Smith v. Central Okanagan (Regional District),


2013 BCSC 228

Date: 20130215

Docket: 96292



Dave Smith



Regional District
of Central Okanagan


The Honourable Mr. Justice Barrow

appeal from: Provincial Court of British Columbia, August 9, 2012,
(Central Okanagan (Regional District) v. Smith, Kelowna 74546-1)

Reasons for Judgment

Counsel for the Appellant:

R. Breder

Counsel for the Respondent:

T. DeSouza

Place and Date of Trial/Hearing:

Kelowna, B.C.
January 21-22, 2013

Place and Date of Judgment:

Kelowna, B.C.
February 15, 2013


On August 9, 2012, following a four-day trial, the trial judge declared
that the appellant’s dog, Diesel, was a “dangerous dog” within the meaning of
s. 49 of the Community Charter, S.B.C. 2003, c. 26. He also
declared that he had no authority to make what has come to be known as a
conditional order under that section. Finally, the court ordered that Diesel be
humanely euthanized. Diesel is a mixed breed dog. His precise provenance is
unknown, but he is predominantly German Sheppard crossed with Rottweiler. He
weighed 95 pounds in the winter of 2010/2011.

David Smith is Diesel’s owner and he has appealed from these orders.

The respondent, Regional District of Central Okanagan, first became
aware of Diesel in April 2007 when it received a complaint from Heather Fedoruk.
As a result of that complaint, an animal control officer issued a ticket to Mr. Smith
alleging two infractions of the Regional District’s animal control bylaw. Mr. Smith
did not dispute the ticket and the infractions were deemed to have taken place.
Over the next four years, various other complaints were made to the Regional
District about Diesel. Some resulted in the issuance of further tickets, others
led to warnings. On February 26, 2011, Linda Luscomb complained that her
dog had been attacked and seriously injured by Diesel. As a result of her
complaint, an animal control officer obtained a warrant under s. 49 of the
Community Charter and seized and impounded Diesel. The Regional District
then conducted further investigation which uncovered other incidents of
concern. An application under s. 49 of the Community Charter was
filed and resulted in the orders under appeal.

At the hearing of the application, the Regional District called a number
of civilian witnesses who testified about their encounters with Diesel and/or Mr. Smith.
In addition Leah Giesbrecht, an animal control officer employed by the Regional
District, testified about the various dealings she and other animal control
officers had had with Mr. Smith and Diesel. Finally, the Regional District
called expert evidence about Diesel’s propensity for violence or aggression. Mr. Smith,
who represented himself at the hearing, testified on his own behalf and he, too,
called expert evidence about Diesel’s disposition. The judge reserved his decision
and delivered his judgment on August 9, 2012. He reviewed the evidence as to
the various events which the Regional District relied on to establish that
Diesel was dangerous, made findings of fact based on that evidence, and
concluded Diesel was a dangerous dog within the meaning of s. 49. He then
reviewed the law as it relates to whether a court hearing an application under
s. 49 has the authority to make an order other than an order returning the
dog to the owner or an order that it be destroyed. He held that the legislation
did not permit any other orders. Finally, having concluded that Diesel was dangerous,
he considered whether, notwithstanding that conclusion, he could be returned to
Mr. Smith without exposing the community to an unacceptable level of risk.
He concluded that Mr. Smith had a history of irresponsibility in
supervising Diesel and could not be relied on to suitably control the dog. He
therefore ordered that the animal be humanely euthanized.

The appellant argues that the trial judge erred in several respects. First,
he argues that the trial judge erred in the findings of fact that he made. Second,
he argues that he erred in concluding, based on the facts as he found them,
that Diesel was dangerous. Third, he argues that the trial judge erred in
reaching the conclusion he did about the availability of so-called “conditional
orders” under s. 49 of the Community Charter.

I will deal first with the statutory context and then address the
standard of review. Finally, I will turn to the issues.

Statutory Context and Standard of Review

The relevant portions of s. 49 of the Community Charter are
as follows:

Special powers in relation to dangerous dogs

49 (1) In this section:

"animal control

(a) a municipal employee, officer
or agent designated by the council       as an animal control officer for the
purposes of this section, or

"dangerous dog" means
a dog that

(a) has killed or seriously injured
a person,

(b) has killed or seriously injured
a domestic animal, while in a public place or while on private property, other
than property owned or occupied by the person responsible for the dog, or

(c) an animal control officer has
reasonable grounds to believe is likely to kill or seriously injure a person.

(10) In addition to any other authority, if an animal
control officer has reasonable grounds to believe that a dog is a dangerous
dog, the officer may apply to the Provincial Court for an order that the dog be
destroyed in the manner specified in the order.

This appeal was filed pursuant to the Small Claims Act, R.S.B.C.
1996, c. 430. The appellant takes the position that s. 5 of that Act
authorizes the appeal. The respondent agrees that the appeal can and should be
heard whether under the Small Claims Act or otherwise. I do not read the
Small Claims Act as authorizing this appeal. It affords a right of
appeal in “proceedings under this Act”, and the application which gave rise to
the orders under appeal was not a proceeding under the Small Claims Act.
The Offence Act, R.S.B.C. 1996, c. 338, however, does extend a
right of appeal in this situation. It defines “proceedings” to include “proceedings
in which a justice is authorized by an enactment to make an order”. Section 49
of the Community Charter authorized the trial judge to make an order. Section
102 of the Offence Act provides in part that unless otherwise provided
by law, a defendant has a right of appeal to the Supreme Court from an “order
made against the defendant”. Given the agreement of the parties and in view of
the foregoing, I am satisfied that there is a right of appeal. Further, I am
satisfied that it is properly before the court notwithstanding any deficiencies
in the notice of appeal.

