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CAUTION !

This page is in no way legal advice, and in no way are we anybody but a regular person who has no lawyer degree or anything of the sort.  This information is just snippets we found in case law that was interesting to us.

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Two-year limitation governs negligence claims against municipalities

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Paul Hergott is a lawyer in Kelowna, who also writes in the Kelowna Capital News

Hergott: Breast baring limitations not legally clear
By Paul Hergott - Kelowna Capital News - August 15, 2013

Credit for this week’s column topic goes to local Internet phenomenon, Lori Welbourne, who produces an edgy talk radio show every Wednesday night called “On the Rocks” with co-hosts Jason Rock and Stuntman Steve. The show comes with the alluring warning: “On The Rocks contains mature and sexual subject matter, listener discretion is advised”.

One of the Internet headline topics of discussion this week was 19 year old model, Cheyenne Lutek, who tested the limits of New York City’s recently relaxed laws regarding partial nudity by slipping off her blouse in a trendy restaurant. She was escorted out by management, but later posed topless with two New York City police officers who have been directed not to cite topless women for public lewdness or indecent exposure.

To prepare for the show, Lori posted the topic on facebook asking about the legality of baring breasts in Kelowna. I couldn’t resist doing a little research.

What would happen if you were to bare your breasts in public in Kelowna? In 1906, you might have spent time in jail. When looking for by-laws on the subject on the City of Kelowna website I came upon this piece of history: “"1906 - Kelowna City Council passed a bylaw and instructed the presiding Chief of Police, William Brent, to prohibit nude bathing in Okanagan Lake between 6 a.m. – 9 p.m. Skinny-dippers were fined $100 or sentenced to 30 days in jail!"

The only current City of Kelowna by-laws I could find, related to breasts, have to do with the circumference of trees. I was interested to learn that tree circumference is measured at breast height. It’s a defined term: “Circumference at Breast Height” (CBH for short). Imagine that. In the context of women’s breasts, does that strike you as problematic? Is it unrestrained or brassiered breasts, for example?

The municipality of Maple Ridge passed a by-law in 1997 requiring “females over the age of eight (8) years” to “fully cover all portions of their nipples and aureole with opaque apparel”. The by-law was passed in specific response to Linda Meyer’s declaration that she would be baring her breasts in a public leisure centre. Linda disregarded the by-law and was charged. The court hearing the matter declared the by-law void because a municipality does not have jurisdiction to create by-laws that fall within the gamut of criminal law.

Criminal law is an exclusively federal (Canada wide) matter, and is contained within the Criminal Code. Public nudity provisions in the Criminal Code do not specifically name body parts. Instead, offending the Criminal Code requires offending “public decency”. Whether or not public decency is offended depends on what the “community standard of tolerance” is.

Ms. Meyer’s bold assertion that she would go bare-breasted was no doubt inspired by legal developments in Ontario the previous year. A 1996 Ontario Court of Appeal decision found that while most women might choose not to be bare-breasted in public, it is not something that offends the “community standard of tolerance”. The decision resulted in the acquittal of Ms. Gwen Jacob who had been criminally charged and fined $75.00 for removing her shirt.

You might find this odd, but court decisions in other provinces are not automatically binding in British Columbia. They are persuasive, though, particularly when they come from a court of appeal. If I “had a pair” in the female context, I would feel very confident that I could dangle them on the streets of Kelowna without risk of a criminal conviction.

I doubt that this clarification about the law will result in the mass display of women’s nude breasts in Kelowna, but I wonder if it might reduce the frowns of disapproval that seem to crop up when a mother attaches her baby’s mouth to that supposedly offensive part of her anatomy in public?

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Did you know if you were injured and were taking someone to court over it, that you are required to inform the BC Government so that the BC Government may lay a claim against the wrongdoers who caused your injury to recover Healthcare costs, except if the injury was caused by the operation of a motor vehicle, tobacco related, or employment related?

Health Care Costs Recovery Act

Requirement to notify government of claim
4 (1) Within 21 days after commencing a legal proceeding referred to in section 3 (1) [obligation to claim], written notice of the legal proceeding must be given to the government.

Application of this Act
24 (3) This Act does not apply in relation to health care services that are provided or are to be provided to a beneficiary in relation to

(a) personal injury or death arising out of a wrongdoer's use or operation of a motor vehicle if the wrongdoer has, when the injury is caused, coverage under the plan, as those terms are defined in the Insurance (Vehicle) Act,

(b) personal injury or death arising out of a tobacco related wrong as defined in the Tobacco Damages and Health Care Costs Recovery Act, or

(c) personal injury or death arising out of and in the course of the beneficiary's employment if compensation is paid or payable by the Workers' Compensation Board out of the accident fund continued under the Workers Compensation Act.

Here is a link to the form you would fill out to notify the government of your claim.

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Nanaimo (City) v. Rascal Trucking Ltd., [2000] 1 S.C.R. 342
Case name: Nanaimo (City) v. Rascal Trucking Ltd.
Collection: Supreme Court Judgments
Date: 2000-03-02
Neutral citation: 2000 SCC 13
Report citation: [2000] 1 S.C.R. 342
Case number: 26786
On appeal from: British Columbia
Subjects: Municipal law

36 Kruse v. Johnson, [1898] 2 Q.B. 91 (Div. Ct.), has long been an authority in Canadian courts for scrutinizing the reasonableness of municipal by-laws. There, Lord Russell of Killowen offered the courts some cautionary language on findings of unreasonableness (at p. 100):

A by-law is not unreasonable merely because particular judges may think that it goes further than is prudent or necessary or convenient, or because it is not accompanied by a qualification or an exception which some judges may think ought to be there. Surely it is not too much to say that in matters which directly and mainly concern the people of the county, who have the right to choose those whom they think best fitted to represent them in their local government bodies, such representatives may be trusted to understand their own requirements better than judges.

Or as more recently expressed in Shell, supra, per McLachlin J., at p. 244:

Recent commentary suggests an emerging consensus that courts must respect the responsibility of elected municipal bodies to serve the people who elected them and exercise caution to avoid substituting their views of what is best for the citizens for those of municipal councils. Barring clear demonstration that a municipal decision was beyond its powers, courts should not so hold. In cases where powers are not expressly conferred but may be implied, courts must be prepared to adopt the “benevolent construction” which this Court referred to in Greenbaum, and confer the powers by reasonable implication. Whatever rules of construction are applied, they must not be used to usurp the legitimate role of municipal bodies as community representatives.

37 I find these comments equally persuasive in the scrutiny of municipal resolutions. The conclusion is apparent. The standard upon which courts may entertain a review of intra vires municipal actions should be one of patent unreasonableness.

====

Ultra vires is a Latin phrase meaning literally "beyond the powers", although its standard legal translation and substitute is "beyond power".

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IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: Butterman v. Richmond (City), 2013 BCSC 423
Date: 20130313
Docket: S090357
Registry: Vancouver
Docket: S107417
Reasons for Judgment
Place and Date of Hearing: New Westminster, B.C. October 12, 2012
Place and Date of Judgment: Vancouver, B.C. March 13, 2013

E. Discussion

[35] It is well-settled that to prove a claim of negligence, a plaintiff must show: (a) that the defendant owed the plaintiff a duty of care; (b) that the defendant’s conduct breached the applicable standard of care; (c) that the plaintiff sustained damages, and, (d) that the damage was caused, in fact and in law, by the defendant’s breach: see Mustapha v. Culligan of Canada Ltd., 2008 SCC 27, [2008] 2 S.C.R. 114, at para. 3.

[36] In the case at bar, it is not a matter of controversy: (a) that the City and RAPS owed Ms Butterman a duty of care in relation to the enforcement of Richmond’s animal control bylaw; (b) that the applicable standard of care is that which would be expected of an ordinary, reasonable and prudent body in the same circumstances (see Foley v. Shamess, 2008 ONCA 588); and, (c) that where an independent contractor (i.e., RAPS) complies with the standard imposed by the terms of its contract with the government (i.e., the City), even if this standard is below the applicable common law standard, no liability can result to the contractor (see Holbrook v. Argo Road Maintenance Inc., 1996 CanLII 3600 (B.C.S.C) at paras. 34 and 35).

[37] Similarly, it is not in issue that the manner of enforcement of the bylaw in question is a matter of policy within the discretion of the City. There has been neither a suggestion that there is an express statutory duty obliging the City to enforce the bylaw nor any argument that such is implicit. In the absence of such a positive duty, the jurisprudence establishes that the City is afforded broad discretion to determine how it will enforce its own bylaws, and that the manner of enforcement is not to be left to the whims or dictates of the citizenry (see Foley v. Shamess, supra, at para. 29).

[38] Where enforcement of a bylaw is discretionary, as it is here, the City is obliged to: (a) act in good faith in relation to its decisions as to how the bylaw will be enforced; and, (b) act with reasonable care in any steps it takes to enforce the bylaw (see Foley v. Shamess, supra, at para. 29; Froese v. Hik, [1993] B.C.J. No. 731 (B.C.S.C.)). As Huddart J. (as she then was) succinctly stated in Froese, supra:

... Municipalities do not insure or guarantee everything included in applications filed to obtain permits under regulatory schemes. They do not even insure or guarantee compliance with by-laws, unless the by-law or the enactment authorizing that by-law creates a statutory duty to enforce some or all of its provisions. Municipalities in the position of Matsqui owe a duty of good faith decision-making to the public as a whole and a duty to take reasonable care in the implementation of a regulatory scheme to those in sufficient proximity to merit that duty. The precise nature and extent of that duty is determined on a case by case basis, taking into account the nature and purpose of the authorizing legislation, the nature and purpose of the subordinate legislation, and the relationship between the municipality and the person asserting its obligation of care. It may be that such a duty does not extend to encompass purely economic loss (and there may be other policy reasons limiting the scope of the duty of care). These are the principles I extract from Kamloops, supra and Manolakos, supra.

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IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: Clark v. Regina, 2003 BCSC 564
Date: 20030411
Docket: 56347
- and -
Docket: 56307
Registry: Kelowna
Registry: Kelowna
Between: Jean Elise Clark Appellant And Regina Respondent
Between:
Counsel for the respondent B. Williamson
Date and Place of Trial/Hearing: Kelowna
February 22, 2003 B.C.

[50] In Spraytech, the court upheld a bylaw that restricted the use of pesticides within the city of Montreal. At para. 23, L’Heureux-Dube J. commented:

In Nanaimo (City) v. Rascal Trucking Ltd., [2000] 1 S.C.R. 342, 2000 SCC 13, at para. 36, this Court quoted with approval the following statement by McLachlin J. (as she then was) in Shell Canada Products Ltd. v. Vancouver (City), [1994] 1 S.C.R. 231, at p. 244:

Recent commentary suggests an emerging consensus that courts must respect the responsibility of elected municipal bodies to serve the people who elected them and exercise caution to avoid substituting their views of what is best for the citizens for those of municipal councils. Barring clear demonstration that a municipal decision was beyond its powers, court should not so hold. In cases where powers are not expressly conferred but may be implied, courts must be prepared to adopt the “benevolent construction” which this court referred to in Greenbaum, and confer the powers by reasonable implication. Whatever rules of construction are applied, they must not be used to usurp the legitimate role of municipal bodies as community representatives. [Emphasis added]

[51] I concur with those comments.

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Shell Canada Products Limited Appellant v. City of Vancouver Respondent
and
The Attorney General of Canada, the Attorney General for Ontario and the Attorney General of Quebec Interveners
Indexed as: Shell Canada Products Ltd. v. Vancouver (City)
File No.: 22789.
1993: April 27; 1994: February 24.
on appeal from the court of appeal for British Columbia

Courts must respect the responsibility of elected municipal bodies to serve the people who elected them and exercise caution to avoid substituting their views of what is best for the citizens for those of municipal councils.

I agree with Arbour J.A. that this case is governed by the decision of this Court in Montréal (City of) v. Arcade Amusements Inc., supra, with respect to the discrimination in the by-law scheme. In that case, the Court held that the power to pass municipal by-laws does not entail that of enacting discriminatory provisions (i.e., of drawing a distinction) unless in effect the enabling legislation authorizes such discriminatory treatment. See also Rogers, The Law of Canadian Municipal Corporations (2nd ed. 1971), at pp. 406.3-406.4:

It is a fundamental principle of municipal law that by-laws must affect equally all those who come within the ambit of the enabling enactment. Municipal legislation must be impartial in its operation and must not discriminate so as to show favouritism to one or more classes of citizens. Any by-law violating this principle so that all the inhabitants are not placed in the same position regarding matters affected by it is illegal.

