Before: The Honourable Madam Justice Ross
Reasons for
Judgment
Counsel for the Petitioners |
Sandra D. Sutherland, Q.C. |
Counsel for the Respondent |
Kimberley Robertson |
Date and Place of Hearing: |
November 12, 2004 and
March 22, 2005 |
|
Vancouver, B.C. |
INTRODUCTION
[1]
The Petitioners, John Van Dongen, Richmond Rodeo Riding
Ltd. and Beach Grove Stables Ltd., seek judicial review of the
decision of the respondent, The Society for the Prevention of
Cruelty to Animals (“SPCA”), to seize custody from the petitioners
of three young horses on December 2, 2003; a declaration that the
petitioners are not liable for the costs to the respondent under
section 20 of the Prevention of Cruelty to Animals Act
R.S.B.C. 1996, c.372 (the “Act”); and special costs.
[2]
For the reasons that follow, I have concluded that the
petitioners are entitled to the substantive relief sought, but
have declined to make an order for special costs.
FACTS
[3]
Mr. Van Dongen and Beach Grove Stables Ltd. are horse
breeders and traders who carry on business at 9230 Ladner Trunk
Road in Delta, British Columbia, a property owned by Richmond
Rodeo Riding Ltd. (the “Property”). Mr. Van Dongen is an elderly
gentleman who has been a horse breeder and trader for more than 40
years. I think that it is fair to say that horses have been his
life. Mr. Van Dongen specializes in the breeding and trading of
warm-blooded show horses. He deposed that he was the first
breeder to introduce these horses into British Columbia.
[4]
There are approximately 75 horses on the Property, all
owned by either Mr. Van Dongen or by Beach Grove Stables Ltd. Mr.
Van Dongen is the principal caregiver for the horses, assisted by
Amy Brattebo, who lives in the house on the property, and Dan
Anger.
[5]
Mr. Nick Henze is a Special Provincial Constable appointed
under the Police Act, R.S.B.C. 1996, c.367 and an
authorized agent of the SPCA.
[6]
There was a history of strained relations between Mr. Henze
and Mr. Van Dongen. Mr. Van Dongen deposed that he does not like
strangers approaching his horses, particularly the young horses.
He keeps the young horses with their mothers and thereafter as a
herd. They are not accustomed to strangers. He deposed that the
arrangement that he had with Mr. Henze’s predecessor at the SPCA
was that if there was a complaint or concern, he would telephone
Mr. Van Dongen and they would arrange to meet on the Property to
resolve the matter. Mr. Van Dongen deposed that this arrangement
worked well.
[7]
When Mr. Henze assumed the responsibility for the Delta
area, Mr. Van Dongen repeated this request. Mr. Henze however
“did not take this request to heart” as it was not his “standard
procedure”. Accordingly, Mr. Van Dongen deposed, Mr. Henze
repeatedly entered the property between mid 2001 and December 2003
without Mr. Van Dongen’s permission, and often when he was absent.
[8]
In addition, Mr. Henze told Mr. Van Dongen when he
commenced his duties in Delta that he had no experience with large
animals. Mr. Van Dongen believed that he was being generous to
Mr. Henze, providing him with information to assist him in
learning about his job. Mr. Van Dongen was not pleased with Mr.
Henze appearing with what Mr. Van Dongen considered an unusual
number of complaints.
[9]
All of these frustrations continued to fester with the
result that by late 2003 the relations between Mr. Van Dongen and
Mr. Henze could fairly be described as volatile.
[10]
On November 27, 2003, acting on a complaint about the condition of
several horses received from a confidential informant, Mr. Henze
attended at the Property. Mr. Van Dongen ordered Mr. Henze off
the Property. There followed a confrontation. The police
ultimately attended. Mr. Henze subsequently applied for and was
granted a Warrant to Search the Property on November 28, 2003.
[11]
Constable Henze was not able to find a veterinarian to attend on
that day. He then applied for and was granted a Warrant to Search
the Property (the “Warrant”) on December 2, 2003 pursuant to
section 13 of the Act. The application was
supported by an Information to Obtain a Search Warrant sworn by
Mr. Henze on December 1, 2003 (the “Information”).