The standard of review applicable to findings of fact is that set out in
Housen v. Nikolaisen, 2002 SCC 33. At paragraph 10 of that decision,
Iacobucci and Major JJ. held that:

[10]      The standard of review
for findings of fact is that such findings are not to be reversed unless it can
be established that the trial judge made a "palpable and overriding

This standard applies to both findings of fact and factual inferences
drawn from primary or direct facts (Housen v. Nikolaisen at para. 19).
In this case, the trial judge was required to apply a legal standard to the
facts as he found them. His conclusions as to whether Diesel was a dangerous
dog are therefore conclusions of mixed fact and law. While such conclusions can
be viewed on a spectrum along which the standard of review will tend towards
correctness for those conclusions which are predominately legal, and towards a
more deferential standard for those that are primarily factual, in the matter
at hand, the parties agree that the test to be applied is the same as that
applied to strictly factual findings. Finally, the trial judge’s decision to
grant a destruction order involved the exercise of discretion. The parties did
not argue that a different standard of review ought to apply to this aspect of
the trial judge’s decision, and while I recognize that the degree of deference
accorded to the exercise of a discretion by a trial judge may vary according to
the nature of the discretion exercised, there is no basis in this case to apply
a standard other than that of “palpable and overriding error”.

The trial judge’s conclusion regarding the availability of conditional
orders is a pure question of law. The standard of review is therefore

Did the trail judge err in finding that Diesel is a dangerous dog and
ordering his destruction?

The trial judge concluded at para. 47 of his unreported decision

[47]      …Mr. Smith’s
animal is a dangerous dog as defined by section 49(10) of the Community
. This is based on my finding that the dog has seriously injured a
domestic animal, while in a public place contrary to section 49(1)(a) [sic] as
a result of the attack on Ms. Luscomb’s dog Toska. I am further satisfied
that Ms. Geisbrecht [sic], the Animal Control officer has reasonable
grounds to believe the animal is likely to kill or seriously injure a person
based on the above history.

The parties agree that the reference to s. 49(1)(a) is
simply a typographical error, and it should be a reference to s. 49(1)(b).

The trial judge held that on a plain reading of s. 49(10), the
court must decide if the evidence establishes that the dog is dangerous, and if
so, the court must then decide whether to grant a destruction order. The first
aspect of the exercise involves a mixed question of fact and law, the second
involves the exercise of discretion. I pause here to note that both
parties agree that, although the section does not expressly confer a discretion
to make or not make a destruction order, that discretion exists.

There are therefore three aspects to this ground of appeal. First, did
the trial judge err in concluding that Diesel was dangerous because he had “killed
or seriously injured a domestic animal, while in a public place or while on
private property, other than property owned or occupied by the person
responsible for the dog”. Second, did he err in concluding that the animal
control officer had reasonable grounds to believe that Diesel was likely to
kill or seriously injure a person? Third, did the trial judge err in exercising
his discretion to order that Diesel be destroyed.

Before turning to the specific arguments advanced by the appellant, it
is first appropriate to identify what is meant by “palpable and overriding
error”. In Fisher v. Fisher, 2009 BCCA 567, D. Smith J.A. wrote at para. 3:

[3]        The standard of review
on questions of fact is palpable and overriding error. Palpable error is one
that is readily or plainly seen…overriding error is one that must have
altered the result or may well have altered the result…A trial judge’s
findings of fact are to be accorded great deference…An appellate court may
only overturn findings of fact if it is established that the trial judge made a
manifest error, ignored conclusive or relevant evidence, misunderstood the
evidence, or drew erroneous conclusions from the evidence…Absent palpable and
overriding error, an appellate court may not substitute its views of the
evidence for those of the trial judge and may not interfere with the trial
judge’s decision provided there was some evidence upon which the trial judge
could have reached his or her decision…[citations omitted].

I will deal with each component of this ground of appeal separately.

a) Did the trial judge err in concluding that
Diesel had seriously injured a domestic animal?

The trial judge based his conclusion on this issue on the evidence
involving Ms. Luscomb and her dog.

Ms. Luscomb gave evidence about two events involving Diesel and her
dog, a 75-pound Chinese Shar-Pei named Toska. Mr. Smith also testified
about these events. The first of these events occurred on New Year’s Eve 2008. Ms. Luscomb
said that Diesel attacked her dog. Mr. Smith said that Ms. Luscomb’s
dog attacked Diesel. The trial judge concluded that the event happened as Ms. Luscomb
described it. He rejected Mr. Smith’s account of this event on the basis
that it was “vague and unconvincing” and that it was at odds with common sense.
He also found Mr. Smith’s reaction to this event showed “callous
indifference” toward Ms. Luscomb and her dog.

Ms. Luscomb said that she was walking her dog on a leash in the
neighbourhood. She saw Diesel approaching from a distance of about 75 metres. Diesel
was not on a leash. She said that she was about to greet him until she saw his
face and his teeth. She said Diesel hit her dog “something fierce”, bowling him
over in the process. He continued to attack until Ms. Luscomb was able to
put herself between the two dogs and grab Diesel’s collar and twist his head to
the ground. She said that she had to do that because Diesel was trying to go
over or through her to get at her dog.

Ms. Luscomb testified that by the time this event was over, her
coat was ripped, her watch was damaged beyond repair, she was “covered in blood”,
and her hands were lacerated. She did not say whether her lacerations were
caused by Diesel biting her or were caused when she twisted his collar trying
to put him to the ground. Toska was injured. He suffered a “severely lacerated…front
leg, penis, stomach and anus”. Ms. Luscomb had him treated by a
veterinarian at a cost of $779.52.

