Docket: Syd. No. 370359 Registry: Sydney Between: Society for the Prevention of Cruelty, a body corporate Applicant v. The Cape Breton Branch - Nova Scotia for the Prevention of Cruelty, operating under the name of the Cape Breton Humane Society, and Ann Johnston, Mel Neville, Kay Violande, Wayne Kenney, Michael Mombourquette, Whitfield Best, Leo MacIsaaac, Dan Ellis and Patricia Rose Respondent Judge: The Honourable Justice Patrick Murray Heard: January 4, 5, 6, 10, 12, and 13, 2012, in Sydney, Nova Scotia Oral Decision: January 19, 2012 Written Decision: March 22, 2012 Counsel: Robert Sampson, Q.C. for the Respondents Dennis James, for the Applicant By the Court (orally): Introduction: [1] This is an application by the Society for the Prevention of Cruelty (the “SPC”) for a Court Order declaring that the former members of the Cape Breton Branch of the Society for Prevention, are no longer members of the board of directors of that branch. [2] The Applicant also seeks an order declaring that the property formerly owned (as alleged by them) by the Cape Breton Branch is now owned by the Provincial Society for Prevention, which property is located at 401 East Broadway and including personal property. [3] The Respondents are the former C.A. Branch of the SPCA now operating under the name of the CB Humane Society and its Directors, the majority of whom were directors under the former C.A. Branch. [4] The Respondents contest this application and state that the Court should not grant the two orders sought. They contest the application on a number of fronts. They say the termination of the Cape Breton members and the dissolution of the board was not properly conducted and is illegal. They allege the process was fraught with procedural unfairness including a lack of proper notice and breach of the right to be heard. The Respondents maintain they are an independent society that cannot be dissolved under the Animal Control Act (the “Act”). Consequently they maintain that they own the property at 401 East Broadway, and have a right to continue to operate an animal shelter there under the name of the Cape Breton Humane Society. [5] The Respondent’s Notice of Contest on the main application has yet to be filed. A full hearing on the merits of that Application has yet to occur and will occur at a future date at the trial. [6] My decision today therefore is not a final decision with respect to that Application. My decision today deals only with the Motion made by the Applicant for an injunction pending a final hearing on the merits of the Application. [7] An injunction is a court order. The Provincial SPC seeks an Order against the Humane Society requiring them to vacate the premises at 401 East Broadway and to turn over possession of all property owned by the former Cape Breton Branch. The Applicant also seeks costs on the Motion. This Motion was heard over a period of 5 ½ days ending with submissions last Friday, January 13, 2012. My decision today, as stated, deals only with the Applicant’s request for an interim injunction against the Respondents. [8] At the outset I would like to explain a few things about the relief being sought . The most useful and fair way to see the Motion is to consider it as being an Application for an interlocutory, mandatory injunction directing the Humane Society to turn over the property (or return the property), to the Nova Scotia Society for Prevention of Cruelty, pending the outcome of the trial. Background/Overview of Evidence: [9] By way of background, the Provincial Society through its Board of Directors passed a resolution at a Provincial Board meeting held on November 14th, 2011, at that time terminating the Cape Breton Board of Directors, it’s President, Vice President and Shelter Manager, Ms. Rose as members. [10] Evidence at the hearing was given by affidavit and the parties were subject to cross examination. The resolution of the Provincial SPC is attached as Exhibit 27 to the affidavit of Kristen Williams, its Executive Director and main witness at the hearing. There were indeed other key witnesses for the Applicant at the hearing including two volunteers and former board members, Mr. John MacPhail and Ms. Kerri Manuel. Animal Care Director, Sandra Flemming also gave evidence. The evidence further indicates that other than Mr. MacPhail and Kerri Manuel no other member of the Cape Breton board participated at the Provincial meeting on November 14th, 2011. The two mentioned parties participated by phone but did not vote. The resolution dealt with performance issues at the Cape Breton Branch. The discussion was held “in camera” and the resolution was unanimously passed. [11] Beginning on November 4th there were a series of emails exchanged between Ms. Williams and then