[12]
The animals, which are the subject of the complaint referred to in
the Information, are a light chestnut yearling that appeared
emaciated to the confidential informant, a black 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.
[13]
The Warrant authorized peace officers and authorized agents of the
SPCA appointed as special constables under the Police Act
to enter the Property between the hours of 8:00 am and 6:00 pm on
December 2, 2003 and “to take any action authorized by the
Act to relieve the animal’s distress”.
[14]
On December 2, 2003 at 10:40 am, Mr. Henze attended at the
Property with Helen York, senior Animal Protection Officer with
the SPCA, Dr. Mark Steinbach, a veterinarian, and three officers
from the Delta police force. Somewhat later, an independent
hauler and his assistant attended with a horse hauler after Ms.
York called to request them to attend.
[15]
The representatives of the SPCA conducted a search of the
Property, which lasted until 2:15 pm culminating in the seizure of
three young horses. In addition, Mr. Henze issued an “Order” to
Mr. Van Dongen requesting clean up of certain conditions on the
Property such as what was described as a rope hazard and some
metal hazards near the yellow barn. There is no issue in these
proceedings with respect to compliance with this “Order”.
[16]
The horses seized were:
1. Tinker, a three-month-old black filly with a blaze and
two white socks. Tinker had a growth on her neck and likely
corresponds to the black weanling referred to in the Information;
2. Star, a five-month-old sorrel filly with a white star
on her forehead. Star apparently injured her leg during the
course of the search and was not a horse referred to in the
Information.
3. Fairfax, a three-month-old chestnut colt. Fairfax’s
condition did not correspond to any concerns identified in the
Information.
Tinker
[17]
On December 2, 2003, the young horses that were seized were not
halter broken. Tinker was still with her mother.
[18]
Tinker had a growth that had first been observed when she was
about two weeks old. Mr. Van Dongen had consulted with Dr.
Geertsema, his veterinarian, about Tinker’s condition. Dr.
Geertsema conducted what he described as a thorough physical
examination of Tinker twice, in October and November, each time
when Tinker was in a stall. Dr. Geertsema and Mr. Van Dongen had
discussed Tinker’s condition prior to December 2, 2003 and had
agreed to euthanize her if her condition did not improve.
[19]
In December 2003, at the time she was seized, Mr. Van Dongen was
of the view that Tinker was happy and lively, not suffering or in
pain. He did not want to take her life precipitously. She was
still with her mother. He did not wish to expose her to the
stress of invasive procedures and tests.
[20]
Mr. Van Dongen was not present on the Property when the
representative of the SPCA arrived to execute the Warrant. His
employee telephoned him and he attended at the Property, arriving
at approximately 11:30 am. When he arrived, he advised Mr. Henze
that Tinker was under Dr. Geertsema’s care and asked Mr. Henze to
telephone Dr. Geertsema. Mr. Henze did so. He was not able to
speak with Dr. Geertsema immediately. Dr. Geertsema returned the
call at approximately 1:45. However, Mr. Henze and Ms. York had
already made the decision to seize Tinker and had loaded her into
the truck.
[21]
Dr. Geertsema deposed that in the telephone conversation he had
with Mr. Henze, Mr. Henze did not indicate to him that the three
foals were about to be seized or what his concerns about the three
foals were at that time.
[22]
Mr. Henze deposed that Mr. Van Dongen told him that Dr. Geertsema
had looked at the horse, but had not been able to catch it in
order to examine it. Mr. Van Dongen denies making such a
statement to Mr. Henze or anyone. It is clear from Dr.
Geertsema’s evidence that he had thoroughly examined Tinker on two
occasions, both times in a stall. Mr. Van Dongen would have no
reason to minimize the extent of Dr. Geertsema’s involvement;
indeed, he was trying to emphasize to Mr. Henze that Tinker was
under Dr. Geertsema’s care. I find that he did not make such a
statement.
[23]
Dr. Steinbach observed Tinker’s condition. He was not able to
examine her. Dr. Steinbach was under the impression that Dr.
Geertsema had not examined Tinker. He was of the opinion that
Tinker required an examination in order to determine if she was in
pain which, if untreated, could lead to distress.