Ms. Luscomb said that she yelled for Mr. Smith to get his dog
and then asked him to help her get her dog to the vet. She said that his only
response was to say “send me the bill”.

Mr. Smith said that he had lived in the neighbourhood since 1993. He
said that he can be “a difficult person”. He said that he was walking Diesel
off leash. Diesel is, according to Mr. Smith, a large and agile dog. Diesel
had wandered some distance from Mr. Smith. He said that he heard Ms. Luscomb
yelling and realized there was a problem, so he began running to her location. He
said that Ms. Luscomb’s dog attacked or went after Diesel three times
before Diesel retaliated. He said that he saw Ms. Luscomb getting to her
feet but did not know how she was knocked down. The trial judge asked him how
it was that he could see the interaction between the dogs but not how Ms. Luscomb
ended up on the ground. He said that he must have looked down while running to
the scene.

Mr. Smith said that he did say to Ms. Luscomb “send me the
bill” referring to the veterinary bill that he thought Ms. Luscomb would
be incurring. He said that he offered to take her to the vet but she refused,
so he left.

Ms. Luscomb is in her 70s.

The appellant argues that the trial judge made palpable and overriding
error by dismissing the appellant’s evidence, which explained the surrounding
circumstances, and by finding him callous and indifferent to Ms. Luscomb’s
situation by not offering to help her or her dog.

There is no suggestion that the trial judge ignored relevant evidence in
reaching his conclusions nor is there any basis to conclude that his
conclusions were manifestly wrong. He accepted Ms. Luscomb’s evidence and
explained why. His reasons for doing so are unassailable. He noted that she was
closely cross‑examined and not shaken. He rejected Mr. Smith’s
evidence and explained why and, again, his reasons are unassailable. It is
implicit in his reasons that Mr. Smith’s claim that he saw Ms. Luscomb’s
dog attack his dog and yet did not see how Ms. Luscomb ended up on the
ground, while in the midst of those very events, is at odds with common sense. To
that, one might add that it was odd for Mr. Smith to offer to pay Ms. Luscomb’s
vet bill if the altercation was instigated and pursued by her dog.

In summary, the trial judge’s findings of fact relating to this event
are supported by the evidence. He did not err in reaching the conclusions he

Given the facts as found by the trial judge, there can be no dispute but
that Diesel seriously injured a domestic animal, while in a public place within
the meaning of the second definition of “dangerous dog” in s. 49 of the Act.

Although that finding is sufficient to dispose of the appeal from the
declaration that Diesel is a dangerous dog, I will deal with the second basis
on which the trial judge rested his conclusions as well. I do that because the
evidence on that issue is relevant to the issue of whether the trial judge erred
in choosing to exercise his discretion not to return Diesel to Mr. Smith
and instead ordering that he be destroyed.

b) Did the trial judge err in finding that the
animal control officer had reasonable grounds to believe that Diesel was likely
to kill or seriously injure a person?

The third definition of “dangerous dog” provides that a dangerous dog is
a dog that “an animal control officer has reasonable grounds to believe is
likely to kill or seriously injure a person”. This definition turns on the animal
control officer’s belief and whether that belief is reasonable. Three features
of this definition are worthy of note. First, unlike the other two definitions
which rest on past events (killing or seriously injuring a person or domestic
animal), this definition deals with likely future events. Second, it is only
the likelihood of killing or seriously injuring a person that matters. The
likelihood of killing or seriously injuring a domestic animal is not enough.
Third, the legislature made the animal control officer’s opinion, as opposed to
the court’s opinion, determinative. The only limitation is that the opinion
must be reasonable.

There are at least two components which an animal control officer must
consider to reach a reasonable opinion. The first is the disposition of the
dog, and specifically whether the dog is aggressive, and if so, whether there
is reason to believe the dog would be aggressive towards people. The second
relates to the dog’s owner. A dog that has a tendency to be aggressive towards
people would not ground a reasonable belief that it is likely to kill or
seriously injure a person if the owner keeps the animal either on a leash or
otherwise under close control when in the presence of people. A reasonable
basis to believe the dog will be seriously aggressive towards people and an
owner that is either incapable or unwilling to control the animal when in the
presence of people is what the definition implicitly requires.

Animal Control Officer Giesbrecht testified that she had been an animal
control officer for 15 years. She explained the various interactions she or
other animal control officers had had with Diesel and Mr. Smith based on
her personal knowledge and on a review of the Regional District’s file on
Diesel. She said that the record of complaints involving Diesel began in 2007,
and by 2012, it had grown to the most extensive history of complaints she had
yet come across. She testified that Diesel had been impounded in February 2011,
as a result of Ms. Luscomb’s second encounter with him, and that he had
been kept at the pound ever since. Ms. Giesbrecht has a work station at
the pound and had regular contact with Diesel as a result. She said that Diesel
behaves aggressively in the kennel: he barks and snarls, bites his kennel and
froths. She said testified that:

Diesel is only approximately six
and a half to seven years old…These allegations with Diesel, the incidents
started when he was very young. No correction was ever given to Diesel. We have
asked Mr. Smith, keep your dog on a leash. He doesn’t do it. And we say, Mr. Smith
keep control of your dog. He doesn’t do it.

She testified that, in her opinion, Diesel was likely to seriously
injure a member of the public.

The Regional District also retained an expert in canine behaviour, Dana Eklund,
who prepared a report on Diesel and also testified at the hearing. Ms. Giesbrecht
considered that report in forming her opinion.