The general principle does not apply where the enabling statute clearly specifies that certain persons or things may be excepted from its operation or expressly authorizes some form of discrimination.

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Citation: Smith v. Central Okanagan (Regional District), 2013 BCSC 228
Date: 20130215
Docket: 96292
Registry: Kelowna
Between: Dave Smith Appellant
And
Regional District of Central Okanagan Respondent
On appeal from: Provincial Court of British Columbia, August 9, 2012, (Central Okanagan (Regional District) v. Smith, Kelowna 74546-1)
Place and Date of Trial/Hearing: Kelowna, B.C. January 21-22, 2013
Place and Date of Judgment: Kelowna, B.C. February 15, 2013

[57] In general, the appellant argues that none of the individual events, examined separately, could provide a reasonable basis for Ms. Giesbrecht’s opinion that Diesel is dangerous to people within the meaning s. 49 of the Community Charter, and that therefore the trial judge erred in concluding he was. Whether any of the individual events are capable of grounding a reasonable belief that Diesel is dangerous or not, the trial judge’s task was not to examine each event in isolation from the others. To do so would have been to do that which the Supreme Court of Canada eschewed in R v. Stewart, [1977] 2 S.C.R. 748. There the court said that each piece of evidence is not to be analyzed separately and divorced from the context with the whole of the evidence (at p. 759). The court relied on Côté v. The King (1941), 77 C.C.C. 75 (S.C.C.), where Taschereau J. wrote at p. 76:

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IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: T.S.G. Sales Ltd. v. Vancouver (City), 2012 BCSC 1177
Date: 20120803
Docket: S107845
Registry: Vancouver
Between: T.S.G. Sales Ltd. and N.P. Boutiques Ltd. Petitioners And The City of Vancouver and The Director of Planning Respondents
Place and Date of Hearing: Vancouver, B.C. May 10, 2012
Place and Date of Judgment: Vancouver, B.C. August 3, 2012

[53] It is not clear what legal purpose this evidence is intended to serve. There was a time when a discrimination claim required some proof of an improper motive to either aid or injure one party. This may no longer be the case. This evolution is succinctly expressed in David Jones & Anne de Villars, Principles of Administrative Law, 5th ed. (Toronto: Carswell, 2009) at 193:

(b) Discrimination

There is also a presumption that a statutory delegate must not exercise its discretion in a discriminatory manner. Chief Justice McKeigan stated the test for what constitutes discrimination in Lacewood Development Co. v. Halifax (City) as follows.

Wrongful discrimination involves two elements, both of which must be present before a by-law should he condemned on this ground:

(1) The by-law must discriminate in fact. To use the words of Middleton, J. in the “classic definition’’, by-laws discriminate if they “give permission to one and refuse it to another”.

([2]) The factual discrimination must be carried out with the improper motive of favouring or hurting one individual and without regard to the public interest.

Some more recent cases suggest that the second part of the Lacewood test—an improper motive—is no longer required to establish discrimination. These cases focus more on whether there has in fact been discrimination and on whether the enabling legislation authorizes it (either expressly or impliedly), or whether the discrimination was necessarily incidental to the exercise of the delegate’s powers.

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Citation: Sunshine Coast (Regional District) v. Sheppard and Delaney,
2007 BCSC 1754
Date and Place of Trial: May 30-31, 2007,
June 1, 2007, and June 14, 2007
Vancouver, B.C.
URL: http://www.courts.gov.bc.ca/jdb-txt/sc/07/17/2007bcsc1754.htm

2. The Kennel Bylaw
A) Is the Kennel Bylaw Invalid Due to Vagueness or Uncertainty?
B) Is the Kennel Bylaw Invalid Due to Overbreadth?
C) Is the Kennel Bylaw Invalid Due to Unreasonableness?

[58] Conversely, all parties must recognize that they and their neighbours want to enjoy a rural lifestyle which to some degree should be a more peaceful lifestyle than a completely urban lifestyle. All the residents of this neighbourhood clearly have the expectation that buying a five-acre parcel in a rural community ensures some aspect of quiet and enjoyment of the environment. That being said, one cannot be so selfish as to suggest that one is free to make noise whenever one so chooses, but are also free to demand quiet when one desires quiet. I mentioned earlier in these Reasons that Mr. Denley chose to locate his residence very close to the property line with the defendants. He is very close to the property line with the defendants. That was his choice. The videos in evidence suggest that there are virtually no trees between his home and the property line. Trees act as a buffer for noise. Again, this was Mr. Denley’s choice. There are consequences to him for that choice. In fairness, he cannot demand absolute quiet in his bedroom when he chooses to sleep with a bedroom window open and his bedroom is 30 metres or less from his neighbour’s property line.

[63] The defendants must know that the plaintiffs could easily bring a similar action with better evidence as to noise disturbance. Some reasonable additional measures should be taken by the defendants to avoid this possibility. Firstly, the defendants should commit to maintaining the dogs in kennel buildings from the hours of 8:00 PM to 8:00 AM.

[64] Additionally, the kennel structures should be enhanced to prevent sound emanating from them. This is clearly possible to do. Such limited restrictions would allow the neighbours a reasonable period of quiet time to use and enjoy their properties. Additionally, further steps should be taken by the defendants to monitor the dogs while they are outside in the dog runs. It is simply not acceptable to let dogs bark with only limited verbal commands being given for them to be quiet.

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No. S3178
Duncan Registry
DATES OF HEARING: November 29, 30 and, December l, l993
IN THE SUPREME COURT OF BRITISH COLUMBIA
BETWEEN: COWICHAN VALLEY REGIONAL DISTRICT AND COWICHAN VALLEY GUN CLUB

The issue here is not the same as that in Regina v. Weltzin (1989) 46 M.P.L.R. 43 wherein Judge Selbie (as he then was) found a general barking dog bylaw could not be invoked to shut down a legal non-conforming commercial kennel, nor could a bylaw which required kennel operators to take effective precautions to restrain barking, yelping and howling.

Judge Selbie's reasons do not indicate he was dealing with a crescendo of noise as is the case here. He was dealing with an application which, if successful, would "effectively bar the continued lawful use of the property".

In this case there is a middle ground. It is not out of keeping with Judge Selbie's observation that, had the dog bylaws included the words "excessive" or "unreasonable", he might have come to a different conclusion. Common sense requires that there be some reasonable and legitimate limitation

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Vancouver Registry Court of Appeal for British Columbia
BETWEEN: AVTAR SINGH JAGPAL carrying on business as JAGPAL BROTHERS FARMS and the said JAGPAL BROTHERS FARMS
AND THE CORPORATION OF THE DISTRICT OF SURREY
Place and Date of Hearing: Vancouver, British Columbia May 21, 1993

3 These by-law provisions were enacted pursuant to s.932(c) of the Municipal Act, R.S.B.C. 1979, c.290, which provides:

(c) regulate or prohibit the making or causing of noises or sounds in or on a highway or elsewhere in the municipality which disturb, or tend to disturb, the quiet, peace, rest, enjoyment, comfort or convenience of the neighbourhood, or of persons in the vicinity, or which the council believes are objectionable or liable to disturb the quiet, peace, rest, enjoyment, comfort, or convenience of individuals or the public, and may make different regulations or provisions for different areas of the municipality.

4 The words "or prohibit" were added to the predecessor to s.932(c), then s.870(c) of the Municipal Act, R.S.B.C. 1960, c.255, by s.71 of the Municipal Act Amendment Act, 1964. That amending legislation was introduced in the legislature by Bill 67 and received Royal Assent March 20, 1964. An explanatory statement to Bill 67 submitted by Legislative Counsel reads:

71. Adds the power to prohibit sources of noise.

5 The essential issue before the court below was whether the impugned section of the by-law was within the power of the municipal council under the provisions of s.932(c) of the Municipal Act. Mr. Justice Leggatt held that it was.

6 In my respectful view the learned judge below arrived at the correct conclusion for the reasons which he gave and to which there is nothing I can usefully add.

7 I would, accordingly, dismiss the appeal.

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Dhillon v. Richmond (Mun.), 1987 CanLII 2623 (BC SC)
Date: 1987-07-24
Docket: A870176
URL: http://www.canlii.org/en/bc/bcsc/doc/1987/1987canlii2623/1987canlii2623.html
Parallel citations: 16 BCLR (2d) 80
Citation: Dhillon v. Richmond (Mun.), 1987 CanLII 2623 (BC SC)

[25] In Re Pride Cleaners & Dyers Ltd. reflex, (1964), 50 W.W.R. 645, 49 D.L.R. (2d) 752 (sub nom. R. v. Pride Cleaners & Dyers Ltd.) (B.C.S.C), the municipal council enacted a noise by-law prohibiting certain works which caused noise between certain hours but provided that “in the cases where it is impossible or impractical to comply with this section, the mayor may give consent in writing” to carrying on these works between these hours. This provision was held to be invalid. The court held that the provision could not be severed. The test is whether the invalid provisions were an integral or an indispensable part of the whole by-law. The portion which is good must be clearly distinguishable from the portion which is bad so that the good portion forms a complete by-law. Whether the bad portions of a bylaw are severable from the good portions is of course a matter to be considered in each case. In this case it cannot be said that a good portion is clearly distinguishable from the portion which is bad. The invalid portion is an integral portion of the whole by-law. In light of the invalidity of s. 16, the whole by-law cannot stand.

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Brooks v. Regional District of North Okanagan, 2005 BCPC 606 (CanLII)
Date: 2005-12-21
Docket: C34301
URL: http://canlii.ca/t/1m9v2
Citation: Brooks v. Regional District of North Okanagan, 2005 BCPC 606 (CanLII)

Issue 1

Sections 285 and 286 of the Local Government Act provide:

Limitation period for actions against municipality

285 All actions against a municipality for the unlawful doing of anything that

(a) is purported to have been done by the municipality under the powers conferred by an Act, and

(b) might have been lawfully done by the municipality if acting in the manner established by law,

must be commenced within 6 months after the cause of action first arose, or within a further period designated by the council in a particular case, but not afterwards.

Immunity unless notice given to municipality after damage

286 (1) A municipality is in no case liable for damages unless notice in writing, setting out the time, place and manner in which the damage has been sustained, is delivered to the municipality within 2 months from the date on which the damage was sustained.

(2) In case of the death of a person injured, the failure to give notice required by this section is not a bar to the maintenance of the action.

(3) Failure to give the notice or its insufficiency is not a bar to the maintenance of an action if the court before whom it is tried, or, in case of appeal, the Court of Appeal, believes

(a) there was reasonable excuse, and

(b) the defendant has not been prejudiced in its defence by the failure or insufficiency.

A. Two month limitation period to provide written notice

The test, as I understand it from a review of the authorities, is could the municipality have done the act complained of in a lawful manner? If so, then the six month limitation act applies, if not, then the general limitation period applies. For example, there is no lawful way in which a municipality could flood a citizen’s house and property. These acts of negligence are a private breach of a public power and would not bring the six month limitation period into play. In other words, could the municipality acting lawfully under the statute do the alleged harm to claimant?

======================

[31] Burnyeat J. discussed the jurisprudence interpreting section 286 in both Keen and Griffiths . The following principles emerge:

1. The onus is on the claimant to prove she had a reasonable excuse for not giving the notice within the two months.

2. Ignorance of the law is one factor to consider in assessing the reasonableness of the excuse, although standing alone, it does not constitute a reasonable excuse.

3. Other factors include: whether there is an uncertainty as to whether a municipality was involved or not; whether a potential plaintiff is incapacitated and not in a position to provide notice; where the gravity of the injury did not become apparent until after the notice period had lapsed; the mental condition and age of the complainant; and whether the potential claimant has been lulled into a false sense of security as a result of actions or inactions on behalf of the municipality.

Other factors which were discussed by the Court of Appeal in Chavez are:

4. Attempts by the claimant to get legal advice, and what that advice was.

5. Lack of fluency in the English language.

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Wikipedia.org

Peace Officer Status

Today, all bylaw enforcement officers employed in Canada are de facto Peace Officers; in numerous provinces, bylaw officers are also de jure Peace Officers for the purpose of enforcing municipal laws, having been sworn under various Police Acts. Courts have ruled on several occasions, most recently in 2000 (in R. v. Turko), that the definition of Peace Officer under section 2 of the Criminal Code of Canada includes bylaw officers as "other person[s] employed for the preservation or maintenance of the public peace or for the service or execution of civil process."[1] As such, while actually engaged in the execution of their duties, Bylaw Enforcement Officers are Peace Officers, independent of whether they are sworn or unsworn constables.

