KAITLYN KOVH Appellant - v. -, 2023 SKKB 12

KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 12 Date: 2023 01 13 Docket: CRM-SA-00425-2021 Judicial Centre: Saskatoon ___________________________________________________________________________ BETWEEN: KAITLYN KOVH Appellant - and - HIS MAJESTY THE KING Respondent Counsel: Valerie J. Warwick for the appellant Jodi L. Karasiuk for the respondent ___________________________________________________________________________ JUDGMENT SCHERMAN J.

January 13, 2023 ___________________________________________________________________________ Introduction [ 1 ] The appellant , Kaitlyn Kovh , appeals from the November 23, 2021 , decision of Justice of the Peace S. Parker in a proceeding under The Dangerous Animals Bylaw, 2003 , Bylaw No 8176 [ Bylaw ], of the City of Saskatoon, in which he found that Ms.

Kovh’s dog, Marble, was a dangerous animal and made certain orders in respect of her continuing ownership and control of Marble. [ 2 ] The essence of Justice of the Peace Parker’s decision was that the City of Saskatoon [City] had proven on the balance of probabilities that on May 7, 2020, Marble, without provocation, inflicted injury, assaulted or otherwise attacked a child. As such, he found that Marble was a dangerous animal as defined by the Bylaw . [ 3 ] Ms. Kovh’s appeal is based on the propositions that: a. on a proper

interpretation of the Bylaw , an element of “attack” is required to declare an animal dangerous; b. Justice of the Peace Parker failed to so interpret and apply the Bylaw and thereby erred in law; and c. Justice of the Peace Parker failed to consider the evidence in its totality and rendered a decision that was unreasonable in that he failed to consider relevant evidence and relied on irrelevant evidence in coming to a conclusion there had been an attack. The Standard of Review on This Appeal [ 4 ] The parties are in agreement the court has jurisdiction to hear the appeal.

In addition, they also agree that the applicable standards of review are as follows: a. on questions of law, the standard of review is correctness, and the appellate court should intervene if the decision is not correct in law unless, in the case of defence appeals, there has been no substantial wrong or miscarriage of justice that has occurred ( R v Shepherd , 2007 SKCA 29 , 218 CCC (3d) 113 ); b. an error in dealing with the evidence, such as a failure to consider the evidence in its totality, can be treated as an error in law; c. in respect of factual findings, the standard of review is whether there is evidence upon which a trier of fact, properly instructed, could reasonably find the fact as they did ( R v Bigsky , 2006 SKCA 145 , 217 CCC (3d) 441 ), or as otherwise stated whether there was a palpable and overriding error.

This is a deferential standard, and credibility findings ought not lightly be interfered with by an appeal court. The Bylaw [ 5 ] The relevant portions of the Bylaw to be interpreted and applied are as follows:

(1) An animal is dangerous where it is proved that: (

a) the animal, without provocation, in a vicious or menacing manner, chased or approached a person or domestic animal in an apparentattitude of attack; (

b) the animal has a known propensity, tendency or disposition to attack without provocation, to cause injury or to otherwise threatenthe safety of persons or domestic animals; (

c) the animal has, without provocation, bitten, inflicted injury, assaulted or otherwise attacked a person or domestic animal. … 8.

(1) If a complaint is made that an animal is dangerous, a judge shall hold a hearing to determine if, based upon the evidence adducedat the hearing, the animal is, in fact, dangerous. The Justice of the Peace’s

Interpretation of the Bylaw [6] While not set forth as a discrete topic, but rather found within statements made throughout his decision, theJustice of the Peace’s interpretative findings were essentially as follows: THE COURT: … Back to the bylaw, Exhibit P-1.

Section 5(1) paragraph c, or 5(1)(c), is written in the past tense with the deliberate inclusion of theword “has” before the phrase, “without provocation, bitten, inflicted injury, assaulted or otherwise attacked a person or domesticanimal.” This means the Court must necessarily look to the past and, in many cases, a singular event in a specified period of time whendetermining if the animal should be declared dangerous. [Transcript, page T3, lines 29-34] … If the animal is dangerous, based on the incident, then the bylaw and the courts consider the broader circumstances in determiningconsequences flowing from the dangerous declaration to protect the public, whether through regulating or prohibiting a dangerousanimal’s existence.

