City of Vancouver v. Sim, 2017 BCPC 456

Citation: City of Vancouver v. Sim 2017 BCPC 456 Date: 20170714 File No: 34931 Registry: Vanouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Bylaw) BETWEEN: CITY OF VANCOUVER CLAIMANT AND: ROSEMARIE SIM DEFENDANT REASONS FOR JUDGMENT OF THE JUDICIAL JUSTICE Z. MAKHDOOM Counsel for the Claimant: A. Kong & K. MacDonald Counsel for the Defendant: V.V. Shroff Place of Hearing: Vancouver , B.C. Date of Hearing: May 16, November 18, 2016, May 2, 2017 Date of Judgment: July 14, 2017

INTRODUCTION [ 1 ] The disputant, Ms. Rosemarie Sim, denies two charges laid by the City of Vancouver (the City) pursuant to its Animal Control Bylaw 9150 (the Bylaw) for failing (1) to keep her dog on leash, and (2) to exercise control over a dog in her possession in a public place. [ 2 ] The City alleges that canine of the Labradoodle variety, owned by Ms. Sim, attacked and bit Ms. Melissa Vabic on April 25, 2015. At trial Ms. Kong appeared for the City while Ms. Shroff represented the Ms. Sim. Day 2 and 3 of the trial the City was represented by Ms. K. Macdonald. BACKGROUND [ 3 ] Ms.

Sim resides in a condominium building located at 501 Pacific Street, Vancouver, British Columbia and is the registered owner of a male Labradoodle dog named Jackson. Ms. Vabic is a frequent visitor to this building as her boyfriend lives there. She owns a Maltese dog and often looks after another Maltese owned by her boyfriend. [ 4 ] On the material day and time, Ms. Vabic alleges she was lunged, bitten, and bruised by Jackson accompanying Sim. [ 5 ] Upon receiving a complaint from Ms. Vabic, the City investigated. Hence the impugned charges.

CHARGE [ 6 ] The following was sworn on September 9, 2015: Count 1: On or about April 25, 2015, being the keeper of a dog, did permit, suffer or allow said dog to be on street, in a public place not owned or controlled by her, to wit, at 501 Pacific Street, Vancouver, British Columbia, without said dog being in care and control of a competent person, contrary to the form of the enactment in such case made and provided.

Section 4.2 By-law 9150. Count 2: On or about April 25, 2015, being the keeper of a dog, a Labradoodle named “Jackson”, at 501 Pacific Street, Vancouver, British Columbia, did permit, or allow the dog to bite, attack or injure a person or domestic animal, contrary to the form of the enactment in such case made and provided.

Section 4.14 By-law 9150. FACTS [ 7 ] Ms. Sim, who resides in a condominium building at 501 Pacific Street, Vancouver, and owns a Labradoodle male dog named Jackson [ 8 ] On April 25, 2015, while exiting the aforementioned building for a walk Jackson, in care and control of its owner, Ms. Sim, lunged excitedly at Ms. Vabic, who was entering the lobby of the building, carrying a Maltese named Moni that belonged to her boyfriend, Mr. Dawood, who resided in the building. Her dog, also a Maltese named Rico, was being carried by Mr. Dawood. [ 9 ] The bruising of skin was subsequently noticed by Ms.

Vabic, who felt a pinch on her right gluteus maximus after lunging by Jackson. Photographs admitted in the evidence show her skin intact but bruised. The CCTV footage from the building security camera system show evidence of commotion that ensued, a security person continued to stoically occupy his station. At times he was observed engaging in conversation with the parties. [ 10 ] Ms. Vabic attended the St. Paul’s Hospital, where she received brief medical attention, that is, “three, four minutes” of physician time (Transcript, May 16, 2016, p. 23), she was allowed to leave. [ 11 ] Ms.