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R. v. Tanton, 2006 BCPC 226 (CanLII)
Date: 2006-05-29
Docket: 61199-1
URL: http://canlii.ca/t/1ng7j
Citation: R. v. Tanton, 2006 BCPC 226 (CanLII)

Duties

Section 18. It is the duty of members who are peace officers, subject to the orders of the Commissioner,

to perform all duties that are assigned to peace officers in relation to the preservation of the peace, the prevention of crime and of offences against the laws of Canada and the laws in force in any province which they may be employed, and the apprehension of criminals and offenders and others who may be lawfully taken into custody.

Section 19 specifically states;

Unless authorized by the Governor in Council, members shall not be charged with any duties under or in connection with any municipal by-laws.

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Hadley v. Seacrest Apartments Ltd. et al, 2004 BCPC 596 (CanLII)
Date: 2004-04-23
Docket: 2002-77103
URL: http://canlii.ca/t/1mvlp
Citation: Hadley v. Seacrest Apartments Ltd. et al, 2004 BCPC 596

[37] The law on nuisance has been succinctly expressed by Professor Fleming in his text of Canadian Tort Law as follows:

The standard employed in determining whether the defendant’s activity is an unreasonable interference is an objective one. Thus the defendant need govern his conduct only with reference to the reactions of normal persons, in the particular locality and not with reference to idiosyncrasies of the particular plaintiff.

Examples of dog nuisance cases:

http://canlii.ca/t/fnvtt

http://canlii.ca/t/2196b

 

IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: Anderson v. Jeffries, 2008 BCSC 1410
Date: 20081023
Docket: S13814
Registry: Chilliwack
Between: Robert C. Anderson and Jacqueline D. Anderson Plaintiffs And Katherine Mary Jeffries Defendant
Counsel for the defendant and West Coast Spay and Neuter Society P.W. Janzen
Date and Place of Trial/Hearing: March 3-6, and June 24-25, 2008 Chilliwack, B.C.

[21] I am satisfied the operation of the dog shelter is an unreasonable interference with the use of the plaintiff’s neighbouring property. The odour and barking have unreasonably interfered with such normal uses as outdoor gardening and enjoyment of decks and patios. The barking disturbs sleep at night, and the attraction of rats also accounts for their presence on other properties in the area.

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West Vancouver v. Taylor, 2003 BCPC 80 (CanLII)
Date: 2003-02-27
Docket: M00999247
URL: http://canlii.ca/t/5c9t
Citation: West Vancouver v. Taylor, 2003 BCPC 80 (CanLII),

[2] There is no dispute that the Municipality has jurisdiction under the Local Government Act (RSBS 1996, C.323) to enact a noise bylaw. West Vancouver noise control bylaw No.3908, 1994 was enacted "to regulate or prohibit the making of noise in the Municipality which the council believes to be objectionable or liable to disturb the quiet, peace, rest, enjoyment, comfort or convenience of individuals or the public". Those words are subjective but do not cause any special or particular problems in interpretation [Dhillon and Dhillon and Municipality of Richmond v. The Attorney-General of British Columbia, 1987 CanLII 2623 (BC SC), (1987) 16 BCLR (2d) 80, as cited in British Columbia v. Boyce [1990] BCJ 1946 [SCBC]]. And on the issue of jurisdiction, there is a principle of statutory interpretation which must be considered: that the "powers of local governments must be given a generous interpretation because their closeness to the [people] who live and work in their territory make them more sensitive to the problems experienced by those individuals" [R. v. Guignard 2002 SCC 14 (CanLII), (2002) 209 DLR (4th) 549 @ paragraph 17].

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Chiang v. Yang, 1999 BCPC 29 (CanLII)
Date: 1999-04-09
Docket: 97-35098
URL: http://canlii.ca/t/1hq7f
Citation: Chiang v. Yang, 1999 BCPC 29 (CanLII)

[45] On the question of damages for actionable nuisance, Cohen J. cites with approval the following passage from Fridman, Q.C., "The Law of Torts in Canada, Vol. I" (Toronto: Carswell, 1989) in Kenny v. Schuster Real Estate Co., supra:

It has been said that no proof of damage is required where the nuisance consists of the personal inconvenience and interference with one’s enjoyment, one’s quiet, one’s personal freedom, or anything that discomposes or injuriously affects the senses or the nerves.

No actual financial or physical damage need be proved as the damage in such cases consists in the annoyance and discomfort caused to the occupier of the premises. However, a number of decisions have concerned the possibility of a claim for financial loss resulting from such interference. Plaintiffs have argued that their property has lessened in value, in terms of saleability on the market, because the smoke, noise, dust, fumes, etc, made the plaintiff’s property not as desirable as it might have been without such interference.

If the plaintiff is to seek a remedy, it must be shown, in the first instance, that the plaintiff believed that what the defendant was doing would result in such diminution of the value of the plaintiff’s property. In other words, there must be a causal connection between the defendant’s conduct and the alleged drop in value. Second, it must be proved that here was some diminution in value. One way to establish this, perhaps the best or truest way, is to show that attempts were made to sell the property and failed, or could only succeed if the price were significantly reduced from would otherwise be a reasonable market price.

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West Vancouver v. Taylor, 2003 BCPC 80 (CanLII)
Date: 2003-02-27
Docket: M00999247
URL: http://canlii.ca/t/5c9t
Citation: West Vancouver v. Taylor, 2003 BCPC 80 (CanLII)

[8] Freedom of expression is described as "... among the most fundamental rights possessed by Canadians. It makes possible our liberty, our creativity and our democracy. Because of the importance of the guarantee of free expression any attempt to restrict the right must be subject to the most careful scrutiny. The values underlying the right to free expression include individual self-fulfilment, finding the truth through the open exchange of ideas and the political discourse fundamental to democracy. As stated in Irwin Toy (1989 CanLII 87 (SCC), [1989] 1 SCR 927 at page 968) the guarantee ensure[s] that everyone can manifest their thoughts, opinions, beliefs, indeed all expressions of the heart and mind, however unpopular, distasteful or contrary to the mainstream" [R. v. Sharpe, 2001 SCC 2 (CanLII), (2001) 194 DLR (4th) 1 [SCC] at paragraphs 21-23]. The municipality agrees that creating and playing music is protected as a form of expression illustrative of individual self-fulfilment.

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West Vancouver v. Taylor, 2003 BCPC 80 (CanLII)
Date: 2003-02-27
Docket: M00999247
URL: http://canlii.ca/t/5c9t
Citation: West Vancouver v. Taylor, 2003 BCPC 80 (CanLII)

[17] With music, as with any artistic expression, there will always be people with a different opinion or appreciation. However, with music the opposing party may not have an option of turning away. Therefore to protect the equally important interest of "peaceful coexistence" there must also be some limitations. Those limitations must be objective and proportional. Section 4(a)(i) of West Vancouver Noise Control Bylaw No. 3908, 1994 fails in this instance and is deemed to be invalid. This determination will be suspended for six months to allow the Municipality the opportunity to make whatever adjustments may be necessary as a result of this decision.

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Prince George (City of ) v. Sedlock, 2001 BCPC 419 (CanLII)
Date: 2001-12-06
Docket: 12146
URL: http://canlii.ca/t/5ljp
Citation: Prince George (City of ) v. Sedlock, 2001 BCPC 419 (CanLII),


[18] The defendant suggested that the doctrine of scienter applies to Misty and that each dog is entitled to one bite. The doctrine of scienter is alive and well in civil proceedings, I'll grant that, where the owners of dogs are sued civilly and can repel a civil claim in negligence if they can demonstrate the dog had no previous history of biting or it was unknown to them. Scienter, however, does not apply here. It's Misty's behaviour and likelihood of future harm that is at issue, not what Mr. Sedlock knew.

[19] The defendant also proposes a secure lock-up for Misty, a return under conditions, and has quoted a case from Vancouver Provincial Court where Judge Davies considered such a thing in the past. However, in the recent case of Regina v. Demster in the Court of Appeal, the Court of Appeal noted the words of the former Associate Chief Justice of the B.C. Supreme Court, that in regard to Section 8 applications, and I quote, "the Provincial Court is not able to consider a conditional order". In effect, the court can only grant or dismiss the application.

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Citation: Meade v. Armstrong (City), 2011 BCSC 1591
Date: 20111122
Docket: 40909
URL: http://www.courts.gov.bc.ca/jdb-txt/SC/11/15/2011BCSC1591.htm
Registry: Kamloops

[68] Abuse of process is an adjunct doctrine to the rules relating to action and issue estoppel. Abuse of process has been used to prevent relitigation, to avoid inconsistent results and to preserve the integrity of the court’s process. The policy that underlies it is the same as supporting issue estoppel: Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, at paras. 38 and 42.

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R. v. Campbell, 2006 BCPC 601 (CanLII)
Date: 2006-07-12
Docket: 25027
URL: http://canlii.ca/t/1rdjb
Citation: R. v. Campbell, 2006 BCPC 601 (CanLII)

[118] However it is categorized, the essential nature of an abuse of process claim is explained by Madam Justice MacLachlin in the following quote from R. v. Scott, 1990 CanLII 27 (SCC), [1990] 3 S.C.R. 979 at p. 1007, referred to at paragraph 50 of the Supreme Court of Canada’s decision in R. v. Regan, (2002) S.C.R. 14:

“... abuse of process may be established where: (1) the proceedings are oppressive or vexatious; and, (2) violate the fundamental principles of justice underlying the community's sense of fair play and decency. The concepts of oppressiveness and vexatiousness underline the interest of the accused in a fair trial. But the doctrine evokes as well the public interest in a fair and just trial process and the proper administration of justice. I add that I would read these criteria cumulatively.”

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R. v. Campbell, 2006 BCPC 601 (CanLII)
Date: 2006-07-12
Docket: 25027
URL: http://canlii.ca/t/1rdjb
Citation: R. v. Campbell, 2006 BCPC 601 (CanLII)

[121] A judicial stay of proceedings is the remedy of last resort; the “ultimate remedy”, to be used only in “the clearest of cases”: Regan, above, paragraph 53. When a judge grants a judicial stay of proceedings he or she is essentially saying that the Crown, despite having proved, beyond a reasonable doubt that the Accused broke the law, is disentitled to a conviction because of its conduct.

[122] Before granting this “ultimate remedy” the court must consider first whether the abuse of process that it has found will be perpetuated or aggravated by the conduct of the trial or by its outcome. If the answer is “yes” then the court must consider the second issue of whether there is any other remedy, short of a stay of proceedings, that is capable of remedying the prejudice caused by the abuse of process. If there is still uncertainty about whether the drastic remedy of a stay of proceedings is warranted, the court should engage in a third and final analytic step by balancing the Accused’s and society’s interests in, on the one hand, staying proceedings and on the other hand, continuing with the prosecution: Regan, above, paragraphs 53 to 57.

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R. v. Knuhtsen, 2009 BCPC 352 (CanLII)
Date: 2009-11-24
Docket: 42301-1
URL: http://canlii.ca/t/27thh
Citation: R. v. Knuhtsen, 2009 BCPC 352 (CanLII)

[2] The defence applies for a Stay of Proceedings on the grounds that the peace officer used excessive force in arresting the accused, thereby infringing his rights under s. 7 of the Canadian Charter of Rights and Freedoms.

[60] Secondly, I turn to the question of whether a stay is the only remedy? In my view, the answer must be answered in the negative. As was pointed out in McCrea there are other remedies available in these situations. In the event of a conviction, a sentencing court could take the conduct of the police into account. The officers in this case were members of the RCMP and therefore subject to the public police complaint process. Alternatively, civil process is also available.

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Small Claims Act
[RSBC 1996] CHAPTER 430

Evidence

16 (1) The Provincial Court may admit as evidence in a proceeding under this Act or the rules any oral or written testimony, record or other thing that the court considers is credible or trustworthy and is relevant to the matter being heard, even though the testimony, record or other thing is not admissible as evidence in any other court under the laws of evidence.

(2) The Provincial Court may not admit as evidence in a proceeding under this Act or the rules anything that is privileged under the laws of evidence.