From the Regional District’s file, as explained by Ms. Giesbrecht,
it was open to the trial judge to conclude, and he did conclude, that Diesel
had the following history (para. 10 of the reasons for judgment):

a.         June
22, 2007 – a Municipal Ticket information for, “failure to control dog”
contrary to section 17.5 of the District bylaws as a result of the Fedoruk

b.         June
22, 2007 – a Municipal Ticket information for, “failure to have a dog licence”
contrary to section 3 of the District bylaws.

c.         February
10, 2008 – the dog is impounded pursuant to District bylaw 366. Mr. Smith
collected his dog and paid the $100.00 impound fee.

d.         April
22, 2009 – a Municipal Ticket information for, “failure to control dog”
contrary to section 17.6 of the District bylaws. Mr. Smith disputed the
ticket. On the date set for trial the then animal control officer was not
available to testify and an adjournment application was refused by the trial
judge. The ticket was dismissed for lack of evidence.

e.         April
22, 2009 – a Municipal Ticket information for, “failure to control or enclose
an aggressive dog” contrary to section 17.2 of the District bylaws. This ticket
was also dismissed when the animal control officer failed to attend Court and
an adjournment was denied.

f.          April
22, 2009 – Mr. Smith was sent a letter called a “Fence Notice” indicating
that he had fourteen days to construct an adequate fence to contain his dog(s)
as required by the District bylaws. He has never done so.

g.         April
22, 2009 – he received another “aggressive dog notice” requiring him to contain
his animal on either a short leash or inside an enclosure.

h.         August
3, 2010 – a bylaw violation warning notice for, “failure to control dog”
contrary to section 17.6 of the District bylaws and, “failure to leash dog”
contrary to section 13.2 of the bylaws.

i.          August
3, 2010 – a bylaw violation warning notice for, “failure to control” and
“failure to leash a dog” contrary to section 17.6 and 13.2 of the District

j.          August
24, 2010 – a bylaw violation warning notice for, “failure to control a dog”
contrary to section 17.5 of the District bylaws.

k.         August
24, 2010 – a Municipal Ticket information for, “failure to control a dog”
contrary to section 17.6 of the District bylaws.

l.          August
25, 2010 – a bylaw violation warning notice for, “failure to control a dog”
contrary to section 17.6 of the District bylaws.

m.        March 11, 2011 – a judge of this
Court issued a warrant to enter and search for and seize Mr. Smith’s dog.

The trial judge was aware that many of the tickets issued to Mr. Smith
in relation to Diesel were successfully disputed, either on the merits or because
the Regional District’s witnesses were unavailable. What he took from this
history was that Mr. Smith had received many, many warnings that his dog
was a concern to his neighbours and to the Regional District. In spite of this Mr. Smith
had refused to control his dog or modify his dog’s behaviour.

The appellant argues that the trial judge erred when he relied on this
history to conclude that Diesel is dangerous. I do not read his reasons that
way. He relied on this evidence, and other evidence, to conclude that Mr. Smith
was either unwilling or incapable, despite years of warnings, to control his
dog. That is a conclusion amply supported by the evidence.

Before leaving this aspect of the matter, I note that Ms. Giesbrecht
testified that, in some cases, complaints were made, but the complainant did
not wish the Regional District to take action because the complainant felt
intimidated by Mr. Smith. Indeed, she said that she thought he attempted
to intimidate her when she dealt with him directly. She explained that on one
occasion, he was “very much in my face” when she was speaking to him. She also
explained that the Regional District, and specifically the animal control
authorities, had not pursued this case as they might otherwise because “it has
a lot to do with the intimidation factor and trying to bring…witnesses to
come forth…and people were just too scared”.

The appellant argued on this appeal that the Regional District’s
approach to this matter is somehow wanting because it did not exhaust its own
internal remedies. In particular, it did not take steps under its animal
control bylaw before pursuing this application. I make two observations as to
this contention. First, there is no legal obligation on the Regional District
to exhaust or even pursue internal or lesser remedies before seeking an order
under s. 49 of the Community Charter. Second, while the failure to
do so may be suggestive of bad faith or a precipitous response, that is not so
in this case. To the contrary, Mr. Smith has demonstrated by his reaction
to this application that lesser remedies or a more nuanced response was
unlikely to achieve the desired result. After this proceeding was launched, Mr. Smith
sued Ms. Eklund, Ms. Luscomb, George Bandol (another witness), five
employees of the Regional District, and the Regional District. His claim was
launched on the eve of the trial. An application to strike it was argued on
July 9, 2012, following the taking of the evidence in this case but before the
trial judge issued his decision. Master Young heard the application and
dismissed all the claims for reasons indexed at 2012 BCSC 1561. She set out in
her decision at paras. 3 and 4 the nature of Mr. Smith’s claim:

[3]        The notice of civil claim was filed on May 3,
2012. In it the claimant seeks the following relief:

1          Relief Sought Against:


A-Termination of employment for all
employees who failed to investigate allegations.

B)-Suspension of Don Plamondon

C)-Termination of Dana Eklund’s
position as court expert

D)-The sum of $10,000 for legal

E)-The sum of $250,000 in punitive

F)-Erase Diesel’s record totally.

2-Don Plamondon – $50,000.00

3-Rhoda Mueller – $50,000.00

4-Alan Dunkin – $50,000.00

5-Kellie Howe $50,000.00

6- Michal Pesta $50,000.00

7-Lynda Luscombe $50,000.00

8-Dana Eklund – $50,000.00

9-George Bandol – $50,000.00

[4]        The claimant’s stated legal basis for these
claims, as set out in the notice of civil claim, is as follows:

1          1-Failure to perform
basic job duties.

