Court ruling bound to hound city hall

Don Plant 2010-06-11 Kelowna Daily Courier:
A dog-owner has beaten a bylaw ticket because the city of Kelowna has no bite in its dog-control bylaw. South Glenmore resident Andy Visinski was fined $200 for failing to control his dog when it snarled and barked at a letter carrier in 2008. He appealed the charge to B.C. Supreme Court, which ruled the city no longer has its own dog regulation to enforce. Justice Dev Dely found Visinski not guilty. The ruling could overturn the convictions of anyone in Kelowna who breached the bylaw since Sept. 15, 2003. That‘s when the city repealed its dog regulation. "They were left with an enforcement service and no bylaw to enforce," said Kelowna lawyer Joe Gordon, who won a case that invalidated 18,000 traffic tickets across B.C. in the early 1990s. "They should have replaced it."

The city of Kelowna has relied on the Regional District of Central Okanagan to enforce its dog-control bylaw for years. The regional district adopted a bylaw in August 2003 that expanded its dog-control service to include the city. The regional district is entitled to extend its dog-control service beyond its jurisdiction, said Justice Dev Dley. But that doesn‘t mean the city adopted the regional district‘s dog-control regulation. The word "service" limits the regional district to enforcement only, he said. "The city of Kelowna is not permitted to delegate its law-making powers as they relate to animals to the regional district," Dley said in his ruling. "Thus, at the time Mr. Visinski is alleged to have failed to control his dog, there was no such dog control bylaw within the city of Kelowna." The ruling surprised regional-district officials, who learned about it on Thursday. They argue the city consented to adopt the regional district‘s dog-control bylaw in June 2003. "We were enforcing the regional district‘s dog-regulation and impounding bylaw on behalf of the city of Kelowna. That‘s what we believed," said spokesman Bruce Smith. "We could appeal . . . That will be discussed and determined."

Kamloops lawyer Reinhard Burke, an expert in municipal law, argued the case on Visinski‘s behalf. Burke was unavailable Thursday. Gordon believes Kelowna residents convicted of failing to control their dogs since September 2003 may have been wrongfully convicted. "I‘d have to research whether the moneys paid could be redeemable," he said. "People would have missed the limitations period for appealing. I believe it‘s 30 days."The ruling has ramifications across B.C. where a municipality or regional district has delegated enforcement authority without ensuring there‘s a bylaw to enforce, Gordon said.