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R. v. Atlas, 2005 BCPC 456 (CanLII)
Date: 2005-08-09
Docket: 132166-1-D
URL: http://canlii.ca/t/1ltsg
Citation: R. v. Atlas, 2005 BCPC 456 (CanLII)

[8] Further, it is clear as stated at paragraph, I believe it was 40 of the Jamieson decision, that even if the circumstances are such as to permit a warrantless entry, then that entry must be no more extensive than required to ensure safety. Here the police made what from the evidence appears to be a full entry and full search through all the rooms of the suite. Now, that may been more extensive than required. I wasn't entirely clear on that because in my view there wasn't sufficient evidence in that regard, and I say only that I think in these cases the onus is on the Crown to justify a warrantless search of a dwelling.

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‎R. v. Pridy, 2011 BCPC 325 (CanLII)
Date: 2011-11-21
Docket: 180968-1
URL: http://canlii.ca/t/fp0zh
Citation: R. v. Pridy, 2011 BCPC 325 (CanLII)

[31] Based upon the evidence presented, I find the delay has resulted in prejudice to the rights of the accused that are protected by s. 11(b), and I find those interests in this case, having regard to all of the circumstances outlined in this ruling, outweigh any societal interest in this matter proceeding any further. The constitutional breach having therefore been made out, I direct that there be a judicial stay of all counts on the Information.

[29] In review of the foregoing then, this accused has experienced a total delay from the date of the Information being sworn until the ultimate trial date of just over 18 months, and out of which just over 15 months is attributable to a lack of institutional resources as compared to a guideline range of eight to ten months.

[30] The 17-judge shortfall in judicial complement is not sudden, but instead, chronic, and has been largely unaddressed by government, which is a decision entirely within its rightful domain.

[31] Based upon the evidence presented, I find the delay has resulted in prejudice to the rights of the accused that are protected by s. 11(b), and I find those interests in this case, having regard to all of the circumstances outlined in this ruling, outweigh any societal interest in this matter proceeding any further. The constitutional breach having therefore been made out, I direct that there be a judicial stay of all counts on the Information.

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On appeal from: Supreme Court of British Columbia, May 22, 2012
(Vilardell v. Dunham, 2012 BCSC 748, Vancouver Docket E081953)
Vilardell v. Dunham, 2013 BCCA 65
Date: 20130215
Docket: CA039971
Citation: Vilardell v. Dunham, 2013 BCCA 65
Date: 20130215
Docket: CA039971
Between: Montserrat Vilardell Respondent(Plaintiff) And Bruce Dunham Respondent(Defendant) And Attorney General of British Columbia Appellant (Intervenor) And
Canadian Bar Association – British Columbia Branch, and Trial Lawyers Association of British Columbia Respondents (Intervenors)
And West Coast Women’s Legal Education and Action Fund
Place and Date of Hearing: Vancouver, British Columbia January 21, 22 and 23, 2013
Place and Date of Judgment: Vancouver, British Columbia February 15, 2013

40. The trial hearing fees have increased over the years in the following fashion:

i. 1968 – Hearing Fees of $10.00 for the first day of trial and $5.00 for each additional day or part thereof: Supreme Court Rules, 1968, Appendix M, Schedule 3, Fees Payable to the Crown, s. 2.

ii. 1976 – Hearing Fees of $30.00 for each additional day or part thereof after the fifth day: Supreme Court Rules, 1976, Appendix C, Schedule 1, Fees Payable to the Crown, s. 2.

iii. 1990 – Hearing Fees of $50.00 per half day or less, or $100.00 per day or any period less than a day but more than half a day: Supreme Court Rules, 1990, Appendix C, Schedule 1, Fees Payable to the Crown, s. 8.

iv. 1998 – Hearing Fees of $156.00 for a trail of half a day or less, and for trials extending beyond half a day, $412.00 for days one through five, $416.00 for days six through ten and $624.00 for each subsequent day: B.C. Reg. 74/98.

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COURT OF APPEAL FOR BRITISH COLUMBIA
Citation: Vilardell v. Dunham, 2013 BCCA 65
Date: 20130215
Docket: CA039971
Between: Montserrat Vilardell Respondent(Plaintiff)
And Bruce Dunham Respondent (Defendant)
And Attorney General of British Columbia Appellant (Intervenor) And Canadian Bar Association – British Columbia Branch, and
Trial Lawyers Association of British Columbia Respondents (Intervenors) And West Coast Women’s Legal Education and Action Fund Intervenor

Corrected Judgment: The text of the judgment was corrected  at paragraph 18 on February 19, 2013
On appeal from: Supreme Court of British Columbia, May 22, 2012
(Vilardell v. Dunham, 2012 BCSC 748, Vancouver Docket E081953)
Place and Date of Hearing: Vancouver, British Columbia January 21, 22 and 23, 2013
Place and Date of Judgment: Vancouver, British Columbia February 15, 2013

Rule 20-5 – Persons Who Are Impoverished

Court may determine indigent status

(1) If the court, on application made in accordance with subrule (3) before or after the start of a proceeding [family law case], finds that a person receives benefits under the Employment and Assistance Act or the Employment and Assistance for Persons with Disabilities Act or is otherwise impoverished, the court may order that no fee is payable by the person to the government under Schedule 1 of Appendix C in relation to the proceeding [family law case] unless the court considers that the claim or defence

(a) discloses no reasonable claim or defence, as the case may be,

(b) is scandalous, frivolous or vexatious, or

(c) is otherwise an abuse of the process of the court.

[am. B.C. Regs. 119/2010, Sch. A, s. 34 (a); 112/2012, Sch. A, s. 4 (b).]

[Emphasis added.]

[41] Granting an automatic exemption to recipients of employment or disability insurance suggests a more generous approach than was previously taken. The enlarged scope of the exemption in Rule 20-5, then, should be read as saying “impoverished or in need”. The phrase is intended to cover those who could not meet their everyday expenses if they were required to pay the fees. Courts will continue to use their discretion to determine whether a litigant is impoverished or in need to the point that but for the hearing fees, they would be able to pursue their claim, thus qualifying for an exemption.

[42] Ms. Vilardell’s application for relief remains outstanding. Ordinarily we would send the matter back to the trial court for decision, but this is the only remaining loose end and the case has been subject to considerable delay. Her counsel asked that we deal with it and since no one objects, I would allow the application and exempt her from the fees.

[43] In the result, I would allow the appeal and set aside the order striking the hearing fees rule. The rule is to be interpreted and applied in the manner indicated. I would also grant Ms. Vilardell’s application to be relieved from paying the fees.

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IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: Chase v. The Municipality of Surrey, 2012 BCSC 71
Date: 20120119
Docket: S132319
Registry: New Westminster
Between: Edward Chase Plaintiff And
The Municipality of Surrey
The Greater Vancouver Regional District
The British Columbia Society for the Prevention of Cruelty to Animals Defendants
Place and Date of Hearing: New Westminster, B.C.
November 28, 2011
Place and Date of Judgment: New Westminster, B.C. January 19, 2012

[50] In the matter of costs, I note that in Brown v. Black Top Cabs Ltd., [1998] 5 W.W.R. 666 (B.C.C.A.) a five-member division of the Court of Appeal held that personal circumstances are not to be considered in awarding costs. Similarly, financial hardship, in and of itself, is not a proper ground upon which to decline an award of costs. See Robinson v. Lakner, [1998] B.C.J. No. 1047 (C.A.) at paras. 5-6 and also Morris v. John Doe, 2011 BCSC 1053 at paras. 35-40. Therefore, I award costs to Surrey in the amount of $500 payable forthwith by Mr. Chase.

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COURT OF APPEAL FOR BRITISH COLUMBIA
Citation: Vancouver (City) v. Zhang, 2011 BCCA 138
Date: 20110322
Docket: CA036802
Between: City of Vancouver Respondent (Petitioner)
And Sue Zhang, John Doe, Jane Doe, and Other Persons Unknown
Erecting, Maintaining or Occupying Structures on City of Vancouver
Street in the 3300 Block of Granville Street, Vancouver, British Columbia, Appellants (Respondents)
Corrected Judgment: Counsel for the Respondent was corrected on March 25, 2011
Supplementary Reasons to: Court of Appeal for British Columbia, October 19, 2010
(Vancouver (City) v. Zhang), 2010 BCCA 450, Vancouver Docket No. CA036802)
Place and Date of Hearing: Vancouver, British Columbia March 29 & 30, 2010
Written Submissions Received: January 19 and 27, 2011
Date of Supplementary Judgment: March 22, 2011

[14] This case fits squarely within the scope of public interest litigation. The question of the scope of the right to political freedom of expression guaranteed by s.2(b) if the Charter, was of significance not only to the parties, but also to the broader community. The proper resolution of the constitutional question in dispute between these parties served the public interest and was of profound importance to the general public. In Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927, the Supreme Court of Canada reiterated the importance of the guarantees of freedom of expression provided by the Charter at 968-969:

...Freedom of expression was entrenched in our Constitution and is guaranteed in the Quebec Charter so as to ensure that everyone can manifest their thoughts, opinions, beliefs, indeed all expressions of the heart and mind, however unpopular, distasteful or contrary to the mainstream. Such protection is, in the words of both the Canadian and Quebec Charters, “fundamental” because in a free, pluralistic and democratic society we prize a diversity of ideas and opinions for their inherent value both to the community and to the individual. Free expression was for Cardozo J. of the United States Supreme Court “the matrix, the indispensable condition of nearly every other form of freedom” (Palko v. Connecticut, 302 U.S. 319 (1937), at p. 327); for Rand J. of the Supreme Court of Canada, it was “little less vital to man's mind and spirit than breathing is to his physical existence” (Switzman v. Elbling, [1957] S.C.R. 285, at p. 306). And as the European Court stated in the Handyside case, Eur. Court H. R., decision of 29 April 1976, Series A No. 24, at p. 23, freedom of expression:

... is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population. Such are the demands of that pluralism, tolerance and broad-mindedness without which there is no “democratic society”.

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Case name: Moore v. The Queen
Collection: Supreme Court Judgments
Date: 1978-10-17
Report citation: [1979] 1 S.C.R. 195
On appeal from: British Columbia
Subjects: Criminal law
Supreme Court of Canada
Moore v. The Queen, [1979] 1 S.C.R. 195
Date: 1978-10-17
Richard Harvey Moore Appellant;
and
Her Majesty The Queen Respondent.
1978: June 6, 7; 1978: October 17.
ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA

No Common Law Duty

There is no duty at common law to identify oneself to police. As was stated by Lord Parker in Rice v. Connolly[5], at p. 652:

[Page 209]

It seems to me quite clear that though every citizen has a moral duty or, if you like, a social duty to assist the police, there is no legal duty to that effect, and indeed the whole basis of the common law is the right of the individual to refuse to answer questions put to him by persons in authority, and to refuse to accompany those in authority to any particular place, short, of course, of arrest.

The fact that a police officer has a duty to identify a person suspected of, or seen committing, an offence says nothing about whether the person has the duty to identify himself on being asked. Each duty is entirely independent. Only if the police have a lawful claim to demand that a person identify himself, does the person have a corresponding duty to do so. As McFarlane J.A. said in R. v. Bonnycastle[8], at p. 201, the duty of a peace officer to make inquiries must not be confused with the right of a person to refuse to answer questions in circumstances where the law does not require him to answer.

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The Council Animal Advocacy (CLAW) Mission, B.C., Canada
Anti-Noise Pollution Program

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From Click Law - Neighbour Law
Many of us have had occasional problems with neighbours involving noise, untidy premises, dogs, fences, trees and hedges, secondhand smoke, water damage, or trespass. This script describes the laws that deal with these types of problems and what you can do.

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On CanLII website - Court cases about Barking Dogs

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Your ignorance is their power
Your ignorance is their power

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Imagine a world where dogs took bad owners to the pound...

Imagine a world where dogs took bad owners to the pound...

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BC Dog Legislation Facebook group started by a community member

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**PLEASE NOTE THESE ARE ONLY SNIPPETS OF THE LOCAL GOVERNMENT BYLAW NOTICE ENFORCEMENT ACT AND REGULATIONS**

Local Government Bylaw Notice Enforcement Act

Bylaw notice
4 (1) Subject to the regulations, a local government may designate bylaw contraventions which may be dealt with by bylaw notice under this Act.
(2) If a matter is prescribed by regulation as only enforceable by bylaw notice, a local government bylaw in relation to the matter may only be enforced by bylaw notice.
Hearings must be open to the public

19 (1) A dispute adjudication must be open to the public unless the determination is to be based on written materials.
(2) If a determination is based on written materials, the local government must make those materials available to the public.
(3) Public access to an oral hearing or to the materials submitted for an adjudication in writing may be provided by the local government in any reasonable manner, which may include by electronic means.

