The Legal Case of Ferb: A Dangerous Dog on Trial
What does it take to sentence a dog to death? Far less than you might think. In our latest deep dive into fascinating legal territory, we explore a heartbreaking case from Kamloops where a pit bull named Ferb faced the ultimate penalty under BC’s dangerous dog laws.
The story weaves through a tragic background – Ferb, stabbed five times as a puppy before being rescued, later found himself implicated in the killing of a neighbour’s collie. What makes this case particularly compelling is how it illuminates the stark difference between animal and human justice systems. While humans receive the protection of “beyond a reasonable doubt,” Ferb’s life hung on the much lower “balance of probabilities” standard. Through expert testimony on pack mentality and circumstantial evidence, the court determined Ferb’s fate in a process that raises profound questions about how we balance public safety against animal welfare.
We also unpack a creative but unsuccessful class action against ICBC that claimed drivers were overcharged for cross-border liability insurance during COVID travel restrictions. The case’s dismissal reveals the complex regulatory framework governing insurance rates and the limited recourse available to consumers who feel they’ve paid for services they couldn’t legally use. Finally, we examine a fascinating business dispute involving proprietary nasal spray technology that demonstrates unique aspects of injunctive relief when enforcing negative covenants. Together, these cases paint a vivid picture of our legal system’s intricate balance of competing interests and the frameworks created to resolve conflicts across vastly different contexts.
Legally Speaking with Michael Mulligan is live on CFAX 1070 every Thursday at 12:30 p.m. It’s also available on Apple Podcasts or wherever you get your podcasts.
Legally Speaking May 15, 2025
Adam Stirling [00:00:00] Time for our regular segment with Barrister and Solicitor with Mulligan Defence Lawyers, Michael Mulligan with Legally Speaking on CFAX. Hey Michael, how are we doing?
Michael T. Mulligan [00:00:08] Hey, Im doing great, always good to be here.
Adam Stirling [00:00:10] Some interesting topics on the agenda today. Where shall we begin?
Michael T. Mulligan [00:00:14] I think we can start with the case involving a death penalty for a dog on a balance of probabilities.
Adam Stirling [00:00:20] A standard, yeah, a standard lower than other death penalties and perhaps other jurisdictions one would think.
Michael T. Mulligan [00:00:26] That’s true. So, this particular case, and it just came out, it’s actually a case out of Kamloops. And it involved a dog by the name of Heidi, who was very sadly killed in her fence backyard. And the issue involved three dogs that were suspected of doing that to Heidi, killing Heidi. The dogs’ names were Snoopy, Bella and Ferb. Now, the way this plays out is in BC, we’ve got authority under the community charter. It’s a piece of legislation that delegates authority to, well, communities, municipalities, to do various things, including dealing with the issue of dangerous dogs. And that legislation in section 49 defines what a dangerous dog is. It’s an interesting definition. a) dangerous dog means a dog that’s killed or seriously injured a person. That’s not applicable here really, B) has killed or seriously injured, a domestic animal, while any public place or while on private property, other than property owned or occupied by the person responsible for the dog. That’s the one that’s applicable in this particular case. Also, interestingly, you can have proactive action if an animal control officer has reasonable grounds to believe it’s likely, that a dog would kill or seriously injure a person. Although I must say, rather amusingly, the legislation requires the animal control officer to consider whether the action of the dog would be, while attempting to prevent a person from committing an unlawful act. Boy, that’s a complicated concept for a dog,
Adam Stirling [00:02:09] Yeah.
Michael T. Mulligan [00:02:09] But it requires some considerations whether the dog is trying to stop shoplifting or something. Anyways, that’s how they’ve drafted it and so when you have a dog, that is apprehended, they would ordinarily be put in like a dog jail, kennel. And then eventually there can be an application made to a provincial court judge to determine, whether the provincial court judge is satisfied, unlike in a criminal case where you’d have to prove it beyond all reasonable doubt, it’s only necessary that a provincial Court judge be satisfied on a balance of probabilities that the dog is a dangerous dog, and if so, the judge can then go on to analyze whether the dog would present a “unacceptable risk to the public.” And if it gets over those two thresholds on a balance of probabilities, then the provincial court judge is authorized to, this is a language, order that the dog be destroyed in the manner specified in the order, which it doesn’t provide any guidance on. So, while you would hope that the provincial court judge would pick euthanasia rather than firing squad, that’s up to the provincial judge. So, that’s the legal fact pattern or legal basis of this case proceeded on. Now, the interesting thing about the case is that, well, one of them, at least two of the dogs suspected in the attack, Snoopy and Bella, were both, both put down prior to the trial of Ferb, the dog who wound up eventually on trial. Snoopy was put down as a result of medical reasons and Bella wound up being euthanized by consent, and I should say the background of the dogs is sad. the, these three dogs, um, were pit bull siblings. And the woman who had them, uh, had taken them in when she had heard that Ferb the one on trial had as a puppy been stabbed five times. Not a good beginning for a puppy. And so, she “immediately rescued Ferb and took ownership of these three dogs.” Now, the description of the owner, one of the dogs, Bella, the one that was euthanized by consent, the owner described as an instigator, aggressive and crazy. That’s not a great combination.
