The court held that a section of a by-law, which authorized an animal control officer to destroy a dog based on his belief that it had attacked another animal, was ultra vires the Municipality. The court quashed a decision purportedly made by a municipal officer in reliance on the section, and also held that the officer owed a duty of fairness to the dog owner, that he had not discharged, and which provided a further basis on which to quash the decision.

Administrative law – Municipalities – Animal control – By-laws – Validity – Ultra vires – Judicial review – Compliance with legislation – Procedural requirements and fairness – Remedies – Certiorari

Rogier v. Halifax (Regional Municipality), [2009] N.S.J. No. 19, Nova Scotia Supreme Court, January 16, 2009, D.R. Beveridge J.

The Applicant applied for judicial review of the decision of an animal control officer to euthanize the Applicant’s dog. The decision followed four reported incidents, between August 21, 2007 and July 20, 2008, three of which involved the Applicant’s dog attacking other dogs that were walking by the Applicant’s property. The animal control officer seized the applicant’s dog and provided her with a letter informing her that if she wished to challenge the decision, she should contact legal counsel and the Respondent’s legal department prior to the scheduled date of euthanization.

The Applicant applied to the court attacking the validity of the by-law relied upon by the officer as authority for his decision to euthanize the dog, or for declaratory relief. The Applicant also sought an order in the nature of certiorari quashing the decision to euthanize on a variety of bases, including lack of procedural fairness.

The court first considered the validity of the by-law under which the officer had purported to act. The officer had acted under section 8(2)(d) of By-Law No. A-300, which empowered an animal control officer, who has reason to believe that a dog has attacked a person or another animal, to destroy the dog without permitting the owner to claim it and issue the owner a notice informing that the dog has been destroyed. The court found that the scope of section 8(2)(d) was not authorized expressly or by necessary implication by the Municipal Government Act. The Legislature never intended to give the authority to a municipality to enact a by-law permitting a dog or animal control officer to summarily destroy a dog in non-emergency situations without notice to the owner and solely on the basis of the officer having “reason to believe” that a dog has “attacked” a person or another “animal”. The court ordered that a declaration be issued to the effect that section 8(2)(d) was ultra vires. Since that section was the sole basis relied upon by the Respondent for the decision purportedly made by the animal control officer for the Applicant’s dog to be euthanized, that decision was without lawful authority and was quashed.

The court went on to consider, in any event, whether the animal control officer owed a duty of fairness, the content of that duty, and whether he had breached that duty. The court found that the decision by the officer was a significant one with an important impact on the Applicant. It purported to take away her property. The common law has long recognized the principle that no man is to be deprived of his property without having an opportunity to be heard. In the circumstances, he owed the Applicant a duty of fairness.

Turning to the question of the content of that duty of fairness the court held that it was uncontested that the officer had not, before purporting to exercise the discretion set out in section 8(2) of the bylaw, ever contacted the applicant. She therefore had no opportunity to know what was being contemplated and why, and perhaps more importantly, an opportunity to influence the exercise of discretion by the officer. The officer had absolutely no information from the Applicant as to how and under what circumstances the dog had gotten loose. The officer could have made any number of discretionary decisions. The Applicant may ultimately have not been successful in influencing the discretionary decision of the officer. However, she had no opportunity to have any input, let alone a meaningful one. Even if the officer could make a decision under section 8(2)(d) to destroy the Applicant’s dog, he owed a duty of procedural fairness to the Applicant which required him to provide to her a meaningful opportunity to make representations before a decision was made and he failed in that duty. Once the dog was seized, there was no longer a pressing concern over public safety and hence no reason not to accord the applicant procedural fairness.

The court rejected the Respondent’s argument that procedural fairness was afforded to the applicant by virtue of an invitation, set out in a letter, to challenge the decision. There was no appeal procedure available to the applicant. The court also rejected the Respondent’s suggestion that procedural fairness is afforded to the applicant by virtue of her ability to apply to the court for judicial review. The duty of procedural fairness is owed to an individual prior to the decision being made and is a duty owed by the statutory decision-maker. While the availability of a subsequent review or appeal process, if an individual is later accorded a full and fair hearing, can cure earlier procedural irregularities in the proceedings, this can have no application here, since there was no further hearing or reconsideration.

In the result, the application for an order in the nature of certiorari, if necessary, was also allowed.

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