What is a 'small dog' anyway? Little guy wins big strata battle

Call it a victory for the little guy — no matter how big he is.

A North Vancouver condo owner has won the right to keep his golden retriever after successfully arguing a strata bylaw outlawing the ownership of anything but a "small dog" was too vague.

The canine conflict — argued before B.C.'s Civil Resolution Tribunal — saw the strata tell Parham Pourghadiri ​Esfahani that while his pet was size-compliant as a puppy, "it had the potential to grow to be a larger dog."

In response, Esfahani provided videos proving the dog "can comfortably be picked up and carried" — the only guideline provided in the bylaw, as to what might constitute a "small" dog.

But even that test proved unreliable.

"Who must be able to pick up and carry the animal?" asked tribunal member Maureen Baird.

"How long must the person be able to carry the animal for it to qualify? How does one determine what is comfortable? At what point in time should the measurement be made?"

Small dog, big deal

Such questions may be small potatoes for some, but they were a big deal to Esfahani when he purchased his condo in the 82-unit building in the spring of 2016.

The bylaw was in existence at the time, and he already owned the dog.

That October, Esfahani received a letter warning "that while the puppy present in his unit fit within the definition of a 'small dog', that breed of dog would mature into a larger dog which would not be permitted."

Just two months later, he was told "the dog does not fit within the definition of a 'small dog' now."

He was given until June 2017 to remove it from the property.

No one ever complained about Esfahani's dog, and he claimed that other larger dogs lived in the building — a wheaten terrier, a pit bull and a golden doodle. But the strata claimed they fit the definition.

In its response, the strata provided a description of the golden retriever breed from the American Kennel Club, which called it a large dog "as it will typically weigh between 55 and 75 pounds."

The same organization defines a small dog as "weighing between 7 and 35 pounds."

The dog did squirm ...

In her analysis of the situation, Baird said the strata inadvertently highlighted the bylaw's problems by telling Esfahani the dog wasn't small within months of assuring him it was.

"Did it apply one of the definitions of golden retriever provided in this dispute?" she asked.

Baird pointed out that the bylaw doesn't mention anything about the American Kennel Club's definitions: "Rather, the strata passed a bylaw relating to the ability to carry a dog."

That's where the videos came in.

"There is evidence that the applicant can pick up and carry the dog. Comfort is a very subjective factor, but there were no signs of distress shown by the applicant when he was holding the dog in his arms," Baird said. 

"It is true that the dog squirmed when being held up in the air and this might mean that it was not under control. But control is not a component of the pet bylaw."

Baird ultimately concluded that the bylaw was unenforceable for vagueness.

"There is no objective criteria to determine if a dog is or is not in compliance with the bylaw. There may be cases where a golden retriever weighs less than 35 pounds, in which case it would be a small dog by the American Kennel Club definition," she wrote.

"This may be because of age, condition or perhaps breeding."

The strata now has to reconsider and pass a new bylaw, but Baird ordered Esfahani's dog grandfathered into the new regulation.

She passed no comment on the other restrictions set out in the rules: a "reasonable number" of fish and/or small caged mammals.