Nakhuda v Story Brook Farm Primate Sanctuary[1] introduced Darwin, the “IKEA monkey”, a Japanese macaque at the center of the case as well as the heightened media attention it received.
This case addresses ownership of an animal, and it places the distinction of the terms wild and domestic at the forefront of the discussion, asking the court to draw a line between these two classifications.
The court primarily relied on the jurisprudence asserted within Campbell v Hedley[2] to define, and refine, its rationale using the Campbell principles. The court specifically mentioned that the best interests of an animal are not to be considered regarding property and ownership, “…court does not have jurisdiction to determine what is best for him…The monkey is not a child…the monkey is a chattel.”[3] In its analysis, the case of Nakhuda initially relied on Campbell and similar cases to help distinguish wild from domestic. Due to the age of the Campbell case, and society’s evolving sentiment toward animals, the inquiry conversely became whether Darwin was a domesticated animal.
Despite the court’s statement that it played no part in the outcome, the decision to allow Darwin in the possession of the sanctuary was most beneficial to his individual needs, and it was affected by the unique and complicated moniker of property that is assigned to animals.
The court’s decision found that this monkey was not considered to be a domestic animal due to his resistance and need for restraint, but the conclusion was complicated due to the court’s claim that animals are strictly chattel while nuancing the decision with non-property factors.
II. Background
Yasmin Nakhuda, an attorney at the time of the case and preceding actions, illegally and intentionally came into possession of a Japanese snow macaque that would later be named Darwin.[4] After a series of communications with an exotic pet dealer, Nakhuda agreed to buy Darwin for $10,000. Immediately after taking him home, Nakhuda experienced challenges in her attempts to domesticate the monkey, as he was regularly biting her and being difficult to manage. Due to these initial issues, Nakhuda wanted to return the monkey, but the dealer, instead, reduced the price to $5,000 and trained her to use excessive force to make him comply.[5]
On December 9, 2012, Nakhuda went to IKEA, a furniture store, leaving Darwin in the trunk of her car, seemingly secured in a crate. During Nakhuda’s time in the store, Darwin managed to escape and wandered into IKEA attracting the attention of other shoppers and Toronto Animal Services (TAS); a Toronto bylaw deems it illegal to own an exotic pet like Darwin. Nakhuda contacted the animal dealer, asking him to assist in retrieving the monkey from TAS, but he refused and, instead, refunded the $5,000 she paid.[6] Since Nakhuda could not provide proof of necessary vaccinations, and the shelter was not equipped to house an exotic monkey, Darwin was taken to Story Brook Farm Primate Sanctuary, but not before Nakhuda signed a surrender document after discussing it with a friend and her husband. Ms. Nakhuda attempted to force the return of Darwin stating that she did not understand what she was signing, but the sanctuary objected, asserting the form was plain in its language; it was also mentioned that with her legal training, Ms. Nakhuda should have recognized the nature of the document.[7]
Since December 2012, Darwin has resided at the Story Brook Farm Primate Sanctuary, where he lives with other members of his species. This result, while quite favorable for a monkey that requires socialization with other monkeys, cannot be attributed to a decision that considered what was best for him. The court insisted the decision was made purely on the legal distinction between a wild and a domestic animal. If Darwin is a wild animal, the court would have decided that he belongs to whomever had possession of him at any given time. If he is domesticated and would possibly return to his owner on his own volition, he may have been considered the property of Ms. Nakhuda.[8]
In September 2013, an Ontario Superior Court judge ruled that Darwin is a wild animal and that once he was able to escape his crate and the claimant’s car, he was no longer considered in her possession. Of notable distinction was the court’s determination that Darwin was resistant to domestication, regardless of the intent of Ms. Nakhuda. A wild animal can only be property at time of possession, and once Darwin escaped her control, Ms. Nakhuda no longer had possession of the chattel. The possessory rule dictates the rule of “ownership” of wild animals.[9] Nakhuda presented to the court that it is the nature, rather than the treatment, that determines whether an animal is wild or domestic.[10]
III. Analysis
Jurisprudence
Nakhuda attempted to classify Darwin in a wild (ferae naturae) or domestic (domitae naturae) category of animals. It was asserted that wild animals are unable to be completely tamed and need substantial intervention of “…force or skill to keep them in subjection,” and domestic animals “have been accustomed to the association of man…and have no disposition to leave his dominion.”[11] Adjacent cases were used in conjunction with the Campbell[12] classification of wild animals, Connor v The Princess Theatre(Connor) [13] and Maltais-Comeau v Laliberte (Maltais)[14] to assert a monkey and a baboon are considered wild animals. These cases mainly discuss who is at fault when a wild animal causes damage, and whether they can be considered property at the time of the damage, and if that ownership extends to a tortious claim. Damages by Darwin are not addressed, or a part of Nahkuda, but the finding of responsibility (or lack of responsibility) in Connor and Maltais, reinforces the definition provided of a wild animal asserted in Campbell.[15]