Branch President, Mel Neville as well as the manager and later on board members. On November 8th there was a regular scheduled meeting at the local shelter. Unfortunately Branch President Mel Neville took ill and unexpectedly landed in hospital and thus was not in attendance. A letter (undated) he had written to Ms. Williams (Exhibit 21 of her affidavit) and the Cape Breton Board was read at the meeting. In that letter Mr. Neville was responding to Ms. Williams in regard to a meeting which took place in Halifax, on November the 4th between Ms. Williams and the two local board members Ms. Manuel and Mr. MacPhail. The evidence is that they had been previously invited and were seeking ways to deal with concerns they had as to operation of the Cape Breton Board. [12] Mr. MacPhail had brought a list of some 40 concerns to the September, 2011 meeting of the board, 15 of which were entered into evidence. Mr. MacPhail’s evidence was that these concerns fell on “deaf ears” so to speak, and he turned to the Provincial Director for guidance with Ms. Manuel. [13] Mr. Neville in his letter referred to that meeting and the email received from Ms. Williams in which she asked him to call an extraordinary meeting of the Cape Breton Branch. She also mentioned a discussion a few days earlier that animal care staff should receive notice of impending termination for failing to meet a directive given in October, 2011 and as well, policy violations by Ms. Rose in the previous weeks. [14] Mr. Neville refused in the letter to call a meeting and advised Ms. Williams “do not believe all you hear”. The local board voted not to send the letter. Clearly Mr. Neville was upset with what he felt were two board members going “over our head to change our operations”. [15] Ms. Williams affidavit included two corrective action notices issued on October 12th following a meeting the previous evening between Ms. Fleming and a group of volunteers. This meeting included Mr. MacPhail. Concerns regarding the operation of the shelter were discussed. The next day Ms. Williams met with the shelter manager and staff. Following that meeting she prepared and issued the corrective (action) notices which according to the evidence of Ms. Flemming were confirmed and agreed to by the staff and Ms. Rose. [16] These notices were exhibited as 3 and 4 of Ms. Williams affidavit. The allegations concerned animal policy violations, customer service, supervision of animals, including failure to provide veterinary care and testing, cleaning, euthanasia, adoption screening and intake methodology. [17] At this time Ms. Williams was impressed that Ms. Rose accepted responsibility and acted professionally in difficult circumstances. Other responses were not so well received and here there was a suggestion that one of the staff blamed an animal owner or owners for not vaccinating their animals. [18] When Ms. Williams was hired as Executive Director her mandate included education, introduction of policy, more interaction with branches and introduction of a governance model. In short, a more structured approach and the introduction of that governance model was a key element. It was Mr. Neville who previously moved the motion to adopt the governance model at the Provincial Board level. In October, Ms. Williams learned that the Cape Breton Board had not been provided with this model by its President. Ms. Williams in her affidavit included emails to the President in October over matters of concern. Clearly she was asking him to “step up” and address these concerns. [19] I pause here to say this is not to suggest that Mr. Neville was inattentive. To be fair the evidence indicates that he was a man who was at the shelter almost daily as well as Mr. Best. Clearly however, Ms. Williams and the provincial board were not pleased with Mr. Neville’s response in his letter. She ended up receiving it even though the local board had voted not to send it. She communicated to the Provincial Chair that things were “worse than she thought”. [20] On November 9th Ms. Williams emailed the entire Cape Breton Board and included a large number of attachments. She asked that they meet immediately and provide an action plan. Included in this email as an attachment was a November 3rd memo regarding standards of care. This identified eight (8) concerns for immediate rectification. These had been forwarded in an earlier email of November 4th with the governance model. [21] On November 10th Mike Mombourquette of the local board advised Ms. Williams of Mr. Neville’s illness. She suggested that Vice President Mr. Best respond on his behalf. Further emails from Mr. Mombourquette indicated it would be up to Mr. Best to decide on a meeting date. [22] Ms. Williams responded and requested of Mr. Best