BC Farm Industry Review Board decision to approve the removal of 88 animals and requiring petitioners to pay for reasonable care costs of the seized animals is upheld by BCSC

A decision of the B.C. Farm Industry Review Board approving the removal of 88 animals and requiring the petitioners to pay for the reasonable care costs of the seized animals was upheld.

Administrative law – Decisions reviewed – Farm Industry Review Board – Right to award costs – Animals – Prevention of cruelty – Seizure and dispostion of animals – Judicial review

Simans v. British Columbia Farm Industry Review Board, [2017] B.C.J. No. 1758, 2017 BCSC 1568, British Columbia Supreme Court – New Westminster, British Columbia, September 5, 2017, A. Saunders J.

The petitioner Ms. Simans operates the petitioner 1atatime, an animal rescue operation through which she rescues animals and places them in adoptive homes or attempts to provide care for them herself.  The BC Society for the Prevention of Cruelty to Animals (the “Society”) responded to a call from an individual who expressed concern for the animals in the petitioners’ care.  The Society obtained and executed a warrant and seized 88 animals from the petitioners’ property.

In the Review Decision, the Society’s Chief Prevention and Enforcement Officer determined that it would not be in the seized animals’ best interest to be returned to the petitioners.  Ms. Simans appealed this decision to the BC Farm Industry Review Board (the “Board”).  The presiding member determined that the seizure of the animals was justified.  The member ordered that the Society be permitted, in its discretion, to destroy, sell or otherwise dispose of the seized animals.  The member also ordered the petitioners to pay costs to the Society in the award of $81,235.50.

The petitioners sought judicial review of the Board’s decision on the basis that the decision unreasonably failed to account for s.11(a) of the Prevention of Cruelty to Animals Act, RSBC 1996, c.372, which the petitioners submitted required the Society to provide them with an opportunity to take steps to relieve the animals’ distress before seizing them.  Section 11(a) provides that “if an authorized agent is of the opinion that an animal is in distress and the person responsible for the animal (a) does not promptly take steps that will relieve its distress, or (b) cannot be found immediately and informed of the animals’ distress…”.  Relying on Ulmer v. British Columbia Society for the Prevention of Cruelty to Animals, 2010 BCCA 519, the Court confirmed that the Society may lawfully seize a distressed animal without affording the person an opportunity to relieve the distress if it concludes that the responsible person is unable or unwilling to take the necessary steps to do so. The Court held that the decision on this point was well within the range of possible, acceptable outcomes, and the reasoning was transparent and intelligible.

The petitioners also argued that the decision failed to include 1atatime as an appellant in the underlying appeal, and therefore failed to consider that many of the animals belong to 1atatime and should be returned to it.  The Court held that the record disclosed no indication that Ms. Simans gave evidence or made submissions in this regard in the underlying decision, and held that the petitioner would not be granted another opportunity to argue these points which could have been but were not raised in the first instance.  The petitioners also argued that the Board did not afford them with an opportunity to raise concerns with respect to the execution of the warrant, which they say amounted to an unreasonable search and seizure, infringing her Charter rights.  The Court dismissed this ground on the basis that the Board does not have jurisdiction over constitutional questions, and proper notice had not been given to the Attorneys General of Canada and BC in accordance with the Constitutional Question Act, RSBC 1996, c.68.

This case was digested by JoAnne G. Barnum and first posted on Quicklaw and published in the Harper Grey Administrative Law Newsletter.  If you would like to discuss this case further, please contact JoAnne G. Barnum at jbarnum@harpergrey.com.

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