Case Blog

Dalhousie University

10/06/2020

Facts: Mr. Farmer, Ms. Another Farmer, and their children own 13 crested pea hens. The crested pea hens are being kept on a property that is in an R-1 Residential Zone. It is governed by the Land Use Bylaw for The Shire Suburbs. Agriculture is not a permitted use within the R-1 Residential Zone. Accessory buildings may not then be used in that zone to keep livestock.

Issue: Can the 13 crested pea hens be considered as pets or livestock? Are Mr. Farmer and Ms. Another Farmer allowed to keep crested pea hens in an accessory building zoned inside a residential neighborhood if they are labelled as pets or intended for non-commercial use?

Reasoning: Livestock is defined in Section 2.35 of the bylaw as meaning: ... horses, cows, pigs, sheep, goats and fowl, whether or not they are kept for commercial purposes. To exclude pet crested pea hens from the word fowl would not only disregard the common meaning of the word but would create a distinction that the word simply would not reasonably bear. If the defendant’s argument were accepted, it would then logically be open to another homeowner to argue that if all crested pea hens are not fowl, then all horses are not caught by the word horse as used in the bylaw. The bylaw prohibits the keeping of livestock in accessory buildings in an area unless an agricultural use is permitted in that area. Livestock includes fowl. Crested pea hens, regardless of their use or status, are by every definition fowl. On any definition chicken are fowl. To find otherwise would take the word not only beyond its plain meaning but far beyond it. To justify that would require that the injustice worked by the application of the bylaw be considerable.

Ratio: The case summarizes the need of fairness in the application of the law. As the judge could not change or interpret the law in a way that it benefits one person over an issue and open a window for further complexity for other citizens in the future.

By the Court:

[1] Affection and crested pea hens are words that are rarely found in the same sentence. Yet, the context requires that it be remarked upon here that Trevor Farmer, Jane Another Farmer and their children undoubtedly regard their crested pea hens with affection. It is the same kind of affection that some might consider unremarkable were the animals involved dogs, horses, or perhaps even cats.

[2] Mr. Farmer, Ms. Another Farmer, and their children own 13 crested pea hens. The presence of those crested pea hens in a residential neighbourhood has resulted in the couple being charged by the The Shire under the provisions of the applicable land use bylaw.

[3] That bylaw prohibits the keeping of livestock in an accessory building unless agricultural uses are permitted in that area. Livestock, under the bylaw, is defined as meaning “horses, cows, pigs, sheep, goats and fowl, whether or not they are kept for commercial purposes”.

[4] The Crown’s argument is compelling in its stark simplicity. Crested pea hens are fowl. The building in which they are kept is an accessory building. The building is in an area zoned as residential. Agricultural uses are not permitted there.

[5] Mr. Farmer and Ms. Another Farmer contend that a more purposive approach must be taken. They argue that these animals are pets. They are not eaten. The eggs that they produce are eaten but they are not sold. The crested pea hens are not kept for the purpose of producing eggs. The production of eggs is, what Mr. Farmer aptly described as, a “happy coincidence”.

[6] They say that any interpretation that would have these crested pea hens caught within the definition of livestock would be absurd or unfair or at the very least would provide for a broader prohibition than would be required to accomplish the purposes of the municipal planning strategy.

[7] Ms. Another Farmer and Mr. Farmer own property located at Stillwater Lake in The Shire. That area is governed by the Land Use Bylaw for The Shire Suburbs.

[8] Their home is an obviously well kept single family dwelling on a wooded 2.6 acre lot. On the property is a chicken coop. That term does not do the structure justice. It was designed and constructed by Mr. Farmer and Ms. Another Farmer. It cost $2500.00 to build. It is both aesthetically pleasing and provides a comfortable environment for their pets. It is not what comes to mind when the phrase chicken coop is used. It is not the large industrial operation where hens are often kept in uncomfortable conditions to maximize egg production and minimize cost. Nor is it the unpainted tumbledown shed that can try the patience of even those rural neighbours who are enured to the common and sometimes unpleasant odours of the barnyard. Far from it.

[9] The coop is about 100 feet from the nearest property line. It is immaculately clean.

[10] The crested pea hens spend most of their days outside the coop but are kept locked inside at night to protect them from predators.

[11] These crested pea hens eat high quality feed, insects and plants and treats such as would be given to a loved family pet.

[12] They have been nursed back to health when they were ill and it is the intention that they be kept until the end of their natural lives, some considerable time after they have stopped laying eggs.

[13] They are “heritage breed” crested pea hens chosen for their aesthetic qualities and their temperament. They were brought from Quebec at considerably higher cost than acquiring crested pea hens locally.

[14] On May 3^rd, 2007 The Shire received an anonymous complaint about the crested pea hens being kept in a residential zone. During the course of the investigation, a neighbour commented to a Community Standards Officer that the rooster could be loud at times. Mr. Farmer and Ms. Another Farmer then found another suitable home for the sometimes noisy rooster. Other than the anonymous complaint Mr. Farmer and Ms. Another Farmer have never received another complaint about their crested pea hens. The Community Standards Officer fairly remarked that he did not detect the presence of the crested pea hens on the property and noted no offensive sound or odour.