whether a meeting would be called and what the immediate plans were in terms of a time line. She stated, “I can’t emphasis enough the sense of urgency here.” [23] Without detailing all of the subsequent events, I will list them in point form. A meeting of the local board was called and held on Tuesday, November 15th, 2011 by Mr. Best. At that meeting the Board voted to: (1) Engage Chartered Accountant John Nash to investigate all allegations of discrepancies in the finances and in the adoption numbers; (2) Engage local veterinarians to view and assess the shelter and provide an independent opinion on the standard of animal care. It is important here to note that there were additional resolutions passed at that meeting which I will comment upon later in my decision. [24] Subsequent key events were that : (I) On November 16th, Ms. Williams and Ms. Flemming attended the shelter to deliver the Notice of Termination and Resolutions. Turmoil then erupted. Ms. Rose locked herself in her office. Mr. Ellis arrived along with counsel, Mr. Sampson and Mr. Snow. Police were on alert or in attendance. The Provincial representatives were advised they were not welcome and eventually left that meeting. (ii) On November 17th Ms. Flemming completed the audit that had earlier been postponed during the October visit. The audit was scathing in its remarks as to the level of care at the shelter. (iii) On November 21st, 2011 the Provincial Board voted to dissolve the Cape Breton Branch. No prior notice had been given but clearly the local Board was not recognizing the authority of the Provincial Board at that time. (iv) Media attention on these events was high. Press releases were issued regularly by the Provincial Society. (v) An attempt at a “stand by agreement” was not accepted by the Provincial Board. (vi) Notices under the Protection of Property Act were issued by both parties. (vii) The Humane Society had an independent veterinary report completed by Drs. White and Korven dated November 21st, 2011.This is attached as Exhibit 12 to Mr. Mombourquette’s affidavit. (viii) On December 13, 2011, a follow up inspection was completed on behalf of the Humane Society by Dr. Frank Richardson and this is attached at Mr. Mombourquette’s affidavit as Exhibit 15. (ix)What ensued is a stand off and a lock out which has led to this Motion. (x) By agreement, inspections under the Act could continue by the Society for Prevention of Cruelty. [25] With respect to the two veterinary reports obtained by the Respondent, their position, as contained in the Respondent’s affidavits is that neither of these reports state there is an immediate risk of harm to the animals. [26] Further the Respondent states the actions of the Provincial Society are extremely unfair and throttled with inequities. They accuse the Applicant of being heavy handed and insensitive with regard to their President and his sudden illness. They state further the Applicant for all it’s efficiency failed to follow it’s own policies. In addition it states the full board did not learn of the problems until November 9th or thereabouts. Their response was prompt and reasonable with a meeting being held on November 15th, 2011. They state further that no time was allowed for a meaningful response. They say they were prepared to address the concerns. They argued further the Act does not allow the Provincial body to assert the control they are seeking under, it including the right to dissolve the Cape Breton Branch. Finally they argue, among other things, that the Applicant’s request for an injunction should be denied because it has no merit, there is no irreparable harm to the Provincial Society, and the balance of convenience lies with the Respondents. On the contrary they say they have a long standing contract with the Cape Breton Regional Municipality and it is they who will suffer harm if forced to leave the shelter. [27] The CBRM through the affidavit of Richard Fraser, Director of By Law Enforcement, has no complaints about the services they are receiving from the shelter. The Respondents state the Court must and should consider this and the fact that more than 50 percent of the recommendations of Drs. Korven and White have been implemented at their cost. This they say is confirmed by Dr. Richardson. [28] The Respondent says further they continue to own the building and that the dissolution occurred from an unlawful act triggered by the Provincial Society. An injunction being an equitable remedy, a party must not be able to benefit from their own wrong. They state the Applicant must have “clean hands” in asking this court for relief. The Respondent states clearly the Applicant does not. [29] The Applicant in response says it demanded quick action from an unresponsive board and