The bylaw includes an array of care conditions under ss. 8(4) and (5) and possibly destruction under (6). [Transcript, page T4, lines 6-10] … In the present case, counsel submits that Marble did not attack and urged the Court to consider the difference between an attack and aplayful or mischievous event. He referred to and relied upon the following cases in support of this position. Regnier, 2016 SKQB 290,hereafter Regnier; quoting R v Federuik, 2002 SKPC 80, hereafter Federuik; Bolen v. Regina (City), 2004 SKQB 263, or Bolen; and R vHoudek, 2008 SKQB 434, Houdek. Statutory

interpretation. Madam Justice MacMillan-Brown recently set out the principles of statutory

interpretation at paragraphs 17to 23 in R v Lukic, 2021 SKQB 221. She cites the principles in Rizzo Shoes [ (SCC), [1998] 1 SCR 27] and Sullivan[Ruth Sullivan, Sullivan on the Construction of Statutes, 6th ed (Markham: LexisNexis, 2014] then notes that s. 2-10 of The LegislationAct, SS 2019, c L-10.2 codifies these interpretive principles: (As read) Words used in legislation are to be read contextually and in their ordinary sense.

The meaning ascribed to legislative terms is towork in harmony with the overarching object and purpose of the statute and should be derived from a fair, large, and liberalinterpretation that best ensures the attainment of its objects. The Saskatchewan Court of Queen’s Bench recognized the principle that the word “or” is always disjunctive and there is apresumption that is it [sic] inclusive unless the presumption can be rebutted. See: Graham v SGI, 2006 SKQB 301, paragraph 17. [Transcript, page T16, line 22, to page T17, line 3] … In the well known case of Regnier, Mr.

Justice Labach provides the following guidance regarding whether an attack occurred underthe bylaw stating at paragraph 34: (As read) The definition of the word “attack” in the bylaw does not require that the victim be bitten or injured.

If biting occurs or there isan injury, it may make it easier to determine if there was an attack or it may simply go to the severity of the attack, but there can be anattack without biting or an injury. [Transcript, page T17, lines 13-22] … The 10th edition of Black’s Law Dictionary defines “assault” as: (As read) The threat or use of force on another that causes that person to have a reasonable apprehension of imminent harmful oroffensive contact; the act of putting another person in a reasonable fear or apprehension of an immediate battery by means of

an act

amounting to an attempt or threat to commit a battery. In the case before me, the victim, being a five-year-old girl was, in fact, afraid of a large, unknown and fast-approaching dog. Her mother shared this fear and, in my view, reasonably perceived a threat by this dog of imminent, harmful or offensive contact to her small child. [Transcript, page T18, line 39, to page T19, line 10] … The unexpected and unwanted approach and interaction instigated by the dog also resulted in a scrape injury to the girl.

Of note, Kyle, J. in his dicta about the rigidity of the comparable Regina bylaw, considered the circumstances involving a child as opposed to a cat, suggesting that rigid application be applied in such a case, Bolen , paragraph 7 , cited in Houdek paragraph 20 . [Transcript, page T19, lines 25-29] … In short, as Bolen and Houdek indicate, courts have opined or taken a restrained approach to declaring a dog dangerous in circumstances involving what is perceived by the courts as normal behaviour between domestic animals.

The present case involves a dog and a child where, as opined by Kyle, J., a more rigid approach in the application of the bylaw ought to be taken. [Transcript, page T20, lines 2-6] The Justice of the Peace’s Findings of Fact [ 7 ] The decision contains detailed summaries of the evidence of all witnesses. The essential findings of fact by the Justice of the Peace, based upon this evidence, were as follows: THE COURT: … This leads to the next and important analysis of whether the evidence establishes on balance that Marble has inflicted injury, assaulted or otherwise attacked Daniela. Analysis.

Counsel for the City submits that the dangerous determination is based solely on the event of May 7th, 2020 and that evidence establishing any element contained in s. 51(c) [ sic ] in isolation can meet the definition of dangerous. In other words, the word “or” before the phrase “otherwise attacked” is meant to be disjunctive. Moreover, counsel submitted that the provision should be interpreted broadly to cover any type of assault or injury. Counsel for the defence submits that the bylaw be interpreted according to the modern method. Counsel submits that injury or assault must occur in the context of an attack.