2-Abuse of Authority

3-Malicious prosecution/persecution

3 [sic]-Failure to Observe
Procedural Fairness

4-Unprofessional Conduct


6-Labor Code re- Reasons for

7-Character Assassination

8-Psychological damage to both
Diesel and Dave Smith

9-Stress and Mental Distress caused
by treatment by staff of animal control

8 [sic]-False Declaration/Statement

9 [sic]-Rogier v Halifax- Hfx No

10-Roden v Toronto Humane Society C40519 and C41024

I will digress to deal with the application to adduce fresh evidence
because it relates to the foregoing. At the outset of the appeal, the appellant
applied to introduce fresh evidence. The evidence is an exchange of settlement
offers made between the respondent and the appellant prior to the hearing and
evidence about a fence that Mr. Smith built around his property following
the conclusion of the hearing. Generally, fresh evidence is not admissible on
appeal. In Topgro Greenhouses Ltd. v. Houweling, 2004 BCCA 39, Smith
J.A. summarized the principles governing the admission of such evidence at para. 26:

[26]      The admissibility of fresh evidence is governed by
the principles set out in Palmer v. The Queen (1979), [1980] 1 S.C.R.
759 at 775-76:

(1) The evidence should generally
not be admitted if, by due diligence, it could have been adduced at trial
provided that this general principle will not be applied as strictly in a
criminal case as in civil cases: see McMartin v. The Queen, [1964]
S.C.R. 484.

(2) The evidence must be relevant
in the sense that it bears upon a decisive or potentially decisive issue in the

(3) The evidence must be credible
in the sense that it is reasonably capable of belief, and

(4) It must be such that if believed it could reasonably,
when taken with the other evidence adduced at trial, be expected to have
affected the result.

The evidence regarding the fence that Mr. Smith has constructed
around his yard does not meet the first criteria in Topgro. I realize
that the fence was built after the hearing and, in that sense, could not be
adduced by due diligence, but the fence could have been built prior to the
hearing, and if Mr. Smith wanted the court to take account of it, he
should have done so. To admit it now would be contrary to the policy goals that
are served by the limits on the admissibility of fresh evidence. A litigant
may chose to argue his or her case and, if the result is not in their favour,
take remedial steps secure in the knowledge that such steps will be considered.
Moreover, for reasons which follow relating to whether a conditional order
should be made, the evidence does not bear upon a potentially decisive issue.

The evidence regarding the settlement offers is not admissible as fresh
evidence because it would not be admissible had it been tendered on the hearing
of the application. It would not have been admitted then for the same reasons
that settlement offers more generally are not admissible. They are privileged
in part because the law favours efforts to resolve cases by agreement, and if
parties knew that their settlement discussions might become evidence should
they not lead to a resolution, it would have a chilling effect on such
discussions. Those same considerations apply to attempts to resolve disputes such
as the one at hand. Further, the settlement offers are not relevant. The
appellant argues that they show that the Regional District was prepared to
return Diesel under certain conditions, and that belies the notion that Diesel
is a dangerous dog or that Ms. Giesbrecht reasonably believed he was. As Mr. DeSouza
observed, there are many factors that go into whether a local government will
take a matter to a hearing. Not least among those is cost. It does not follow
that in an effort to save significant legal and pound expenses, a local
government may be prepared to resolve a case otherwise than in accord with the
merits as it perceives them.

The Regional District called evidence about many of the events that Ms. Giesbrecht
relied on in forming her opinion. Those events include an encounter with
12-year-old Brittany Fedoruk, an event involving Maria and George Bandol, and a
second event involving Ms. Luscomb. There were several other instances
which involved Diesel being off leash and at large in the neighbourhood,
sometimes chasing cats, and other times simply wandering the streets.

There were two events involving Brittany Fedoruk. The first occurred on
November 8, 2006, and the second on April 3, 2007. As to the first event
Heather Fedoruk, Brittany’s mother, testified that she was in her car helping
her daughter complete her paper route. Diesel came “bounding” up to her car,
which was stopped on the side of the road. Brittany got out of the car to
deliver a paper and Diesel jumped up on her. Diesel then weighed about 95
pounds. Ms. Fedoruk was very concerned for the safety of her daughter
because Diesel had approached with his teeth bared, and while she could not
recall if he was growling, it was clear to her that his approach was not
friendly. The second event occurred when Brittany was walking home after school.
She said Diesel ran up to her and “charged” her. She thought he was going to
bite her, so she put her hands inside her heavy coat. She said that but for her
heavy coat she thought Diesel would have bitten her. Mr. Smith was
watching as this event unfolded. Brittany yelled to him to get his dog off, and
Mr. Smith said in a joking manner “don’t worry he is just trying to bite
you”. On both of these occasions, Diesel was not on a leash. On neither occasion
did he actually bite Brittany.

The trial judge said that Diesel “charged” on both of these occasions. The
appellant argues that he erred in so characterizing the behaviour. Mr. Smith
testified about the second incident and said that Diesel “bounced” up to
Brittany with his mouth open. It is not an error to accept the evidence of
Brittany Fedoruk as to how the second event unfolded, nor is the description of
the first encounter a mischaracterization of the event. It is argued that
Brittany’s evidence was unreliable because she remembered the dog jumping on
her and attempting to bite her but did not remember that when Mr. Smith
called Diesel, the dog responded and sat down. This is not a basis to conclude
that Brittany’s evidence was unreliable. She described that very behaviour in a
statement she wrote at the time of the incident and agreed that her statement
was accurate. She said that given that the event happened five years earlier,
she no longer remembered that aspect of it. Next, the appellant argues that it
was significant that Brittany did not believe Diesel would attack her and that
the trial judge ignored this evidence. Her evidence was that prior to the April
2007 event, she did not believe that Diesel would attack her. The fact the trial
judge did not mention that is of no moment. Her belief before the frightening
events of April 3, 2007, is not particularly relevant.

