Superior Court Justice Lorne Sossin says several of the issues raised by Canadians for Animal Protection have merit and deserve to be heard before a court.
But he says the group, led by retired Toronto lawyer Sandra Schnurr, failed a test to determine if a group has the right to have standing in court.
The case began earlier this year when Schnurr filed a notice of application against five retail giants selling glue traps, which are commonly used to catch rodents.
Schnurr argued the traps subject animals to agonizing, prolonged deaths and filed an application seeking to ban Canadian Tire, Walmart, Home Depot, Home Hardware and Lowe’s from selling them.
The retailers countered that Schnurr did not have standing to bring such a matter before the courts and therefore had no right to proceed with the complaint, a position Sossin supported in a ruling released Thursday.
But while the judge’s written decision said Schnurr failed to meet the threshold for public standing, he said she is still free to pursue her primary complaint through other avenues.
“This is not a case where the denial of public interest standing will mean that … the lawfulness of the use of glue traps will not reach the courts,” Sossin said in his decision. “Such a conclusion would be premature. Rather, various paths exist to bring this serious issue to Court which have yet to be pursued.”
Schnurr issued a statement expressing disappointment with Sossin’s decision but confidence that courts would eventually view the matter in a different light.
“There will be other, similar Canadian court cases in the future in which activists will ask for the right to speak on behalf of animals,” she wrote. “It is only a matter of time before a court grants that right.”
Lawyers representing the retailers did not respond to a request for comment on Sossin’s ruling.
According to a factum filed before court in July, the retailers argued Schnurr’s motion represented an “abuse of process” that should be dismissed. The factum also suggested Schnurr and the advocacy group she founded do not have enough at stake to merit a say on the issue.
It said she has not suffered any direct wrong from the sale of glue traps and should therefore not be granted standing.
The retailers also state that members of the public do not have the right to try to enforce criminal law, arguing such matters are the exclusive purview of an attorney general and citing past case law to support their position.
But Schnurr argued more recent cases suggest that position may be relaxing and courts are willing to take a broader view of public interest standing.
She referenced a September 2012 Supreme Court of Canada decision that granted standing to a group of advocates representing sex workers in Vancouver’s Downtown East Side.
In that case, the federal government had argued the group and a previous sex worker named in the case had no standing to challenge the country’s prostitution laws, since they were not facing charges under those laws themselves.
The Supreme Court unanimously rejected that argument. Schnurr said Ontario’s courts should follow suit by granting standing to those wishing to speak up on behalf of those who cannot represent themselves.
Sossin said those seeking public interest standing must meet three criteria by demonstrating that they’re raising a genuine issue of justice, they have a real stake or interest in the subject, and they are using court resources properly by raising an issue that can be effectively addressed in that setting.
He said Schnurr past the first two parts of that test, but failed the third on the grounds that she has yet to pursue the matter through other channels.
Examples he cited included lodging complaints against specific members of the public who use glue traps, as well as filing reports with either the police or the Ontario Society for the Prevention of Cruelty to Animals.
Earlier this year, however, an Ontario court ruled the OSPCA’s powers to investigate offences and lay criminal charges was unconstitutional. Sossin’s decision Thursday made no reference to that ongoing case, which is currently before the Ontario Court of Appeal.