should not be blamed. They say they were dealing with life and death situations (in respect of the animals) and thus the reason for the urgency. Sandra Flemming states this was nothing new and the problems date back for some time. The Applicant says the Respondent knew more than it let on as is evident from the testimony of Mr. Mombourquette regarding the November 15th meeting and that it (the Applicant) is entitled to the relief it is asking for. The Law: [30] I turn now to discuss the law in respect of this Motion. As explained the law is if granted this injunction is temporary only, pending a decision after a full trial on the merits. [31] Before I explain the law I pause to remind that now is not the time for me to decide difficult questions law, make detailed comparisons in the evidence or make conclusive findings as to credibility. Those matters are reserved for trial. [32] The parties here have referred me to my decision in Burke v Cape Breton (Regional Municipality) 2011 NSJ No. 220. As here that case involved an application for an interim injunction. At paragraph 26, I recited the legal test as being that recited in R.J.R. MacDonald Inc. v Canada (Attorney General) 1994 1 SCR 311. Both parties agree here that this is the test to be applied. [33] In the case of The Colchester YMCA v YMCA Canada 2000 NSSC 180 submitted by the Respondent, Justice LeBlanc confirms this test at paragraph 12 stating that the three part test established by American Cyanamid Co., et al v Ethicon Inc, et al., 1975 F.C.J. No. 1123 should apply to interlocutory injunctions. Simply put there are three (3) questions the Court must ask itself in considering whether to grant an interim injunction. Those questions are: (1) Is there a serious issue( question) to be tried? (2) Would the Applicant if ultimately successful in the main action suffer irreparable harm if the injunction is not granted? (3) Which of the parties on balance will suffer the greater inconvenience if the injunction is or is not granted? [34] At paragraph 64 of my earlier decision in Burke I cited also the case of Noreco Inc. v Lazyworks Computer Inc. 1994 NSJ No. 408, where Justice Saunders confirmed (once again) that now is not the time to decide conflicts of evidence or difficult questions of law. My earlier overview or summary of the evidence was just that, an overview provided to illustrate the many issues which this case presents. Over the span of five (5) to six (6) days of hearing there was much evidence presented. For today I shall focus on that related to the three (3) part test I have outlined. [35] The granting of an Interlocutory Injunction is discretionary. Under s. 43 of Judicature Act, Chapter 240 of the Revised Statutes, 1989, those discretionary powers must be based on sound legal principles in deciding what is “just and convenient”. I must therefore decide today was is “just and convenient”. I) Serious Issue: [36] I will turn now to discuss the first part of the test, whether there is a serious issue to be tried, often referred to as a discussion on the merits. Both parties agree that there are no specific requirements which must be met to satisfy this part of the test. They agree also that the threshold test is admittedly a low one as stated in the R.J. MacDonald case at paragraph 55 and I quote: “Once satisfied the application is neither frivolous or vexatious, the motions Judge should proceed to consider the second and third test, even if of the opinion the Applicant is unlikely to succeed at trial.” [37] It must be emphasized here that the Court also said that a prolonged examination of the merits is generally neither necessary or desirable. I recognize that this branch of the test is often passed without much discussion. In this particular case however, I will address this factor in some detail as a substantial portion of the local board’s submissions dealt with this issue. [38] The Respondent argues that this case is so filled with procedural unfairness that it has no merit and is therefore frivolous and vexatious. Citing Hill v University College of Cape Breton 1991 NSJ No. 220, the local board argues that they were entitled to procedural fairness at every stage of the proceeding. The Respondent argues that when, how and by whom various decisions were made is clearly confirmed in a series of emails between the parties as outlined in the affidavits of Humane Society President Mombourquette and Executive Director Williams. The Respondent argues that prior to November 8th they were essentially unaware of any reasons or complaints that had been advanced by the Provincial Society. [39] “Don’t blame us” says the Provincial Society. We were entitled to expect that your President was making your aware of these serious concerns. While