CITATION: Randall Antonichuk v. The City of Owen Sound, 2014 ONSC 6075

DIVISIONAL COURT FILE NO.: 13-251 DATE: 20141022

ONTARIO SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Hambly, D. Brown and Gilmore JJ.

BETWEEN:

Randall William Antonichuk

Applicant

– and –

The Corporation of The City of Owen Sound

Respondent

R. H. Thomson, for the Applicant

No one appearing for the Respondent

HEARD at Brampton: October 21, 2014

D. Brown J.

I. Application for Judicial Review of “Dangerous Dogs” Designations

[1] King and Kaiser are two German Shepherd dogs owned by the applicant, Randall Anontichuk. The applicant seeks judicial review of the Decision of the Committee of Adjustment of the respondent, The Corporation of The City of Owen Sound, made October 16, 2013 confirming the designation of King and Kaiser as “Dangerous Dogs” under Owen Sound By-Law 2011-156 (the “By-Law”).

II. Background

[2] Diesel was a young Dachshund puppy owned by Alex Breukelman and Kaitlyn Angell. On July 3, 2013, an encounter occurred at the Owen Sound Dog Park between King and Kaiser, on the one hand, and Diesel, on the other, as a result of which Diesel died.

[3] The By-Law licenses, regulates and controls dogs within Owen Sound. Section 8.1 stipulates that it shall be enforced by Enforcing Officers, a term defined to include an Animal Control Officer. Section 7.1 authorizes an Animal Control Officer to designate a dog as a Dangerous Dog by issuing an order to the owner which includes the reasons for the designation, the effective date of the designation, and the requirements consequent on the designation. Section 7.3 provides that the owner of a designated Dangerous Dog may appeal to the City’s Committee of Adjustment to reconsider the designation of the Animal Control Officer. On the appeal, section 7.4 provides that the Committee may remove or retain the designation of the Animal Control Officer after providing the owner with a hearing pursuant to the provisions of the Statutory Powers Procedure Act.

[4] Section 2.6 of the By-Law defines a Dangerous Dog to mean “a dog that without justification has attacked or bitten a person or significantly injured or killed another domestic animal…or behaves in a manner that a reasonable person would believe poses an unjustified imminent threat of serious injury or death to one or more persons or domestic animals and where the conditions described in section 7.5 do not exist.”

[5] In the present case, as a result of the encounter on July 3, 2013 at the Owen Sound Dog Park, Todd Robbins, a City Animal Control Officer, sent Mr. Antonichuk a July 5, 2013 Order deeming King and Kaiser as Dangerous Dogs because they “well off your property attacked and killed a domestic animal”. That Order identified the following consequences of the designation:

(i) Payment by the owner of an annual licensing fee for Dangerous Dogs of $200 per dog;

(ii) When the dogs were found to be at large, the owner was required to call the Animal Control Officer without delay and advise of the last known location of the dogs;

(iii) The dogs were required to wear a muzzle and a collar with a leash when they were outdoors and off the property of the owner;

(iv) When the dogs were at the owner’s residence, they were required to be kept in a locked pen kennel or fully enclosed area with a fence minimum of 1.5 metres in height designed to prevent the escape of the dogs, and the area was required to be signed “Beware of Dog”;

(v) The dogs were required to be enrolled in and pass the Canadian Kennel Club obedience test to the satisfaction of the Animal Control Officer;

(vi) The dogs were required to have an up-to-date rabies vaccination, be spayed or neutered, and be implanted with a microchip by a qualified person; and,

(vii) The owner was required to provide proof of residential insurance of $2 million with the City named as an additional insured while the dog resided in the City limits.

[6] The owner, Mr. Antonichuk, appealed the designation of King and Kaiser as Dangerous Dogs to the Committee pursuant to section 7.3 of the By-Law. On October 16, 2013, the Committee held a hearing at which it dismissed the owner’s appeal and upheld the designation Order “because we are satisfied that King and Kaiser are Dangerous Dogs because, based on the evidence presented today… King and Kaiser satisfy the definition of Dangerous Dog under By-Law No. 2011-156 and we find that none of the factors in section 7.5 of the By-Law apply to the facts of this case.”

III. Grounds of Judicial Review

[7] By Notice of Application for Judicial Review dated November 15, 2013, Mr. Antonichuk sought an order setting aside the finding that King and Kaiser were Dangerous Dogs on several grounds:

(i) the Animal Control Officer failed to properly investigate the incident;

(ii) the Committee failed to provide full and timely disclosure to the applicant;

(iii) the Committee failed to permit the applicant to properly present his case at the hearing, which was conducted in a manner unfairly prejudicial to the applicant; and,

(iv) the Committee made findings of fact not supported by the evidence.

[8] Although the City filed a responding application record, it did not file a factum or send counsel to the hearing. As explained by the City Manager, Ruth Coursey, in her February 6, 2014 affidavit, the City could not justify the expenditure of its limited resources to retain counsel to appear in court, a cost which she estimated would amount to $10,000. Ms. Coursey deposed that in the event the Court required that another appeal hearing be held, she would ensure that it was scheduled before the Committee in a timely manner and she asked the Court to direct any changes required from the manner in which the first hearing was held. Ms. Coursey deposed: “Our City has enacted a Dangerous Dog By-law in order to preserve the safety of our ratepayers and has established an appeal mechanism which I believe is fair to all concerned”.

