A recent case decided by the Supreme Court of British Columbia dealt with the intersection of two interesting areas of law and policy: On the one hand, the growing movement to more closely regulate or to ban the sale of dogs and cats in pet stores, and on the other hand the scope allowed to municipalities to regulate or prohibit the conduct of business within their borders.
The breeding and sale of dogs in pets stores is controversial. There are many pet stores that no longer sell dogs and cats, choosing instead to host adoption events for local humane societies and rescue foundations. The stores that do continue to sell dogs and cats are under pressure to ensure that they are bred and housed properly, under humane and sanitary conditions, and that they are not sourced from disreputable breeders or puppy mills.
Some local governments have taken an interest in regulating pet stores. Toronto is considering implementing a system of inspecting and certifying breeders and requiring that pet stores in Toronto only sell dogs and cats from certified breeders.
Richmond, B.C., has gone significantly further, and on November 8, 2010, added puppies and dogs to the list of animals which cannot be sold in Richmond pet stores. The bylaw took effect on May 8, 2010. Interestingly, Richmond had already banned the sale of rabbits as a response to the annual spike in the sale (and subsequent abandonment) of bunnies around Easter. There are ten pet stores in Richmond, and of those ten, three sell dogs. Those three brought an action in B.C. Supreme Court to have the bylaw declared void. The grounds claimed for invalidity were that the decision to enact the "was made on a specious, wholly inadequate factual basis, improperly motivated, enacted in bad faith, discriminatory, contrary to the municipal purposes authorized by the Community Charter and completely unreasonable". The Court's decision upholding the Richmond bylaw was delivered on April 15, and the reasons with respect to the scope of municipal authority are the most interesting.
Unlike provincial and federal governments, municipalities in Canada are creatures of the provincial statutes which create them. As such, they are entitled to make bylaws in the areas authorized in those statutes, and any action by a municipality its statutory scope of authority is ultra vires and unenforceable. In British Columbia, the relevant statute is the Community Charter, SBC 2003, c. 26, which governs municipalities other than the City of Vancouver. With respect to the standard of review applied by the Court, it was uncontroversial that (a) with respect to whether Richmond's actions were permitted under the Community Charter, the standard was correctness, and (b) with respect to discretional and policy decisions made within its authority, the standard was reasonableness and that strong deference should be given to Richmond's decision.
Under the Community Charter, the two relevant areas of municipal jurisdiction are:
8(3) A council may, by bylaw, regulate, prohibit and impose requirements in relation to the following: … (k) Animals …
8(6) A council may, by bylaw, regulate in relation to business.
Regulate, in turn, is defined in the Schedule to the Community Charter:
"Regulate" includes authorize, control, inspect, limit and restrict, including by establishing rules respecting what must or must not be done, in relation to the persons, properties, activities, things or other matters being regulated;
The Court found that it should consider the provisions of the Community Charter in "a broad and purposive" manner, and not strictly construe those provisions. It found on a plain reading on Section 8(3)(k), and considering the definition of "regulate", that the bylaw was within Richmond's authority granted under the Community Charter.
The Court also found that the bylaw was within Richmond's authority under Section 8(6). The court commented that this power was more restrictive than the power to regulate with respect to animals, and that:
"Regulation of business necessarily involves restrictions on businesses, including setting out rules of what cannot be done by a business. Municipal regulation on the conduct of business, including prohibiting certain types of transactions, is an established aspect of valid business regulation. "
Noting that the bylaw does not prohibit pet stores, but rather the types of animals that can be sold by them, the Court found that the bylaw was within Council's authority to regulate businesses under Section 8(6). The court dismissed the remainder of the claims relatively quickly. The court found that Richmond council had a rational basis for enacting the bylaw, that there was no bad faith exhibited by Richmond council in enacting the bylaw, and that treating pet stores differently than other sellers of animals (such as breeders, which are not covered by the bylaw) was not discriminatory.
The Court also refused to engage in a consideration of the effectiveness of the proposed bylaw, reasoning that whether the bylaw would be effective at fulfilling its stated purpose (reducing the number of abandoned and unwanted dogs in Richmond, and improving the conditions of dogs sold as pets in Richmond) was not the role of the Court. With respect to the claim of "unreasonableness", the court unsurprisingly found that Richmond council was entitled to broad deference in enacting bylaws. It relied on the recent decision of the Court of Appeal in the Catalyst Paper case – where the municipality is exercising a political function to make a municipal decision, legislating on a matter of policy, rather than exercising an adjudicative function, it is entitled to deference. If the decision is wrong, the remedy is at the polls and not in court. As it regards municipal authority, this decision is obviously limited to British Columbia and municipalities under the Community Charter.
Other Canadian municipalities considering whether they should regulate or prohibit the sale of dogs and cats will have to consider the authority granted under their statutes. At least in Alberta and Ontario, the municipal statutes are similar enough to the Community Charter to predict that the outcome would be similar. For example, Alberta's Municipal Government Act provides:
7 A council may pass bylaws for municipal purposes respecting the following matters: … (h) wild and domestic animals and activities in relation to them;
And in Ontario, the Municipal Act, which applies to municipalities other than Toronto provides:
10(2) A single-tier municipality may pass by-laws respecting the following matters: … 9. Animals.
11(3) A lower-tier municipality and an upper-tier municipality may pass by-laws, subject to the rules set out in subsection (4), respecting matters within the following spheres of jurisdiction: … 9. Animals.
The City of Toronto, which is governed by the City of Toronto Act, contains identical provisions to the Municipal Act.