Visinski v. Central Okanagan (Regional District)

2010 BCSC 823 Visinski v. Central Okanagan (Regional District)

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Visinski v. Central Okanagan (Regional District), 2010 BCSC 823 Date: 20100610 Docket: 43298 Registry: Kamloops Between: Andy Visinski Appellant And Regional District of Central Okanagan Respondent Before: The Honourable Mr. Justice Dley On appeal from: A decision of the Provincial Court of British Columbia, dated August 21, 2009 (R. v. Visinski, Docket Numbers M 008269-508 and M 008270-508) Reasons for Judgment Counsel for the Appellant R. Burke Counsel for the Respondent T. DeSouza Place and Date of Hearing: Kamloops, B.C. May 18, 2010 Place and Date of Judgment: Kamloops, B.C. June 10,2010 [1] This is a summary conviction appeal with respect to a finding that Mr. Visinski failed to control his dog as required by a Regional District of Central Okanagan (the "Regional District") bylaw. The offence took place in the City of Kelowna. [2] The narrow issue on this appeal is whether the Regional District's bylaw governed a resident of Kelowna. Background Facts [3] On November 19, 2008, a letter carrier was delivering mail within the City of Kelowna. A dog owned by Mr. Visinski came at the letter carrier. The dog was snarling and barking. The letter carrier described the manner of approach as being in the form of an attack. Ultimately, the dog backed off on its own and did not come into contact with the letter carrier. [4] Mr.

Visinski was charged and convicted of breaching s. 17.5 of the Regional District of Central Okanagan, Revised By-law No. 366, Dog Regulation and Impounding By-law [Bylaw No. 366], which states: An owner shall control his dog to ensure that the dog shall not, without provocation, aggressively pursue, inflict minor injury, harass, cause secondary injury, chase or approach a person on public or private property in an attitude of attack. Issues [5] There are two issues in this appeal: 1. Did the evidence at trial support a finding of guilt?

2. Did the Regional District bylaw apply within the limits of the City of Kelowna? Issue 1: Did the Evidence at Trial Support a Finding of Guilt? [6] On a summary conviction appeal, the appellate court is to determine whether the trier of fact could reasonably have reached the conclusion that the appellant was guilty beyond a reasonable doubt. The appellate court must review the trial judge's reasons and the evidence to determine whether the findings and conclusion are supported on the facts. The appellate court is not to reassess evidence, but must review the record at the trial level to ensure that the trial court has directed itself to the evidence relating to the charge. [7] The judicial justice of the peace was alive to the requirements set out in s. 17.5 of Bylaw No.

366. The findings are supported by the evidence. The letter carrier did not provoke the dog. The dog approached the letter carrier in an attitude of attack. [8] Accordingly, I conclude that there was sufficient evidence to support a finding that Mr. Visinski failed to control his dog as required under s. 17.5 of Bylaw No.

366. Issue 2: Did the Regional District Bylaw Apply Within the Limits of the City of Kelowna? [9] A municipality may provide any service considered necessary and that may be done through another public authority (s. 8(2) of the Community Charter, S.B.C. 2003, c. 26). The municipality has the authority to provide effective management and delivery of services, which includes the regulation of animals (s. 8(3)(k) of the Community Charter). The powers conferred on municipalities must be interpreted broadly (s. 4 of the Community Charter). [10] The legislative provision relevant to these aspects of this appeal is s. 8 of the Community Charter, which states: 8 (1) A municipality has the capacity, rights, powers and privileges of a natural person of full capacity. (2) A municipality may provide any service that the council considers necessary or desirable, and may do this directly or through another public authority or another person or organization. (3) A council may, by bylaw, regulate, prohibit and impose requirements in relation to the following: ... (k) animals[.] [11] The Regional District may regulate the keeping of dogs pursuant to s. 703(1)(a) of the Local Government Act, R.S.B.C. 1996, c. 323 [Act]. The Regional District has the power to make agreements respecting its services (s. 176(1)(a) of the Act), and may operate a service within or outside the Regional District (s.

