Kelowna owners of loose dog expose fatal flaw in bylaw | iNFOnews | Thompson-Okanagan's News Source

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Kelowna owners of loose dog expose fatal flaw in bylaw

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December 06, 2019 - 7:38 AM

Owners of a canine escape artist managed to pull off an impressive feat of their own — they convinced the court that they shouldn't have to pay a fine for their runaway dog and the Central Okanagan Regional District was told to reimburse them for the expense of getting out of it.

The Regional District tried ticketing Ian and Marguerite Sisett following two 2018 incidents when their dog got loose, Justice G.P. Weatherill wrote in his decision that rescinded their fines.

The first was Oct. 16, 2018, when Marguerite and Ian's now-deceased standard poodle, Oso Grande, alongside two other poodles, escaped their Watt Road yard when a contractor the family had hired left the gate open.

Animal control bylaw enforcement officers were alerted to the situation when someone saw the three dogs galavanting around at nearby Gyro Beach.

They tried and failed to catch the dogs, which eventually went home on their own.

Bylaw officers may not have caught the dogs, but they were able to follow them home and saw Marguerite let the dogs in. At that point one officer explained to her that the dogs were at large, in violation of local bylaws.

Sisett said she tried to catch them but they were too fast and the officer issued a warning for three dogs violating s. 25 of the Bylaw “dogs at large”, and one ticket for the three dogs violating s. 26 of the Bylaw “dog in prohibited area” namely Gyro Park. The fine associated with the infraction was $100.

It didn't take long for Oso Grande to escape again and on Nov. 19, 2018 he made an ultimately fatal run for it, according to the court decision.

The Sisetts said that they suspected the poodle somehow got through the fence and once it did it didn't come home right away.

They called the Regional District the next day to advise that Oso Grande went missing on the day he was supposed to be neutered.

Animal control officers began a search and eventually spotted the dog after being flagged down by a motorist reporting that it had been injured.

"The dog was spotted in several locations, but catching it proved elusive and the search was called off," reads Weatherill's decision. " Later that day the dog was captured by a member of the public and the petitioners were informed. Unfortunately, the dog was injured to the point that it had to be euthanized."

A few days later the petitioners received a second bylaw offence notice in the mail, on the basis that they were in breach of s. 25 of the Bylaw when Oso Grande escaped. This time, the fine was $200.

The specifics of the bylaw are that no owner shall cause or permit his or her dog to be at large. Dogs must be kept on a secure leash held by the owner.

The other section of the bylaw states that no owner shall cause or permit his or her dog to be within a public area to include: park, playground, sports field, school ground, swimming area or public beach where dogs are prohibited unless the area is otherwise designated by the Regional District or another local government authority.

The Sisetts disputed both bylaw offence notices, Weatherill said, and the matter went to adjudication before an adjudicator. There the Sisetts applied to have the tickets rescinded and fines cancelled.

The adjudicator sided with the regional district and upheld the tickets and the Sisett's took the matter to court for a judicial review of the arbitrator’s decision.

That's when they had a change of fortune.

"The statutory framework of the Act required that the adjudicator decide, based on all the information before her, and on the balance of probabilities, whether the Bylaw was contravened," Weatherill wrote. "If so, the adjudicator is required to uphold the bylaw notices and order payment of the stipulated penalty. If not, the adjudicator must cancel the bylaw notices."

The Sisetts argued the adjudicator failed to consider their due diligence defence, and erroneously considered the offences were absolute liability offences rather than strict liability offences.

"They say that before they can be found to have committed the offences, they must have caused or committed them within the meaning of the bylaw," Weatherill wrote.

"In other words, they say they must have actively participated in the offences being committed, which they say they did not. They assert that their back yard was completely fenced in, and that they played no active role in the dogs getting out. They point to the lack of reference in the adjudicator’s reasons to any mention of the efforts the petitioners went to to prevent the dogs from being at large, namely have a gated fenced-in backyard. On this basis, the petitioners say that the arbitrator failed to give any consideration to their defence of due diligence."

The Sisetts also said the arbitrator misconstrued the evidence respecting their perimeter of the fence, commenting incorrectly that it was not fenced on the lake side when the evidence was that it was totally fenced on all four sides. The petitioners’ evidence was that, because the back yard was fully fenced, the dog must have been “an escape artist” to have gotten out of the yard.

Weatherill said he was satisfied from a review of her reasons and the evidence that was before her that the Arbitrator erroneously concluded that the bylaw was one of absolute liability, making the petitioners responsible for control of their dog on and off their own property.

"It clearly is not," he wrote.

"The bylaw offences are ones of strict liability. The adjudicator committed a reviewable error when she failed to address this important aspect of the petitioners’ defence."

"She incorrectly found that sections 25 and 26 of the Bylaw requires an owner to have control of his or her dog, both on and off the owner’s property. It does not. The Bylaw is intended to prohibit owners from allowing their dogs, or dogs under their care and control, from being at large, running loose in public areas without being leashed, and from allowing their dogs to be in a prohibited public area."

The bylaw offences were rescinded and the Sisetts were awarded costs.

To contact a reporter for this story, email Kathy Michaels or call 250-718-0428 or email the editor. You can also submit photos, videos or news tips to the newsroom and be entered to win a monthly prize draw.

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