The word “attack” being the overriding element of s. 5(1)(

c) in order to trigger a dangerous declaration. In other words, the “or” – the word “or” should be considered conjunctive.

Counsel submits that there must be a form of aggression by the dog, otherwise an accidental or playful or non-aggressive interaction by a dog causing an injury such as a scratch would have the unintended result of declaring a significant percentage of the dog population dangerous. [Transcript, page T15, line 41, to page T16, line 20] … After carefully considering the totality of the evidence, I find that Daniela’s physical or psychological injury [ sic ] were caused by Marble acting in an assaultive and attacking manner.

Here are my reasons. [Transcript, page T17, lines 9-11] … As stated earlier, I am not convinced Marble bit Daniela; however, a bite is not necessary to constitute an attack. We have some of the recognized elements of an attack. In addition to injury, there was an unrequested confrontation of a small child by a relatively large dog running towards her. The observations of Mr. Olafson and Olsen were not of much assistance in determining the dog’s demeanour as they were not in close range of Marble’s interaction with Daniela. [Transcript, page T18, lines 8-13] … Under cross-examination Ms.

Silva-Duncombe was steadfast in her belief that Marble was attempting to bite and that she did, in fact, see Marble bite. While I have found that Marble did not, in fact, bite Daniela, I accept Ms. Silva-Duncombe’s evidence that Marble was attempting to bite while in close range. Ms. Silva-Duncombe conceded that while she omitted to comment at length on demeanour prior to testifying, she reasonably explained that omission to the Court. She felt indicating a dog bite in her near contemporaneous report to Animal Control sufficiently implied aggressive demeanour.

Moreover, the testimony from the other eyewitnesses of the incident confirms or does not dispute that she kicked Marble in response to Marble’s interaction with Daniela. She tried to prevent Marble from ongoing interaction with Daniela. Actions sometimes speak louder

than words and, in this case, Ms. Silva-Duncombe’s actions in the moment were revelatory. They were more consistent with fending off an attacking or assaulting rather than a playful dog. [Transcript, page T18, lines 23-37] … In the case before me, the victim, being a five-year-old girl was, in fact, afraid of a large, unknown and fast-approaching dog.

Her mother shared this fear and, in my view, reasonably perceived a threat by this dog of imminent, harmful or offensive contact to her small child. [Transcript, page T19, lines 7-10] … Again, the case before me involves a small child who was scared of a fast approaching, relatively large and unfamiliar dog who came into close proximity of her. [Transcript, page T19, lines 39-41] … There was plenty of evidence of Marble’s good behaviour and lack of aggression before and after May 7, 2020. I also note Mr. Gay’s opinion well-after [ sic ] the incident that she is not presently dangerous.

However, the legal issue I must decide is based on the law and facts on May 7, 2020. Apparently on May 7, 2020 Marble acted out of character. Dogs are known to do this, resulting in an incident earning the dangerous declaration by Courts. See: Kwok [2014 SKQB 397] and R v Barber , 2015 SKPC 178 . Here I am satisfied the City has established on balance that on May 7, 2020 Marble, without provocation, inflicted injury, assaulted or otherwise attacked a child in Saskatoon and that the defendant was Marble’s owner at the time. Mr.

Justice Danyliuk said this at paragraph 1 in Kwok : (As read) Dogs are said to be our faithful companions. Not always. Sometimes dogs revert to their inherent nature and act like dogs. They attack. They bite. They are, after all, dogs. For some reason many humans are surprised by this. [Transcript, page T20, lines 8-23] [Emphasis added] Was the Justice of the Peace’s

Interpretation of the Bylaw in Error? [ 8 ] Defence counsel had argued at trial that: a. the words “or otherwise attack” found in s. 5(1)(

c) modified the preceding words and required that an attack be proven before Marble could be declared to be a dangerous dog; and b. the evidence did not establish Marble actually bit Daniella and that whatever injury Daniella suffered was not the result of an attack or aggression by Marble but, rather, were the result of an accidental or playful interaction by Marble that caused minor injury. [ 9 ] In the context of these arguments, the Justice of the Peace stated at page T17 of his decision: In the case before me, I simply do not have enough submissions from the parties to resolve this

interpretation question relating to s. 5(1) (c). That said, I need not answer it.