Offence Act
27 The Offence Act does not apply in respect of a bylaw contravention if a bylaw notice is issued in respect of the contravention.

Local Government Bylaw Notice Enforcement Act Bylaw Notice Enforcement Regulation

I notice at the bottom of the page (link above - Regulation) there is a long list of local governments who have signed up for the Bylaw Dispute Adjudication Process.

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DOGS ARE NOT TO BE OUTSIDE BARKING BETWEEN THE HOURS OF 8PM AND 7AM IN THE REGIONAL DISTRICT OF CENTRAL OKANAGAN OUTSIDE THE AGRICULTURAL LAND RESERVE AND IN AN "R" PLANNING ZONE.  RDCO Consolidated Zoning Bylaw #871

.pdf icon RDCO CONSOLIDATED DOG BYLAW #366

PART 1- GENERAL
2. In this by-law unless the context otherwise requires:

Hobby Kennel means a house or property where 3 to 20 dogs are kept or are intended to be kept.

Kennel Operation Permit means written approval by the Regional District of Central Okanagan for a person to have a hobby kennel or a service kennel on a specific lot.

Noise means continuous barking, howling or yelping sounds lasting more than 5 minutes or the sound of barking, howling or yelping sporadically or erratically for a cumulative duration of 5 minutes or longer in any 15 minute period which sounds are repeated again within 72 hours.

Service Kennel means a facility or property on which more than 20 dogs are kept or are intended to be kept.

=======================================================================

PART III - CONTROL OF DOGS
21.1 Dogs are to be held within the kennel building between the hours of 8:00 p.m. and 7:00 a.m.


21.2 No person being the owner or occupant of any private premises shall permit, allow or suffer the noise of barking, yelping or howling sounds from a dog(s) to be caused or made at the private premises owned or occupied by that person, in a manner that can easily be heard or otherwise perceived by an individual who is not at the same private premises.

==========================================================

Please read the part in red above. I spoke with the person at Dog Control who usually answers the phone when I call there (Theresa) today July 7, 2012 and she told me she believes that Kennel building could mean your house. So I take it that a dog house could mean a kennel building as well? There is nothing in RDCO dog bylaw definitions saying what a kennel means and when I look up the definition on the net it says a shelter for a dog (the following is what I read about the definition).

Kennel means - A shelter for a dog.
http://www.thefreedictionary.com/kennel

A kennel is the name given to any structure or shelter for dogs. A kennel is a doghouse, run, or other small structure in which a dog is kept.
http://en.wikipedia.org/wiki/Kennel

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Kelowna mayor suggesting banning motorcycles from downtown
AM 1150 - 6/6/2012

The mayor of Kelowna says the downtown will be much quieter in the future if he has anything to say about it.

Many residents have complained about the noise motorcycles make while cruising along Bernard Avenue.

Walter Gray suggested that if 14 million dollars is being spent to make the area more pedestrian friendly, why not ban motorcycles all together.

"I'm wondering if we should just push this envelope for Bernard Avenue as a start and simply ban motorcycles from it".

Gray says the province is dragging its heels on legislation allowing municipalities to enforce a noise bylaw.

Gray has written the premier expressing his concern.

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Mulgrew: B.C.'s hefty civil court fees struck down as unconstitutional
By Ian Mulgrew, Vancouver Sun - May 22, 2012

B.C. Justice Mark McEwan severely stomps the practice of making civil litigants pay thousands of dollars for their day in court

After two years of deliberation, B.C. Supreme Court Justice Mark McEwan has struck down Victoria’s hefty civil court hearing fees as unconstitutional.

In the landmark 178-page ruling released Tuesday, Justice McEwan declared “some things cannot be for sale” and slammed the provincial government for its approach to legal funding.

“The court is an essential forum of that common life, and cannot perform its necessary function if it, like so much else, is subject to the values of the marketplace the government has used to justify the fees,” he wrote.

The government charges litigants $500 a day starting on day four of a trial and $800 a day after day 10.

This constitutional throw-down arose from a typical family custody matter and the ruling could have far-reaching effects.

In this instance, a single woman pleaded that she should be spared the fees after losing a custody trial.

The legal tug of war with her ex-partner started in 2008 when the 43-year-old woman decided to return to Europe with her five-year-old daughter.

It cost her more than $20,000 in lawyer’s fees just to get to the eve of trial.

She then was forced to litigate herself because she couldn’t pay the lawyer to appear in court.

Her husband, a University of B.C. instructor, also represented himself at the 10-day trial. Neither is happy: This expensive system failed them both.

At the end of the proceedings, the woman asked Justice McEwan to waive the $3,600 she owed in court fees.

But the judge said that unless she was declared indigent, he had no power to give her a break without declaring the fees unconstitutional.

At that point, he decided to hear arguments about their legitimacy.

“A person who cannot afford a fee of $100 or $200 may properly be described as indigent, that is, as being ‘destitute,’ ‘needy,’ ‘in want,’ ‘poor’ or ‘necessitous’ as the dictionaries define the term,” Justice McEwan said.

“It is an awkward word to use to describe a middle class family’s inability to pay a month’s net salary for the two-week ‘rent’ of a courtroom.”

Ironically, the three-day constitutional debate would have added $1,872 in fees.

Justice McEwan’s decision means the woman will not have to pay the hearing fees and puts in jeopardy the revenue the government reaps from them — about $2 million a year — if it does not appeal.

At the time of this litigation, the fees started at $156 for a half-day hearing and rose to $624 a day after 10 days.

Justice McEwan said this amounted to the government imposing a barrier to access to the judiciary and “this creates a constitutionally untenable appearance of hierarchy.”

He went on to say: “It is evident from the sources presented that in the last two decades the government of B.C. has lost its enthusiasm for supporting the courts at a level required to fulfil their purposes.”

Justice McEwan added that the breadth and implications of the economic and constitutional material he considered led to the “unusual delay” in producing the impassioned ruling that reviewed centuries of legal history.

The decision’s effects will be substantial — lawsuits over the tragic 2006 sinking of the Queen of the North ferry, for instance, were abandoned in part because of the hurdle posed by $40,000 in fees and jury costs.

The public may not be an active participant in a private dispute between litigants, but Justice McEwan said it has an abiding and important interest in every case.

The outspoken jurist called the fees a “bad idea” during 2010 proceedings.

But no one expected him to so severely stomp the practice of making civil litigants pay thousands of dollars for their day in court — controversial levies that Victoria vigorously defended.

“Wow!” said lawyer Darrell Roberts, of the Trial Lawyers Association of B.C. who made submissions in the case.

“This is wonderful. I was never expecting this. He’s done a great job. We won.”

The Canadian Bar Association’s B.C. branch, which also participated in the case, celebrated too.

“Justice McEwan has declared hearing fees unconstitutional and in so doing found that the fees, which escalate to over $600 per day, are an impediment to the courts for all but those who are well-to-do,” said Stephen McPhee, past president.

“This decision reaffirms that the courts exist for both the rich and the poor, those with small cases and those with large cases.”

Reasonable fees may be charged for services, but Justice McEwan said civil litigants don’t have to pay the exorbitant hearing-day costs that Victoria argued had been a part of British justice for half a millennium.

He said the attorney-general’s approach to financing the courts revealed “a significant misunderstanding by the government of its responsibilities under, and the limitations on, its constitutional mandate …”

Fees for time in court that put a price on or acted as a barrier to justice could not be allowed to stand nor could any “legislative constraints designed to limit access.”

“Support for the civil courts is not seen as a cost of good government but as a discretionary expense to be minimized, amateurized (no legal aid), or privatized, wherever possible,” Justice McEwan archly wrote.

He pointedly quoted from the recent book — What Money Can’t Buy, the Moral Limits of Markets — saying the “marketization of everything” is not good for democracy, “nor is it a satisfying way to live.”

Given the current tension between the judges and the executive branch, his much-anticipated decision is even more pertinent and germane than when the arguments occurred.

The government had argued that the English and Welsh civil systems today are completely financed by user fees.

In this province, Victoria said, court fees predate Confederation.

But B.C. hadn’t collected hearing-day fees since before the First World War and the present levies were imposed only in 1998.

The only other Canadian jurisdictions imposing hearing fees (though at much lower levels) are Saskatchewan, Yukon and the Northwest Territories.

Victoria insisted the fees were intended to make the court more efficient and trials less lengthy.

But the Trial Lawyers criticized the exorbitant and escalating tariffs, saying Victoria was robbing the needy.

Roberts, who represented the lobby group, said the fees were abhorrent.

The bar association said the fees made it impossible for people of modest means to have their day in court, and disproportionately blocked first nations, the disabled, immigrants, lone parents and women from access to justice.

At the end of the last century, the Nova Scotia Supreme Court found similar hearing fees that increased with the length of the trial were unconstitutional.

That decision was never appealed.

imulgrew "at" vancouversun.com

© Copyright (c) The Vancouver Sun

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Local Government Act
[RSBC 1996] CHAPTER 323
This Act is Current to April 25, 2012
Division 3 — Sundry Powers
Part 22 — Miscellaneous Powers

Noise control

724 (1) If a regional district provides a service referred to in section 797.1 (1) (d), the board may, by bylaw, do one or more of the following:

(a) regulate or prohibit the making or causing of noises or sounds in or on a highway or elsewhere in the regional district

(i) that disturb, or tend to disturb, the quiet, peace, rest, enjoyment, comfort or convenience of the neighbourhood, or of persons in the vicinity, or

(ii) that the board believes are objectionable or liable to disturb the quiet, peace, rest, enjoyment, comfort or convenience of individuals or the public;

(b) prevent or prohibit persons from shouting, using megaphones and making other noise in, at or on streets, wharves, docks, piers, steamboat landings, railway stations or other public places;

(c) prevent charivaries and similar disturbances of the peace.

(2) Regulations and prohibitions under subsection (1) (a) may be different for different areas of the regional district.

 

RDCO Dog Advisory Committee Minutes of June 22, 2011 on page 1 of 5 it states quote: "The Local Government Act indicates a noise complaint pertains to a neighborhood or persons affected, not one person." THIS IS NOT TRUE!

We were at the June 22, 2011 Dog Advisory Committee meeting and heard Chief Bylaw Enforcement Officer Rhoda Mueller state the above (in red).

Chief Bylaw Enforcement Officer Rhoda Mueller has spread misleading information to the Dog Advisory Committee and most likely the Regional District of Central Okanagan Board Members if they read the Dog Advisory Committee minutes or are given the same information.  

The letter dated April 24, 2012 from the Ministry of Community, Sport and Cultural Development (below) has a contrary statement we underlined in red.

Letter from the Ministry of Community, Sport and Cultural Development states it is not necessary for more than one person to complain about a barking dog.


click letter for a larger copy

 

Section 28(3) of the Interpretation Act states that "In an enactment, words in the singular include the plural, and words in the plural include the singular."  The Local Government Act and the Community Charter are both considered enactments so this means, for example, that it is not necessary for more than one person to complain about a barking dog.

 

Interpretation Act
[RSBC 1996] CHAPTER 238
This Act is Current to April 25, 2012

Use of forms and words

28 (1) If a form is prescribed under an enactment, deviations from it not affecting the substance or calculated to mislead, do not invalidate the form used.

(2) Gender specific terms include both genders and include corporations.

(3) In an enactment words in the singular include the plural, and words in the plural include the singular.

(4) If a word or expression is defined in an enactment, other parts of speech and grammatical forms of the same word or expression have corresponding meanings.

 

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A Dog Barking case is also known as a "nuisance" case.

*Note* This is only a snippet, please click link for entire content of this case.

Lefebvre v. The Corp. of the District of Maple Ridge et al, 2006 BCSC 326 (CanLII)
Date: 2006-02-27
Docket: S88856

In nuisance one is concerned with the invasion of the interest in the land; in negligence one must consider the nature of the conduct complained of.

 

*Note* This is only a snippet, please click link for entire content of this case.

Suzuki v. Munroe, 2009 BCSC 1403 (CanLII)
Date: 2009-10-14
Docket: S107052

[70] The Fact Sheet indicates that the W.H.O.’s Guidelines for Community Noise was the outcome of a W.H.O. task force meeting in London, England, in March 1999. The W.H.O. Guidelines contain the following table:

Bedrooms - Sleep disturbance - 30dB(A)

[72] In Dr. Oduwole’s report of July 5, 2007, he referred to the W.H.O. Guidelines. He states:

According to the WHO Guidelines for good sleep, sound levels should not exceed 30 decibels for continuous back ground noise and 45 decibels for individual noise event. (Birgitta Burglund et al 1995. Stockholm University and Karolinka Institute.)