III. Analysis

A. The order made by the Animal Control Officer

[9] If a party raises an issue of procedural fairness, it is not necessary to engage in a standard of review analysis. It is for the Court to determine whether the requisite level of procedural fairness has been accorded taking into account the factors set out in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817.

[10] Although the Notice of Application for Judicial Review only sought review of the Committee’s Decision, in his factum the applicant argued that the Animal Control Officer had issued the Designation Order in an unfair manner because he had failed to speak to Mr. Antonichuk before issuing the Order. Although the better course of action by the Animal Control Officer would have been to speak to Mr. Antonichuk before issuing the order, the Officer’s failure to do so did not amount to a denial of natural justice which affected the validity of the Decision made by the Committee. As s. 7 of the By-Law makes clear, an owner who receives a Designation Order has a right to appeal to the Committee, and the Committee enjoys broad powers to remove or retain the designation after providing the owner with an opportunity to be heard.

[11] The minutes of the Committee’s October 16, 2013 meeting disclosed that it had held a hearing de novo which, in the ordinary course, would have required the Animal Control Officer to first lead evidence in support of the order, and then afford the owner an opportunity to present his case. Although the Committee altered the sequence of the calling of witnesses, it did so as a result of a request made by Mr. Antonichuk.

B. Lack of fairness at the hearing before the Committee

[12] Mr. Antonichuk next contended that he did not receive a fair hearing in front of the Committee for several reasons: (i) the Committee interrupted some of his questions; (ii) the Committee prevented him “from arguing his matter as he thought best”; (iii) the Committee prevented him from asking witnesses certain questions; and, (iv) interruptions by the prosecutor of the applicant did not receive reprimand or restraint from the Committee.

[13] Section 7.4 of the By-Law required the Committee to provide the owner with an opportunity for a hearing pursuant to the provisions of the Statutory Powers Procedure Act. No verbatim transcript of the hearing was created, but on this application the City filed the detailed, nine-page Minutes of the meeting at which the hearing was conducted. A review of those Minutes disclosed that the Committee afforded the applicant a fair opportunity to test the prosecutor’s case and to put forward his own case. The Committee accommodated the applicant’s request to call some of his witnesses out of sequence. Although the Minutes recorded that the Committee chair intervened several times to advise Mr. Antonichuk that some of his questions were repetitive and irrelevant and he asked Mr. Antonichuk “to make his questioning more precise to the event”, nothing in the record of the Chair’s interventions suggested anything other than an effort to keep the hearing focused on relevant matters. Mr. Antonichuk deposed that he thought such interventions restricted his ability to present his case, but neither his affidavit nor the Minutes of the hearing identified any evidence material to the issue in dispute – i.e. what happened at the Owen Sound Dog Park – which the applicant was prevented from calling or testing. I therefore give no effect to this ground of appeal.

C. The Committee’s treatment of the evidence

[14] Mr. Antonichuk submitted that the Committee erred in relying upon the evidence of the Animal Control Officer and that the Committee, in effect, had adopted that Officer’s determination as its own.

[15] The Minutes of the hearing do not support such a contention. The Committee gave both the prosecutor and the owner an opportunity to present the evidence in support of their respective cases. The Committee’s October 22, 2013 memorandum of the oral decision which it had delivered at the October 16 meeting amounted to written reasons for the Committee’s Decision. That Decision clearly identified the issue to be determined, reviewed the documentary and witness evidence placed before the Committee, and then made specific findings of fact, or what it called “determinations”.

[16] The Committee acknowledged that it had heard conflicting evidence about what had happened at the Owen Sound Dog Park:

In considering the written evidence submitted, the Committee relied on document 1 [email from Kaitlyn Angell to the Animal Control Officer] as it is directly related to the incident. In considering the oral evidence given by the complainants and the appellant, the Committee prefers the evidence given by the complainants and believes that one of the larger dogs had the smaller dog in its mouth causing serious injury and death. The Committee finds that none of the witnesses confidently confirmed whether the harm was caused by King or Kaiser or both. There was no evidence given to suggest that section 7.5 of the By-Law should apply. The Committee finds the evidence given by the Animal Control Officer to be credible and trusts the judgment of the Officer in issuing the order.

The Decision disclosed that the Committee considered all of the evidence before it, weighed that evidence and made findings of fact based upon the evidence. The Committee did not simply adopt the decision of the Animal Control Officer, as contended by the applicant. On the contrary, it provided a fair hearing to both sides. I therefore reject this ground of appeal.