After carefully considering the totality of the evidence, I find that Daniela’s physical or psychological injury [ sic ] were caused by Marble acting in an assaultive or attacking manner. … [Transcript, page T17, lines 5-11] And at page T20, he concluded: Here I am satisfied the City has established on balance that on May 7, 2020 Marble, without provocation, inflicted injury, assaulted or otherwise attacked a child in Saskatoon and that the defendant was Marble’s owner at the time. … [Transcript, page T20, lines 15-17 [ 10 ] With all due respect to the Justice of the Peace, I am of the opinion that, given the position of Ms.

Kovh, a focused

interpretation of s. 5(1)(

c) would have been appropriate, as opposed to sidestepping it. He concluded the injury was inflicted in the course of what he described as “acting in an assaultive or attacking manner”. This is a factual finding, which steps around an issue embedded, but not expressly advanced, in the defence submissions of whether the Bylaw requires a judge was to decide whether the dog was actually attacking, implicit in which is a determination of the dog’s motivation or intention. [ 11 ] Having declined to address the argument made with respect to the effect of words “or otherwise attack”, his effective

interpretation of the Bylaw was that an assault or inflicting injury was a sufficient basis to find a dog dangerous. I can see no basis for this court to not accept these factual findings of the Justice of the Peace. The factual finding that the dog was acting in an assaultive or attacking manner addresses or finesses the interpretative issue of whether the Bylaw requires an attack or whether an assault

inflicting an injury on a stand-alone basis is sufficient. Nonetheless, because of the grounds of appeal relied upon, I will decide theinterpretative issue relied upon by the appellant. [12] In this appeal, Ms. Kovh’s position is that: a. there was no evidence Marble was acting in an aggressive manner; b. her behaviour was equally consistent with playful interaction and could not be classified as either an attack or assault; and c. the words “or otherwise attacked” in s. 5(1)(

c) of the Bylaw must be interpreted as modifying the words preceding and therefores. 5(1)(

c) requires there be an attack before there can be a finding the dog is dangerous. [13] The appellant argues that since the Justice of the Peace’s decision did not so interpret the Bylaw, he erred in lawand the appeal must be allowed. The essence of the appellant’s interpretive argument is that the words “or otherwise attacked” in s. 5(1)(

c) of the Bylaw must be interpreted as modifying the words preceding and therefore s. 5(1)(

c) requires there be an attack before therecan be a finding the dog is dangerous. [14] In Arslan v Şekerbank T.A.Ş., 2016 SKCA 77, [2016] 10 WWR 232, Caldwell J.A. summarized the law withrespect to the modern principle of statutory

interpretation as follows: [58] I begin the analysis under this ground by referring to the modern principle of statutory

interpretation as set out in E.A. Driedger,Construction of Statutes, 2d ed (Toronto: Butterworths, 1983) at 87, and as confirmed as the preferred approach to statutoryinterpretation in Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 SCR 27 at 41 [Rizzo], in these terms: Today there is only one principle or approach, namely, the words of

an Act are to be read in their entire context and in their grammaticaland ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. See Ruth Sullivan, Sullivan on the Construction of Statutes, 6th ed (Markham: LexisNexis, 2014) at 7-25 [Sullivan]. [59] Under the modern principle, the court first forms an initial impression as to the meaning of a legislative provision from its text(i.e., its “grammatical and ordinary sense”).

Then, so as to infer what the Legislature intended to enact, the court will take into accountthe purpose of the provision and all relevant context.

As this suggests, the latter part of the inquiry involves the contextual determinationof legislative intent. … [62] As noted, even where the court’s initial impression of a legislative provision is readily arrived at, the court is required to considerthe broader context to read the provision “harmoniously with the scheme of the Act, the object of the Act, and the intention ofParliament.” In Atco Gas & Pipelines Ltd. v Alberta (Energy & Utilities Board), 2006 SCC 4 at para 48, [2006] 1 SCR 140,Bastarache J., for the majority, wrote: This Court has stated on numerous occasions that the grammatical and ordinary sense of a

section is not determinative and does notconstitute the end of the inquiry. The Court is obliged to consider the total context of the provisions to be interpreted, no matter howplain the disposition may seem upon initial reading (see Chieu v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 84,2002 SCC 3, at para. 34; Sullivan, at pp. 20-21). I will therefore proceed to examine the purpose and scheme of the legislation, thelegislative intent and the relevant legal norms. [15] In his decision Caldwell J.A. made the point that while, historically, Canadian courts were distrustful ofextrinsic aids to statutory

