Sisett v. Central Okanagan (Regional District)

2019 BCSC 2091 Sisett v. Central Okanagan (Regional District)

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Sisett v. Central Okanagan (Regional District), 2019 BCSC 2091 Date: 20191107 Docket: S122294 Registry: Kelowna Between: Ian Sisett and Marguerite Sisett Petitioners And Regional District of Central Okanagan Respondent Before: The Honourable Mr. Justice G.P. Weatherill Oral Reasons for Judgment In Chambers Appearing on his own behalf: I. Sisett Counsel for the Respondent: B.S. Williamson Place and Date of Trial/Hearing: Kelowna, B.C. November 6, 2019 Place and Date of Judgment: Kelowna, B.C. November 7, 2019 [1] THE COURT: These are my reasons. Introduction [2] This is a judicial review of the January 10, 2019 decision of an arbitrator appointed under the Local Government Bylaw Notice Enforcement Act ("Act"), relating to two bylaw offences alleged to have been committed by the petitioners on October 16, 2018 and November 20, 2018, respecting their dogs. [3] The bylaw offences relate to the Regional District of Central Okanagan, Bylaw No. 1343, Responsible Dog Ownership (24 February 2014), ss. 25-26: 25. No Owner shall cause or permit his or her dog to be At Large. Dogs must be kept on a secure leash held by the Owner.

26. No Owner shall cause or permit his or her dog to be within a public area to include: park, playground, sports field, school ground, swimming area or public beach where dogs are prohibited unless the area is otherwise designated by the Regional District or another local government authority. ("Bylaw") [4] The petitioners have been dog owners for quite some time. Their home is located at 3112 Watt Road, Kelowna, BC, on lakeshore property adjacent to Okanagan Lake ("Property"). It is within the Regional District of Central Okanagan. The backyard area of their home on the lake is fenced and has a gate allowing access to it. The October 16, 2018 Incident [5] On October 16, 2018, the petitioners' dog, Oso Grande, and two other dogs that were in the back yard of the Property and contained within the fenced‑in area, all standard poodles, escaped and were at large. The petitioners say that they escaped because a maintenance worker they had employed inadvertently left the gate open. [6] The respondent's animal control bylaw enforcement officers were dispatched after receiving a call that the three dogs were off leash and running loose at nearby Gyro Beach. Attempts to catch the dogs were unsuccessful. The dogs eventually ran back to the Property and were observed by the officers being let in the gate by the petitioner Ms. Sisett. [7] One of the officers explained to her that the dogs

were at large, in violation of the Bylaw. Ms. Sisett explained that the dogs escaped when a yard maintenance worker came into the back yard. She said that she had attempted to locate and catch the dogs, but they were too fast for her and she could not keep up. The officer issued a warning for three dogs violating s. 25 of the Bylaw "dogs at large", and one ticket for the three dogs violating s. 26 of the Bylaw "dog in prohibited area", namely Gyro Park. The fine associated with the infraction was $100. The November 20, 2018 Incident [8] On November 19, 2018, Oso Grande escaped the petitioners' fenced yard again. This time it is unknown how he escaped, but he is suspected to have somehow gotten through the fence. Ultimately he went on to the lakeshore and on to various public areas. [9] The following day, November 20, 2018, the petitioners called the respondent to advise that their dog had been missing since 4 p.m. the day before. Oso Grande was apparently due to be neutered that day. The petitioners also posted an ad on Castanet and Facebook, with their phone number, noting that their dog was missing and seeking the public's help. [10] The respondent's animal control officers began a search and eventually spotted the dog after being flagged down by a motorist reporting that it had been injured. The dog was spotted in several locations, but catching it proved elusive and the

search was called off. Later that day the dog was captured by a member of the public and the petitioners were informed. Unfortunately, the dog was injured to the point that it had to be euthanized. [11] A few days later the petitioners received a second bylaw offence notice in the mail, on the basis that they were in breach of s. 25 of the Bylaw when Oso Grande escaped on November 19. This time, the fine was $200. The Adjudication [12] The petitioners disputed both bylaw offence notices under the Bylaw Notice Enforcement Regulations made pursuant to the Act. The Regulations allow for an adjudication before a duly appointed adjudicator. They applied to have the tickets rescinded and fines cancelled. [13] The legislature has adopted a less complex and less expensive process for this type of dispute, which better serves both the Regional District and the public by a system of adjudication rather than in Provincial Court. The principles of evidence are relaxed and alleged offences are proven on a balance of probabilities, rather than beyond a reasonable doubt: Leaf v. Langley (Township), 2018 BCSC 335. [14] The adjudication took place on January 10, 2019. It was an informal process, as the legislation intended it to be. [15] In upholding the tickets, the adjudicator provided two sets of reasons - one for the October 16, 2018 incident and one for the November 20, 2018 incident. [16]

