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:
(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 sporadicallyor
erratically for any period of time in excess of ten
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
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
A.1.(b)(iv) 'Noise' includes any loud outcry,
clamour, shouting or movement, or any sound that is loud or harsh
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 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,  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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Russell v. Township of Georgian Bay provides a useful reminder of the fact that while municipal officials sometimes appear to hold all of the cards in disputes with home owners, that is not always the case.
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