interpretation, that extrinsic aids such as Hansard records of debates or other sources of authoritative opinionabout the meaning or purpose of legislation are now permissible aids. Here, there are no such appropriate extrinsic aids. Thus, I amrestricted to applying the modern principle of statutory

interpretation without the assistance of extrinsic aids. [16] I start by first forming an initial impression as to the meaning of the relevant provisions of the Bylaw from itstext (i.e., its “grammatical and ordinary sense”). Section 5(1) establishes three different bases on which an animal can be classified asdangerous. Only one of these three different bases were relied on in the proceedings, i.e., s. 5(1)(c). The specific language of the Bylawto be interpreted in it grammatical and ordinary sense is as follows: 5.

(1) An animal is dangerous where it is proved that: … (

c) the animal has, without provocation, bitten, inflicted injury, assaulted or otherwise attacked a person or domestic animal. [17] My grammatical and ordinary sense of these words is they mean that if any one of the animal having bitten,inflicted injury, assaulted or otherwise attacked a person is proven, then the Bylaw stipulates the animal is dangerous. [18] I do not, as argued by the appellant, interpret the words “or otherwise attacked” as modifying or limiting theclear meaning of the preceding works “bitten, inflicted injury, assaulted”.

I understand the word “or” here to be used in its usualdisjunctive sense. In Ruth Sullivan, Sullivan on the Construction of Statutes, 6th ed (Markham: LexisNexis, 2014) [Sullivan], at §4.96,she does state that: §4.96 “And” / “or”. Courts often declare that “and” is conjunctive and “or” is disjunctive, but to avoid absurdity they must sometimesread “and” as if it said “or” – or vice versa. … [Emphasis (italics) in original; emphasis (underlining) added] I see no absurdity created by reading the “or” in its usual disjunctive sense. It was open to the City to set an expansive definition of a

dangerous animal based on multiple criteria. The issue for me is whether this expansive definition is what the City intended. [ 19 ] It is presumed that a legislating body avoids superfluous or meaningless words and that every word used in the legislation is presumed to make sense and to have a specific meaning. In this respect see Sullivan at §8.23 and her discussion of “The Presumption Against Tautology”. The words “bitten, inflicted injury, assaulted” each can and do stand alone and describe specific actions.

They are not, in the grammatical and ordinary sense of the subsection, limited by the words “or otherwise attacked”. [ 20 ] I turn then from my initial impression of the grammatical and ordinary sense of the words to consideration of whether this sense is harmonious with the scheme and objective of the Bylaw and the intention of the City when passing it. [ 21 ]

Section 2 of the Bylaw states the Bylaw ’s purpose is to, inter alia , “(

a) promote the health, safety, protection and welfare of people ….” The protection of people is clearly the primary object and purpose of the Bylaw .

Section 5 is specifically directed at the protection of people and domestic animals. [ 22 ] The appellant argues that injuries resulting from playful actions by a dog should not result in a dangerous dog declaration. Is there a reasoned basis to conclude the intent of the City and the object of the Bylaw was to protect people and domestic animals only from injuries resulting from actions properly classified as an attack or was the object and intent more generally to protect people and domestic animals from injury caused by any unrestrained activities of a dog or other animal that causes injury?

In a broader sense, the question becomes: Was the intention of the Bylaw to protect people and other animals from the failure of owners to properly restrain animals they own from causing injury generally? [ 23 ] If, as argued, Marble was simply acting playfully, this case demonstrates that an unrestrained playful dog can cause injury. Common sense and life experience demonstrates that energetic and playful dogs can cause injury. This is one of the reasons why City ordinances require dogs to leashed except in off-leash areas.

More generally, any animal, of a sufficient size, is capable of causing injury to people or other animals. [ 24 ] I have no extrinsic evidence to guide me with respect to what the intent of the City was.

Thus, to assess whether my grammatical and ordinary sense of the words in question is harmonious with the scheme and objective of the Bylaw and the intention of the City when passing it, I am left with the brief statement by the Bylaw of its purpose and reflections on the appellant’s argument that the decision as to whether a dog should be declared dangerous must turn on whether the dog was judged to be attacking. [ 25 ] I have great difficulty with the argument that when the City passed the Bylaw , it was expecting judges to decide the case on the basis of whether the animal was, in fact, attacking.