Respecting the October 16, 2018 incident, the adjudicator stated: The Disputant was represented by her husband, Mr. Sisett. Mr. Sisett stated that his dog had left their lake front property via the lake shore side of the property. The balance of the property is fenced; however, the lake shore side is not fenced. He stated that it is not practical to fence this part of his property to contain the dog. In addition, Mr. Sisett believes that control of your dog is limited to your property and as such he had no control over his dog going onto a prohibited area. However, the bylaw requires the dog owner to have control of the dog on and off the property. Mr. Sisett admitted that his dog was at large on the day, he did not know where the dog was during the time the ticket was issued and therefore the ticket stands. [17] The first paragraph of the adjudicator's reasons respecting the November 20, 2018 incident was identical to the first paragraph of her reasons related to the October 16, 2018 incident. She continued: In addition, Mr. Sisett believes that control of your dog is limited to your property. However, the bylaw requires the dog owner to have control of the dog on and off the property. Mr. Sisett admitted that his dog was at large on the day the ticket was issued and therefore the ticket stands. [18] The petitioners do not dispute that they fall within the bylaw's definition

of "owner" or that the three dogs were in a prohibited area and at large. [19] Section 22(1)(a) of the Act contains a strong prohibitive clause. It states: 22 (1) The determination of an adjudicator under section 21 [adjudicator decision] is final and conclusive, and is not open (a) to review in a court except on a question of law or lack of jurisdiction, [20] It is on this backdrop that the petitioners seek judicial review of the adjudicator's decision. Standard of Review [21] It is useful to remind the parties that this petition is a judicial review of the arbitrator's decision. It is not an appeal or a trial de novo. [22] In my view, the considerations set out in the seminal case of Dunsmuir v. New Brunswick, 2008 SCC 9, apply and the standard of review is reasonableness. This means that this court is required to look at the whole of the decision under review and ask "whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law": Dunsmuir, para. 47; Romegioli v. Langley (Township), 2018 BCSC 1867, paras. 35‑37. [23] This review requires a respectful attention to the reasons offered, or which could be offered, in support of the arbitrator's decisions, with deference to the arbitrator, if the decision can be reasonably supported. The Act does not require the arbitrator to give well articulated reasons, nor

address every argument advanced by a party: Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, para. 12; Romegioli, para. 35. [24] Ultimately this court's function is to determine whether the arbitrator's decisions can reasonably be supported by the law and the evidence. Evidence of Fenced Yard [25] The petitioners' evidence before the adjudicator was that the back yard of the property was completely fenced. This is supported by reports prepared by the animal control officers referring to a "fenced yard", "the gate", and that the dogs "stopped at a fenced lot entering through the gate into the yard at 3112 Watt Road". Discussion [26] The statutory framework of the Act required that the adjudicator decide, based on all the information before her, and on the balance of probabilities, whether the Bylaw was contravened. If so, the adjudicator is required to uphold the bylaw notices and order payment of the stipulated penalty. If not, the adjudicator must cancel the bylaw notices: Romegioli, paras. 15‑16. [27] Before the petitioners can be found to have violated the bylaws, both sections 25 and 26 require a finding that they shall have caused or committed the infractions. Those terms are not defined in the Bylaw. [28] For assistance, I am referred to the Supreme Court of Canada decision in R. v. Sault Ste. Marie (City), [1978] S.C.J.

No. 59, on the point. That case involved the City of Sault Ste. Marie entering into an agreement with a company for the disposal of all of its refuse. The company agreed to provide a suitable disposal site. The site was not suitable and pollution into a nearby creek ensued. The city was charged, along with the company, for breaching a provincial water resources and pollution statute. [29] The Supreme Court of Canada discussed the three types of offences: (1) true criminal offences requiring mens rea to be established; (2) absolute liability offences where convictions are made on the basis of the act itself (the actus reus), and (3) strict liability offences, where the defence of due diligence is available to the defendant if he or she establishes on a balance of probabilities that reasonable care had been taken to avoid the offence being committed. [30] Public welfare offences, such as dog owner bylaw infractions, are considered strict liability offences. The parties here agree that the bylaw offences are strict liability offences. [31] The court in Sault Ste. Marie discussed the notion of "cause" and "permit" at p. 15: As I am of the view that a new trial is necessary, it would be inappropriate to discuss at this time the facts of the present case. It may be helpful, however, to consider in a general way the principles to be applied in determining whether a person or

municipality has committed the actus reus of discharging, causing, or permitting pollution within the terms of s. 32(1), in particular in connection with pollution from garbage disposal. The prohibited act would, in my opinion, be committed by those who undertake the collection and disposal of garbage, who are in a position to exercise continued control of this activity and prevent the pollution from occurring, but fail to do so. The "discharging" aspect of the offence centres on direct acts of pollution. The "causing" aspect centres on the defendant's active undertaking of something which it is in a position to control and which results in pollution. The "permitting" aspect of the offence centres on the defendant's passive lack of interference or, in other words, its failure to prevent an occurrence which it ought to have foreseen. The close interweaving of the meanings of these terms emphasizes again that s. 32(1) deals with only one generic offence. [32] Both parties agree, and there is no debate, that the Regional District of Central Okanagan has proven the actus reus of the offences. [33] The petitioners say, however, that the adjudicator failed to consider their due diligence defence, and erroneously considered the offences were absolute liability offences rather than strict liability offences. They say that before they can be found to have committed the offences, they