I am not persuaded the trial judge erred in his assessment of the events
involving Brittany Fedoruk.

Mr. and Mrs. Bandol live down the street from Mr. Smith. They
are retired and had recently moved into the neighbourhood. The appellant takes
no issue with the trial judge’s conclusions regarding the two events they
testified about. The first of those occurred in October 2010. On that occasion,
Mr. Bandol was walking his deaf 14-year-old English spaniel named Lexi
when Diesel and another dog belonging to Mr. Smith ran up to and set upon
Lexi. Mr. Bandol picked his dog up and attempted to kick the Smith dogs,
who continued to press their attack. When Mr. Smith arrived on the scene,
he grabbed Mr. Bandol by the collar and yelled at him to stop kicking his
dogs. Mrs. Bandol said that in July 2010, she was walking Lexi when the
same two dogs jumped on her causing her to squeal. On this occasion, Lexi was
not on a leash but was close by Mrs. Bandol. Mrs. Bandol was able to
pick her up and prevent any further damage. She testified, and the trial judge
accepted, that Lexi limped as a result of this encounter and was still limping two
years later when Mrs. Bandol testified. The Bandols were served with Mr. Smith’s
notice of civil claim in May 2012, six weeks before they gave their evidence.

I digress to note that Mr. Smith advanced the theory that many if
not all of the complaints were the product of a campaign by a disgruntled
neighbour who Mr. Smith had complained about to the Regional District. The
trial judge rejected that notion and noted that while the Bandols did complain
about the events involving their dog, they did so reluctantly not wishing to
cause problems with their new neighbours.

Ms. Luscomb and her dog were involved in a second incident with
Diesel. This one occurred in February 2010. During this event, Toska’s lip was
punctured and his ear was chewed. At the time Toska was recovering from surgery
she had had on her stomach. Ms. Luscomb said that she was walking Toska in
an off-leash area when Diesel first charged and bowled over another little dog
and then came for Toska. She said that he “charged” Toska sending him “flying”.
Ms. Luscomb said that she screamed at Mr. Smith to get his dog, as
she was trying to fend him off and protect her dog. The trial judge described
these events at para. 7 of his reasons, writing that Ms. Luscomb

…the Smith dog to charge a second
little dog that was walking with her and then attack Tosca [sic] again bowling
him over…

The appellant argues that the trial judge:

…made a palpable and overriding
error by misapprehending the evidence to conclude Diesel attacked the
Witness’ dog when the evidence was only that Diesel “came for him”.

Further, he argues that there was no evidence that it was
Diesel that punctured Toska’s lip or chewed his ear.

The trial judge did not misapprehend Ms. Luscomb’s evidence; in
fact, he used the very words she did in describing this incident. While it is
true that Ms. Luscomb did not say which dog chewed her dog’s ear or
punctured her dog’s lip, it was a reasonable, in fact almost irresistible,
inference that it was Diesel. Ms. Luscomb’s veterinary bill for this
attack was $160.

There were other events testified to by various witnesses, but the
foregoing were the most significant.

There was, as noted above, expert evidence called by both the appellant
and the respondent. In her report, Ms. Eklund wrote:

It is my opinion that this dog
exhibits extreme dominance which will result in a bite or attack when cornered,
confined, at large, or just simply not given his way. His age, temperament and
learned behaviors pose very serious risk (sic) and given opportunity he
will likely inflict injuries and potentially death to a member of the public or
another animal that is in his way.

She further expressed the view that there was almost no hope
that any training or remedial work would reduce the risk to public safety that
Diesel poses.

Gary Gibson gave expert evidence on behalf of Mr. Smith. In his
opinion, Diesel is not an aggressive dog. He said that while Diesel may behave
in ways that people interpret as aggressive, in fact his behaviours are only a
means of getting attention. He described Diesel as having a “brat” personality,
by which he meant he had never grown out of puppyhood. Further, he testified
that Diesel would not hurt anything and would not fight unless challenged first.
Finally, he said that Diesel is capable of being trained so that even his “bratty”
or “rude” behaviours would diminish.

The trial judge found Mr. Gibson’s opinions to be at odds with the
evidence given at trial, and in particular the “very vicious attack” to which Ms. Luscomb’s
dog had been subjected.

The appellant argues that the trial judge erred in rejecting Mr. Gibson’s
evidence, but this argument rests on the proposition that the trial judge erred
in the conclusions he reached about the events to which the various civilian
witnesses testified. Given that I am not persuaded that the trial judge erred
in reaching those conclusions, there is no basis to conclude that he erred in
rejecting the opinions of Mr. Gibson.

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:

It may be, and such is often the
case, that the facts proven by the Crown, examined separately have not a very
strong probative value; but all the facts put in evidence have to be considered
each one in relation to the whole, and it is all of them taken together, that
may constitute a proper basis for conviction.

This approach was recently endorsed by Bennett J.A. in R. v. Carpio,
2012 BCCA 484. In all three of these cases, the court was concerned with
inferences to be drawn from circumstantial evidence. Although these cases arose
in the criminal context, the approach applies with equal force to the matter at
hand. A reasonable opinion may be formed on the basis of an array of events, no
one of which may be sufficient to ground a conclusion. An individual event may
admit of a reasonable explanation inconsistent with the conclusion that Diesel
was dangerous. A series of such events, viewed together and in context, may
properly form the basis of a reasonable opinion that Diesel is dangerous. It is
not an error to approach the evidence in that way; in fact, to do otherwise
would be to err.