796 of the Act). In order to operate a service, the Regional District must have an establishing bylaw (s. 800(1) of the Act) with the consent of the other affected local government (ss. 796.1, 801.4 of the Act). [12] The relevant provisions, ss. 176, 703, 796, 796.1, 800, 800.1, and 801.4 of the Act, state as follows: Corporate Powers 176 (1) Subject to the specific limitations and conditions established under this or another Act, the corporate powers of a board include the following: (a) to make agreements respecting (i) the regional district's services, including agreements respecting the undertaking, provision and operation of those services, other than the exercise of the board's regulatory authority, (ii) operation and enforcement in relation to the board's exercise of its regulatory authority[.] ... Animal control authority 703 (1) Subject to subsection (2), the board may, by bylaw, do one or more of the following: (a) regulate or prohibit the keeping of dogs, horses, cattle, sheep, goats, swine, rabbits or other animals and define areas in which they may be kept or may not be kept; ... General authority for services 796 (1) Subject to the specific limitations and conditions established under this or another Act, a regional district may operate any service that the board considers necessary or desirable for all or part of the regional district. (2) The authority under

subsection (1) includes the authority to operate a service in an area outside the regional district as well as in the regional district itself. Consent required for services outside regional district 796.1 (1) Before establishing a service referred to in section 796 (2) [services outside regional district], the board must (a) obtain the consent of the other affected local government in accordance with subsection (2), and (b) after receiving that consent, obtain the approval of the Lieutenant Governor in Council. (2) For the consent required by subsection (1) (a), (a) if the area is in a municipality, the consent of the council of the municipality is required[.] Establishing bylaws required for most services 800 (1) In order to operate a service, the board must first adopt an establishing bylaw for the service in accordance with this Division. Required content for establishing bylaws 800.1 (1) An establishing bylaw for a service must do the following: (a) describe the service; (b) define the boundaries of the service area; (c) identify all municipalities and electoral areas that include participating areas for the service; ... Consent on behalf of municipal participating area 801.4 If a proposed participating area is all of a municipality, the council may give participating area approval by (a) consenting on behalf of the electors to adoption of the proposed bylaw, and (b)

notifying the board of its consent. [13] The City of Kelowna has for years relied upon the Regional District to enforce its dog control bylaws. [14] On September 10, 1990, the Regional District passed a bylaw "to convert a function to an extended service for the purpose of providing Dog Control": Regional District of Central Okanagan, By-law No. 425, Dog Control Extended Service Establishment By-law (10 September 1990). [15] On June 9, 2003, the City of Kelowna passed a resolution consenting to the adoption of the Regional District's bylaw expanding the extended service of providing dog control to include the City of Kelowna. Subsequently, the Regional District adopted its bylaw expanding the extended service to also include the City of Kelowna on August 18, 2003: Regional District of Central Okanagan, Bylaw No. 1017, Dog Control Extended Service Establishment Amendment Bylaw (18 August 2003). [16] However, on September 15, 2003, the City of Kelowna repealed its dog regulation. Thus, as a result of its resolution of September 15, 2003, the City of Kelowna no longer has its own dog regulation. [17] The Regional District argues that in addition to the enforcement services that it provided to the City of Kelowna, its complete bylaw regulating an owner's duties also applies within the City. The Regional District does not take issue with the principle that a local government cannot

re-delegate its powers unless specifically authorized by the Province. [18] It is trite law that unless there is a statutory provision, one local government cannot pass laws that exceed its own territorial jurisdiction. [19] Counsel have advised this Court that there are no previous cases that deal with this issue. [20] The Regional District is entitled to extend its services of providing dog control within or beyond its territorial jurisdiction as long as the affected local government or municipality consents. The City of Kelowna has consented to adopting the extended service. However, that does not include an adoption of the Regional District's dog control regulation, Bylaw No. 366. [21] Section 5 of the Act provides the following definition of "service": "service" means, in relation to a regional district, (a) an activity, work or facility undertaken or provided by or on behalf of the regional district and the exercise of regulatory authority under Part 15 [Specific Regional District Service Powers], section 796 (4) and (5) [general authority for services] or section 796.2 [general authorities in relation to services] in relation to such an activity, work or facility, and (b) a regulatory service; [22] With respect to dog control, the defining words of "service" would limit the Regional District to enforcement. That would not include the power to extend the Regional

District's dog control bylaw, Bylaw No. 366, into the City of Kelowna. [23] As well, the City of Kelowna is not permitted to delegate its law making powers as they relate to animals to the Regional District. [24] Thus, at the time Mr. Visinski is alleged to have failed to control his dog, there was no such dog control bylaw within the City of Kelowna. Rather, by repealing its dog control bylaw in 2003, the City of Kelowna was left with an enforcement service, but no bylaw to enforce. [25] The result is that s. 17.5 of Bylaw No. 366 does not apply within the City of Kelowna. Accordingly, the appeal is allowed and Mr. Visinski is not guilty of the offence as charged. "S.D. Dley J." DLEY J.