[73] In Dr. Oduwole’s July 13, 2009 report, he stated as follows:

Noise pollution is environmental noise that is annoying, distracting and/or physically harmful. The Sources may be human, non human or machines.

The effects can be immediate and can be accumulative. The immediate effect is annoyance and other negative affects like anger, helplessness and anxiety.

The cumulative effects include problems with relationships.

Problems with concentration and fatigue.

Decreased working capacity.

Physical health problems due to increased autonomic and hormonal activation such as hypertension, increased heart rates, irregular heart beat, sleep problems characterised by problems falling asleep, frequent awakenings, alterations in sleep stages especially a decrease in deep sleep and alteration in sleep depth.

Emotional or mental health problems such as depression, anxiety, emotional stress, nervous complaints. Emotional instability, increased use of psychotropic medication as well as consumption of sleeping pills.

The magnitude of these changes is determined by individual characteristics and they can be temporarily [sic] but they may also become more permanent with prolonged and continuous exposure.

The effects can also be affected by the severity as well as the duration of exposure.

Those who are most vulnerable are usually the ill, the depressed and the elderly.

[100] Acts done with the intention of annoying a neighbour and actually causing annoyance will be a nuisance, although the same amount of annoyance would not be a nuisance if done in the ordinary and reasonable use of the property: A.M. Dugdale & M.A. Jones eds., Clerk & Lindsell on Torts, 19th ed. (London: Sweet & Maxwell, 2006) at 11782. In my view this is the natural corollary of the principle that the social utility of the activity complained of may be considered in deciding whether the activity is unreasonable. Activities designed to annoy one’s neighbours and having little or no redeeming social utility are unreasonable and should be discouraged by the law.

[106] Dr. Oduwole noted that the chronic stress disorder from which Mrs. Suzuki has been suffering for now in excess of three years, stems from two factors, the air conditioning noise itself, and the conflict with the Munroes.

[107] The damage she has suffered is indivisible as between the two causes. The noise itself has been the major contributing factor. It is not necessary that the tortious conduct of the defendants be the sole cause of the injuries sustained. It is enough if the tortious conduct is a materially contributing cause of the injury. In such circumstances the defendants are liable for the whole loss. There is, therefore, no room for apportionment of the loss or reduction of the damages based upon the fact some of the injury results from the dispute itself rather than the nuisance; see Athey v. Leonati, 1996 CanLII 183 (SCC), [1996] 3 S.C.R. 458 at 467-468.

[108] I will award $4,000 to Mrs. Suzuki and $2,000 to Mr. Suzuki as damages for nuisance. If I were not granting an injunction, the damages awarded would be significantly higher.

 

*Note* This is only a snippet, please click link for entire content of this case.

Mynott v. British Columbia (Ministry of Transportation),
2011 BCSC 258
Date: 20110302

[61] The overriding public policy consideration motivating the defendant is the conservation of government resources: it does not want to spend money. This is manifest not only in its answer to the plaintiffs’ claim on its face – an assertion that there is no duty on the government to control “trespassers” and a suggestion that the plaintiffs look to law enforcement – but even more obvious in its highly developed defence at the second line – that the Mynotts cannot expect help from law enforcement, because the police lack the resources. Catch-22 comes irresistibly to mind.

[62] It is utterly foreseeable that in one place or another, the implications of the government policy on access to public water might attract a pattern of use that requires more than benign neglect. That is all that has happened in Creston. The presence of the itinerant workers has led to obnoxious and illegal behaviour which is a nuisance to the Mynotts. There can be no immunity for “policy making” that amounts to setting a chain of events in motion and completely ignoring the predictable consequences. The standard of what is reasonable is objective. It cannot be altered by the circular notion that government spending is policy, so under-pending is “reasonable”, because spending decisions are policy.

Vl

[63] Courts do not enjoin or mandate government action. In our theory of government it is not necessary. Governments are expected to act in accordance with what the Court declares the law to be. I do not hesitate to say that the defendant has permitted a nuisance to emanate from premises it controls and that it has a duty to effectively abate that nuisance. It has, to date, failed to take reasonable steps to do so.

[64] The defendant has expressed a reluctance to act positively, even in the face of this outcome, and has submitted that, in the event of such a declaration, the Court should simply assess damages in a lump sum allowing for past and future harm to the Mynotts. This is clearly inappropriate. The Court should not be invited to implicate itself in the defendant’s neglect of duty by effectively licensing it.

[65] The proper course, in my view, is to adjourn this matter to await the defendant’s abatement during the next summer season. If an effective end has been put to the activities, it will then be possible to estimate the Mynotts’ damages on a one-time basis. I emphasize that it is completely up to the defendant to work out the means by which a remedy is effected.

[66] If an effective remedy has not been implemented, the question of damages will have to be revisited in light of those circumstances. The matter is put over for this purpose to September 19, 2011, at Cranbrook, to fix a date for continuation.

[67] The plaintiffs are entitled to special costs throughout to date.

See the following cases for examples of dog nuisance cases:

http://canlii.ca/t/fnvtt

http://canlii.ca/t/2196b

*Note* This is only a snippet, please click link for entire content of this case.

R. v. Awde, 1997 CanLII 71 (BC SC)
Date: 1997-12-18
Docket: CC970654

This case discusses the distinction between wilful blindness, recklessness, and negligence.

[24] The appellant was charged that he did commit mischief by, "wilfully obstructing, interrupting or interfering with the lawful use, enjoyment or operation of the property of" the alleged victims.

[26] .... "Willfully means not merely to commit an act voluntarily but to commit it purposely with an evil intention, or in other words it means to do so deliberately, intentionally and corruptly and without justifiable excuse."

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From Health Canada's website about NOISE

Closing Comments

When Canadians were asked whether they were bothered, disturbed or annoyed by noise outside your home, about half indicated that they were bothered by noise and half were not.

When asked which type of noises bothered them most, two-thirds of respondents identified a noise from outside their home that bothered them. More than 51% of those sampled were bothered by one type of noise. Another 15% were bothered by two or more types of noise.  The most common noises that bothered Canadians were road traffic, animals outside, other people, off road traffic and children outside.

These findings indicate that between half and two-thirds of Canadians are bothered by noises outside their homes. Differences in the extent that they were bothered by noise were found by community size, age, education and whether or not they had a partner.

References
1.Environment Canada, Health and the Environment, 2001
2.World Health Organization, http://www.who.int/docstore/peh/noise/guidelines2.html
3.Health Canada, Health and the Environment - The Built Environment, 1997.
4.Health Canada, Health and the Environment - The Built Environment, 1997.

Source: Health Canada - Noise: HealthInsider No. 7, 2002 - Table of Contents

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Local Government Act - Division 1 - Regulation of Animals
Division 1 — Regulation of Animals
702.1 Application in relation to regional district animal control service
703 Animal control authority
704–706 Repealed
707 Animal pounds
707.1 Dangerous dogs

Community Charter
[SBC 2003] CHAPTER 26
Division 6 — Animal Control

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The Right to Quiet Society for Soundscape Awareness and Protection

Under specific circumstances, the Right to Quiet Society (RQS) offers loans or grants of up to $1,000 toward the cost of a legal action against a party(s) responsible for a noise nuisance, where all reasonable alternatives have failed. To apply, fill out the attached application form and send it to RQS.

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The current animal control system - how and why it is failing

Noise-related information provided by the World Health Organization

Explanation of why some people are traumatized by noise while others are not

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Please note that the Community Charter may have changed since this information was posted, so please check the latest version of the Local Government Act for up to date info

Community Charter

[SBC 2003] CHAPTER 26

Part 8 — Bylaw Enforcement and Related Matters

Division 1 — Bylaw Enforcement


Enforcement powers

260 (1) A council may make bylaws for the purposes of enforcing the bylaws of the municipality.

(2) Subject to subsection (5), without limiting the available remedies, the authority of a municipality to deal with a contravention of a bylaw includes the following:

(a) prosecution of the offence in accordance with the Offence Act;

(b) proceeding under Division 3 [Ticketing for Bylaw Offences] of this Part;

(b.1) subject to the regulations under the Local Government Bylaw Notice Enforcement Act, proceeding by bylaw notice under that Act;

(c) court action under Division 4 [Enforcement by Civil Proceedings] of this Part.

(3) If a bylaw establishes a regulation or requirement to be observed in a municipality, a person who contravenes the regulation or requirement commits an offence that is punishable in the same manner as if the bylaw had expressly forbidden persons from doing or refraining from doing the act.

(4) Section 12 (1) [authority to establish variations] does not apply in relation to bylaws imposing fines and other penalties under this Part.

(5) If a matter is prescribed for the purpose of section 4 (2) of the Local Government Bylaw Notice Enforcement Act, a council that adopts or has adopted a bylaw in relation to the matter may only enforce the bylaw by bylaw notice under that Act.

 

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Regional District of Central Okanagan CONSOLIDATED Dog Control Bylaw No. 366

21.2 No person being the owner or occupant of any private premises shall permit, allow or suffer the noise of barking, yelping or howling sounds from a dog(s) to be caused or made at the private premises owned or occupied by that person, in a manner that can easily be heard or otherwise perceived by an individual who is not at the same private premises.

Noise means continuous barking, howling or yelping sounds lasting more than 5 minutes or the sound of barking, howling or yelping sporadically or erratically for a cumulative duration of 5 minutes or longer in any 15 minute period which sounds are repeated again within 72 hours.

Person shall mean and include any individual, household, corporation, partnership or party and the heirs, executors, administrators or other legal representatives of the same, to whom the context can apply according to law.

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Here's Regional District of Central Okanagan Bylaw No.366 Noise Bylaw (barking bylaw)
Regional District of Central Okanagan Dog Control Bylaw No. 366 - Noise means continuous barking, howling, or yelping sounds lasting more than 5 minutes or the sound of barking, howling or yelping sporadically or erratically for a cumulative duration of 5 minutes or longer in any 15 minute period which sounds are repeated again within 72 hours.
click .pdf icon  Consolidated Dog Control Bylaw No. 366

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HOW TO STOP THE BARKING

If the barking occurs in the presence of "intruders," which may include the mail carrier, children walking to school and other dogs or neighbors in adjacent yards this is a good read.

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.pdf icon Regional District of Central Okanagan Animal Control Bylaw No. 880, 2000

*Note - This is only a snippett, please click link above for entire contents

REGIONAL DISTRICT OF CENTRAL OKANAGAN ANIMAL CONTROL BYLAW NO. 880, 2000

Being a Bylaw to Control Animals

Pet means a domesticated animal kept for pleasure as opposed to being kept for a utilitarian purpose.

2.4 Subject to the requirements of the Regional District of Central Okanagan Dog Control Bylaw, pets may be kept in a reasonable number on all parcels in the Regional District of Central Okanagan provided that they are kept primarily within the household to which they are associated and their keeping does not create a nuisance to persons on adjacent parcels.

2.5 Dog Kennels shall conform to the regulations of the Zoning Bylaw, the Joe Rich Rural Land Use Bylaw and the Dog Control Bylaw. Please refer to the Dog Control Bylaw for regulations regarding dogs.

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RDCO's barking bylaw in a nutshell

A Nutshell Description of the Most Common Types of Barking Laws

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How much barking is too much barking?

Read the consensus on Castanet.net Forum

LivinginKelowna said, "There is no doubt in my mind that there should be more bite to the bylaw officer's bark"

tunachick said, I've called bylaw control many times (after trying to deal with the dog's owner) and each time the officer goes to the neighbour's house and warns her. Again. No fine is ever levied. Last time the animal landed at the pound there was no charge for running at large, just an impound fee.  We not only need a barking control bylaw with teeth, we need bylaw control officers to follow through on their threats instead of the perpetual "If I have to come out here one more time blah blah blah."

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Re: Dog attacks while camping??
StraitTalk said, Just remember. It's our fault and has nothing to do with the dogs.

Re: Dog attacks while camping??
xjeepguy said, 3 times it stole your food ? I think I would have hit it with bear spray after the hot dog incident. Now, that being said, with dogs like THAT one, it's usually accompanied by an owner(s) of the same level of intelligence . Ignorant dogs usually have ignorant owners.

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BC Court Judgement Database

[63] The defendants must know that the plaintiffs could easily bring a similar action with better evidence as to noise disturbance. Some reasonable additional measures should be taken by the defendants to avoid this possibility. Firstly, the defendants should commit to maintaining the dogs in kennel buildings from the hours of 8:00 PM to 8:00 AM.