[24]
After Tinker was seized, and while in SPCA custody, she was
examined and treated by four veterinarians, had numerous tests,
and procedures including surgery. These included:
1. needle aspiration;
2. ultrasound, drainage under sedation;
3. Penrose drains inserted;
4. aspiration and lancing; and
5. endoscopic surgery.
[25]
During the time that Tinker was in the custody of the SPCA, Mr.
Van Dongen requested numerous times that he and Dr. Geertsema be
permitted to examine her and consult with respect to her
treatment. This was refused until the Order of Martinson J. of
February 2, 2004, which provided inter alia:
1. Until the Petition is heard, the Petitioner, John Van
Dongen, accompanied by his solicitor, be permitted to visit weekly
the young horse, Tinker (who is the in the possession of the
Respondent);
2. Until the Petition is heard, Dr. Hermen Geertsema, DVM,
be permitted to examine Tinker every two weeks, commencing
immediately, and at the times of such examinations Dr. Geertsema
also be permitted to review the veterinarian records and reports
for Tinker from the date of her seizure by the Respondent to the
times of such examinations;
3. Until the Petition is heard, the Respondent provide to
the Petitioners copies of the veterinarian records and reports for
Tinker since the date of her seizure by the Respondent, updated
every two weeks;
[26]
Donna Hulls is a farmer and horse breeder. She picked Tinker up
on February 11, 2004 when the SPCA released her at Mr. Van
Dongen’s request because he was out of town. She deposed:
When my daughter and I picked up Tinker on February 11, 2004 I was
able to talk to Dr. Kleider and, while he provided explanations, I
reviewed his CD of Tinker’s surgery on his laptop computer.
Dr.
Kleider told me that he was the fourth veterinarian to see Tinker
and that her condition was very unusual and in all his career he
had never seen nor heard of anything like her condition. He told
me that he had researched the literature and found nothing
similar. He told me that Tinker was born with only two chest
muscles instead of three and that the cavity left by the missing
muscle had been gradually filled by fluid and strange tissue.
Dr.
Kleider told me that his surgery on Tinker had been very difficult
and it was a radical type of treatment. He told us that the
strange tissue in the cavity in Tinker’s chest had been very
tough, like that found one the surface of a bursa. He told me
that he had never seen tissue like what he removed. He told me
that to remove that tough tissue in surgery he had used a tool
normally used on bone to smooth rough bone surfaces. In response
to a question, he confirmed that the surgery on Tinker was so
unusual that if he wanted he could play the CD and lecture on the
surgery to veterinarians at universities or seminars.
When I brought Tinker to my farm on February 11, 2004, she was
debilitated, thin, and had a bloated belly. Her appetite was poor
and she was lethargic. In my opinion she had worms at that time
and so John and I de-wormed Tinker. The de-worming treatment was
successful. Tinker subsequently began to eat with good appetite
and had a spurt of growth in both height and weight. She also
became energetic.
Tinker is still at my farm and is still recovering from her
experiences, but I am uncertain what her future as a breeder or
show horse might be in light of her birth defect and the slackness
of the tissue in her neck.
Star
[27]
Ms. Brattebo deposed that she had checked the horses on the
morning of December 2, 2003 and Star was neither injured nor
limping. She was not suffering from a respiratory infection.
[28]
Star was in an enclosure on the Property, which is about 120 feet
by 30 feet. Mr. Van Dongen and Mr. Anger deposed that the truck
driver and his assistant went into the enclosure and pursued some
foals. The foals were running back and forth in the enclosure to
avoid the driver and his assistant. Star jumped out of the way of
some of the foals, hitting the wall as she did so. Mr. Anger
believed her injury was not serious. He asked to examine Star,
but Mr. Henze refused to allow him to do so.
[29]
Ms. York deposed that Star was injured while Mr. Anger and Mr. Van
Dongen were in the enclosure and that it was their activities that
appeared to be spooking the horses. Mr. Henze’s evidence is to
the same effect.