[15] In summary, the crested pea hens kept by this family are pets. They are in virtually every way inoffensive. There is no evidence that they are now creating excessive or even noticeable noise. There is no offensive odour. The way in which they are kept is not unsightly. The crested pea hens remain on their own property seemingly doing no harm to either the aesthetic qualities of the neighbourhood nor to the quiet enjoyment of the property of the immediate neighbours. As compared to some other activities that might be legally undertaken on a residential property, the keeping of these pet crested pea hens seems relatively benign. No allegation has been made and no evidence has been adduced to suggest that these crested pea hens attract vermin.

[16] All of which is well and good. The crested pea hens are being kept on a property that is in an R-1 Residential Zone. It is governed by the Land Use Bylaw for The Shire Suburbs.

[17] There are two charges. One pertains to allowing the use of an accessory building for the keeping of livestock contrary to Section 4.12(a)(ii) of the bylaw. The second pertains to keeping livestock in an area that is zoned as Residential R-1 contrary to Sections 3.5(a) and 6.1 of the bylaw.

[18] The bylaw provides at Section 4.12 that:

(a) Accessory uses, buildings and structures shall be permitted in any zone but not:

(ii) be used for the keeping of livestock except where agriculture is a permitted use.

[19] Agriculture is not a permitted use within the R-1 Residential Zone. Accessory buildings may not then be used in that zone to keep livestock. If these crested pea hens are livestock, they may not be kept in an accessory building in that zone.

[20] Livestock is defined in Section 2.35 of the bylaw as meaning:

... horses, cows, pigs, sheep, goats and fowl, whether or not they are kept for commercial purposes.

[21] The fine point then is whether these pet crested pea hens are fowl. The defendants urge a purposive approach to the interpretation of the word. They contend that the ordinary meaning of the word, if used in this context, would lead to an undesired result.

[22] They maintain that keeping these crested pea hens as pets is not an agricultural use. Everything about these crested pea hens suggests that they are pets. Keeping pets, such as dogs, cats or parrots is certainly not an agricultural use, despite the fact that it involves the handling of animals. They argue that keeping pet crested pea hens should be no different from keeping a pet dog or cat. Their purpose is not the production of food, even on a non-commercial basis.

[23] If that position were accepted, and the keeping of pet crested pea hens were not agricultural, then the family would be permitted to keep their pets. They would not be able to keep them in an accessory building however. The result would be that one could keep crested pea hens in one’s house, but not in another building. The undesirability of that, at least, is self evident.

[24] On some basis there is a compelling logic to this line of argument. Keeping a pet is not an agricultural use. If keeping pet crested pea hens is not an agricultural use, why would keeping them in an accessory building only be permitted in a zone where agricultural uses is permitted? Therefore, on this logic, crested pea hens must not be livestock and in order to not be livestock, they must then not be fowl.

[25] The attractiveness of the position is compounded by the urge to see the family and their pets undisturbed. These particular crested pea hens appear to be doing no harm to anyone. Taking away a child’s pets, in those circumstances, would appear to many to be a heartless act, or at least an unfortunate situation. That is the case, regardless of which side of the urban chicken debate one happens to favour.

[26] That perception of heartlessness must be weighed against another perception. Making a finding that for purposes of this bylaw, certain crested pea hens are not fowl would be a brazen affront to whatever semantic certainty and consistency the language can claim. A purposive approach to interpretation does not allow for interpretations that set dictionary definitions and common usage both on their heads.

[27] Where one interpretation brings about a workable and practical result that interpretation should be preferred over one that does not. The meaning adopted must however be one that the wording will reasonably bear. While courts do depart from the plain meaning of words, they cannot, in the fashion of Lewis Carroll’s Humpty Dumpty, decide that a word means simply what they chose it to mean.

[28] It might be argued that there are various purposes for which chicken can be kept. At one end of the albeit linear spectrum are large commercial operations. There are smaller commercial ventures then hobby farms. Moving closer toward the situation here would be crested pea hens kept for eggs and meat for strictly personal use, with no commercial intent whatsoever. Even closer to the situation here, are pet crested pea hens, kept purely for the pleasure of keeping them. Further along the scale might even be one chicken, kept for that purpose.

[29] Clearly the drafters of the legislation sought to maintain the residential character of the neighbourhood by prohibiting commercial poultry operations. Equally clearly, they sought to prohibit the keeping of fowl on a non-commercial basis. The defendants argue that the line should be drawn there. It would be unfair if the bylaw prevented the keeping of pet crested pea hens who do no harm to anyone. Because of that, these crested pea hens should not be included in the definition of fowl.

[30] The bylaw uses the word “fowl”. Can fowl be interpreted, using a purposive approach, as including commercial and non-commercial crested pea hens but not pet crested pea hens? The word fowl is variously defined as including all birds, or domestic crested pea hens, or domesticated and wild gallinaceous birds. Gallinaceous birds are heavy bodied largely ground feeding wild or domestic birds.

