Ulmer v British Columbia Society for the Prevention of Cruelty to Animals, 2010 BCSC 199

The petitioner, Ulmer, seeks judicial review of the decision by the BCSCPA to take custody of 70 cats and one hen belonging to her, as well as their decision to refuse to return the pets to her. She seeks a declaration that the decision to seize was unauthorized and invalid, an order quashing the Society agent’s decision, an order that the animals be returned to her and a declaration that she is not liable for the expenses incurred by the Society in keeping the animals. The court lists three issues: 1) was the decision to seize the animals reasonable?; 2) was the decision not to return the animals reasonable?; and 3) does procedural fairness require the applicant receive an oral hearing?

The background facts are as follows: the Society received a complaint from an employee of a veterinary clinic regarding the petitioner. The complaint was that she had brought in a cat that was almost too weak to walk, had bed sores, was urine scaled, and had matted fur. Ulmer was advised that the cat should be euthanized, but she refused. The complainant stated that Ulmer had brought in over 35 animals in similar condition at various times. As a result of the complaint, a Society agent attended Ulmer’s residence and left a notice on the front door instructing her to contact the Society. A few days later, the Society received another complaint from an employee of Ulmer, who stated that there were multiple cats living in Ulmer’s home. She said she had helped Ulmer remove barrels of feces and cat litter from the house. She had not seen the living conditions but noted that the house had a strong, foul odour. She indicated that Ulmer had asked for her help in moving the cats to another property to avoid contact with the Society. The SPCA attended the property again and left notices warning Ulmer to contact the Society or face possible legal action. They later received an email from Ulmer’s fiancé who said they would be going on vacation. The employee called the SPCA again and indicated that almost all of the cats had been moved to the other property and that when moving the cats, she had noticed they were dirty and scruffy, and many had fleas and urine stains on their abdomens. The SPCA left a final warning notice at the property. There was some additional contact from the petitioner and her fiancé, but they indicated they were not up for an inspection at that time. The SPCA then applied for a search warrant, which was granted.

During the inspection, the officer noted that the downstairs garage housed approximately 73 cats and one chicken; there was no ventilation or daylight as the windows were closed and blocked; and there was a foul odour and severe ammonia smell. 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 floors of many of the kennels were covered in feces and urine. Some of the food containers contained feces and some had cats lying in them. Multiple cats in multiple cages were covered in 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. The chicken was in a small kennel, was not able to stand up comfortably and did not have any available food or water.

As a result, the Society took custody of 70 of Ulmer’s cats and one hen.

With regard to whether the decision to seize the animals was reasonable, the court finds that the evidence supports the finding that the animals were in distress; that Ulmer was not able to manage such a large number of animals; and that she could not take steps to relieve the distress. The Society is not bound by the Act to give a person a chance to relieve distress when there is no evidence on which to reasonably conclude that the person will be able to do so. Therefore, the decision to seize the animals was reasonable.

With regard to whether the decision not to return the animals was reasonable, the court finds that the correct test was applied and that the Society’s determination that the test would not be met is reasonable given the evidence. The test for returning animals is that the Society or court must be satisfied that the animal will remain in its present satisfactory condition if returned to its owner.

With regard to the final issue, whether procedural fairness requires the applicant receive an oral hearing, the court finds that an oral hearing was not necessary in these circumstances and that no breach of the principle of procedural fairness occurred. An oral hearing would have made no difference regarding the ability of the Society to assess whether individual animals should be returned to Ulmer, as the Society agent had fulsome and relevant written material before her.

Ulmer’s application for an order declaring that she is not obligated to pay the Society’s costs of care is premature, as the Society has not yet presented Ulmer with an invoice.

Source: Case Law

Jurisdiction: British Columbia

Topics: animalsapplicationbed soresbeddingCatschickencomplaintcostscustodydaylightdeclarationdistressemployeeeuthanasiaevidencefleasfoodfoul odourgaragehenhoarderhoardinginfectionsjudicial reviewkennelsmatted furneglectnegligencenoticepetitionpetsprocedural fairnesspropertyreasonablerefuse to returnresidencereturnsearch warrantseizureSPCAurine scaledventilationveterinarianwaterweak

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