[30]
On balance, I am of the view that it is more likely that it was
the actions of the driver and assistant and not those of Mr. Van
Dongen and Anger that produced the agitation that resulted in the
injury. The young horses were more likely to be upset by the
actions of strangers. Mr. Van Dongen and Mr. Anger were familiar
with the horses and less likely to act in a way that would result
in the behaviour described. However, in any event what is clear
from the evidence is that Star suffered some injury in the course
of the search and seizure and not before. The extent of the
injury suffered in the enclosure is not clear because she was not
examined at the time.
[31]
It is also clear from the evidence, including a photograph taken
at the scene, that the young horses were dragged into the truck by
the driver and his assistant. Mr. Anger deposed that the proper
way to load any horse, and in particular, a young horse, onto a
horse trailer without injury is to hold its halter, walk by its
head and gently lead the horse on to the trailer. Mr. Van
Dongen’s evidence was to the same effect; in particular, that such
treatment can result in injury to the horse’s neck or leg.
[32]
Based on this evidence, it is possible that the injuries later
observed in Star and Fairfax were caused or exacerbated by the
methods used in the seizure. In addition, the seizure must have
been traumatic for these young animals.
[33]
Mr. Anger deposed that the trailer was in a filthy condition,
with several inches of feces on the floor. He also noted that
there were portable gates hanging inside the trailer that were a
hazard and could result in injury to the horses.
[34]
Dr. Steinbach examined Star after she was seized and formed the
opinion that she had sustained blunt trauma injury to the
forelimbs resulting in inflammation and pain. He prescribed rest
and medication.
[35]
On December 9, 2003, she appeared to be 90% recovered from her
injury. However, she was now found to be suffering from a
respiratory infection. It was his opinion that this infection was
extant while she was on the Property and was then exacerbated by
stress. She was also found at that time to have intestinal
parasites. Dr. Steinbach prescribed treatment for both
conditions.
[36]
Dr. Geertsema was of the opinion that the respiratory infection
could well have been the result of the seizure in that such
infections are common after shipping and moving animals to a new
environment. He deposed that he did not observe any sign of
respiratory infection in any of the three seized foals when he
examined prior to the seizure.
[37]
Dr. Steinbach agreed that stress is a contributing factor to
respiratory disease; however, it was his opinion that the
respiratory pathogen existed sub-clinically at the time of the
seizure, becoming manifest as a result of the stressors.
Fairfax
[38]
Ms. Brattebo deposed that Fairfax was not injured, limping, or
suffering from a respiratory infection on the morning of December
2, 2003 when she checked the horses. Dr. Geertsema had observed
no symptoms of respiratory infection when he visited the stables
in November.
[39]
Dr. Steinbach observed Fairfax in a barn on the Property in an
open bedded area. He observed that the foal was moving with some
reluctance, and that he was demonstrating lameness in the left
hind limb. It was his opinion that Fairfax required a complete
examination to determine the full nature of his injury.
[40]
Fairfax was seized under the conditions described earlier. Dr.
Steinbach examined him on December 3, 2003 and formed the opinion
that he was suffering from tendonitis. He prescribed rest and
anti-inflammatory therapy. On December 9, 2003, he was contacted
to re-asses Fairfax because of concerns with respect to
respiratory symptoms. He made a diagnosis of respiratory
infection. He also detected the presence of intestinal parasites
and prescribed medication for both conditions.
[41]
The young horses were eventually released to Mr. Van Dongen. Star
and Fairfax were returned on December 24, 2003, Tinker on February
11, 2004. The respondent society claims $14,332.92 for the
boarding, feeding, care and veterinarian treatment of the horses
of which $12,171.30 relates to veterinarian expenses for Tinker.
ANALYSIS
[42]
The first issue is the standard of review. The petitioners submit
that the standard of review should be correctness. The
petitioners rely in support of this contention on the powers being
exercised; the fact that this is not an administrative tribunal
and that there is no privative clause. The petitioners submit
that the respondent society is exercising very significant powers
and judicial review is the only remedy available.
[43]
The respondent society submits that because of the discretion
given in the Act to the authorized agents of the
Society, the legislature intended that a high degree of deference
be given to the decisions taken by representatives. In
particular, it is submitted that the court should intervene only
if satisfied that the decision taken was patently unreasonable, or
was made without authority, in bad faith, contrary to the rules of
natural justice or for an improper purpose.
[44]
The conduct at issue in the case at bar is a search and seizure.