Adam Stirling [00:04:39] no.
Michael T. Mulligan [00:04:39] She described Snoopy as more of a follower, but I guess she didn’t think that Ferb, the one on trial, would have behaved in this way. Now, this is why the balance of probabilities rather than proof beyond a reasonable doubt is important here. Because the key significance here was to a large extent circumstantial and this is why. The owner of Heidi, the unfortunate 12-year-old female collie that got attacked and killed in her backyard, the owner heard noise and then when she came out the attack had essentially concluded and she did observe three pit bull dogs circling Heidi but couldn’t see them, any one of the three, do anything in particular. The three pit bull dogs then leapt over a fence and ran away. Before they ran away, they also unfortunately started attacking a man on a sidewalk who was described by the owner of Heidi as swinging his arms at the three dogs before they eventually, before he eventually ran away the dogs ran away that person wasn’t a witness. And so, the issue here, the reason why it was a circumstantial case is Well, what role did Ferb play in all of this, right? Did Ferb work with Bella and Snoopy or was Ferb an innocent bystander, right. And in the human context, if the evidence was simply somebody was standing there, that’s not going to do it. Now, this particular case, which I should say went on for four days and involved expert evidence in the form of a, both a veterinarian and another expert on dog behaviour. It included evidence about how dogs conduct themselves, including evidence about pack mentality and how they could sort of join in and do things together, which the judge relied upon. And the other interesting bit of sort of circumstantial evidence was that two of the dogs, or at least one of the dog, Bella, was observed by a vet who examined her to have dried blood on her. That was pretty incriminating, in addition to the very unpleasantly flattering description by her owner. Snoopy apparently had a metallic smell, which is commonly associated with blood, although it was more ambiguous as to whether Ferb had any blood. And there was some evidence of smell, but the owner said no, didn’t notice any blood on Ferb. So, you know, was Ferb the innocent bystander dog or did Ferb join in the attack on the innocent dog in the backyard? And the judge at the end of the day went over the fact that you know, it need only be on a balance of probabilities. There was evidence about Ferb’s behaviour following apprehension in the kennels, which Ferb was described as agitated, unpredictable, and volatile. It would growl at people. It had to be moved around with; it was described as a rabies stick. You know I guess it was one of those like, a rabie’s pole, you know, it couldn’t be put on a leash. So obviously bad behaviour by Ferb afterwards, but the judge said he couldn’t put much weight on the after behaviour and was required to assess whether he was satisfied on the balance of probabilities that Ferb had participated in the actual attack. And on that basis, the judge relied on that evidence about pack behaviour and how circling around is some indication of participating in it rather than being just an innocent bystander dog. and on that basis was, satisfied at least on a balance of probabilities that Ferb participated in the attack on Heidi, the dog, and because in this case, well, initially there’d been another person who would come forward to say that they might be able to take custody of Ferb, which might result then in the Ferb not representing a quote unacceptable risk to the public. That person before the trial was out, I guess, backed out and said they were no longer prepared to do that. Maybe after hearing some of the evidence, and the woman who had owned and quote, rescued the dogs on the morning in question, they had escaped, her home on the basis that somebody had left the door open while she was having a shower and so I guess there wasn’t much of an issue left about whether if the dog had participated in this killing, whether they would amount to an undue risk to the public. And so, the net result, despite the fact that Ferb obviously had a very bad beginning as a puppy being stabbed multiple times, the judge was persuaded, at least on a balance of probabilities, there was participation and that there would be an undued risk. And so, the Judge ordered that Ferbe be happily not by firing squad but be euthanized. Although it did indicate that that is not to occur for 31 days from the date of the order, which is interesting, that this order was made on May the 5th. And the reason for that is that there would be a 30-day appeal period. And so, I guess we’ll have to wait and see whether Ferb has some other benefactor that wishes to continue to litigate. But failing that, that’s going to be the fate of Ferb, at least on the basis that Ferb probably participated in what happened to Heidi. And it certainly wasn’t for the purpose of preventing the commission of an offence by Heidi or anyone else. So that’s the sad story from Kamloops in terms of the three dogs. The final one of which is found to be dangerous and that’ll be the fate of Ferb.