it is unfortunate what happened to Mr. Neville, the Board should have responded sooner. We were pleading they say for a response right up to the date of the provincial meeting on the 14th of November when Ms. Williams asked if a local board representative would be in attendance. As stated they considered Mr. Neville’s response an inappropriate one. [40] The Respondent argues if there are standards, where are they? In evidence as part of Ms. Williams affidavit were standards dated in 2010 and also there were protocols forwarded from time to time to the local shelter for cleaning, including after October 12th, 2011. It is evident that problems started around that time. [41] There are minimal standards on the Society’s website. The Society’s Chief Inspector, Neil Fraser stated there are no regulations under the Act to assist with enforcement of the Act. His affidavit confirmed that he has received a number of complaints and had compiled a list for Ms. Williams. [42] The Respondent argues also that the termination was illegal and that the Applicant had no authority under it’s own by-laws to do as they did. The Respondent cited section 1(a) which on it’s face requires notice of meeting to cancel memberships to the person whose membership is being terminated, who must also be given an opportunity to be heard before the vote. Another section, s. 24, requires seven (7) days notice for new business. [43] The Applicant argues that the attachments included in the email to Mr. Neville of November 4th and to the board of November 9th clearly stated that the positions of the Manager and the role of the Board would have to be considered including replacement, if necessary, and she was looking to her Provincial Board of Directors for direction in this regard. [44] Was (five) 5 days not enough time to respond says Mr. Sampson on behalf of the Humane Society? Was Mr. Neville’s illness not something to be considered? Was Mr. Mombourquette’s reply stating a meeting was being arranged not reason to wait for the board to address these concerns? There are many issues in this case which range from ownership of the shelter, the extent of the authority given under the Animal Control Act, animal care and the level of care being provided, governance, fairness and the credibility of witnesses. None of these issues are easily resolved. [45] For example, section 8 of the Act gives the Provincial Society control over it’s branches. Under Section 8(4), however, there is no certificate in evidence establishing that the Branch is a “branch” under the Act. Mr. Sampson argues his client’s Society was not continued under the Act and therefore is not subject to the Act. The deed is in the name of the Cape Breton Branch but the reference to it is as a branch of the SPCA, something which the Humane Society has removed from all of its other holdings. [46] The bylaws of the former branch state that in the event a branch is dissolved, its property is to be “paid over” to the Provincial Branch, as per the bylaw of the Cape Breton Branch attached to Mr. Mingo’s affidavit. I note as well the provincial bylaws contain a provision at s. 10(a), that a board member or branch may be removed for cause. I note as well under s. 16 that failure to give notice if inadvertent, does not invalidate the proceedings at that meeting. [47] In terms of animal care there is certainly considerable evidence on this point. There is the evidence of the two board members, Mr. MacPhail and Ms. Manuel and well Sandra Flemming. All of these witnesses gave extensive and important evidence. The Respondent says that much of it is hearsay and unreliable. How can Ms. Flemming complete an audit on the 16th of November given the events that were happening on that date ? [48] The Applicant through Mr. James argued strenuously that credibility is an issue. He argued that the board failed to disclose that at the November 15th meeting, resolutions were passed to terminate Mr. MacPhail and Ms. Manuel (as board members) and further that they had already begun steps to go their own way by resolving to change their name. He points as well to a number of other affidavits filed by the Respondents, which failed to mention this. [49] What all this means in my respectful view is that there are numerous and serious issues to be resolved in this case. The ownership issue alone would in my view, present a serious issue to be tried, one which is neither frivolous or vexatious for the reasons to which I have referred. [50] Before I conclude on this issue, I wish to address the theme which Mr. Sampson spent a good deal of time on, the fairness issue. I have touched on this already but as he specifically cited Burke, I wish to briefly deal with that aspect. [51] In Burke I ruled (at the interim