In my view, the trial judge did not err in finding that the animal control
officer had reasonable grounds to believe that Diesel was likely to kill or
seriously injure a person. In reaching this conclusion, I recognize that with
the possible exception of the first event involving Ms. Luscomb, none of
the events involved Diesel causing injury to a person. It does not follow that
it was unreasonable for the animal control officer to reach the opinion she did.
The events involving Ms. Luscomb and Mr. Bandol illustrate this point.
In both cases, these people were walking their dogs on a leash. In both cases,
their dogs were attacked by Diesel. In both cases, they reacted as would many
dog owners – they attempted to protect their dog. Mr. Bandol picked his
dog up and Diesel continued to press the issue. Ms. Luscomb had to
physically restrain Diesel. In both cases, the animal control officer may
reasonably have concluded that they were at risk of serious injury.

The second variable in the equation that an animal control officer must
consider is the degree of responsibility of the dog owner. As noted, a
conclusion that a dog is aggressive towards people or other dogs is generally
not sufficient to ground a reasonable belief that the dog is likely to
seriously injure a person. Whether that is so or not will depend on whether the
animal’s owner is likely to take the steps necessary to control the animal and
thus contain the risk.

The trial judge concluded at para. 48 that:

[48]      …Mr. Smith has
proven himself to be both unreliable and profoundly irresponsible about the
care and control of his animal. He has shown a wanton indifference to the
serious distress his failure to control this animal has caused to his

The appellant argues that the trial judge ignored evidence which was
inconsistent with this conclusion or in fact supported a contrary conclusion
and, in doing so, made a palpable and overriding error. Counsel points to
several aspects of the evidence in support of this proposition. The first is
that Mr. Smith is a law abiding citizen who worked for many years as a
paramedic and often volunteered his time in the community. The trial judge did
not find that Mr. Smith was generally irresponsible or generally
unreliable but rather that, in relation to controlling his dog, he was. The
evidence of how he conducted himself at work or in other areas of his life is
not particularly relevant to the narrow issue the court was concerned with. To
not take it into account, assuming that the failure to mention it implies that
the trial judge did not take it into account, is not an error, or at least not
an overriding error. Second, the appellant argues that what may have outwardly appeared
to be “indifference” was not indicative of Mr. Smith’s true feelings;
rather, it was a product of his long exposure to traumatic events through his
employment. I take the trial judge’s conclusion about wanton indifference to
rest not on how Mr. Smith may have reacted to specific events, but rather
to rest on the fact that over the course of several years, his dog had caused
serious distress to his neighbours and yet Mr. Smith repeatedly failed to
take the steps necessary to prevent further occurrences. The evidence
overwhelmingly supports that conclusion. Finally, the appellant argues that he
promised that if Diesel were to be returned to him, he would fence his yard. As
to this proposition, two things are of note. First, the issue was whether the
animal control officer had reasonable grounds for her belief. No offer to
properly contain Diesel was made to her or to anyone else from her office. In
fact, notwithstanding repeated warnings, the issuance of multiple tickets, and
the obvious distress that his dog’s behaviour had caused to his neighbours, by
February 2011 he had not taken the rather basic step of keeping his dog on a
leash or ensuring his dog would not get out of his yard.

In summary, I am not persuaded the trial judge erred in concluding that the
animal control officer had reasonable grounds to believe that Diesel was likely
to kill or seriously injure a person.

c) Did the trial judge err in concluding there was
no statutory basis for making a conditional order?

What have come to be known as “conditional orders” are orders made
following a finding that a dog is dangerous within the meaning of s. 49
but when the court is satisfied that it not necessary to order the dog
destroyed. The trial judge held that he had no jurisdiction to make such an
order. He concluded that if the court determines that a dog is dangerous, it
has but two choices: order the dog destroyed or order that it be returned to
its owner (para. 40 of the reasons for judgment).

There are conflicting authorities on whether s. 49 confers
jurisdiction to make conditional orders. The courts in R. v. Kucera,
2001 BCPC 360; Burnaby (City) v. Nagra, 2010 BCPC 34; Prince George (City)
v. MacLeod
, 2004 BCPC 8; New Westminster (City) v. Letendre, 2010
BCPC 38; and Capital Regional District v. Kuo, 2006 BCSC 1282, found
that conditional orders (or similar orders) were authorized or at least
permitted by the statute. In R. v. Dempster, [1995] B.C.J. No. 2264
(C.A.), a case decided under s. 8 of the Livestock Protection Act,
R.S.B.C. 1996, c. 273, the court found that there was no jurisdiction to
make such orders.

These cases were all brought to the attention of the trial judge. He
considered that he was at liberty to not follow Capital Regional District v.
because, in his view, it was inconsistent with the earlier Court of
Appeal’s decision in R. v. Dempster. While it is not accurate to say
that I am bound by the decision in Kuo, the longstanding rule of discretionary
practice set out by Wilson J. in Re Hansard Spruce Mills Ltd., [1954] 4
D.L.R. 590 (B.C.S.C.) suggests that I should follow it unless it falls within
one of the exceptions listed at paragraph 4.

The dog in issue in Kuo was an 11-year-old Belgian Malinos “attack
dog” named Aba. At trial, Aba’s owners did not contest the issue of whether she
was dangerous within the meaning of s. 49 of the Community Charter.
All they sought was to save her from being euthanized. To that end, they
identified a person willing to adopt her. They retained a veterinarian to
assess the dog and the dog’s prospective new owners. The veterinarian supported
the proposed adoption. The Regional District argued that the court did not have
the authority to implement the adoption plan citing Dempster. Palmer
P.C.J. disagreed. His decision which was released on July 20, 2005, is not
reported or indexed. He noted that s. 49(10) provides for an application
to be made for a destruction order but provides no direction as to the form
such an order might take. He concluded that, in view of the absence of any
limitation in the section on the form a destruction order might take, the court
had the discretion to make any order provided that it was consistent with the
protection of the public. At paras. 37 and 38, he wrote:

[37]      This would include, in my view, a ‘conditional’
Destruction Order that provides for the adoption of the dog under certain
conditions and a stay of execution so long as those conditions are being met.
It would also provide for immediate implementation of the Destruction Order
upon a summary Application where the conditions are breached.