Accordingly, in my view, the applicable principles to be applied
are those in relation to the reasonableness of any search or
seizure as set out in R. v. Collins, [1987] 1 S.C.R.
265, 33 CCC (3d) 1; namely that a search will be reasonable if it
is authorized by law, if the law itself is reasonable, and if the
manner in which it was carried out was reasonable; see R. v.
Nickason 2004 BCPC 316 [Nickason]; R.
v. Brown (25 May 2000), Surrey 104289 (B.C. Prov. Ct.);
McAnerin v. British Columbia Society for the Prevention of
Cruelty to Animals 2004 BCSC 1430.
[45]
The search and seizure were conducted pursuant to a search warrant
issued pursuant to the Act. The petitioners do not
take issue with the reasonableness of the legislation itself.
They do submit that the search and seizure were fatally flawed so
that they could not be said to be authorized by the Act.
They submit further that the search and seizure were conducted in
an unreasonable fashion.
[46]
The first objection is that the seizure of two of the three
animals was invalid because the animals that were seized were not
the animals identified as being in possible distress in the
Information. The petitioners submit that if in the course of an
inspection or search, an animal of concern is identified that had
not been identified in the Information or that is suffering from a
form of distress not identified in the Information, the agent is
obliged to swear a new Information in support of a new Warrant
before seizing the animal.
[47]
The Information to obtain a search warrant states that the
informant has reasonable ground to believe that “an animal is in
distress” at the premises. The informant asks that a warrant be
issued authorizing a peace officer... “to enter the Premises and
to take any action authorized by the Act to relieve
the animal’s distress.” The animals identified in the Appendix to
the Information were a light chestnut yearling that appeared to be
emaciated, a black weanling that had a growth upon its neck and
several horses that were sneezing, sickly and with runny noses.
[48]
As noted earlier in these reasons of the young horses that were
seized, only Tinker was enumerated in the Information.
[49]
The Search Warrant was obtained because of the position Mr. Van
Dongen had taken on November 27, 2003. I find that it was
appropriate to grant the Warrant on the basis of the Information.
In addition, Mr. Van Dongen is in the business of breeding and
trading horses at the Property. The search was conducted during
ordinary business hours.
[50]
Section 15 of the Act provides:
An
authorized agent may, without a warrant, during ordinary business
hours enter any premises, other than a dwelling house, where
animals are kept for sale, hire or exhibition for the purpose of
determining whether any animal is in distress in the premises.
[51]
It appears that the Act clearly contemplates that an
authorized agent is entitled to enter a commercial premises such
as the Property without 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 entitled
to be on the Property on the basis of the Warrant or by virtue of
section 15 of the Act.
[52]
In my view, once an agent is on the Property, either pursuant to a
Search Warrant, or pursuant to section 15, and observes an animal
that is believed to be in distress, the governing section becomes
section 11. The Act does not, in my view, require
that the representative leave the property and obtain a warrant
before taking action under section 11. Such a requirement would
not be consistent with the purpose of the Act in
relation to the objects of the Act.
[53]
As stated by Clare Prov. Ct. J. in R. v. Roos & Stevens
(22 October 1999), Port Coquitlam 57274-01 (B.C. Prov. Ct.), the
intent of the Act is to allow investigations,
particularly to relieve distress in animals that are really unable
to look after, to fend for, or to feed themselves.” Finally, as
noted in R. v. Baker, 2004 O.J., No. 525 [Baker],
to require such a process would permit ill-motivated individuals
to remove or conceal animals, thereby frustrating the purpose of
the Act.
[54]
Therefore, I conclude 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.
[55]
The petitioners next asserted that the search and subsequent
seizure were unauthorized or unlawful because of the presence of
unauthorized persons, specifically the veterinarian, and the
hauler and assistant and because of the number of police officers
who participated. It is the petitioner’s position that the
Warrant only authorized peace officers and authorized agents of
the SPCA to enter the Property and accordingly the haulers and
veterinarian were present without authorization.
