The recent case of Visinski v. Regional District of Central Okanagan (“Visinski”), of June 22, 2011, is an important decision that addresses the complexities of overlapping regulatory authority between municipalities and regional districts.
On November 18, 2008, a letter carrier was attacked by Mr. Visinski’s dog, Kokako. Mr. Visinski was charged under section 17.5 of the Regional District of Central Okanagan (the “Regional District”) Dog Regulation and Impounding Bylaw No. 366 (“Bylaw No. 366”), which requires a dog owner to ensure that his dog does not aggressively pursue or harass a person. Mr. Visinski was found guilty of the offence in Provincial Court and fined the ticketed amount of $200.00.
Supreme Court Decision
On appeal of the conviction to the Supreme Court, the solicitor for Mr. Visinski raised the issue of the applicability of Bylaw No. 366 within the City of Kelowna. Mr. Justice Dley in the Supreme Court of British Columbia acquitted Mr. Visinski and held that:
1. The City of Kelowna (the “City”) did not have the ability to delegate its regulatory authority to the Regional District;
2. The Local Government Act did not give the Regional District authority to exercise its regulatory powers over animals within the boundaries of the City; and
3. While the Regional District could provide dog control services within the City, it could only enforce City bylaws when doing so.
Necessity of Appeal
Mr. Justice Dley’s decision would have curtailed the ability of municipalities and regional districts to cooperate in the establishment of regional services. Indeed, local governments throughout the Province of British Columbia routinely enter into service arrangements with each other, including the enforcement of regulatory authority. This is an important element of providing of cost-effective local government. More importantly, the Local Government Act provided authority for the Regional District’s exercise of its regulatory powers within the City. Nevertheless, there were no case law precedents on this issue.
B.C. Court of Appeal Decision
The Honourable Mr. Justice Harvey Groberman wrote for the three-person panel, which unanimously overturned the decision of Mr. Justice Dley. Mr. Justice Groberman did concede that the statutory framework for local government regulatory powers was “complex”.
The Court noted that in May 2003, the Regional District and the City commenced the statutory process under the Local Government Act to expand the boundaries of the Regional District’s dog control service area to include the City. Subsequently, and after having received the consent of City Council, the Regional District adopted a bylaw to expand the service area on August 18, 2003. At the same time, it also amended Bylaw No. 366 (the regulatory bylaw) by deleting the words “excluding the municipality of the City of Kelowna” from the description of the area governed by the bylaw.
On September 15, 2003, the City repealed its own animal control bylaw. It is interesting to note that between August 18, 2003 through to September 15, 2003, the residents of the City of Kelowna would have been governed by two animal control bylaws, the City’s and the Regional District’s. Mr. Justice Groberman noted that there was no evidence of a “genuine operational conflict” between the bylaws at that time and, in any event, this did not affect the enforceability of the Regional District’s bylaw as the date of the offence in the Visinski case was November 18, 2008.
The key elements of the Court of Appeal’s conclusions in Visinski are as follows:
1. A regional district may provide any “service” that the Board considers is necessary or desirable for all or part of the Regional District – under the Local Government Act a regional district “service” is defined to include a “regulatory service” such as the exercise of the Regional District’s regulatory powers in relation to animals;
2. The Regional District and all participating areas had gone through the correct statutory process in expanding the dog control service area to include the City of Kelowna;
3. Amendments to Bylaw No. 366 made it clear that the Regional District intended its dog control regulations to apply within the City.
The Court of Appeal’s conclusions in the following three areas may have broader implications:
1. The Court of Appeal Court held that the Supreme Court judge erred in giving too restrictive a meaning to the word ‘service’ in the Local Government Act;
2. A regional district’s exercise of its regulatory powers within a municipal participating area does not involve a delegation of jurisdiction by the municipal council, as Mr. Justice Dley held. Rather, the Court of Appeal held that such extension of the Regional District’s bylaw was “merely a statutory condition that must be filled before a regional district is able to use its own powers under the Local Government Act”. That is, the Court below improperly characterized the extension of services as the delegation of legislative authority; and
3. While there may have been more elegant ways to make it clear that the regulatory bylaw was intended to apply within the City, the intent of the amendment of Bylaw No. 366 to delete the words “excluding the municipality of the City of Kelowna” was clear. Such amendment ensured that Bylaw No. 366 would be effective within the City of Kelowna.
This is the first case that directly addresses the statutory mechanisms whereby a regional district may exercise its regulatory powers within municipal participating areas. As such, it has precedential value for anyone looking at the legal pitfalls that could arise with these service arrangements. Indeed, the Respondent on appeal threw the “kitchen sink” strategy at the Regional District, but all the Respondent’s arguments were dismissed by the Court of Appeal.
This just goes to show how important it is to have knowledgeable advice when making regulatory arrangements with other local governments. As Mr. Justice Groberman concluded, “local government in British Columbia is a rather complex affair”.