D. Substantive review of the Committee’s Decision

[17] Although the grounds for the application set out in the Notice of Application for Judicial Review focused on alleged procedural deficiencies at the Committee’s hearing, in his factum the applicant advanced a substantive challenge to the Decision. The applicant submitted that a proper interpretation of the definition of Dangerous Dog in section 2.6 of the By-Law required a finding that King or Kaiser had bitten Diesel and, as well, that a designation as a Dangerous Dog required a finding that a particular dog had attacked another. The applicant argued that the By-Law did not permit the Committee to designate a dog as a Dangerous Dog if uncertainty existed about which of two dogs actually inflicted the injury.

D.1 Standard of review

[18] The appropriate standard of review must be determined. The decision of the Supreme Court of Canada in New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9, first requires ascertaining whether the jurisprudence has already determined the degree of deference to be accorded to a particular category of question. No prior decision has squarely addressed the standard of review for a decision made by the Owen Sound Committee of Adjustments under the City’s Dangerous Dog By-Law. However, this Court in Yeung v. City of Toronto, [2008] O.J. No. 561 (Div. Ct), para. 2, and in Ochoa v. Toronto (City), [2006] O.J. No. 4208 (Div. Ct.), para. 7, held that reasonableness was the applicable standard of review for decisions by animal control officers to destroy dogs under the Animals for Research Act, R.S.O. 1990, c. A.22. In the present case the City does not seek to destroy either King or Kaiser.

[19] Turning to a consideration of the contextual factors set out at paragraph 64 in Dunsmuir, although the By-Law is not protected by a strong privative clause, the issue of interpreting the meaning of “Dangerous Dog” in the By-Law involves an interpretation by the Committee - a designated body within the municipality - of its “home statute”. Under the Dunsmuir approach, such a question attracts a review standard of reasonableness unless it is a question of law of general importance to the legal system and lies outside the decision-maker’s expertise. The interpretation of the definition of “Dangerous Dog” in the City’s By-Law is not a question of general importance to the legal system, and the Municipal Act, 2001, specifically authorizes municipalities to pass by-laws dealing with animals, including the muzzling of dogs, so the issue lies within the expertise of municipal institutions. Consequently, the appropriate standard of review in the present case is reasonableness, and not correctness as submitted by the applicant.

[20] Accordingly, the Dunsmuir reasonableness standard requires that this Court review the Committee’s Decision to ascertain the existence of justification, transparency and intelligibility within the decision-making process and to determine whether the decision falls within a range of possible acceptable outcomes which are defensible in respect of the facts and the law.

D.2 Substantive challenges

[21] As to whether the actions of King and Kaiser against Diesel fell within the meaning of “Dangerous Dog” in section 2.6 of the By-Law, that section defines a dangerous dog to mean, inter alia, a dog which “without justification has…significantly injured or killed another domestic animal…” When the recipient of a dog’s conduct is another dog, the By-Law does not require the demonstration that the dog bit the other dog. Biting is an element when the conduct of the dog is against a person. When the dog’s conduct is against “another domestic animal”, the By-Law only requires establishing that the other domestic animal was “significantly injured or killed”. The Committee concluded, on the evidence, that “one of the larger dogs had the smaller dog in its mouth causing serious injury and death”. There was evidence before the Committee to support such a finding and the Committee gave transparent and intelligible reasons explaining how it reached its conclusion.

[22] The applicant submitted that since the Committee was not able to determine whether Diesel’s injuries were caused by King or Kaiser, the Committee did not possess the authority under the By-Law to designate either dog as a Dangerous Dog. I do not accept that submission for two reasons.

[23] First, the By-Law operates as a regulatory device designed to protect people and domestic animals in Owen Sound from Dangerous Dogs. It seeks to regulate conduct, not impose penal sanctions, as can be seen from the consequences of the Designation Order made by the Animal Control Officer. That Order required the applicant to pay a license fee and comply with various requirements designed to ensure the safety of others from Kaiser and King. The City does not seek to destroy either animal; it simply seeks to regulate their conduct in an effort to protect the public. The evidence before the Committee, including that of the applicant, was that both King and Kaiser were involved in the encounter with Diesel which caused that dog’s death. Since Diesel’s death resulted from its encounter with both Kaiser and King, it was consistent with the regulatory purpose of the By-Law for the Committee to interpret it in such a way that a Dangerous Dog designation was confirmed against both of the animals who were involved in the encounter.

[24] Second, even in the criminal law context the Criminal Code treats as a party to an offence not only the person who actually committed it, but any person who aided or abetted the commission of the offence. The un-contradicted evidence was that both King and Kaiser were involved in the encounter with Diesel which caused its death, so I see nothing unreasonable in the conclusion of the Committee that both dogs should be designated as Dangerous Dogs.

V. Conclusion

[25] For those reasons, the application for judicial review is dismissed. There shall be no order as to costs.

___________________________ D. Brown J.

Hambly J.

Gilmore J.

Released: October 22, 2014

Randall Antonichuk v. The City of Owen Sound, 2014 ONSC 6075

DIVISIONAL COURT FILE NO.: 13-251 DATE: 20141022

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Hambly, D. Brown and Gilmore JJ.

BETWEEN:

Randall William Antonichuk

Applicant

– and –

The Corporation of The City of Owen Sound

Respondent

REASONS FOR JUDGMENT

D. Brown J.

Released: October 22, 2014