hearing) that it was at least arguable that the Applicant for the injunction was owed a procedural duty of fairness, without deciding whether there was a breach of that duty. Here it is the Respondent arguing that the local board and shelter manager were owed a duty of procedural fairness. The evidentary basis for arguing such a duty exists here is not clearly present. As Justice McLachlin stated in Lakeside Colony, 1992 S.C.J. No. 87 the Court must ensure that it fully appreciates the institutional and factual matrix in which the decision arises. In the YMCA case submitted by the Respondent, Justice LeBlanc expressed a reluctance for the Court to become involved in the internal affairs of a national organization. Here we are dealing with the affairs of a provincial organization. [52] As the Applicant argues this is a much different case than that of Mr. Burke. Mr. Sampson has referred me to paragraph 54 that rights and interests are affected and to paragraph 61 that there is exposure to harm here for Ms. Rose and the board and that, that triggers the duty of fairness. [53] The Burke case involved a public law duty of fairness and the Applicant had only to show it was a serious issue. Here the only way it (Burke) helps the Respondent, (as a respondent) would be if this Court was prepared to conclude, on a final basis, there was both a duty and that it was breached, because in that event there would not be a serious issue (for trial) , there would be no issue. [54] Any decision on procedural fairness normally involves a detailed analysis which is not for the Court at this time. No mention has been made of Dunsmuir v New Brunswick [2008] S.C.J. No. 9 for example. In consequence, there may well be a procedural issue to be determined at trial, but not at this time in an interlocutory proceeding. Consequently the Respondent’s argument if anything serves only to show there is a serious issue to be tried here. I am aware that the Respondent put forth the fairness theme both in support of issue one (1)( the merits) and the global duty of fairness as relates to an equitable remedy and “clean hands”. I will deal separately with the latter of these later in my decision. (ii) Irreparable Harm: [55] I turn now to the second part of test, irreparable harm. Once again both parties agree as to the law and the starting point that is R.J.R. MacDonald which defines irreparable harm as harm that cannot be measured or quantified in damages or monetary terms. Citing from the leading authority of Justice Robert J. Sharpe in his text entitled Injunctions and Specific Performance, 4th Edition and I quote: “Irreparable harm has not been given a definition of universal application. Its meaning takes shape in the context of each particular case.” [56] In Burke I cited the Fulton Insurance Agency’s Ltd. v Purdy 1990 NSJ No. 361 at para 73 in stating: “In considering irreparable harm it is the nature of the harm and not the magnitude which the court must address.” [57] Applying this test to the present case the question may be framed as follows: what is the risk of harm to the Provincial SPCA that cannot be compensated in monetary damages if the injunction is not granted? [58] The Respondent local board submits that any claim of irreparable harm must focus on the animals and their welfare. The affidavits of the Respondents referred to the 2010 audit authored by Ms. Flemming which was positive in nature. This is attached at Tab 7 of Mr. Mombourquette’s affidavit. They also refer to an email arising from a visit by the provincial chairperson in the summer of 2011 which stated that Cape Breton “had its act together” and was “setting an example to others”. As well there is the letter of Ms. Williams at Tab 30 of her affidavit where as of November 16th, 2011, she had indicated to her board there was not an immediate concern to the property, people or animals. There is also the veterinarian reports which were exhibited to Mr. Mombourquette’s affidavit. They contain recommendations, some of which were implemented and the Mombrouquette affidavit has pictures of certain improvements made which have been acknowledged by the Provincial Board. Their position, the Respondents, is that all these things should militate against the Applicant being able to establish that there is a risk of irreparable harm, in particular to the animals. If there was a risk, it has been removed says the Humane Society. [59] In response, the Society for Prevention of Cruelty states that the November, 2010 Audit was intended to be generally positive and was completed before the implementation of the most recent standards, released in 2010 and the focus has now shifted to compliance. [60] The Applicant also states that the audit of Ms. Flemming is consistent with