The Tagish Kennel appeal has been dismissed.

Shelley Cuthbert, the owner of 43 dogs, had appealed an Oct. 11, 2017 permanent injunction placed by Justice Leigh Gower.

Cuthbert had been taken to court by neighbours Stefan Ludwik Angerer, Ursula Angerer, Leopold Selinger, Edeltraud Selinger, Gerry McGraw and Stefan Landfried over noise complaints.

Gower’s permanent injunction required Cuthbert to keep only two dogs as pets, and she could not have any additional dogs on her property.

Her two dogs must be kept inside from 10 p.m. to 7 a.m. Cuthbert said she had no intention of following this order because it would condemn the dogs to death.

The appeal was heard May 10 by Chief Justice Robert Bauman, Justice Susan Cooper and Justice Gregory Fitch, with the decision released Friday.

Fitch ruled that the case did not present an issue that needed a jurisprudential solution. He found it more of a pragmatic issue that needs to be solved practically.

He said the solution to the five-year saga needs to come soon so the neighbours no longer have reasonable and non-trivial problems enjoying their property.

“Their ability to do so (enjoy their property) cannot continue to be substantially impaired by the activities taking place on the appellant’s (Cuthbert’s) property,” Fitch said in a written copy of the decision.

During the appeal, Cuthbert argued that the trial had been unfair because the trial judge had not provided her, as a self-representer, adequate assistance, and the neighbours had decided to shift the penalties they sought.

Fitch disagreed, saying the neighbours decided to seek a permanent injunction rather than sue for damages. He felt that she could not argue that she was taken by surprise because the neighbours had originally sought both damages and the injunction.

Fitch said the trial judge had not deprived her the ability to address whether the neighbours’ nuisance claims were proven.

He felt her argument that she had exhausted all reasonable actions to address the noise did not prove that the injunction was the only remaining solution.

As for the assistance, Fitch pointed out that a lawyer had been helping Cuthbert behind the scenes during the trial.

He added that the record showed that the trial judge did guide her on several matters during the case management conference and the trial.

He said the trial judge helped Cuthbert with her questioning, on how to enter exhibits and on how to conduct a cross-examination. He said the trial judge did intervene and redirected Cuthbert’s attention to the main points of discussion, as he was entitled to do.

“His interventions were designed to and had the effect of ensuring that the appellant’s defence of the action was brought out in full force,” Fitch said. “I see no error in the manner in which the judge determined to exercise his discretion in this case and cannot accede to the appellant’s position that the trial was unfair.”

Cuthbert had also said the trial judge did not give proper weight to her evidence. She referenced two videos that demonstrated quiet periods in the neighbourhood.

Fitch said the trial judge did not allow these videos to be entered for several reasons, one being that Cuthbert did not make the video. This meant she could not speak to its legitimacy nor context. The person who shot the video was not brought in as a witness to be cross-examined.

Fitch ruled there was no error because the video would have had no impact on the trial because no one contested that there were periods where the dogs were quiet.

Cuthbert had also argued that the trial judge did not properly weigh the social utility of the kennel against the nuisance complaints.

Fitch again disagreed, saying the trial judge did consider the social utility. He felt the judge’s findings matched the evidence, and said Cuthbert had not demonstrated that the findings were wrong or unreasonable.

“The judge properly concluded that the appellant had no defence of the nuisance finding,” Fitch said.

Fitch added that there was no proof that collaborated Cuthbert’s assertion that the barking was caused by the neighbours’ provocation.

Cuthbert had also argued the injunction was an error, believing it was too draconian, or severe.

Fitch said the trial judge felt if the injunction was not made, the noise would continue – and he agreed with that judge. He added the trial judge was well aware of the impact this decision would have on her business.

Fitch explained that an injunction is a discretionary order that the court of appeal cannot change unless it can be proved that the judge acted on the wrong principal.

“It is difficult to imagine how the judge could have crafted a less draconian remedy and still provided the respondents with the relief to which they are entitled,” Fitch said.

Cuthbert had also argued the trial judge had an apprehension of bias. She based this on the fact that Gower had presided over a proceeding where the Yukon government petitioned the court for relief against the Humane Society Yukon in 2017. Cuthbert herself was involved in the case.

Fitch said Cuthbert did not bring this forward during the pre-trial conferences or at the beginning of the trial. It came up during the appeal that she felt the trial judge should have recused himself. Cuthbert said she was afraid to ask for a new judge.

Fitch explained that the test for apprehension bias is tough. The test seeks to determine what an informed person who looked over the case would conclude after practically and realistically going through the evidence.

It also seeks to find if there would be the potential for unconscious or conscious unfairness.

Fitch felt Cuthbert’s argument fell short. He said apprehension bias does not cover any prior involvement in proceedings involving the current litigants.

He believed this was only brought up once Cuthbert could not defend the nuisance claim.

This decision means that the trial judge’s decision stays in place.

Fitch said in closing, that he can see firsthand from the neighbours’ videos that the dogs have received good care from Cuthbert. He made it clear that no one wants to see any of the dogs euthanized if they are able to be adopted.

He said he hopes that the attention gained by this decision encourages people to contact the government’s Animal Health Unit or the humane society and consider adopting a dog.

Cuthbert told the Star today that she is speaking with lawyers to determine her next steps.

She said she was not giving up any of the 43 dogs until she can find proper homes for them. If this means leaving her property, she would, she said.

Anyone interested in adopting one of her dogs should contact Cuthbert through Facebook. She warns that these dogs are not good with children, and she needs experienced owners.

Owners who know how to deal with dogs with bite history, breed history and be willing to manage the behaviour for the rest of the dogs’ life are especially encouraged.

“I will not place a dog to just anybody,” she said.