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

• Judge: Newbury, Levine and Chiasson, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: October 27, 2010
• Jurisdiction: British Columbia
• Citations: 2010 BCCA 519;(2010), 295 B.C.A.C. 282 (CA)

Ulmer v. SPCA (2010), 295 B.C.A.C. 282 (CA);

    501 W.A.C. 282

MLB headnote and full text

Temp. Cite: [2010] B.C.A.C. TBEd. NO.029

Cary Ulmer (appellant/petitioner) v. The British Columbia Society for the Prevention of Cruelty to Animals (respondent/respondent)

(CA037872; 2010 BCCA 519)

Indexed As: Ulmer v. British Columbia Society for the Prevention of Cruelty to Animals

British Columbia Court of Appeal

Newbury, Levine and Chiasson, JJ.A.

November 23, 2010.

Summary:

Following complaints, the British Columbia Society for the Prevention of Cruelty to Animals (SPCA) seized 70 cats and one chicken from Ulmer's garage. The SPCA General Manager of Cruelty Investigations decided not to return the animals to Ulmer. Ulmer applied for judicial review.

The British Columbia Supreme Court, in a decision reported at [2010] B.C.T.C. Uned. 199, dismissed the application. Ulmer appealed. She applied for a stay of execution and/or injunctive relief to prevent the disposition of the animals pending the appeal.

The British Columbia Court of Appeal, per Bennett, J.A., in a decision reported at 284 B.C.A.C. 162; 481 W.A.C. 162, dismissed the application.

The British Columbia Court of Appeal dismissed the appeal.

Animals - Topic 3046

Cruelty to animals - Protected animals - Search for and seizure of animals in distress (incl. warrantless searches) - Following complaints, the British Columbia Society for the Prevention of Cruelty to Animals (SPCA) seized 70 cats and one chicken from Ulmer's garage - The SPCA General Manager of Cruelty Investigations decided not to return the animals to Ulmer - Ulmer applied for judicial review - The chambers judge dismissed the application - Ulmer appealed, advancing three errors by the chambers judge: (1) inferring a belief by the Manager that Ulmer 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; (3) finding that the Manager had jurisdiction to decide whether to return the animals to Ulmer - The British Columbia Court of Appeal dismissed the appeal - To take custody of the animals, s. 11 of the Prevention of Cruelty to Animals Act required the Manager to have formed the opinion that they were in distress and to have been satisfied Ulmer did not take steps promptly to relieve the distress - There was ample evidence to support the finding of the chambers judge that it was reasonable for the Manager to conclude that the animals were in distress and that Ulmer was unable promptly to relieve the distress - The chambers judge made no error of law or palpable and overriding error of fact - There was no basis for the court to interfere with her decision that the SPCA acted reasonably taking the animals into custody and in refusing to return them to Ulmer.

Animals - Topic 3047

Cruelty to animals - Protected animals - Return, sale or disposal of seized animals - [See Animals - Topic 3046 ].

Animals - Topic 3055

Cruelty to animals - Protected animals - Appeals or judicial review - [See Animals - Topic 3046 ].

Cases Noticed:

R. v. Sudweeks (M.), [2003] B.C.T.C. 1960; 2003 BCSC 1960, refd to. [para. 15].

British Columbia Society for Prevention of Cruelty to Animals v. Sudweeks et al., [2002] B.C.A.C. Uned. 139; 2002 BCCA 493, refd to. [para. 15].

Evers v. Adult Forensic Psychiatric Services (B.C.) et al. (2009), 280 B.C.A.C. 216; 474 W.A.C. 216; 2009 BCCA 560, refd to. [para. 23].

Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342; 92 N.R. 110; 75 Sask.R. 82, refd to. [para. 23].

R. v. Winfield (P.A.) (2009), 273 B.C.A.C. 152; 461 W.A.C. 152; 2009 YKCA 9, refd to. [para. 27].

Amyotte et al. v. 469238 B.C. Ltd. (2006), 230 B.C.A.C. 257; 380 W.A.C. 257; 2006 BCCA 414, refd to. [para. 30].

Gichuru v. Workers' Compensation Appeal Tribunal (B.C.) et al. (2010), 285 B.C.A.C. 276; 482 W.A.C. 276; 2010 BCCA 191, refd to. [para. 49].

Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227; 26 N.R. 341; 25 N.B.R.(2d) 237; 51 A.P.R. 237, refd to. [para. 50].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 50].

Statutes Noticed:

Prevention of Cruelty to Animals Act, R.S.B.C. 1996, c. 372, sect. 11 [para. 1].

Counsel:

J. Hanvelt, for the appellant;

C. Rhone, for the respondent.

This appeal was heard on October 27, 2010, at Vancouver, B.C., by Newbury, Levine and Chiasson, JJ.A., of the British Columbia Court of Appeal. The following judgment of the Court of Appeal was delivered by Chiasson, J.A., on November 23, 2010.