Sections 5(1)(

a) and (

b) do not require an actual attack. Under s. 5(1) (a), chase or approach in an apparent attitude of attack is sufficient. Under s. 5(1)(b), a known propensity to attack, cause injury or otherwise threaten the safety of persons is a basis to find the animal dangerous. Neither of these subsections reference a bite, and each contemplates various alternatives. [ 26 ] Appellant’s counsel made much of the lack of evidence of Marble’s barking, growling, its hackles up or otherwise showing signs of aggression.

She argues “the Justice of the Peace did not consider any evidence of Marble’s demeanor or intent” (Appellant’s Brief of Law, para 51). [ 27 ] The suggestion that the Bylaw contemplated or that a judge is capable of determining a dog’s intention is, in my opinion, misguided. In a criminal law context, judges or juries are required to make determinations with respect to both the actus reus and the mens rea of an accused. But that is humans judging humans, and we are capable of inferring the intentions of our fellow human beings because our mental processes and capabilities are common.

The suggestion that a judge can or should make a decision on whether or not a dog is dangerous based on his or her assessment of the dog’s intention has no evidentiary basis. [ 28 ] There was no evidence that barking and growling are necessary signs of aggressive intent. They may equally be signs of fear, a warning and a self-defence reaction. Common sense recognizes that animals can bite, inflict injury or attack without showing prior signs of aggression.

It is simply unreasonable to ask a judge to make decisions on what was in an animal’s mind; whether it is fear, warning, intent to attack, a desire to run and play, or just plain exuberant activity. [ 29 ] Logic suggests to me that the legislators here intended decisions of whether an animal is dangerous or not are to be made not on the basis of attempting to infer the intention behind an animal’s actions but on the basis of proven facts such as: a. chasing or approaching in a vicious or menacing manner or in an apparent manner of attack ; b. a known tendency or disposition to attack or otherwise threaten the safety of persons; or c. the animal bites, inflicts injury, assaults or otherwise attacked a person.

The Bylaw does not ask the judge to decide what the animal’s intention was, for that would be an impossible task. Rather, the Bylaw focuses on facts capable of proof and directs that an animal is dangerous if it is proven, inter alia , it inflicted injury. [ 30 ] Dog owners may, with some justification, be of the opinion that the Bylaw is an overly broad legislation and that not every dog that inflicts injury should be declared a dangerous dog. The appellant and many other dog owners will say there should be a more nuanced test for whether a dog is dangerous than simply whether its actions caused injury.

Nonetheless, dogs can cause injury in circumstance of play, exuberant activity or just pure accident. Where to draw the line as to what is a dangerous dog is within the City’s jurisdiction. It is my role to interpret the legislation the City has passed and not to impose or suggest where the line should be drawn. [ 31 ] Section 5(1) starts with the words “An animal is dangerous where it is proved that”. These words are directive or mandatory and clearly convey that the judge is to find an animal dangerous if one or more of the criteria s. 5(1)(

a) to (

c) are proven. The criteria the Bylaw creates are criteria that can be proven as factual matters by the evidence observers. Whether or not injury has been inflicted is a factual matter that can be proven.

[ 32 ] The Justice of the Peace found that Marble had assaulted and inflicted injury on Daniela. It was, in my opinion, open to the Justice of the Peace to find Marble dangerous on the narrow basis that Marble had, in fact, assaulted or inflicted an injury on Daniela. The fact that he went further and found as a fact that Daniela’s physical and psychological injuries “were caused by Marble acting in an assaultive and attacking manner” does not make his underlying narrow

interpretation that attacking or inflicting injury is a sufficient basis to find a dog dangerous an error of law. These were findings of fact and not errors of law. [ 33 ] I conclude that what the appellant argues was an error of law by the Justice of the Peace in his

interpretation of the Bylaw was not an error of law. His

interpretation of the Bylaw may not have been as focused and precise as counsel would have preferred but, having found that Marble assaulted or inflicted an injury on Daniela, it was open to him to declare Marble a dangerous dog. I am of the opinion that his decision finding Marble to be a dangerous dog was not based on an error of law. [ 34 ] If the lack of decision or clarity in the Justice of the Peace’s decision might be classified as an error of law, then I am of the opinion that the decision should nonetheless not be overturned because his error caused no substantial wrong or miscarriage of justice. This conclusion flows from my opinion that, on a proper

interpretation thereof, the Bylaw directs that where it is proved that a dog has assaulted or inflicted injury, that animal is dangerous. On the evidence, there is no question but that the actions of Marble caused injury.

