Ulmer v British Columbia Society for the Prevention of Cruelty to Animals, 2010 BCCA 519

This is an appeal by Ulmer of a BC Supreme Court decision that dismissed Ulmer’s application for judicial review of the BCSPCA’s decision to seize Ulmer’s cats and hen and refuse to return them to her.

The appellant had a community of feral cats. Some were housed in a garage attached to her home and some were in the home. A complaint was made to the Society by an employee at a veterinary clinic concerning a cat brought into the clinic that was in poor health. The appellant resisted the clinic’s recommendation that the cat be euthanized. Another complaint was brought by a former employee of the appellant. Notices were posted on Ulmer’s premises, but the requested meeting did not take place and a search warrant was eventually obtained by the Society. In the result, 70 cats and one chicken were taken into custody.

The two issues on review were: 1) was the decision to seize the animals reasonable?; and 2) was the decision not to return the animals reasonable?

The chambers judge set out the observations made at the appellant’s premises when a search warrant was executed:

[21] SPC Mead’s Inspection Report details the conditions of the animals she seized. She noted that the downstairs garage housed approximately 73 cats and one chicken. According to her Report, 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 in the garage, which burned her eyes and throat. She wore a face mask throughout much of the inspection. She found some cats housed in overcrowded wire kennels, and others housed together in small plastic travelling crates. In some instances, cats were lying on top of one another. Many of the kennels had a combination of no food, no clean water, no litter and no bedding. The floor of many of the kennels were covered in feces and urine. Some of the food containers in the kennels contained feces and some had cats lying in them. Multiple cats in multiple cages were lying in their own feces and urine. Many of the cats appeared skinny, distressed, lethargic, and filthy, with urine and feces stained coats. Many were infested with fleas, had eye or ear infections, and severe dental issues. There was one deceased cat in a garbage bag.

[22] Regarding the chicken, in her statement, SPC Carey states that it was in a small kennel, was not able to stand up comfortably, and did not have any available food or water.

The appellant advances three errors by the chambers judge: 1) inferring a belief by the Society that the appellant could not relieve the distress of the animals when there was no evidence to support the inference; 2) failing to consider whether the seizure of the animals was arbitrary; and 3) finding that the Society agent had jurisdiction to decide whether to return the animals to the appellant.

The Society states that the issue on appeal is whether the chambers judge was correct in her determination that the Society acted reasonably in taking custody of the animals.

The court determines that it would not be appropriate to consider the new argument the appellant seeks to advance. It finds that there was ample evidence to support the finding that it was reasonable to conclude that the animals were in distress and that the appellant had not and would not be able to relieve the distress. This supports the judge’s conclusion that it was reasonable for the Society to take custody of the animals. The court also finds that the chambers judge made no error of law or palpable and overriding error of fact.

Therefore, the court finds no basis to interfere with the decision that the Society acted reasonably taking the animals into custody and in refusing to return them to the appellant.

The appeal is dismissed.

Source: Case Law

Jurisdiction: British Columbia

Topics: animalsappealbeddingcatCatschickencratescustodydaylightdeceaseddental issuesdismisseddisposeddistressdistressederrorevidenceFecesfleasfoodfoul odourgaragehenhoarderhoardinginfectionskennelslitterneglectnegligenceovercrowdedreasonablerefusalreturnsearch warrantseizeseizureSPCAurineventilationwater

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