Posted by Gail Forsythe — filed in Property Law
Effective January 1, 2022, a new “Responsible Pet Ownership” Bylaw (the “RPO”) will govern Calgarians and animal ownership. The RPO is 44 pages long. It requires careful reading to understand its impact upon Calgary pet owners.
The value of responsible pet ownership, peace and harmony is indisputable. On the other hand, animals are property by common law, with certain protections that arise from the principles of natural justice and due process. The Canadian Charter of Rights and Freedoms guarantees the right to a fair hearing. Despite Charter protection, the City of Calgary RPO substitutes an expeditious complaint process for the jurisdiction of the Provincial Court of Alberta. The removal of the Court’s jurisdiction is one, of ten, legal concerns regarding the fairness and reasonableness of the RPO.
Issue: If a dog temporarily escapes, is impounded and the owner does not receive the City’s notice by mail or is away from Calgary, the owner faces a significant risk of losing their property rights and being unable to retrieve their beloved pet. 72 hours is not a reasonable nor realistic amount of time for an owner to respond to a notice issued by mail.
Issue: Without the right to due process, how does one know the case alleged and test the credibility of witnesses (i.e. the complainant). The RPO ignores the principle that the separation of executive function from the judicial function is critical to impartiality, fairness and the prevention of power abuse. The RPO authorizes the Bylaw Officer to act as the complaint recipient, investigator, judge and jury. The RPO authorizes the Bylaw Officer to receive the complaint, interview “witnesses”, receive a written submission from the accused person and issue a finding as to the merit of the complaint. If faced with a demanding and persistent complainant, regardless how unreasonable, the “path of least resistance” could easily be taken by a Bylaw Officer to sustain the complaint. Regardless of training, good intentions or experience, a Bylaw Officer may lack the insight into the laws of evidence and requirements for due process expected of a Provincial Court Judge. The Bylaw Officer may also be working under pressure to meet administrative goals or quotas, and worried about job security if the complainant is not satisfied with the outcome. The RPO “appeal process” does not remedy these potentials for the miscarriage of justice.
Issue: administrative law principles are clear that an appeal is not a trial de novo. An appeal of an administrative decision is limited to a review of the “record”. The “record” may be as minimal as the Bylaw Officer’s written decision.
Issue: effective upon the expiry of 2021 licenses, “excess” pets that are in a household of more than 6 pets, are no longer eligible for license renewal. Issue: How will the City enforce this requirement? Will entries and seizure occur, to remove “excess” pets? If voluntary compliance is expected, how will owners chose which of their pets must be removed, euthanized, abandoned or sold to reduce their number to 6? One might argue that “no one needs more than 6 pets”. The reality is that there are responsible owners in Calgary who have more than 6 pets. It is common knowledge that it is not the number of pets that create havoc, it is the lack of responsible ownership. An owner with one noisy dog and a yardful of feces creates much more disturbance than an owner with multiple quiet pets and a pristine yard. Multiple pets are owned by the retired or single person for emotional support or companionship, active competitors for hobby and international competition, rescue groups for temporary placement with Calgary families. After being diligent in licensing all pets, these dedicated owners and groups will be forced in 2022, to make a “Sophie’s choice”; to decide which of their animals must be sold, given away, euthanized or abandoned. How is the failure to grandfather the license renewal of these pets helpful to Calgarians, and to the taxpayers who must bear the financial burden to enforce this harsh bylaw and impound the excess animals? How insensitive is it, to fail to recognize that the goal of limiting a household to six pets, and supporting owners in adjusting to the new limit, can be achieved by attrition? What is the harm prevented by permitting pets that are licensed in 2021, to live the remainder of their lives in the Calgary home they have always known?
Issue: see above. Also, the RPO provides that a “defence” exists if the animal is under 3 months of age, however a bylaw infraction ticket must be issued, before a “defence” comes into operation.
Issue: the RPO makes no allowance for emotional support dogs or cats; yet large livestock are permitted?
Issue: the City of Calgary does not have jurisdiction to restrict a person’s ownership of property. The City of Calgary has jurisdiction to stipulate the number of pets that may be kept within its jurisdiction. A Calgarian has the right to own multiple animals and keep them outside the City of Calgary.
Issue: Calgarians should not have to engage in the very costly process of a court challenge to test the constitutionality and fairness of the RPO in order to have the above amendments put into place to protect their rights to property ownership.
If you would like legal advice regarding the new Responsible Pet Ownership Bylaw, contact a lawyer at Aarbo Fuldauer LLP in Calgary.
Address: 3rd Floor, 1131 Kensington Road NW, Calgary, AB, T2N 3P4
Phone: (403) 571-5120
Email: [email protected]