In the recent Supreme Court of British Columbia case of Butterman v. Richmond (City) 2013 BCSC 432, the Plaintiff brought an action in negligence against the City of Richmond (the “City”) and the Richmond Animal Protection Society (“RAPS”) for failing to enforce City bylaws regarding the management of dangerous dogs. The Plaintiff sought a court declaration that the City and RAPS were liable to pay her damages arising from an attack on her shih tzu dog by two dogs that were known to the City and designated as “dangerous dogs” under the animal control bylaw. The “dangerous dogs” in question had committed two prior attacks not resulting in serious injury and were under investigation for a third attack at the time of the incident with the Plaintiff’s dog. The Plainiff’s dog sustained a bleeding bite mark to its back, but did not require stitches.
The basis of the Plaintiff’s claim was that the City and RAPS were negligent in failing to investigate the third attack. The Plaintiff claimed that a failure of communication between the City and RAPS, who was under contract with the City for the provision of animal control services, impaired the conduct of the investigation. The Plaintiff alleged that had the investigation been properly conducted, the “dangerous dogs” would have been seized prior to the attack on her dog and therefore the incident would not have occurred at all. With regard to the investigation of the third attack, which occurred approximately six weeks prior to the attack on the Plaintiff’s dog, the owner of the “dangerous dogs” had relocated to a new location unknown to both the City and RAPS and the investigation was on hold until further information could be obtained as to the whereabouts of the dogs.
The City and RAPS argued that they acted reasonably in the circumstances and pursued every avenue available to them to continue the investigation of the third attack. The City and RAPS falso argued that even if they had ascertained the whereabouts of the “dangerous dogs” prior to the attack on the Plaintiff’s dog, it was highly improbable they would have seized the dogs because the prior attacks were not sufficiently serious to justify seizure of the dogs pursuant to section 49 of the Community Charter.
The court dismissed the Plaintiff’s claim and affirmed the broad discretionary powers of the City to enforce its own bylaws, stating at paragraph 38 of the decision:
“Where enforcement of a bylaw is discretionary, as it is here, the City is obliged to: (a) act in good faith in relation to its decisions as to how the bylaw will be enforced; and (b) act with reasonable care in any steps it takes to enforce the bylaw.”
The court held that the investigative steps taken by the City and RAPS were reasonable in the circumstances and further held that even if there had been some negligence on the part of the City and RAPS with respect to the investigation, the evidence concerning the prior attacks was likely insufficient to support seizure of the dogs pursuant to section 49 of the Community Charter even if the dogs had been found. Therefore the Plaintiff failed to establish that the attack on her dog could have been avoided even if the “dangerous dogs” had been located prior to the incident.
In the writer’s experience, the discretionary decision of whether to seize a dog pursuant to section 49 is not one that an animal control officer takes lightly. It requires not only an assessment of the dog’s past behavior but also a prediction about whether the dog is likely to pose a continued threat to public safety. This case affirms that when managing dangerous dogs, local governments should not incur liability for future attacks, so long as a reasonable investigation is conducted and the decision not to seize the dog is made in good faith.