[56]
This issue was addressed in Nickason. After
reviewing that decision and the authorities relied upon by Blake
Prov. Ct. J., I am satisfied that unnamed persons who are neither
peace officers or authorized agents of the SPCA are permitted to
assist in a search and seizure, so long as any such persons are in
attendance for a purpose directly authorized by the warrant and
operate under the direction of the person or persons named in the
warrant as authorized to search.
[57] I
am satisfied that those conditions are satisfied in the case at
bar. Accordingly, the search and seizure are not unlawful or
unauthorized as a consequence of the presence of the additional
persons at the Property.
[58]
Baker
dealt with the question of the total number of persons involved.
O’Connor J. concluded that the number of agents involved must be
reasonable based upon the number of animals involved, the nature
of the animals, the size of the location to be searched and any
other relevant factors. In this case, there was a substantial
property to be searched and a significant number of animals to be
inspected. Moreover, the prior history of dealing, including Mr.
Van Dongen’s conduct on November 27, 2003, made the presence of
the police officers to preserve the peace not unreasonable in the
circumstances. I find that the total number of persons involved
was not unreasonable in the circumstances.
[59]
The next issue is whether requirements of section 11 of the
Act were met in the seizure of the animals. Section 11
provides:
Relieving distress in animals
11 If an authorized agent is of the opinion that an animal
is in distress and the person responsible for the animal
(a) does not promptly take steps that will relieve its
distress, or
(b) cannot be found immediately and informed of the
animal’s distress,
the
authorized agent may, in accordance with sections 13 and 14, take
any action that the authorized agent considers necessary to
relieve the animal’s distress, including, without limitation,
taking custody of the animal and arranging for food, water,
shelter and veterinary treatment for it.
[60]
Section 11 must be read in the context of section 12 to 14 which
provide:
Relieving critical distress in animals
12(1) In this section, “critical distress” means
distress in an animal of such a nature that
(a) immediate veterinary treatment cannot prolong the
animal’s life, or
(b) prolonging the animal’s life would result in the animal
suffering unduly.
(2) If, in the opinion of
(a) a registered veterinarian, or
(b) an authorized agent, if a registered veterinarian is
not readily available,
an
animal is in critical distress, the authorized agent may destroy
the animal or have the animal destroyed.
Authority to enter with a warrant
13(1) An authorized agent who believes, on reasonable
grounds,
(a) that there is an animal in distress in any premises,
vehicle, aircraft or vessel, or
(b) that an offence under section 24 has been committed and
that there is in any premises, vehicle, aircraft or vessel, any
thing that will afford evidence of that offence,
may
enter the premises, vehicle, aircraft or vessel with a warrant
issued under subsection (2) for the purpose of
(c) determining whether any action authorized by this
Act should be taken to relieve the animal’s distress,
or
(d) searching for any thing that will afford evidence of an
offence under section 24.
(2) A justice who is satisfied by information on oath in
the prescribed form that there are reasonable grounds
(a) under paragraph (1)(a), may issue a warrant in the
prescribed form authorizing an authorized agent to enter the
premises, vehicle, aircraft or vessel for the purpose of taking
any action authorized by this Act to relieve the
animal’s distress, and
(b) under paragraph (1)(b), may issue a warrant in the
prescribed form authorizing an authorized agent to enter the
premises, vehicle, aircraft or vessel for the purpose of searching
for the thing that will afford evidence of an offence under
section 24.
(3) A justice may issue a warrant under subsection (2) for
either or both of the purposes referred to in that subsection.
(4) A warrant issued under subsection (2) is subject to the
conditions specified in the warrant.
Authority to enter without a warrant
14(1) In this section, “critical distress” means distress
in an animal of such a nature that
(a) immediate veterinary treatment cannot prolong the
animal’s life,
(b) prolonging the animal’s life would result in the animal
suffering unduly, or
(c) immediate veterinary intervention is necessary to
prevent the imminent death of the animal.
(2) An authorized agent who believes on reasonable
grounds that there is an animal in critical distress in any
premises, other than a dwelling house, or in any vehicle, aircraft
or vessel, may enter the premises, vehicle, aircraft or vessel
without a warrant for the purpose of taking any action authorized
by this Act to relieve that critical distress.
[61]
There is no suggestion in this case that any of the animals were
in critical distress. Therefore, it is clear that the 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.