approximately 16 or 17 of the recommendations made in the veterinarians’ report which came after Ms. Flemming’s audit. The Applicant argues the veterinarians’ report embraces Ms. Flemming’s audit. [61] The Court also heard the evidence of Ms. Flemming which was compelling, in terms of the animals which are transported out of the shelter. She stated of 262 dogs received from the Shelter over the past two years, that 80 to 85 percent of them had some form of condition that should have been treated by a veterinarian. In this regard they (the Provincial Society) have a special protocol they follow to prevent spreading within their own population. [62] This evidence went essentially unchallenged as did the evidence Mr. MacPhail gave in relation to unsanitary conditions, the use of improper cleaning products, improper intake and so on, including checking on the shelter on a weekend and determining or satisfying himself that no one had returned within the appropriate time. He also gave evidence with respect to photographs that were submitted into evidence. [63] Regarding Ms. Manuel, she has been a volunteer for several years and has apparently fostered more animals than any other volunteer, at least according to the evidence. She has implemented successful programs at the shelter. She recounted the unfortunate stories of the injured dog and the incident regarding the two kittens. Mr. Sampson makes a good point that Ms. Rose and the worker were helpful in that situation, once they had been contacted. [64] Overall on a preliminary basis I think the SPC’s concerns, the Nova Scotia Society for Prevention of Cruelty, about animal welfare have some obvious merit, notwithstanding the veterinarian reports which were completed at the end of this process. [65] There had been a “parvo” outbreak while provincial officials were at the shelter which shows that shelter management is an ongoing day to day issue and is constant. Loss or injury to animals is harm that cannot be compensated in damages. There were some miscellaneous issues such as intake revenues and finances which are more quantifiable. Consideration of harm in this case involves a weighing of risks as opposed to a weighing of certainties. [66] In a case entitled LaPlante v the Saskatchewan Society for the Prevention of Cruelty 2011 Carswell Sask 251the Court found that loss of animals is not something that can be measured in monetary terms and I am prepared to extend that to animals in distress or injured. There have been no charges under the Act but there is the risk of distress if the evidence heard directly by this Court and particularly that of Ms. Flemming ,is accepted. Therefore I believe there is a meaningful risk of harm, bearing in mind the Court here is concerned with preventing any such harm in future. [67] The Respondent argues there have been no inspections and no attempts to remove animals and that the Applicant should not be permitted to assume control under the guise of animal welfare. Mr. Fraser, the Chief Inspector, says that it is currently an unwelcome environment at the shelter. [68] The Applicant in it’s brief argues that this has been a branch operated under the SPCA banner for many years and has received public support as such, giving credit where credit is do to those former members and manager for the time and effort over the years they put into animal care. I pause here to say, and I think it’s a reasonable inference from the affidavits ,(including, for example, Diane Lewis) (and there is no doubt) that thousands of animals have been sheltered there over many years, haven been taken in from the cold, and given comfort with food and water. [69] The Applicant, however, says this is not just about animal welfare but about the ability to carry on it’s business or put another way, its legislative mandate. The Deed to the property still bears the name of the SPCA as a branch. This shelter has always been to the public, an SPCA branch for the past 30 plus years. Presently there is a cloud over the shelter. [70] The harm then comes in the form of public concern regarding the shelter. It is reasonable to infer that members of the public would have concerns about going there; second thoughts perhaps about bringing an animal there for adoption. They may still go, but given the current state of affairs, there is reason for pause and concern. [71] This, like animal welfare, cannot be measured in monetary terms. I find therefore that the Applicant has met the second part of the test. (iii) Balance of Convenience: [72] The third and final part of the test is balance of convenience. The third part of the test is “which parties will suffer the greater inconvenience if the injunction is not granted”? [73] The local board states that day to day