[64] Additionally, the kennel structures should be enhanced to prevent sound emanating from them. This is clearly possible to do. Such limited restrictions would allow the neighbours a reasonable period of quiet time to use and enjoy their properties. Additionally, further steps should be taken by the defendants to monitor the dogs while they are outside in the dog runs. It is simply not acceptable to let dogs bark with only limited verbal commands being given for them to be quiet.

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Here is a bird house bark control device they sell at Home Hardware for approx. $80 that works up to 50 feet away.

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Look up your municipality in the .pdf icon SPCA's 2008 review of B.C. animal bylaws to see what they have in place or are lacking.

Source SPCA website

The SPCA is asking people to recommend their model animal control bylaw to Regional Districts and Municipalities who's dog bylaws are lacking.

Below are tidbits of the SPCA's model animal control bylaw

* The Five Freedoms is a concept first developed in 1965 by The Brambell Committee, formed by the UK government to examine the conditions on commercial farms. Now internationally recognized, the Five Freedoms are considered applicable to all animals. The BC SPCA’s Five Freedoms (adapted from the original list) are:

1. Freedom from hunger and thirst;
2. Freedom from pain, injury and disease;
3. Freedom from distress;
4. Freedom from discomfort;
5. Freedom to express behaviours that promote well-being.

The BC SPCA’s Five Freedoms form the basis of the Society’s Charter and describe conditions that must be fulfilled in order to prevent the suffering of all animals in human care.

------------------------------------

4. Responsibilities of Owners -- Animal Control 1, 4, 6

(4) An owner shall ensure his or her animal does not vocalize excessively or in any manner which might reasonably disturb any person.

------------------------------------

5. Responsibilities of Owner -- Animal Care 2, 5, 6, 7

(1) An owner shall ensure his or her animal is provided with:

(c) the opportunity for regular exercise sufficient to maintain good health, including daily opportunities to be free of a confined area and exercised regularly under appropriate control; and

(2) An owner shall not keep an animal which normally resides outdoors, or which is kept outdoors for extended periods
of time, unless such animal is provided with an outdoor shelter:

(a) which has a total area that is at least twice the length of the animal in all directions and that also allows the animal to turn around freely and adopt normal resting postures;

(b) which ensures protection from heat, cold and dampness that is appropriate to the weight and type of protective
outer coat of such animal.

(4) No person may cause an animal to be hitched, tied or fastened to a fixed object for longer than 6 hours within a 24 hour period.

(6) No person may transport an animal in a vehicle outside the passenger compartment or in an uncovered passenger compartment unless it is adequately confined or unless it is secured in a body harness or other manner of fastening which is adequate to prevent it from falling off the vehicle or otherwise injuring itself.

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August 12, 2010 Governance & Services Committee Meeting Agenda

Item 6.1 Update - Cat Bylaws.pdf (28 pages mostly about CritterAid, SPCA, and others)

*This is only a snippett*

BYLAW ENFORCMENT STAFF RATIONALE: (from page 3)
With consideration to current budget limitations within the RDCO Dog Control Function, a cat bylaw is not timely or necessary. Revenues from dog licensing, impounds and ticketing only contribute approximately 35% to the annual dog control budget.

Costs to carry out a cat bylaw and cat license program including staff resources, equipment, administration & technical requirements, shelter requirements and addressing cat health concerns, will be significant and substantial. For example, the current Dog Pound facility does not have space available to house other animals or cats.

If the Regional Board requests staff to move forward, further investigation of precise costs will be required and a consultant would be commissioned.

Cats are not perceived to be a problem in our RDCO Electoral Areas which are primarily rural areas. The Municipalities experiencing nuisance cat problems may wish to investigate service alternatives and options on their own behalf. Cats are elusive in their behaviour and character and are difficult to capture except by trapping, making it difficult to prove ownership.

Reclaiming by owners is anticipated to be extremely low, as indicated by the SPCA, resulting in dramatic fees to care for and sterilize cats waiting to be adopted to new homes.

Government protects people from animals. Animal welfare protects animals from people.

Education efforts and work by our Central Okanagan cat and animal welfare agencies are proving successful in cat overpopulations, feral cats and cat colonies. Continued or enhanced funding towards a united education effort by all
the cat/animal welfare agencies will help strengthen their continued success.

The RDCO provides $55,000 annually to the SPCA towards their spay and neuter and education programs through a Memorandum of Understanding which expires on December 31, 2011. An additional $12,000 each year, is meant to offset the dogs that are diverted to SPCA but is not linked to any specific statistic. This funding is carried in the Dog Control budget.

A cat bylaw that targets licensing, at large and spay/neuter issues will not effectively deal with nuisance complaints from neighbours. Cat attacks do not have the same potential harm as dog attacks.

Animal welfare agencies have long supported a cat bylaw, particularly for spay & neuter requirements. A bylaw that targets spay & neuter can effectively protect cats from harm through overpopulation and abandonment.

The internet carries numerous suggestions on how people can deal with nuisance cats.
Examples of these suggestions are motion sensor sprinklers & ultrasonic devices, orange peels, cayenne pepper, cat repellent and communicating with neighbours.

A castanet poll on March 6, 2010 asked whether cats should be licensed just the same as dogs are. The results of 2412 votes were Yes: 1314 and No: 1098.

A citizen letter was received in March 2010 speaking against a cat bylaw in the City of Kelowna. The writer suggested that a cat bylaw would cause undue stress for cat owners and that it would lead to too many cats being euthanized.

-------------------------------------------------------------------

Here is a snippet that was interesting from page 5 about the legal opinion RDCO received about a Cat Bylaw.

(From page 5)

Authority to Regional Districts to regulate licensing and keeping of cats:
A legal opinion on whether a Regional District's authority to regulate animals includes cats was obtained in June, 2010. The opinion concluded that Regional District authority from the Local Government Act (LGA) does not include authority to regulate cats because the definition of "other animals" in the LGA does not include any animal that the Board did not have authority to regulate under Section 703 of the LGA as it existed immediately before the enactment of the Community Charter.
This interpretation is also strengthened by the fact that the Capital Regional District (CRD) has been given specific animal control authority in relation to domestic cats by BC Regulation 245/2009.

If the Regional District of Central Okanagan wishes to regulate cats, a request to the Province for the granting of that additional power by way of Regulation is required.

For historical reference, in 1990, the Union of British Columbia Municipalities (UBCM) endorsed a resolution to license cats using a microchip implant. The Ministry of Municipal Affairs, Recreation and Culture acknowledged the surplus cat population as a growing problem in BC but were concerned with the viability of the proposal and concluded that the SPCA programs would address the UBCM's concerns. In 1997, another resolution was put forward to the UBCM regarding cat licensing. A petition was forwarded to the Ministry for changes to the Municipal Act to allow municipalities to require licensing of cats. This resolution was not endorsed.

RDCO Animal & Dog Bylaw Regulations:
The Regional District of Central Okanagan Animal Control Bylaw No. 880 applies only to the RDCO Electoral Areas and does not include cats. Animals, such as small and large livestock, are not permitted to run at large and owners are subject to a $50 fine but there are no RDCO resources or equipment designated to impound them or house them.

The Mandate of the RDCO Dog Control Function is to increase the safety and protection of the public from the negative impacts caused by dogs.

Other Municipal Cat Bylaws:
Staff conducted a review of Cat Bylaws in BC as shown on the attached chart. Because the authority to regulate cats is granted by the LGA, the review for this report was limited to BC except for the City of Calgary whose successful animal program has captured recent notice.

Summary of BC Municipal Cat Bylaws:
- 20 Municipalities with cat regulations were investigated. Of those:
- 11 require identification.
- 4 require sterilization.
- 10 limit the number of cats per parcel.
- 4 out of 10 that prohibit cats from running at large do not have tickets associated with the charge, or there are no designated resources to enforce the cat bylaws at this time.
- Fines for cats that run at large range from $50-100.
- One offers a $15 rebate for proof of sterilization.
- Impound fees range from $6 to $250 for an unsterilized cat.
- The most recent amendments are regulations that require sterilization.

Facilities to house cats in a shelter require several rooms such as an intake area, examination, adoption, isolation, nursery and communal area.

Almost all impounded cats receive vaccinations when they arrive at shelters and all cats are sterilized before they are adopted to new owners. Most Shelters report low reclaim rates ranging from 1% to 11 %, and continuous efforts are put into adopting all impounded cats to new homes rather than euthanize them. Traps are used for feral or stray cats and cat colonies, not for nuisance neighbour cats.

(from page 7)

The SPCA supports a bylaw that would improve the welfare of cats.

In 2009, 1400 cats were received at the Kelowna SPCA. 68 were reunited with owners, 890 were adopted out and 389 were euthanized (53 other). The low number of owners claiming their cats are due to avoidance of boarding fees, vaccinations and deworming.

Four-five years ago, there were up to an additional 1000 cats arriving at the Kelowna shelter and the SPCA believes the drop in numbers is attributable to spay & neuter programs.

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barking bylaw in a nutshell

A Nutshell Description of the Most Common Types of Barking Laws

You won't want to miss this if you have enough time to read down to here!  This website has some great information and gave me the inspiration to post my complaint to Facebook.

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If you live in the Regional District of Central Okanagan you make dog complaints to the Regional District of Central Okanagan Dog Control Dept. 

If you live in the City of Kelowna you make dog complaints to City of Kelowna Bylaw Enforcement Department at (250) 469-8686 (City of Kelowna's website July 20, 2010 still says contact RDCO but that is incorrect now since RDCO's bylaw was unenforceable in the City of Kelowna). Here is the District of West Kelowna Bylaw Enforcement Dept.

If your dog was picked up in the North Westside Road area, it is most likely in Kelowna and not Vernon. The Regional District of Central Okanagan is responsible for dog control in the North Westside Road area.

Okanagan Dog Owners Association

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Regional District to Appeal Supreme Court Ruling

The Regional District of Central Okanagan will appeal a Supreme Court ruling related to its Dog Regulation and Impounding Bylaw No. 366.

In a judgment handed down on June 10th, the Honourable Mr. Justice Dley ruled in favour of the appellant Andy Visinski who challenged the validity of the Regional District bylaw and its authority to provide Dog Control enforcement within the City of Kelowna.

The Regional District believes the Statutory Authority to enter in Service Agreements with member municipalities for the delivery of bylaw enforcement services does include Bylaw No. 366, which has applicability throughout the Regional District of Central Okanagan and City of Kelowna, along with other member municipalities. The District believes the authority for these working relationships between local governments comes from the Local Government Act and is available and applicable to all local governments in British Columbia.

The Regional District will approach the Union of B.C. Municipalities for funding assistance for the appeal process as the ruling could affect the working relationship of other regional district’s and their member municipalities. Regional District Legal Counsel is clarifying whether the ruling invalidates the entire bylaw or only applicable identified sections as well as determining the appropriate course of legal procedures to ensure continued public protection and safety and restore full regular region-wide enforcement and ticketing until the higher court clarification is determined.

In the interim, Regional District Dog Control Officers are continuing to issue warning tickets for bylaw violations within the member municipalities of the City of Kelowna and District’s of Lake Country, Peachland and West Kelowna. These tickets could be considered for regular violation tickets within six months. Officers are still taking and responding to complaints, conducting investigations, interviewing witnesses and impounding dogs. In the event of any severe attack the Regional District will continue to seize offending dogs under authority of the Community Charter.

(June 18, 2010)

Source - RDCO What's New

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CORD to appeal dog bylaw ruling
Kelowna Capital News - By Cheryl Wierda - June 18, 2010

Owners of unruly dogs in the Central Okanagan will only be given warning tickets as the regional district appeals a court decision which ruled the regional district’s dog bylaw was invalid in the City of Kelowna.

Those warning tickets could turn into regular violation tickets in six months, the regional district warns.

The changes follow a Supreme Court decision made June 10 which found that the regional district’s dog bylaw didn’t apply in Kelowna, and that the City of Kelowna effectively had an enforcement body in the form of the regional district’s bylaw staff, but no bylaw to enforce.

“The regional district believes the statutory authority to enter in service agreements with member municipalities for the delivery of bylaw enforcement services does include Bylaw No. 366, which has applicability throughout the Regional District of Central Okanagan and City of Kelowna, along with other member municipalities,” said CORD spokesman Bruce Smith in a news release.