Vabic laid a complaint with the City of Vancouver. Animal Control officer, Robert Blackmore, investigated. An information was subsequently sworn, charging Ms. Sim for (1) failing to properly leash a canine in public, and (2) allowing that same canine to bite, attack, or injure a person. [ 12 ] The CCTV footage admitted is fairly grainy, however, good enough to discern outlines of the parties involved. [ 13 ] The City presented two witnesses: Animal Control Officer (ACO), Robert Blackmore and Ms. Vabic. [ 14 ] In addition to Ms. Sim and Dr.

Maria Just, a veterinarian, five witnesses, Jordan Lank, Elaine Stride, Rabani Bubber, M.J. Ankenman, and Tania Akehurst, testified for the defence. In effect, all later five witnesses were Jackson’s “character witnesses”, who variously vouched about Ms. Sim being a highly diligent and responsible dog-owner with demonstrably exemplary skills in managing Jackson. The later, they testified, a very well-trained, disciplined, and a pacific entity.

REGULATORY CONTEXT [ 15 ] The City of Vancouver is authorized pursuant to the Vancouver Charter S.B.C. 1953, c.55, to enact bylaws regulating civic conduct of individuals and corporations within its jurisdiction. These powers include establishing a pound as well as licence and regulate keeping of dogs and other animals. [ 16 ] In November 2005, the City of Vancouver Council enacted Bylaw 9150, which repealed Bylaw 7528.

Bylaw 9150 4.2 A person who keeps a dog must not permit, suffer, or allow the dog to be on a street or other public place unless the dog is under theimmediate charge and control of a competent person by means of a leash that is not more than 2.5 m long or another by-law allows thedog to be off-leash under certain circumstances. 4.14 A person who keeps a dog must not permit, suffer, or allow the dog to bite, attack or injure a person or domestic animal. CASES CONSIDERED AND/OR APPLIED R. v. Sault Ste. Marie (1978) (SCC), 40 C.C.C. (2d) 353. Whitehorse (City) v. Trenary

(1997) Y.J. No. 97. R. v. Picadilly Investments,

(2008) BCPC 97. Byers v Her Majesty the Queen,

(2005) SKQB 509. R. v. Moser,

(2011) BCPC 22 R. v. Flynn,

(2016) BCPC 296. R. v. Kang & Shin,

(2010) BCPC 121 HMTQ v. Florness,

(2005) SKQB 517. R. v. Douglas

(1997) Canlii 16238 R. v. Sam

(2010) QCCQ 2571 Landry v. Rains et al, 2013, ONSC 7143 R. v. Gaudreault (1978) (ON CA), 22 O.R. (2d) 807 R. v. Tegstrom

(1970) SKQB 583 ANALYSIS ISSUES: Has the City proven beyond a reasonable doubt that

(1) Jackson was off-leash inside the lobby of 501 Pacific Street? And, (2)Did Jackson lunge at and bite Ms. Vabic? [17] Ms. Vabic, a therapeutic counsellor for the First Nations communities, gave evidence that upon entering the building lobby,holding Moni the Maltese, she saw Ms. Sim approaching the exit with Jackson in tow. She heard Moni, issue a couple of “non-aggressive” growls (Transcript, May 16, 2016, p.10) and then heard Jackson bark, lunge towards her, subsequently feeling a pinch on herright hip. Discerning, albeit mistakenly, “loss of control of the dog” (ibid.), she anticipated further bites.

There is no evidence of furtherlunges or barks or growls issued by Jackson. [18] Naturally, Ms. Vabic was startled when a barking larger dog lunged at her as she entered the building where her boyfriend lives.I appreciate very much the reaction of Ms. Vabic after her tryst with Jackson. However, the evidence adduced by the City, namely CCTVfootage and photographic stills, show Jackson on-leash, tightly and effectively held by Ms. Sim. There is no evidence of Ms. Sim everbeing in loss of control of her dog. [19] Jackson lunged to connect with Moni despite the later growling, which Ms.