[38]      As s. 49 of the Community
is clearly directed at public protection, I would expect that any
such Order would be made only upon the Court being presented with a detailed
plan for the dog’s care that would ensure protection of the public, together
with opinion evidence from a qualified expert that endorses the plan’s
viability and advisability.

He ordered that the dog be delivered to the person who had expressed a
willingness to accept it. He imposed a variety of conditions which included the
ability of the Regional District to apply without notice for an order for the
immediate destruction of the dog should any of the conditions be breached or
if, for other reasons, the animal control officer felt that such an order
should be made.

The Regional District appealed and Johnston J. dismissed the appeal. In
doing so, he considered R. v. Dempster and distinguished it on the basis
that it was decided under the Livestock Protection Act. He concluded
that a court hearing an application under s. 49 of the Community
has the jurisdiction to make orders other than for the destruction
of the dog or its return to its owner. At para. 30, he wrote:

[30]      I read the Community
as giving wide discretion to the judge to deal with the facts
revealed by the evidence on an application under s. 49(10). I say that
because, where the statute elsewhere gives this court jurisdiction to make
certain decisions, it sets out with some precision limits within which this
court might act. By contrast, s. 49(10) permits an animal control officer
to apply to the Provincial Court for a destruction order, but, as I have
said earlier, states no limits on what the Provincial Court judge hearing the
matter might order.

The Regional District appealed this decision, but by the time the case
reached the Court of Appeal, Aba had been destroyed. While Newbury J.A.
acknowledged the divergent trial court decisions and the importance of
resolving the issue, she declined to do so because the case was not only moot
but lacked the adversarial context which was necessary to a proper
consideration of the issue.

Johnston J.’s decision was a considered one. I am not aware of any subsequent
decisions which have affected its validity, nor am I aware of any binding
authority which was not considered by him. In short, his decision does not fall
within any of the exceptions noted by Wilson J. in Re Hansard Spruce Mills.
As a matter of comity, I should follow it and I do.

The issue that remains, therefore, is whether some form of conditional
order should be made, and whether that is a matter that I should decide as
opposed to remitting the case to the trial judge for his consideration.

The appellant argues that a conditional order by which Diesel would be
returned to Mr. Smith is appropriate. The respondent suggests that an
adoption order presumably similar to the order made in Kuo is the
preferred course.

It does not follow that simply because a conditional order is available
that one should be made. Whether one should be made will depend, as Palmer
P.C.J. pointed out in Kuo, on whether such an order would “ensure the
protection of the public”. That question turns on the danger the dog poses and
whether the proposed plan adequately constrains that danger. There are two
options in the matter at hand. One is to order the dog returned to Mr. Smith
under various conditions, such as fencing his yard and never permitting the dog
to be at large otherwise than on a leash. I am not persuaded that making such
an order would adequately protect the public. I agree with the trial judge’s
conclusion that Mr. Smith has shown himself to be both unreliable and
profoundly irresponsible in his care and control of Diesel. His assurances that
he will now do that which any reasonable person would have done long ago are an
insufficient basis on which to rest the public’s safety. Further, a conditional
order that involved Diesel being returned to Mr. Smith would require the
Regional District to continue to deal with Mr. Smith in relation to Diesel.
He has shown himself to be singularly uncooperative and unreasonable in his
dealings with the Regional District’s staff to this point, and there is no reason
to think that will change.

The remaining option is adoption. I am satisfied that given sufficient
safeguards that adoption is a viable option. I reach that conclusion in part
because while I am satisfied that Diesel is dangerous within the meaning of
s. 49, and while he may be beyond corrective training, he is not so
dangerous as to be beyond the ability of a responsible owner to control.


The appeal is allowed to the extent that the destruction order is
conditionally set aside.

It is not clear to me whether the Regional District wishes to find a
placement for Diesel or whether it expects Mr. Smith to do that. Given
this uncertainty, I will stay the destruction order pending the parties
speaking to the question. They should arrange a hearing through the Supreme
Court scheduler’s office. The hearing is to be held within the next seven days.
I will hear the matter at 9 a.m. or 4:15 p.m. All parties are permitted to
appear by telephone. If the Regional District wishes that Mr. Smith assume
responsibility for the placement of his dog, I envision an order that requires
him to find a replacement and have the proposed new owner assessed by a
veterinarian or similar professional. That person would then have to provide an
opinion to the effect that, with specific conditions, the danger that Diesel
poses can be constrained within acceptable limits. All of this would need to be
done within 60 days. The person with whom Diesel is placed would have to
abide by conditions likely similar to those imposed in Kuo. If, on the
other hand, the Regional District wishes to seek a placement for Diesel, I
would accede to that request and impose conditions on the placement. What those
conditions will include will depend in part on the proposed placement.

The final question is as to costs. When this matter was argued, both
counsel took the position that it was an appeal under the Small Claims Act.
For the reasons given above, I consider that it is an appeal under the Offence
. Different considerations apply to the issue of costs under that
statute. I will hear from the parties on the question of costs given this
statutory context when I deal with the issue of who is to propose the adoption.

Barrow, J.”

Honourable Mr. Justice Barrow