Administrative law – Decisions of administrative tribunals – SPCA – Animals – Prevention of cruelty – Seizure and disposition of animals – Judicial review – Compliance with legislation – Procedural requirements and fairness – Standard of review – Reasonableness simpliciter
Ulmer v. British Columbia Society for the Prevention of Cruelty to Animals,  B.C.J. No. 245, 2010 BCSC 199, British Columbia Supreme Court, February 12, 2010, J.L. Dorgan J.
On October 20, 2009, the SPCA made the decision to take custody of 70 cats and one hen in the possession of Ulmer. Ulmer filed a petition seeking judicial review of the SPCA’s decision to refuse to return the pets to her.
The Court noted that the scheme of the Prevention of Cruelty to Animals Act, R.S.B.C. 1996, c.372, was to allow the SPCA to take steps to prevent suffering of animals and also to allow owners of animals to retrieve them if they are able to satisfy the SPCA that the animals will be taken care of. Under the Act, the SPCA has a statutory mandate to take custody of animals which are in “distress”. Once the animals are taken into the SPCA’s custody, the Act gives the SPCA a discretionary right to dispose of the animals. In this case, on October 20, 2009, an authorized agent of the SPCA, Special Provincial Constable Mead (SPC Mead”), executed a warrant lawfully obtained under the Act and took custody of 70 of Ulmer’s cats and one hen. Ulmer was provided with notice that she had a right to dispute the SPCA’s decision to dispose of the animals. Ulmer, through her counsel, disputed the Notice of Disposition and requested the return of the animals. Based upon the investigation materials including photographs taken during the October 20, 2009 search and seizure, the SPCA refused to return the seized animals to Ulmer.
Both parties agreed that the standard of review regarding the decision to seize the animals was reasonableness.
The Court noted that on October 11, 2009 the SPCA received a complaint from an employee at a veterinary clinic regarding Ulmer. The complaint indicated that Ulmer had brought in a cat that was almost too weak to walk, had bedsores, was urine scaled and had matted fur. Ulmer had been advised that the cat should be euthanized but she refused to do so. The complainant further indicated that Ulmer had brought in over 35 animals in similar condition at various times. As a result of the complaint, SPC Mead attended at Ulmer’s residence and drafted a report detailing the conditions of the animals she seized. There was a downstairs garage housing approximately 73 cats and one chicken. There was no ventilation or daylight available as the windows were closed and blocked. There was a foul odour and severe ammonia smell upon entry which burned the eyes and throat. SPC Mead was forced to wear a face mask throughout much of the inspection. Some cats were housed in overcrowded wire kennels and others were placed in small plastic travelling crates. Many of the kennels had a combination of no food, no clean water, no litter and no bedding. Many of the cats appeared skinny, distressed, lethargic and filthy.
The Court was satisfied that SPC Mead appropriately came to the conclusion that the animals were in distress. Statements by the other special provincial constable and the police officers who attended at the execution of the search warrant corroborated SPC Mead’s report. The animals were examined by veterinarians shortly after the seizure and their reports were before the SPCA’s General Manager of Cruelty Investigations at the time the decision was made not to return the animals to Ulmer. The Court concluded that there was no basis upon which to conclude that SPC Mead’s opinion that the animals were in distress was unreasonable.
With respect to the determination as to whether the animals should be returned to Ulmer, the Court noted that the appropriate tests, as set out in R v. Sudweeks, 2003 BCSC 1960, was whether “the person apparently responsible for the animals…had not taken and would not be able to take the steps necessary to relieve their distress”. In this case, the SPCA had been in touch with Ulmer several times in the week prior to the seizure and received no reasonable response from her. When the SPCA representatives arrived, they were confronted with deplorable conditions of apparent long standing. Ulmer, with notice that the SPCA was concerned, either did nothing or was unable to do what was required to alleviate the animals’ distress. In these circumstances, the Court was satisfied that the SPCA’s decision against returning the animals to Ulmer was reasonable on the evidence. The Court further found that there was no breach of the principles of procedural fairness as a result of the lack of an oral hearing. In the result, Ulmer’s petition was dismissed.
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