Was There Evidence on Which the Justice of the Peace Could Reasonably Find Marble to be a Dangerous Dog? [ 35 ] The appellant’s position is that Justice of the Peace Parker failed to consider the evidence in its totality and rendered a decision that was unreasonable in that he failed to consider relevant evidence and relied on irrelevant evidence in coming to a conclusion there had been an attack. [ 36 ] The standard of review on challenges to factual findings is whether there was evidence on which the factual findings could reasonably be made.

Failure to consider relevant evidence is to be treated as an error of law. [ 37 ] The focus of the appellant’s arguments to the effect that the Justice of the Peace rendered a decision that was unreasonable or that he failed to consider relevant evidence arose from: a. her position that there was a lack of evidence of the Marble’s barking, growling, its hackles up or otherwise showing signs of aggression; and b. the evidence of Barry Gay, an expert in dog training, that Marble was not a dog that can or should be characterized as dangerous or aggressive. [ 38 ] These aspects of the appeal can be dealt with briefly.

Given: a. my opinion that on a proper

interpretation of the Bylaw , a dog that assaults or has inflicted injury can be declared a dangerous dog; and b. the evidence supports the factual finding that Marble assaulted or inflicted injury on Daniela, it was open to the Justice of the Peace to declare Marble to be a dangerous dog, and there is no basis to find his decision in this respect is unreasonable. [ 39 ] I reject the arguments that the Justice of the Peace failed to consider relevant evidence.

With regard to the argument that there was a lack of evidence of Marble’s barking, growling, its hackles up or otherwise showing signs of aggression, the Justice of the Peace clearly addressed this evidence. See his reasons in the transcript at page T9, line 33, and following. He considered the evidence but gave little weight to the observation evidence of Messrs. Olafson and Olsen for reasons he stated.

Further, on the evidence of Daniela’s mother, he was satisfied that she perceived Marble as displaying an aggressive demeanour, that both she and her daughter Daniela were fearful and that Daniela’s mother kicked at Marble in an attempt to fend off what she viewed as an attack and Marble attempting to bite. [ 40 ] Flowing from this, the Justice of the Peace held that a bite is not necessary and, on the basis of the evidence of Daniela’s mother, concluded at page T20, as quoted above, that Marble, without provocation, inflicted injury, assaulted or otherwise attacked a child.

On the evidence, findings that Marble inflicted injury, assaulted or otherwise attacked a child are, in my opinion, reasonable. The decision makes it clear that he accepted the evidence of Daniela’s mother and, thus, there was evidence to support his conclusion and his findings of fact are not unreasonable. [ 41 ] With respect to the opinion evidence of Barry Gay, who expressed, inter alia , the opinion that Marble was not a dog that can or should be declared dangerous, that opinion was based upon his dealings with Marble, largely after the incident and based on testing that he administered.

Significantly, much of the testing was in circumstances where Marble was under the leashed control of Mr. Gay. [ 42 ] The Justice of the Peace clearly considered the evidence of Mr. Gay. At page T20 of his decision, he rejected the opinion evidence of Mr. Gay stating: There was plenty of evidence of Marble’s good behaviour and lack of aggression before and after May 7, 2020. I also note Mr. Gay’s opinion well-after [ sic ] the incident that she is not presently dangerous. However, the legal issue I must decide is based on the law and facts on May 7, 2020. Apparently on May 7, 2020 Marble acted out of character.

Dogs are known to do this, resulting in an incident earning the dangerous declaration by Courts. See: Kwok and R v Barber , 2015 SKPC 178 . [Transcript, page T20, lines 8-13]

[ 43 ] Mr. Gay’s opinion was not relevant to the issue to be decided. The issue to be decided was whether, on the date in question, Marble did any of inflict injury, assault or attack. The finding of the Justice of the Peace that she did was not, in my opinion, unreasonable. Conclusion [ 44 ] For the reasons stated above I dismiss Ms. Kovh’s appeal with costs to the City. “B. Scherman” J. B. Scherman