by Lorraine Payette, written August 12, 2013
(GANANOQUE, ONTARIO) John Higgins of Gananoque is completely confused about the workings of Council, By-Law Enforcement and amendments to By-Law No. 2011-74, also known as the “Pigeon/Geese By-Law”. And well he might be.
Higgins lives on River Street in Gananoque with Mary Elizabeth Higgins, his 85-year-old mother. One of their simple joys in life is to watch the small songbirds that gather in their beautifully landscaped yard to partake of the seeds offered by their two tiny birdfeeders, both fastened to a single pole. And they are rewarded by most of the regular callers at such facilities – sparrows, wrens, chickadees, canaries, blue jays, and occasional exotic looking cardinals and downy woodpeckers. He has put fencing along the waterfront behind his property to prevent water birds from coming ashore there and fowling the grounds.
Over on Stone Street North, not far away, is the home of James Cook, recently praised for his pet ducks and pigeons. These animals free range in the area, enjoying the river and waterfront. Wild geese try to join the ducks at feeding time, and the pigeons come home to roost each night. He, too, keeps a barrier against geese on the river which doesn’t always work, and maintains many small bird feeders in his yard according to an article published recently in the Gananoque Reporter.
The Higgins family has been harassed more than once under the by-law, while apparently Mr. Cook has never been. This is where the confusion comes in.
“The Town of Gananoque does not have a problem with people having bird feeders and feeding song birds,” said Mayor Erika Demchuk in 2011 when the by-law was first enacted. “As a matter of fact I have one myself.”
A long time birder, Higgins had been feeding small birds in his yard for more than thirty years. He has a degree in Wildlife Conservation and Management from the Granton Institute of Technology, and has noticed a wide variety of species coming to feast at the feeders at his home over time. He has found great happiness in their songs and antics, and found peace in sharing what he has with them. His mother finds it is one of the joys remaining to her as she continues to age in place in the Higgins home.
Cook, a commercial fisherman, claims that birds and wildlife have been an important part of his family for hundreds of years. His birds are domestic, and he isn’t the only pigeon keeper in the area. Apparently there are several more in Gananoque, all doing quite well.
Both men see the animals as family, both families delight in the presence of the birds. But only the Higginses are being faulted under the by-law, the first time in 2011 and again on July 7 of this year.
On August 18, 2011, John Higgins arrived home to find a notice from By-Law Enforcement Officer Ken Gilpin tucked into his back door telling him that he was in violation of this new by-law. He found this very surprising, especially since he had family members at the house at the time of the delivery who could have received the notice at the front door had the officer waited long enough for someone to answer after having knocked on it only once, or he could have put it into the mailbox at the front of the house instead of coming onto the property without warning, warrant or permission to presumably inspect and drop it off.
“I was accused of feeding geese on my property, something I don’t do,” he said. After the first incident, he talked to one lawyer near Brockville about not being allowed to feed the birds, and the lawyer claimed he had never heard of it in a town situation.
Although at that time the by-law had not been in effect long enough for it to have become public knowledge, the notice read:
“This is to advise that the Council for the Corporation of the Town of Gananoque passed by-law 2011-74 being a by-law to prevent public nuisances when birds spoil and roost on property without the occupiers or owners consent caused when persons feed or attract birds to their private property but fail to limit or control them from neighbouring properties, and through regulation and prohibition Council wishes to promote the use and enjoyment of property in a healthy and sanitary manner free from unwanted pests.
“We have received a complaint on August 17, 2011 that the owners of the above noted property were feeding/placing corn and wild bird seed on your lawn to attract pigeons and/or geese.
“The above noted act should cease or will result in legal action.”
The letter was signed “Ken Gilpin, By-Law Enforcement Officer.”
Close examination of the by-law shows that common backyard feeders are not the target here. Instead, every section and subsection specifically mentions the feeding of pigeons and geese.