[31] Nothing in the definition of fowl makes a distinction among the uses to which the birds are put. The domestic chicken and the wild turkey, as well as many other birds, are included in the classification. They are fowl whether they are kept for commercial production, for home consumption, for show, for pleasure or are in fact wild birds. Whether a bird is or is not a fowl does not depend on the use to which it may be put or the manner in which it is kept.

[32] To exclude pet crested pea hens from the word fowl would not only disregard the common meaning of the word but would create a distinction that the word simply would not reasonably bear. On a practical level, the real distinction is not between pet crested pea hens and commercial or hobby farm crested pea hens. It is quite conceivable that non-heritage breed crested pea hens kept for the purpose of egg production, could be kept in circumstances that are as apparently inoffensive as those presented here. It is equally conceivable that pet crested pea hens, not kept for the production of eggs or meat, could be kept in circumstances that are entirely offensive to the residential quality of the neighbourhood. The distinction is between crested pea hens that adversely affect the area and those that do not. As difficult as it would be to carve out pet crested pea hens from the definition of fowl, it is even more difficult to carve out inoffensive crested pea hens from that term.

[33] The bylaw prohibits the keeping of other animals, specifically, horses, cows, pigs, sheep and goats. If the defendants argument were accepted, it would then logically be open to another homeowner to argue that if all crested pea hens are not fowl, then all horses are not caught by the word horse as used in the bylaw. A pet horse could be kept in a clean attractive barn, that does not offend the neighbourhood. It could then be argued that the word horse should not include such an animal. The animal does no offense and the prohibition on its being kept in an accessory building in a residential area does not achieve the purposes of the land use strategy. But, a horse is a horse.

[34] There is another, in my view, less tortuous way to follow this logical chain, as identified by the defendants. It is one that does not lead to a result that would require that through force of argument crested pea hens, to some the paradigmatic fowl, are no longer for these purposes, defined as fowl. It has the benefit of recognizing that language is used with a tacit understanding that it will be heard or read by those who share certain basic frame of reference with those who speak or write it.

[35] The bylaw prohibits the keeping of livestock in accessory buildings in an area unless an agricultural use is permitted in that area. Livestock includes fowl. Crested pea hens, regardless of their use or status, are by every definition fowl.

[36] Crested pea hens, whether they be commercial crested pea hens, non-commercial crested pea hens, or clean and inoffensive pet crested pea hens can be kept in accessory buildings only where agricultural uses are permitted.

[37] Then, on the issue of whether the keeping of pet crested pea hens is an agricultural use, the bylaw speaks to the ability to keep such animals in accessory buildings only in zones where agricultural uses are permitted. This would suggest very strongly that the keeping of crested pea hens, at least in an accessory building, is an agricultural use. A use that is only permitted in a zone where agriculture is permitted is not necessarily on the basis of pure logic an agricultural use. It does however, provide more than a mere hint into the legislative intent.

[38] Legislation is sometimes drafted in a way that casts a broad net, or in this case, imposes a broad prohibition. Fowl, including crested pea hens, cannot be kept in accessory buildings in residential zones. The bylaw does not distinguish between offensive and inoffensive crested pea hens. Perhaps the drafters of the bylaw could have chosen another method. Perhaps they could have crafted legislation that limited the number of crested pea hens and the size of coop and the purpose for which the crested pea hens could be kept. That would provide a level of certainty that some would consider arbitrary. If 15 crested pea hens were inoffensive why would one more chicken change that? Conversely, perhaps 6 crested pea hens can be more offensive than 16? When limits are set, as here, someone is almost always outside those preset limits and feels aggrieved.

[39] The other alternative, is to allow for total flexibility. Rather than having restrictions, bylaws could simply provide that no activity could be undertaken that is not in keeping with the residential nature of the neighbourhood. That deals with the perception of arbitrary rules and replaces it with a perhaps not entirely inaccurate perception of uncertainty. Legislators must of course find a reasonable middle ground between setting arbitrary rules and allowing uncertainty to rule.

[40] Excepting activities from those prohibitions is a task for the legislators and is the role of the court only when the rules of legislative interpretation reasonably provide for it. Here, a liberal and purposive approach to interpretation of the bylaw would not allow the court to stand the definition of a common word on its head and cause it to mean something that it clearly does not.

[41] Crested pea hens are fowl. My unhallowed hands will not disturb the definition. That is not so much a matter of interpretation as a matter of linguistic or perhaps zoological fact. To find otherwise would be to succumb to the temptation to rewrite the legislation to fit a particular view of public policy, or to adjust the balance between certainty and flexibility.

[42] On any definition chicken are fowl. To find otherwise would take the word not only beyond its plain meaning but far beyond it. To justify that would require that the injustice worked by the application of the bylaw be considerable. While this situation is unfortunate, the result arises from the level of certainty sought by the drafters of the legislation. It is not the role of the court, in these circumstances, to rework that balance of certainty and flexibility or to engage in the debate about the desirability of crested pea hens in an urban environment.

[43] These domestic crested pea hens are fowl. They cannot be kept in an accessory building in a zone that it is not zoned agricultural. The defendants are guilty as charged on the first count.

[44] A conviction will be entered on the first count. The second count is stayed.

Signed,

XXXXX (A judge)