[62]
Helen York deposed that she had several conversations with Mr. Van
Dongen in which she requested that he have a veterinarian examine
the horses and follow the recommended course of treatment and that
he refused each time. In particular, she deposed:
I
asked Mr. Van Dongen if he would have a registered veterinarian
examine the horses and follow the vet’s recommended course of
treatment, and he again yelled that he was “the vet” and that he
knew “a hell of a lot more than those idiots”. I again advised
Mr. Van Dongen that two of his horses had been determined to be in
distress by a registered veterinarian and that they required
veterinarian attention. Again, I asked Mr. Van Dongen if he would
contact his, or any other veterinarian, and have those two horses
examined by a veterinarian within the next twenty-four hours, and
whether or not he would follow the recommendations of that
veterinarian. Mr. Van Dongen replied “No”, and again advised me
that he was “the vet” and knew “what is best” for his horses.
I
then advised Mr. Van Dongen that because two of his horses had
been determined to be in distress by an independent veterinarian,
and because they required veterinary attention that he was not
willing to provide to them, the Chestnut Weanling and the Black
and White Weanling would be taken into the custody of the Society
pursuant to the provisions of the Act.
...
I
approached Mr. Van Dongen and pointed towards the Chestnut
Weanling. I asked him if the Chestnut Weanling had received any
veterinary care for its apparent lameness, and point out that
there was a scar on its rear leg. Mr. Van Dongen replied that the
Chestnut Weanling was “fine”, and that we were “crazy”. I asked
Mr. Van Dongen how long he had owned the Chestnut Weanling, to
which he replied that he had owned it since it had been born.
I
asked Mr. Van Dongen if he would have his vet, or another
registered veterinarian, examine the Chestnut Weanling within
twenty-four hours, and follow the recommendations of that
veterinarian. Mr. Van Dongen replied “No, you people do not know
what you are doing”. I re-advised Mr. Van Dongen that, under the
circumstances, the Chestnut Weanling would be taken into the
custody of the Society pursuant to the Act.
At
1:30 p.m., I saw that the Sorrel Weanling was still favouring its
right front leg, and not wishing to put any weight on it. I
approached Mr. Van Dongen and advised him that while he had been
chasing the weanlings in the Red Barn, the Sorrel Weanling hd
become injured, and that, half an hour later, she was still
favouring one of her legs. I again asked MR. Van Dongen if he
would have his vet, or another registered veterinarian, examine
the Sorrel Weanling within twenty-four hours and follow the
recommendations of the veterinarian. Mr. Van Dongen replied,
“No”, and stated that the Sorrel Weanling was “Just bruised”. I
again advised Mr. Van Dongen that, under the circumstances, the
Sorrel Weanling needed veterinary attention and that it would be
taken into the custody of the Society pursuant to the Act.
Mr. Van Dongen stated that he would sue the Society and Mr.
Buhler. Mr. Van Dongen stated that he “was the vet” and that the
Sorrel Weanling’s condition “was similar to a person stubbing her
toe”.
[63]
Mr. Henze deposed as follows:
At
approximately 12:15 p.m., I approached Mr. Van Dongen, who was
then standing next to several of the Delta Police Officers on the
driveway near the Red Barn. I then Charter-warned
Mr. Van Dongen... I asked if Mr. Van Dongen understood the
Charter-warning and he said “Yeah, yeah, I don’t have no
use for that”.
I
advised Mr. Van Dongen that I was concerned for the welfare of two
of the horses found on the Property, namely the Black and White
Weanling and the Chestnut Weanling. Mr. Van Dongen stated that
Dr. Geertsema had looked at the lump on the Black and White
Weanling’s neck and that he had told him that it was cancerous.
Mr. Van Dongen informed me that Dr. Geertsema had said that he
could remove the lump at a cost of about $1,000.00, but that the
lump would grow back. Mr. Van Dongen further stated that a lady
friend of his had recommended that he try “Tea of Izeak” to treat
the Black and White Weanling, and that he was going to pick up
some at a pharmacy later that day. Mr. Van Dongen stated that
this lady friend was in the horse business but refused to supply
me with her name. He also informed me that he had had three
veterinarians at the Property when I had last attended with Ms.
