In Saanich (Corp. of the District) v. Miller, 2015 BCSC 2053, the BC Supreme Court considered whether the District of Saanich Noise Suppression Bylaw, 1993, No. 7059 (the "Noise Bylaw") applied to a commercial kennel and concluded that it did.
The Facts
This case involved "A Pawsh Oasis", a commercial dog kennel in the District of Saanich owned by the Millers. A Pawsh Oasis had operated in compliance with the applicable zoning bylaw and had been fully licensed and permitted, since 2010. The MacPhees owned the lot right next to the Millers. The MacPhees said that they had been bothered by the kennel ever since it opened for business, and that the noise of dogs barking had caused them "considerable stress and discomfort". They complained to the municipality when they were bothered by barking that went on for hours.
Section 5 of the Noise Bylaw read as follows:
5. DOGS
(a) The sound made by a dog barking, howling or creating any kind of sound continually or sporadically or erratically for any period of time in excess of ten minutes is, in the opinion of Council, an objectionable noise.
(b) It shall be unlawful for any person to harbour or keep a dog which shall make an objectionable noise by barking, howling or creating any kind of sound continually or sporadically or erratically for any period of time in excess of ten minutes.
Interpretation of Section 5
The Millers argued that section 5 should be interpreted as being inapplicable to their kennel because that would be an absurd result. The Millers argued that Saanich could not both license their commercial kennel, which is certain to be full of barking dogs, and also have a bylaw that would amount to, in their opinion, an absolute prohibition against operating that business.
Mr Justice Pearlman disagreed and stated "I have no doubt that Saanich was well aware that dogs bark when it permitted the appellants to operate a kennel on their property", and that all this bylaw prohibits is keeping a dog that barks continually, sporadically or erratically for more than 10 minutes.
The court concluded that section 5 applies to commercial kennels and that the Millers received written notification of section 5 and the requirement that they comply with it. Further, the court concluded that the absence of an exemption in the Noise Bylaw for commercial kennel operations was evidence of Council's intention that commercial kennel operations would not be exempt from the provisions of the Noise Bylaw.
Vagueness and Uncertainty
The court affirmed the principle that if a law is found to be so vague that a reasonably intelligent person would be unable to determine the meaning of the bylaw and govern their actions accordingly, then it may be declared invalid and of no force and effect. This is a very high standard; mere difficulty in the interpretation of a provision will not suffice.
The Millers cited R. v. Harvey (1998), 27 B.C.L.R. (2d) 265 ("Harvey"), a case in which a Kamloops noise bylaw was declared void for uncertainty. That bylaw read as follows:
A.1.(b)(iv) 'Noise' includes any loud outcry, clamour, shouting or movement, or any sound that is loud or harsh or undesirable.
B.2. No person being the owner, tenant or occupier of real property shall allow or permit such real property to be used so that noise or sound which occurs thereon or emanates therefrom, disturbs or tends to disturb the quiet, peace, rest, enjoyment, comfort or convenience of any person or persons on the same piece of property or in the neighbourhood or vicinity.
In Harvey, the court found that the "extravagant definition" of noise in the Kamloops bylaw embraced a greater range of activity than, and prevented the use of a common sense understanding of, the word "noise" in the application of the bylaw. The court reasoned that there was no objective standard which could be used to determine whether there was a breach of the Kamloops noise bylaw.
The Decision
The Noise Bylaw was found to be valid and Justice Pearlman declined to apply Harvey. The court noted that decisions subsequent to Harvey considered similar and identical provisions and declared those bylaws valid (for example, City of Coquitlam v. Vivanco, [1993] B.C.J. No. 3201 (S.C.)). In this case, the Noise Bylaw was far more specific than the bylaw considered in Harvey. Section 5 required that the noise be made by a dog continually, sporadically or erratically for more than ten minutes.
In the result, Mr. Justice Pearlman concluded that a 'reasonably intelligent person' would know when a dog barking for more than 10 minutes would constitute an objectionable noise without requiring a mathematically precise measure of the decibel level or the number of times the dog barked each minute". The Millers were fined $600.00 for their violation of the Noise Bylaw.
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