Vabic characterizes as of “non-aggressive” variety.Who knows how Jackson heard that growl but I do not see any signs of aggression in Jackson’s behavior. [20] One wonders what exactly would be probative value of photographs tendered by the City, which were admitted as Exhibit 2 inthe absence of expert opinion as to the nature of the injury sustained by Ms. Vabic. I do not possess any special forensic or medical oreven veterinary expertise to determine how those injuries materialized. Were they caused by a canine bite? Are they an abrasion causedby front paw of a lunging somewhat excited canine?

Could there be any other cause? It is in this context I consider veterinarian Dr. Just’stestimony helpful. [21] Dr. Just testified that she has observed and examined injuries caused by canines to humans. There is no sign that Ms. Vabic wasbitten. A lunge is discernible but not a bite, not an attack. [22] Dr. Just is a veteran veterinarian. She does not have any specialized training in diagnoses and treatment of humans. In herpractice, however, she has routinely afforded first aid to many of her clients accompanying their injured canines to her emergencyveterinary clinic.

Her rather extensive background and training in veterinary medicine does qualify her to opine on the nature of an injurysustained by a human person as a result of its interaction with a canine. In a ruling on a supplementary motion for admissibility ofphotographs, Landry v. Rains et al, 2013, ONSC 7143 , Justice E.J.

Koke of Ontario Superior Court of Justice writes “…any inferences which a jury will be able to derive from a review of these photographs will require expert evidence, perhaps by aveterinarian or some other canine expert who has the requisite training and experience to interpret the marks on the plaintiff’s face in thephotographs. [23] In her practice, Dr. Just had “never seen a Labradoodle or a Golden Doodle…ever been aggressive or been involved in

problems, other than being beaten themselves perhaps.” (Transcript, 16 May 2016, p. 59). While placing pit bull breed at the top ofaggression scale, she places Labradoodle’s at the lower end of this scale. Opining on the nature of bruise on Ms. Vabic, Dr. Just said it’sa superficial “…abrasion” not even a scratch let alone a bite (op.cit. p.60). Given the testimony of Dr. Just and lack of any otherindependent evidence indicating otherwise, I am of the respectful view that there was no bite. I would attribute the lunging behaviour ofJackson a response to the growling Maltese hoisted by Ms. Vabic.

The lunge, however, did not get Jackson far enough to bite or injuredue to the highly effective and timely control exercised by Ms. Sim. [24] The simple fact that Ms. Vabic was startled and she experienced pain as she felt a bite, that an abrasion mark the size of a tennisball was visible for photography at the time cannot be a prima facie proof of a bite. During the melee that lasted less than three seconds,Ms. Sim had the firm control of her dog Jackson, who presumably was reacting to two barking Maltese dogs held aloft each by Ms.Vabic and Mr. Dawood. Jackson lunged, lifted his two front paws.

From the grainy video one could discern his paws come in contactwith Vabic’s gluteus maximus. It’s unfortunate that the latter sustained an injury, a bruise that she says lasted for about 17 days. TheCity has failed to prove beyond a reasonable doubt that the abrasion on Ms. Vabic’s body was caused by a canine bite. [25] R. v. Sault Ste.

Marie (1978) (SCC), 40 C.C.C. (2d) 353 S.C.C. in which the Supreme Court of Canada whiledealing with the questions relating to the defence of due diligence ruled that Strict liability offences in which there is no necessity for the prosecution to prove the existence of mens rea; the doing of the prohibitedact, prima facie, imports the offence leaving it open to the accused to avoid liability by proving that he took all reasonable care. Thisinvolves consideration of what a reasonable man could have done in the circumstances.

The defence will be available if the accusedreasonably but mistakenly believed in a set of facts which, if true, would render the act or omission innocent, or if he took all reasonablesteps to avoid the particular event. (From the headnote). [26] This is a strict liability matter affording the accused an opportunity to avoid liability by demonstrating diligence. Was Ms. Simduly diligent in the exercise of care and control of Jackson?

Applying the balance of probabilities standard, even a cursory review of theevidence would lead to an affirmative. [27] Accordingly, I must enter an acquittal on both counts. ____________________Zahid MakhdoomJudicial Justice