operations have continued as they have for 34 years without formal reprimand or complaint. Secondly, the Respondent says it has a contractual relationship with CBRM which it has held since the mid 1970s. If the injunction is granted, the Respondent states it will no longer be able to meet it’s contractual obligations which expire in March of this year. Thirdly they say they are continuing the dog transfer program and will have lost the benefit of the improvements made and the improvements to be made if they are forced to leave the shelter. They further say that handing over the assets will see them lose the resources they need to meet their liabilities. [74] In terms of the law with respect to this third test, I would refer to the Applicant’s brief at paragraph 52. That is, that irreparable harm and balance of convenience are closely linked and ought to be considered together. As Justice Saunders stated in Noreco citing Matthews J.A.: “The tendency is for the Court to apply a test which is likely to produce a just result.” [75] I note that the contract between the Respondent and CBRM is binding on each of their successors and if need be the contract may be continued. I note also that Ms. Williams, as part of her action plan in paragraph 96 of her affidavit, includes a thorough review of financial matters and intake numbers which had been a source of concern. I note also that the Applicant’s plan includes the engagement of local veterinarians, which the most recent veterinarian report of Dr. Richardson on December 13th stated was “imperative”. [76] The Respondent passed a resolution to that effect as well, as well as a review of finances on November 15th, 2011. There appears to be no additional evidence that a veterinary relationship has been established by the Humane Society to the date of hearing. [77] When I consider who will be inconvenienced there is little question that the Respondent shelter, (the local board) will be inconvenienced if the injunction is granted. However, (if it is not) so will the Applicant. I agree with the Applicant that if the injunction is not granted, the Provincial Society for the Prevention of Cruelty will be significantly hindered in it’s ability to meet its mandate under the legislation. [78] It is not simply a question of who will best operate the shelter. That is not the test. As Lord Diplock said in his famous quote (from American Cyanamid), “it is a question of prudence to maintain the status quo if all things are equal.” Arguably here the status quo is having a branch of the Society for Prevention of Cruelty at that location, as there has always been. [79] The Society for Prevention of Cruelty is the principal animal welfare agency in this province. It is dedicated to animal welfare and legislatively recognized as playing a special role in this area. This is my respectful view, tips the balance of convenience in the Applicant’s favour for the time being and so I find the third part of the test has been met by the Applicant. “The Fairness Train” [80] Before concluding I would like to address the Humane Society’s argument that the Applicant has not come to court with clean hands. I have reviewed the cases provided to me and those I find most relevant are Colchester YMCA, Swende v Halifax Student Housing Society 1985 NSJ No. 199, and Ironworks Gym Ltd. V Derby Holding Ltd. And ICR Ashford Commercial Property Services Ltd. 1997 S.J. No. 834. [81] In order for this doctrine to apply there must be a direct link between the wrong alleged and the remedy sought. In that regard I think the cases are applicable here. However the allegations in these cases are in a different vein than what is alleged here. In two of the cases there was forgery and fraud. In the third the evidence showed a lack of good faith or bad faith, by (the party) failing to adhere to a directive from its national body. [82] Equity must provide some protection to the Applicant where, in spite of a technical breach of its own by-laws, their intentions were valid and they believed they were attempting to hold the Respondent to a standard to provide animals with an adequate level of care. I believe it would be improper to apply the “clean hands doctrine” if once applied, it renders an unjust result. Plainly stated even though the Applicant may not have followed it’s own by-laws, the enforcement of animal care standards in the Act is paramount. I am therefore not prepared to deny them a remedy they would otherwise be entitled to because of it. There are further examples in the evidence that I could present on both sides, but I decline at this time to do so. Conclusion: [83] In conclusion I am granting the injunction requested by the Applicant. I will sign the appropriate order to that effect. Thank you. J.