Adam Stirling [00:10:21] We’ll take a quick break, Legally Speaking.
[00:10:23] COMMERCIAL.
Adam Stirling [00:10:23] We’ll continue right after this. Back on the air here at CFAX 1070 with Michael Mulligan from Mulligan Defence Lawyers, Legally Speaking on CFAZ, Michael. Up next on the agenda I’m reading here, it says proposed class action against ICBC for overcharging during COVID dismissed. There’s a lot there.
Michael T. Mulligan [00:10:40] Now, there is a lot to unpack there. I thought it was a very creative idea in terms of a class action. And here’s really what it amounted to. Back in May of 2021, the NDP of course switched us over to no fault insurance in British Columbia. And no-fault insurance means essentially sort of what it sounds like, but really what it amounts to is that you can’t sue somebody for bodily injury caused by their negligence or carelessness in a car accident. And prior to that, the type of insurance that we were all required to have in BC, included what’s called third-party liability insurance, with the idea being that if you’re careless and you hurt somebody, you’d have insurance to pay the claim. But the way no fault works, because you can no longer sue somebody in that way, the chance of there being a successful claim against you for negligence driving your car is near zero. And so, despite that, we still have, if you look at your ICBC policy, this idea of liability insurance coverage. And you have a; there’s a minimum amount and it’s $200,000. You could purchase more. You might wonder why would you ever have that when we have no fault here and the answer is that you might drive your car across a border, because BC can’t stop somebody from suing you in Alberta or in Manitoba or Saskatchewan or Washington state or anywhere else. And so, we still have this element of liability insurance in the event that you might cross the border. But of course, what else happened around that time? Covid.
Adam Stirling [00:12:27] Yeah.
Michael T. Mulligan [00:12:27] And one of the things that happened during COVID now, though it’s largely a bad state of memory, is that there were various periods of time when you were effectively prohibited from leaving the province. There were prohibitions on leaving for reasons that weren’t necessary ones, you couldn’t go anywhere. And so, the claim was premised on the idea that, hey, you’ve collected money for third party liability insurance here on the theory that, you know, you might cross the border and be liable, but you’ve also ordered us to stay here. So, there’s no possible claim. So, you’ve just got a bunch of money for nothing. And so that was the thesis of the claim. Now, the claim is brought against ICBC. And the issue on this application was an application by ICBC to ask to have that proposed class action case dismissed on the theory that it was, “bound to fail.” And indeed, there is authority for a judge to dismiss a claim if it’s just bound to fail, just can’t work, even if you accept all the factual things that are alleged. And the defence that Icbc was making out here, their defence amounted to, well, yes, it’s true that you purchased this liability insurance, which really you could not make any use of, at least for various periods of time. You know, there’s restrictions on travel between June 15th and July 1st, 2021. Non-essential travel for all BC residents was restricted between March and June, March 19th, 2020, and June 15, 2021, and they said, look, even accepting that’s true, their defence amounted to, we ICBC, don’t get to set the insurance rates. That’s not done by us, which is interesting. And in fact, in BC, while, of course, all various entities involved, the provincial government, ICBC owned 100% by the government, and various other entities involved with the broader process of setting rates, is true. That ICBC can’t just unilaterally change the rates they charge for basic car insurance. We have a utilities commission and there’s a process there where they have to assess and approve rates and rate changes. Now I must pause here for a moment to say it’s true that we do have this utilities commission, although on the other hand we have now experienced, I think it’s for the fourth time. The government rebating money to people.
Adam Stirling [00:15:02] Yeah.
