Plaintiff had monkey. Plaintiff went shopping and left monkey in double locked crate inside locked car. Monkey escaped from crate and car and ran away. Monkey entered store and was picked up by Toronto Animal Services (TAS). Plaintiff arrived at shelter to claim monkey. TAS would not give monkey to plaintiff, as it was concerned that monkey could contain diseases that were fatal to humans. After plaintiff consulted with husband and friend she signed document that stated “I surrender/sign over the animal”. TAS took animal to defendant sanctuary where sanctuary signed adoption form. Sanctuary refused to give monkey to plaintiff. Plaintiff brought action to recover monkey. Action dismissed. Monkey was not domestic animal. Monkey was wild animal by virtue of behaviour and qualities. Concept of habit of returning home did not apply, as monkey had not previously escaped so it was not possible to know whether it might have returned home. Concept of immediate pursuit did not apply. Although plaintiff immediately pursued monkey once she learned it had escaped, monkey was not stolen. Provisions of city’s bylaw did not oust common law qualified property rights in wild animals. When monkey ran away from plaintiff and she lost possession of him, she also lost ownership of him. Plaintiff had no right to have monkey returned to her. Sanctuary was owner of monkey.
Nakhuda v. Story Book Farm Primate Sanctuary (Sep. 13, 2013, Ont. S.C.J., M.E. Vallee J., File No. Oshawa 81654/12) 235 A.C.W.S. (3d) 297.