“The By-Law No. 2011-74 was passed at the Council Meeting Tuesday August 16th (2011 because) the Police and By-Law Departments ha(d) been receiving complaints of people feeding the pigeons and geese,” said Mayor Demchuk in 2011. “(Some people have been) putting out large containers of corn and throwing large amounts of corn into the Gananoque River. The feces from these birds is harmful to your health, especially when there are large amounts of it because you are encouraging them to come to specific spots to feed. Not only is it not good for the person feeding the birds, it is harmful for their neighbours. Belleville, Hamilton and Timmins are examples of other municipalities that have similar by-laws. The Ministry of Natural Resources also frowns on this practice.”
Documents provided by council at that time clearly state that “it is recognized that homes in Gananoque provided bird houses for the feeding of birds and enjoy the company of nature outside in their yards. The proposed by-law is not related to people filling their bird feeders. The concern relates to excess feeding. Feeding whereby the families cannot enjoy their backyards for (fear of) stepping in the fecal (matter) which potentially can cause health related issues.”
“I have a fence at the waterfront made from bird netting to prevent the geese from coming onto the land here, and only put out seed in my feeder to attract small birds. There is no problem with feces in this yard, or any I can see in those to either side of me. Mr. Gilpin never came to my house to talk to me about overfeeding of any birds, let alone geese or pigeons. He has shown us no photographs, and does not appear to have done a complete investigation.”
So if only a bird feeder to attract song birds is in use, where is the violation? Higgins believes that some people in town may have been incorrectly feeding and attracting birds over time, and are not willing to take responsibility for looking after the problems they have created for themselves. Some neighbours may have a personal grudge against Higgins and his mother and are taking it out on them with this behavior. Or it could be that there has been a gross misunderstanding of the by-law and why it is in place.
As is his right under the Freedom of Information Act, Higgins then asked to be shown the evidence supporting the claims that he was putting out corn to attract pigeons and geese. This was not provided to him by the bylaw officer. The only evidence there ever seems to have been is an unsubstantiated accusation from a person unknown. And according to the community development manager, bylaw officers are dispatched when complaints are received. It is then up to these officers to decide whether or not to issue a summons.
On July 7, it is reported that the bylaw officer came to the Higgins property line in the early morning and threw the summons onto the grass. Mr. Higgins states that the officer then said, “For your mother”, and departed.
According to the Small Claims Court Guide to Serving Documents (available at http://www.attorneygeneral.jus.gov.on.ca/english/courts/guides/Guide_to_Serving_Documents_EN.pdf), the procedure for such service is covered under Rule 8.02 (Personal Service) and the description reads:
“To serve a document by means of personal service, you, or someone acting on your behalf, will hand the document to the party (for example, the defendant). The person serving the document must first be satisfied that the person being handed the document is in fact the party. If the party refuses to take the document, you can drop it on the floor at his or her feet…”
This does not sound like the treatment to which Mr. Higgins was exposed. Instead, he was served in a disrespectful fashion and expected to simply tolerate the behavior because he was given no choice.
Both of the Higginses suffer from health issues, making a fight in the courthouse in Brockville an impossibility for them.
Long standing residents of the town, they have never heard of anyone else being summonsed under the bylaw, and fail to see why their two small feeders have become such large targets to what appear to be abusive and vindictive people in the area. They feel that they are being unfairly targeted.
Meanwhile, Mr. Cook continues to keep his birds, hoping that he will never be in the position facing Mr. Higgins. He has stated that his daughter is allergic to chicken eggs, but can eat duck eggs. The ducks are also being kept as pets by Cook and his family, which may be part of why he has never been bothered.
Higgins would like to have people stop harassing him and his mother. If he were in violation, as claimed, it would be a different matter, but he’s pretty sure that two tiny feeders for songbirds are not an offense under existing legislation.
“It looks like a double standard when apparently you can feed pigeons and geese as long as they’re your pets, but you can’t feed the little birds because they aren’t,” said Higgins.