Michael T. Mulligan [00:15:02] You know, at convenient times like prior to the election. And so I suppose we should be asking ourselves, you know, is the utilities commission really ensuring that rates are set at the correct level when four times in a row there’s been money left over to send out to people right before an election or some other, you, know, opportune political time for the government? But leaving that aside, that’s the legal scheme in BC and so the defence that ICBC had is a look, we don’t have control over this. So, you know, you’re making, you may have a complaint, you may have a valid complaint about the fairness of all this, but don’t look at us. We don’t get to decide it and you’re suing us. And so the plaintiffs in this, plaintiff in this case, their lawyer had tried to frame this in various different ways that can be potentially claims sort of common law actions, things like negligence or negligent misrepresentation or there’s an attempt to claim under the consumer protection legislation in BC or other equitable concepts like there’s a concept of unjust enrichment or claim that this amounted to a breach of contract and so the judge on this application had to go through and look at each of those things saying look can this, Is it possible that you could successfully argue that there was any of these things, a breach of contract or an unjust enrichment or any of those things? And ultimately the judge concluded no. And the judge relied upon some authority for the proposition that where there is a scheme in place like we have in BC with the utilities commission that is intended to be sort of a” comprehensive” scheme for things like setting insurance rates. Which has its own mechanism. It’s like if you are really got some time on your hands and you wanted to go and make submissions to the Utilities Commission about you know how much you’re paying for car insurance or you know, how much are getting charged for electricity or something, you’re free to go do that. Although it’s very unlikely that for any individual, that’s going to make any particular sense, you know, how much money do you plan to save for the hours you would spend making submissions to the Utilities Commission. But who knows, there it is. And so, the net result of this is that even though for a period of time, people were paying for insurance, which was vanishingly unlikely you could ever make a claim against because the claims were prohibited in BC, and you couldn’t get out of BC. Despite that because the civil claims have to be framed in a way that there could be authority for a judge to do something about it, here there just wasn’t. And so that’s the end of the class action. And so, if you’re upset at the fact that you’re repeatedly paying insurance rates that seem to leave money left over to send out rebate checks every single year. Your recourse is going to be making some submission to the Utilities Commission. You won’t be able to wait for the outcome of the class action to determine whether that is legally permissible. That’s the latest from ICBC, COVID, and the unsuccessful attempt to try and get some money back for all of us who paid too much for insurance at the time.
Adam Stirling [00:18:19] All right, we have two minutes left.
Michael T. Mulligan [00:18:22] So final case, I think it’s just worth touching on briefly. It’s a case that involves the concept of applying for an interim injunction for what’s called a negative covenant. And what does that mean? Well, first of all, an interim injunction is like a request for an order from a judge to stop something from happening until a trial is concluded. sort of put the brakes on it while we’re sorting out whether the claim is good or not. And the particular case involves a dispute between two people, a doctor, and another fellow over what amounted to businesses relating to, I think, a nasal spray is ultimately the product.
Adam Stirling [00:19:02] mm hmm.
Michael T. Mulligan [00:19:03] And the person who was being sued was a person who is involved with an earlier incarnation of a business under a different name and that person, the previous business partner fellow, What had allegedly sent a demand that the doctor pay $150,000 by a certain date or else the other person would publish and make available a bunch of data and information that they had about the business. I guess that would interfere with the nasal spray technology or whatever it might be. And so, the doctor who was the owner of the more recent incarnation of the company was applying for an internment junction to stop the man from doing that. It seems sort of straightforward, but there are a couple of wrinkles. One is that this concept of a negative covenant is like an agreement not to do something. And in this case, that came into effect when there was previous litigation between the man who had the information and was allegedly asking for money to not release it. And the previous version of this company, which no longer existed. And so, one of the first issues there as well, can you enforce something when you’re not really a party to the contract, right? The settlement agreement was with respect to a company that no longer existed and this man. Can the new company enforce that? That’s an interesting point. And the judge found that at least that’s arguable. And to get an interment junction, you need not establish that you will win. You just need to show that there’s a serious issue to be tried. And so, it got over that hump. And then the next step there, and this is the interesting one, is that you need to show usually irreparable harm, which is kind of harm that you can’t make up for with money as a reason to get an injunction. But the judge pointed out, there’s actually authority for the idea that when you’re trying to enforce a negative covenant, like a contractual agreement not to do something, you don’t actually need to show irreparable harmful. And so that’s an interesting difference between when you could get an order to stop somebody from doing something generally, as opposed to trying to enforce that agreement not to do something already. And so, the net result is that judge ordered the man, don’t release the information. And so, I guess we won’t all have published on the internet all of the scientific information about the new high-tech nasal spray.
Adam Stirling [00:21:23] Michael Mulgan with Mulligan Defence Lawyers, Legally Speaking, during the second half of our second hour every Thursday. Michael, thank you so much. Pleasure as always.
Michael T. Mulligan [00:21:31] Thanks so much, always great to be here.
Automatically Transcribed on May 21, 2024 – MULLIGAN DEFENCE LAWYERS