Van Dongen v The Society for the Prevention of Cruelty to Animals, 2005 BCSC 548 (CanLII)

The petitioners – Van Dongen, Richmond Rodeo Riding Ltd. and Beach Grove Stables Ltd. – seek judicial review of the decision of the BCSCPA to seize custody of three young horses. They also seek a declaration that they are not liable for the Society’s costs and, also, that they are entitled to special costs from the respondent.

Van Dongen and Beach Grove Stables are horse breeders and traders who carry on business in BC. There are approximately 75 horses on the property, all owned either by Van Dongen or Beach Grove. Van Dongen is the principal caregiver for the horses, assisted by two other people. There is a history of strained relations between the agent of the Society and Van Dongen. Van Dongen asserts that the agent, despite Van Dongen’s request that he be contacted about any issues, repeatedly entered the property without Van Dongen’s permission, and often when he was absent.

On one occasion, after receiving complaints by a confidential informant, the agent applied for and was granted a search warrant for the property. The animals, which were the subject of the complaint, were a yearling that appeared emaciated, a weanling horse which had a growth on its neck, and several other horses, some of them young in age which were sneezing, sickly, and had runny noses. Three young horses were seized and Van Dongen was issued an order to clean up certain conditions on his property.

The first issue was whether the search and seizure were unauthorized or unlawful. The petitioner argues that the search warrant was unlawful, the search itself was unlawful because additional persons attended the property with the Society agent, and the seizure was unlawful because the Society seized horses that were not named in the Information. The court finds that the Prevention of Cruelty to Animals Act clearly contemplates that an authorized agent is entitled to enter a commercial premises such as the petitioners’ property without a warrant and that the agent is empowered to determine if any animal is in distress on the premises. Accordingly, the authorized agents of the society were found to be entitled to be on the property on the basis of the warrant obtained or by virtue of the Act. Further, the judge finds that once an agent is on the property, and observes an animal that is believed to be in distress, the Act does not require that the representative leave the property and obtain a warrant before taking action. The court concludes that the search and subsequent seizure were not unauthorized or unlawful because they resulted in the seizure of animals that were on the property, but not identified in the Information or in relation to aspects of distress that were identified in animals on the property, but which were not specified in the Information. Additionally, the search and seizure are not unlawful or unauthorized as a consequence of the presence of the additional persons who assisted the SPCA with the search and seizure at the property.

The next issue was whether the requirements under the Act to seize the animals were met. The judge finds no suggestion that any of the animals were in critical distress; therefore, an authorized agent is only entitled to take action in circumstances in which the owner can be found immediately where the agent is of the opinion that the animal is in distress and where the owner does not promptly take steps to relieve its distress. Despite testimony by Society agents to the contrary, the judge finds that the representatives of the Society did not inform Van Dongen of their specific concerns with respect to the seized animals, and that they did not request him to take steps in response to those concerns; specifically, to have the animals examined by a veterinarian and to provide treatment in accordance with the recommendations. It follows that there was no basis upon which they could conclude that Van Dongen had not or would not act promptly to relieve the distress and, therefore, the judge finds that the seizure was not authorized and was unlawful.

The judge concludes that the petitioners have established that they are entitled to the declaratory relief sought and are granted: 1) declaration that the decision of the respondent to seize custody from the petitioners of the three young horses was unauthorized and invalid; and 2) a declaration that the petitioners are not liable for costs to the respondent.

Lastly, the judge does not find that the conduct by the Society’s agents were reprehensible and, so, declines to award special costs to the petitioner.

Source: Case Law

Jurisdiction: British Columbia

Topics: agentbreedersbusinesscomplaintscostscritical distresscustodydeclarationdeclaratory reliefdistressexperthorse breedershorse tradershorsesjudicial reviewNot Guiltyorderrequirements to seizesearch warrantseizureSPCAspecial costsunauthorizedunlawfulveterinarianwarrant

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