Van Dongen v BCSPCA and Devos, 2006 BCPC 0379 (CanLII)

Pursuant to a number of search warrants, the BCSPCA attended at three parcels of properties to determine if any animals there were in distress and to take steps to relieve any distress. Based on the Society agent’s observations of the premises and advice of a veterinarian, the agent concluded that 62 cattle, 45 horses and one cat were in distress and were seized.

The case began when the Society received a complaint about the welfare of horses located on one of the claimant’s properties. Upon attending the property, the agent had concerns about the lack of shelter for the animals and the danger posed to them by the presence of debris in the field. When she communicated her concerns to the claimant, he told her that the horses did not need shelter because the local climate was mild. She returned at a later date with written recommendations to improve the conditions of the animals and advised she would return in one month to assess the conditions. After receiving another complaint several days later, the agent attended at the property and observed a lame horse. She spoke to one Clrence Douma on the property about her concern and was ordered off the property. An Offence Warning Notice, along with a list of recommended actions with regard to the lame horse, was then delivered to the claimant. After another complaint, two agents attended at one of the properties and were permitted to view the animals, until Douma again appeared and ordered them off the property. A letter was left in the mailbox of the claimant to contact the Society. A couple days later, the SPCA received another complaint and the agent again attended at the property and requested to view the animal. She was refused permission to do so. The claimant acknowledged at that time that he had received her letter and that he would attend at the other property to see if there were any problems. The agent followed up later that day, at which point the claimant indicated he would not be constructing any additional shelter. When the agent attended the property to leave a copy of The Recommended Code of Practice for the Care and Handling of Farm Animals, she observed several horses without access to any shelter. The next day, she attended the property and took photos of an equine with a severe-looking eye injury. At this point, she was concerned that the horses were being subjected to a number of indicia of distress and that the response of the claimant to her repeated expressions of concern were not being treated seriously by him. She then applied for and was issued search warrants for the properties.

A veterinarian attending during the search noted the following concerns: 1) lack of access to clean and fresh water; 2) lack of adequate shelter; 3) serious injuries and sicknesses that required immediate veterinary attention; 4) ready access to debris, which represented a serious harm to the animals; 5) inappropriate disposal of animal carcasses; 6) access to manure pits and ponds; 7) built-up manure in feeding and bedding areas; 8) a lack of dry and bedded areas to lie down upon; and 9) a lack of salt or mineral licks.

The agent determined that the animals were in distress and that the persons responsible for the animals failed to promptly take steps to relieve the distress. As a result, the animals were seized. Following the seizure, the Society did not dispose of the animals because the owners agreed to meet certain minimal standards of care and to reimburse the Society for the expenses that it incurred with respect to the costs of care. Most of the animals were returned after the owner signed release documents verifying the numbers and species of animals that were transferred.

Van Dongen then commenced an action for: 1) costs of recovery in the amount of $11,941.28; 2) devalue of chattels as a result of lack of care in the amount of $11,000; and damages in the amount of $10,000. The claim against Devos (the agent) was dismissed by consent, on the basis of the immunity from liability provisions of the Police Act. Further, the claim for “loss of reputation” was dismissed at the Settlement Conference.

The main issue is whether or not the animals were lawfully taken into custody of the SPCA. If so, then the claimant (Van Dongen) is strictly liable to the Society for the costs of care. The claimant submits that the search was unlawful and that the form of the search warrant was fatally flawed. He also argues that the warrants were executed in a “totally unreasonable manner” to such an extent that it amounted to such an abuse of process, that to uphold it would make the “law a sham and tarnish the administration of justice”. The judge finds no merit in these arguments. He finds, instead, that the claimant was treated reasonably by the Society, both before and after, the execution of the search warrants. He also finds that the claimant has not presented any evidence to counter the position that the animals were in distress at the time the search warrants were executed or that the warrants were obtained and executed, both properly and lawfully. Lastly, he found that the claimant failed to satisfy his burden of proof with respect to the alleged “devaluation” of the animals.

The claimant’s action for damages is dismissed.

Source: Case Law

Jurisdiction: British Columbia

Topics: adequate shelteragentanimal carcassesAnimal Welfareanimalsbeddingcatcattlecomplaintcostscosts of caredamagesdangerdebrisdevalue of chattelsdismisseddistressequineeye injuryfailed to promptly relieve distressharmhorsesinjuriesinjurylameloss of reputationOffence Warning NoticepropertiesrecommendationsRecommended Code of Practice for the Care and Handling of Farm Animalsrecovery of costssearch warrantseizeseizuresheltersicknessSPCAstandards of careunlawful seizureveterinarianwarrantwaterwelfare

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