“The district believes the authority for these working relationships between local governments comes from the Local Government Act and is available and applicable to all local governments in British Columbia.”

The regional district will approach the Union of B.C. Municipalities for funding assistance for the appeal process as the ruling could affect the working relationship of other regional districts and their member municipalities.

Smith added that regional district’s lawyer is clarifying whether the ruling invalidates the entire bylaw or only identified sections.

They are also seeking to determine the appropriate course of legal procedures to ensure continued public protection and safety and restore full regular region-wide enforcement and ticketing until the appeal is dealt with.

In the interim, regional district dog control officers are continuing to issue warning tickets for bylaw violations within the member municipalities of the City of Kelowna and Districts of Lake Country, Peachland and West Kelowna.

These tickets could be considered for regular violation tickets within six months, Smith noted.

He added that officers are still taking and responding to complaints, conducting investigations, interviewing witnesses and impounding dogs.

cweirda "at" kelownacapnews.com

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Regional District of Central Okanagan Dog control extended service bylaw #1017

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Regional District of Central Okanagan Dog Control Bylaw #366, 1988 says nothing about Letters Patent or anything like that and our guess is that the Regional District of Central Okanagan was issued a letters patent for it to have a dog control function but not the City of Kelowna but who really knows... might be able to find more about this in RDCO's letters patents.  We looked in the provincial court database and didn't find anything.  It says in amending Bylaw 391, 1989 that bylaw 391 was approved by the Minister of Municipal Affairs, and Recreation and Culture (Approval No. 900301) under the provisions of Section 203 Municipalities Enabling and Validating Act so maybe its the Municipalities Enabling and Validating Act you would need to look at.

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Chase away unwanted cats
Passive Ultrasonic detector

Animal Away Pro
Electronic Animal Repeller

Chase away unwanted deer

Scarecrow Motion Activated Sprinkler Deer and Animal Repellant

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Loss of enjoyment of property
« on: April 19, 2009, 03:52:56 PM »Reply Good afternoon,
I have a question about noisy neighbors. The neighbors kids are excessively noisy. They play basketball, hockey, build skate board ramps, constantly screaming. After 4 hours of a basketball bouncing (sometimes 3 and 4 at a time) it's more than I can take. This goes on everyday, every night....There is NO WAY I could open my windows to get fresh air....the noise is just terrible.
I know it sounds catty....but after hours of this I am ready to explode. Can I do anything about this? I live near Ottawa Ontario.
thanks Logged
--------------------------------------------------------------------------------
Re: Loss of enjoyment of property
« Reply #1 on: April 24, 2009, 04:47:03 PM »Reply Well of course you could move, but that is easy advice and difficult to do. You are entitled to your privacy, but the proof of the offending noise and interference with the quality of life is difficult to establish. You might start with complaints to the Municipality who may have a noise bylaw, and if that is not successful, legal representation may be the next step. A tough situation, no easy remedies!! Jim Clapp

Jim Clapp
Wills & Estates
Lawyers

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Barking:

From time to time, your little friend will exercise its vocal chords by barking. A helpful way to manage this is through commands which encourage when to bark versus when not to. For example, command your small dog to "Speak" and once your special friend begins to bark show praise. Conversely, if your small dog barks unprompted, simply ignore the action. Be firm, since any acknowledgement will be considered "attention received" and the meaning of the speak command will be lost.

Source: Cesar

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Hopefully the dog owner will take this as constructive criticism, instead of lashing out or letting their dog bark on end.

The Regional District of Central Okanagan has some information on

WHY DOGS BARK
Tips on how to deal with problem barkers.

To learn more about how to help your dog watch the Dog Whisperer.  Ceasar Milan is down right amazing!

Why Dogs Bark At Night
Dog's are not stupid and will usually have a good and fairly obvious reason for chronic barking.

Dog Barking Help

How to quiet your own Barking Dog

How to train a discriminating watchdog
How to train a watchdog that can be counted on to bark at intruders,
but can be depended on to remain quiet when no threat is present.

Watchdog training, teaches your barking dog when to bark & when not to

Dog training schools Vernon BC

Dog training schools Kelowna BC

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Composting Dog Waste

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Livestock Protection Act of British Columbia states "3 (1) A person must not keep a dog unless a valid and subsisting license has been issued for that dog under this Act or under a municipal bylaw".

http://www.regionaldistrict.com/departments/inspections/inspections_dc_faq.aspx

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Proper investigation needed in complaint-driven systems
Kelowna Capital News - Published: September 20, 2008

Have any of you encountered the “doggy-bylaw” justice system?

It’s small wonder that there might be injustices in that system, with front-line bylaw officers, who do not have the benefit of formal police training and no system of justice beyond lodging a dispute and showing up in “doggy” court.

Perhaps a bigger wonder is why I would bother writing about something as apparently insignificant as the canine bylaw system.

It’s a whole lot more significant than you might think.

Many, if not most, dog owners have a strangely strong affection for their pets.

Put a dog owner’s pet at risk and it’s serious business.

The old “switch the fishy” trick, that works well when a four-year-old’s goldfish does the upside down float doesn’t work well with a puppy.

The enforcement of dog bylaws can put a pet at risk. The risk itself can be stressful. Perceived blatant unfairness in the system, leading to a risk that should never have arisen, can be maddening.

Good friends of mine are the owners of a rottweiler cross.

Their neighbour also owns a dog, a shepherd cross.

When the shepherd walked past my friends’ yard, it routinely ran up to the fence and yapped away at the rottweiler. The shepherd was never on a leash.

To avoid the ritual racket, my friends typically tied their rottweiler behind their house during the time of day the shepherd was taken for a walk. One day, my friends forgot to close the gate and the rottweiler was roaming loose in their yard.

Before I tell you what happened, keep in mind that there is no bylaw against letting your own dog wander inside your own yard without a leash, even with a gate open.

Along comes the yappy shepherd. With no gate to stop it, the leashless shepherd walked into my friends’ yard and went after the rottweiler.

The shepherd got the raw end of the deal and suffered some injury.

One problem with the dog bylaw system is that it is complaint-driven.

Bylaw enforcement officers don’t patrol neighbourhoods looking for bylaw infractions. The enforcement mechanism comes into play only when a complaint has been lodged.

It takes a fair amount of “bad blood” before a complaint is lodged. You don’t tattle on your neighbour if their dog gets out once or twice. I have direct experience in this regard because my dog happens to be an escape artist.

A problem with a complaint-driven system is that there is always a concern about the accuracy of allegations when bad feelings are involved.

If very rudimentary steps are taken to investigate the complaint, though, unfounded complaints should not proceed to enforcement.

This is where police officers, with their extensive training, have a leg up on bylaw enforcement officers.

The rudimentary investigation didn’t happen in my friend’s situation.

The shepherd’s owner lodged a complaint. The bylaw enforcement officer didn’t interview my friend, the owner of the alleged offender, who witnessed the event and who would have been able to give the bylaw enforcement officer the full background necessary to consider whether enforcement steps were warranted.

A $200 fine was assessed. Big deal. The problem was that the rottweiler was labelled an “aggressive” animal, such that if another such incident occurs, it could have to be put down.

My friends filed a dispute to the alleged infraction and the matter was scheduled for “doggy” court.

Court is a stressful place for those who are not used to being there. Add to that the prospect that your pet is facing “dangerous offender” status and the stakes are raised even further. Then add a lack of investigation and my friends were fit to be tied.

The hearing lasted an hour. In the bylaw court, the enforcement officer is the prosecutor. His witness didn’t show up.

That could have been the end of the matter. Without a witness, there is no way the bylaw enforcement officer could prove the allegation. But the judge who presided over the hearing recognized my friends’ need to tell their story. In the end, justice prevailed. The rottweiler “walked.”

I don’t think, however, that justice wasn’t well-served. My friends should not have had to go through the months of stress stretching victimized by a lack of investigation. This incident may not have resulted in a complaint being lodged had the shepherd owner talked with my friends.

Our actions can have significant impacts on others. Thinking a little bit before jumping to action and approaching every situation with due diligence will go a long way to preventing justice from being poorly served.

This column is intended to provide general information. It is not a substitute for retaining a lawyer to provide legal advice specifically pertaining to your case. Paul Hergott is a lawyer with Hergott Law on the Westside. If there are particular issues you would like discussed in this column, please e-mail Paul directly at:

paul"at"hlaw.ca.

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RDCO funding covers the following programs: Humane education, cruelty investigations, and the spay and neuter program
  • 550 cruelty complaints in 2007

  • two full time officers cover the whole Okanagan Valley

  • you can obtain assistance for spay/neutering if your income is less than $35,000 (permitted two animals per household per year)

  • 5 to 6 families a week ask for assistance with the spay and neuter program

March 12, 2008 minutes of the Governance and Services Committee
(from page 2)

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Dogs and Cats can catch salmonellosis from eating garbage and can pass it on to humans.

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Legislation protects pets
From Vernon Morning Star - March 26, 2008

This month the provincial government introduced legislation that is good news for British Columbians concerned about animal welfare. Amendments to the Prevention of Cruelty to Animals Act will enhance the BCSPCA’s power to help animals that are in distress or abandoned and will also increase penalties for offences.

The goal of these new amendments is to give animal welfare workers tools to more effectively stop animal cruelty behavior in the community. Changes will also deter potential offenders by increasing penalties for those who do not properly care for animals.

Currently, upon conviction for the offence of causing distress to an animal, there is a penalty of up to $2,000 or a six-month jail sentence or both. That will increase to $5,000 or a six-month jail sentence or both for a first offence and $10,000 or a six-month jail sentence or both for a second offence.

These amendments have been introduced in response to operational issues identified by the BCSPCA. They specifically refine the definition of “distress” to include situations where an animal’s health or well-being is affected by inadequate ventilation, space, care or veterinary treatment. They also authorize agents operating in remote areas to obtain warrants by telephone.

These amendments work by empowering animal welfare workers clarifying the authority of agents to seize evidence of an offence, take abandoned animals into custody, hold and dispose of animals.

They also address the obligation of animal owners to reimburse the society for its care-related costs, provide immunity from legal proceedings for damages to persons performing duties or exercising powers under the act and they have updated provisions relating to corporate structure and obligations.

The Ministry of Agriculture and Lands supports the work of the BCSPCA through annual grants, and overall, since 2001, the province has provided the BCSPCA with over $3.15 million to assist it with the costs of its operations.

The Prevention of Cruelty to Animals Act was enacted in 1895 to establish the BCSPCA and authorizes the society to take action to assist all captive animals, including farm animals, that are in distress and to investigate offences involving animals.

For additional information, please check my website at
www.tomchristensenmla.bc.ca. link no longer valid

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Key things you need to know about pet medication in all Canadian Provinces thanks to CBC Marketplace:

  • Prices of drugs for pets are NOT regulated in Canada.

  • Remember you can shop around.

  • If your pet is on a long-term medication you can call different vets and compare their prices for the drug(s).

  • Call your local pharmacy to check if they carry your pet's drug. They may sell it for less.

You may be surprised to learn that the prices vets charge for the drugs are unregulated and vary widely across the country (and even from one neighbourhood to the next).

Though some clinics were only charging a small markup, the highest markup in the test was more than 300%.

Both the lowest price ($26.25) and the highest ($110) for the drug Tapazole were in Toronto.

source http://www.cbc.ca/marketplace/

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Local Government Act
Division 1 — Regulation of Animals
Application in relation to regional district animal control service
http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/96323_26

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Community Charter
Part 3 - Division 6 — Animal Control
http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/03026_03

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Links to some good resources for information

BC SMALL CLAIMS COURT AND PROVINCIAL COURT JUDGEMENTS DATABASE

BC SUPREME COURT JUDGMENTS DATABASE

SUPREME COURT OF CANADA JUDGMENT DATABASE

BC Small Claims Court Act

BC Small Claims Rules

Canadian Bar Association Explains about BC Small Claims

Here is some helpful information we put together about BC Small Claims

Small Claims Court Factsheets by The Law Centre

The Law Centre

Law Students’ Legal Advice Program

Interpretation Act

Local Government Act

Community Charter

Offence Act

Introduction to BC Local Government Law - by Young and Anderson

Public Complaints - BC Ombudsman - Tribunals - Judicial Review

BC Ombudsman - Judicial Review

Access ProBono

Salvation Army ProBono

Costs and the Public Interest Litigant

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Okanagan Dog Owners Association

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READ PEOPLES COMMENTS ABOUT DOGS and DOG LEGISLATION

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3 dogs relaxing on a couch.

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