Campbell was acknowledged to be an old case with antiquated ideas relating to the social sensitivity to animals but can still be referred to as good case law that helps identify when animals are classified as either wild or domestic.[16]Campbell was used in Nakhuda to advance the ideas of possessory title ending when an animal classified as wild escapes from the possession of the person claiming to have ownership over the animal.[17] The case also discusses the distinction between wild and domestic animals as well as the possessory title rules surrounding that of domestic animals.[18] Connoraddresses when a wild animal is found within real property, and if that signifies an owner’s responsibility of any damages it may cause, while Maltais discusses wild animals contained and controlled on real property while the damages occur. Both cases reinforce the definition of wild animals asserted in Campbell by using that definition to come to their conclusions.[19]
The Doctrine of Animus Revertendi & Immediate Pursuit
The Doctrine of Animus Revertendi became a consideration of the court that complicated the clear line distinction it was intending to achieve in Nakhuda.[20] This doctrine explains the usual habit a wild animal can have of returning to the home in which it has been held by the owner from which it escaped. Using this principle “The court considered that if a wild animal had this habit, the owner from whom it had escaped could have a greater ownership interest…”[21] Once the court introduced this concept, its decision became slightly more subjective when labeling Darwin wild or domestic. This added qualification is indicative of a shift away from a rigid to a more individualized decision. Darwin’s situation could not utilize this consideration as the court found there was no way to be able to determine if he would have returned home.[22] In addition, the Doctrine of Immediate Pursuit was raised by the claimant since Darwin was taken from the store by TAS, and Ms. Nakhuda immediately pursued him. This principle is only valid when the wild animal is stolen from the possession of the owner, but Darwin was legally captured by TAS due to the complainant’s own illegal possession, and inability to keep possession, of him.[23]
The Court’s Contradictory Rationale
The decision within Nahkuda was, ultimately, the correct decision for Darwin. The court specifically mentions the monkey’s interests would not be taken into consideration, but as the court also mentions, the public sentiment regarding animals as property is shifting and has come a long way from the decision made in Campbell.[24] Reviewing the rationale used by the court, through the lens of seeing animals as chattel, exposes a contradiction; the court uses behaviour of the chattel to distinguish between wild and domestic. Nahkuda primarily uses the behaviour of Darwin, and other related cases, to classify an animal in such a way that is paramount to the decision of the court. Behaviour of the animal is most often made evident through action, action that can be objectively viewed as learned behaviour through domestication or through the inability to domesticate a wild animal. To understand the meaning of wild, the court relied on the nature of Darwin. In other words, the court took observable behaviour and classified that behaviour. Other types of chattels, or personal property, do not have the autonomy of animate movement, expression, or visible response for classification. Additionally, no other type of chattel needs proper shelter, food, water, companionship, and an entire set of provincial or Criminal Code[25] statutes to protect it from abuse and neglect. Again, the decision in Nahkuda was the appropriate decision, but the decision of the court fell outside of the logic of its own argument. Darwin is alive and the factors that should have been used in the decision of his fate were those related to his well-being. The ability to change the classification of animals away from that of property needs only a shift in thinking, “That distinction does not depend on intelligence, empathy, or the ability to feel pain…The line between persons and things is artificial.”[26]
IV. Conclusion
Nakhuda is, by no means, a case that can be understood simply by reading the court’s decision. Animals as property can be viewed strictly as a matter of law, where wild animals are property only when in possession, and domestic animals are considered property in perpetuity, parallel to the existence of the relationship between the animal and the possessor. Labeling an animal as chattel is a consistently conflicting idea, as shown in both statute and precedent, that could complicate decisions when courts begin to qualify the ownership in question, such as in the doctrine of animus revertendi and the doctrine of immediate pursuit. Contradictions are woven throughout the thought-processes of assigning the value of a chattel to a living and breathing being.
In Nakhuda, the court needed to decide who owned the monkey on the day he was retrieved from IKEA, taken to a shelter by TAS, and finally landed at the Story Brook Farm Sanctuary where he has remained since December 2012. The court determined that as a wild animal, Darwin can only be the property of those who have physical possession of him. Ms. Nakhuda’s signature on the surrender document was determined to be legitimate, and the sanctuary lawfully became Darwin’s home.[27] The decision made in the case of Nakhuda was decided correctly for Darwin, which could have been determined against his best interests had Ms. Nakhuda made the proper variations in her actions. The best interest of the animal should be the guiding rationale for the fate of the animal, but that ideology cannot be realized until animals are no longer classified as chattels.
[1] Nakhuda v Story Brook Farm Primate Sanctuary, 2013 ONSC 5761 [Nakhuda].
[2] Campbell v Headley (1917), 39 OLR 528 (CA) [Campbell].
[3] Ibid at para 4.
[4] Nakhuda, supra at para 5.
[5] Ibid at para 10.
[6] Ibid at para 12.
[7] Ibid at paras 13–15.
[8] Ibid at para 53.
[9] Shariff, “Monkey” supra at 83 at 88.
[10] Nakhuda, supra at para 19.
[11] Ibid at para 18.
[12] Campbell, supra.
[13] Connor v Princess Theatre (1912), 27 ILR 446 [Connor].
[14] Maltais-Comeau v Laliberte (1986), 68 ANB 237 [Maltais].
[15] Campbell, supra.
[16] Nakhuda, supra at para 21.
[17] Ibid.
[18] Campbell, supra at para 2.
[19] Connor, supra at para 7.
Maltais, supra at para 7.
[20] Nakhuda, supra at para 22.
[21] Ibid.
[22] Ibid.
[23] Nakhuda, supra at para 26.
[24] Campbell, supra.
[25] Criminal Code RSC, 1985, c C-46.
[26] Robert Chambers, The Law of Property, (Toronto: Irwin Law Inc, 2021) at 10.
[27] Nakhuda, supra.
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