must have "caused" or "committed" them within the meaning of the Bylaw, and as interpreted by the Supreme Court of Canada in Sault Ste. Marie. In other words, they say they must have actively participated in the offences being committed, which they say they did not. They assert that their back yard was completely fenced in, and that they played no active role in the dogs getting out. They point to the lack of reference in the adjudicator's reasons to any mention of the efforts the petitioners went to to prevent the dogs from being at large, namely have a gated fenced‑in back yard. On this basis, the petitioners say that the arbitrator failed to give any consideration to their defence of due diligence. [34] They also say the arbitrator misconstrued the evidence respecting their perimeter of the fence, commenting incorrectly that it was not fenced on the lake side when the evidence was that was totally fenced on all four sides. The petitioners' evidence was that, because the back yard was fully fenced, the dog must have been "an escape artist" to have gotten out of the yard. [35] The arbitrator's reasons are short. As earlier mentioned, there is no requirement that they be any more detailed than they were. However succinct they are, the reasons give a glimpse into the arbitrator's approach. Her finding that "the bylaw requires the dog owner to have control of the dog on and off

the property" is telling. [36] Similar to Justice Armstrong's conclusion in Leaf v. Langley (Township), at para. 74, I find that the arbitrator did not address the factual and legal issue of due diligence. [37] I am satisfied from a review of her reasons and the evidence that was before her that the arbitrator erroneously concluded that the Bylaw was one of absolute liability, making the petitioners responsible for control of their dog on and off their own property. It clearly is not. The bylaw offences are ones of strict liability. The adjudicator committed a reviewable error when she failed to address this important aspect of the petitioners' defence. [38] She incorrectly found that sections 25 and 26 of the Bylaw requires an owner to have control of his or her dog, both on and off the owner's property. It does not. The Bylaw is intended to prohibit owners from allowing their dogs, or dogs under their care and control, from being at large, running loose in public areas without being leashed, and from allowing their dogs to be in a prohibited public area. [39] While the terms "cause or commit" are not defined in the Bylaw, I conclude that they connote a degree of active participation or control over the offences or a state of indifference, acquiescence or permitting the offences to occur, as in the failure to prevent the dogs from escaping when such an escape ought to have

been reasonably foreseen. Decision [40] In sum, looking at the whole of the arbitrator's decisions under review, I conclude that they are not ones that fall within the range of possible acceptable outcomes which, having regard to the facts in the law, are defensible. [41] The petition is allowed. The bylaw offence notices RDCO 005211 and RDCO 003120 are ordered cancelled. [42] The petitioners are entitled to costs. [43] Those are my reasons. Anything arising? [44] IAN SISETT: Yes, My Lord. Entitled to costs did you say? [45] THE COURT: I did. Yes. [46] MR. WILLIAMSON: My Lord, the only point I guess -- and I am aware that Mr. Justice Armstrong ordered costs in that case. I do not believe though that he had before him the law with respect to generally, on a judicial review, costs are not awarded. So I do not want to belabour the point, but I would like to make very brief submissions on that point. [47] THE COURT: Certainly. I did not hear submissions on this. [48] MR. WILLIAMSON: I have been on the other side with the province, and had that -- [49] THE COURT: Let me ask this question. Mr. Sisett, are you seeking costs? [50] IAN SISETT: Well, I think they do fall -- if you look at Leaf v. Langley (Township), there was a special hearing in that regard, and this was canvassed in that case. [51] THE COURT: So the answer is, yes. [52] IAN SISETT: Yes. [53] THE COURT: Do you want to

make written submissions? [54] MR. WILLIAMSON: Yes, and I am gone as of Wednesday, so I will try and get them by Tuesday before I leave. They will be very short. [55] THE COURT: So when can you get submissions? Short submissions. [56] IAN SISETT: That will be fine -- by Tuesday. [57] THE COURT: Did you say, that on judicial reviews, costs are not typically allowed? [58] MR. WILLIAMSON: Yes. [59] THE COURT: I am not aware of that, so you will have to help me out. [60] MR. WILLIAMSON: Well I did not think so either but I had great quantities of law provided by the province on another matter which I will make reference to. [61] THE COURT: Perhaps what you can do is prepare your short submissions, provide those to Mr. Sisett for his review, and he will have a look at it from a reasonable perspective and decide whether he wants to pursue costs or not. [62] MR. WILLIAMSON: I will try and get them to him beforehand, and make them short, and then he can maybe say yea or nay before I get on the plane on Wednesday. [63] THE COURT: So I will amend my reasons. I will say, costs to be spoken to. [64] MR. WILLIAMSON: Thank you, My Lord. [65] THE COURT: Thank you both. "G.P. Weatherill J."