McConnell on November 27, 2003, and that all three of those vets
had advised him that his animals were healthy. He stated that the
vets were from a veterinarian school somewhere in Canada.
However, he told me that he did not know the names of the
veterinarians or the name of the school they had come from.
With respect to the Chestnut Weanling I was advised by Mr. Van
Dongen that he knew the horse I was referring to, and that the
Chestnut Weanling had been stepped on by its mare when it was
born. Mr. Van Dongen stated that he had set and splinted this
horse’s leg himself, and that he had never called in a
veterinarian in order to help with the Chestnut Weanling.
I
also informed Mr. Van Dongen that I had concerns for specific
hazards that I had seen upon earlier inspection of the Property.
I advised Mr. Van Dongen that I noted several piles of discarded
metal debris on the west side of the field on the Property, which
in my opinion posed a risk of injury to the horses. Mr. Van
Dongen stated “None of my horses in the fields have leg injuries.
Do you see any injuries on their legs?”
I
advised Mr. Van Dongen that the ropes strung up by the yellow Barn
posed a tangling risk to horses kept in that area. Mr. Van Dongen
stated “That’s Amy’s deal. – she set that up”. I asked who Amy
was. Mr. Van Dongen replied “I don’t know her last name”.
I
overheard Constable York advise Mr. Van Dongen that the hay silage
was poor quality food to feed to the horses. Mr. Van Dongen
replied, “You’ve got no business here. You people need to come in
out of the rain. This is my property!”. Van Dongen then stated
that he was going to check on the Chestnut Weanling, and he walked
away from us.
[64]
He agreed in cross-examination that he never advised Mr. Van
Dongen that the horses would not be taken into custody if he
agreed to have them seen by a veterinarian.
[65]
Mr. Von Dongen’s evidence was that no one advised him of what
animal was believed to be in distress or what the distress might
be at any time during the period that the respondent’s agents were
on the property. With respect to Tinker, it was his evidence that
he advised:
Mr.
Henze on December 2, 2003 before the SPCA took Tinker into custody
that:
a) Dr. Herman Geertsema, veterinarian to my horses for
approximately ten years, had examined Tinker on several recent
occasions;
b) Dr. Geertsema and I had discussed Tinker’s tumour and
agreed to euthanize Tinker if the condition of her tumour did not
improve;
c) I considered that Tinker was happy and lively with her
mother and I did not wish to take her life precipitously.
In
my opinion on and before December 2, 2003 Tinker was not suffering
or in pain and, as she was lively and happy, I considered that
where there is life there is hope.
I
was reluctant to put Tinker down so long as she might improve and
so long as she was happy with her mother and lively.
Neither Mr. Henze or any of those with him at any time indicated
to me that Tinker was “in distress” or requested that I
take any steps to relieve any “distress” before he removed
her from the property.
[66]
With respect to Tinker and Fairfax, it was his evidence that:
Neither Mr. Henze nor any of those with him at any time indicated
to me that Star was “in distress” or requested that I take
any steps to relieve any “distress” before he removed Star
from the Property...
Neither Mr. Henze nor any of those with him on December 2, 2003
indicated to me that Fairfax was “in distress” or requested
that I take any steps to relieve any “distress” before he
removed Fairfax from the Property.
Neither Mr. Henze nor any of those with him on December 2, 2003
suggested that I get a veterinarian to look at Star.
Neither Mr. Henze nor any of those with him on December 2, 2003
suggested that I get a veterinarian to look at Fairfax.
[67]
In cross-examination on his affidavit he denied emphatically that
Ms. York or anyone else on the day in question told him that any
of the three horses needed to see a vet within 24 hours and asked
him to agree to do that.
[68] I
have concluded that the representatives of the Society did not
inform Mr. Van Dongen of their specific concerns with respect to
the seized animals. I find further 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.
[69]
Mr. Van Dongen was angry and difficult. He was, however,
responsive to the concerns that were identified to him. He
complied with the requests made to him with respect to the
Property that were specified in the “Order”. He indicated to Mr.
Henze that Tinker was under the care of Dr. Geertsema and
requested that Mr. Henze speak with Dr. Geertsema. He was clearly
upset at the seizure of his animals. It is my view, that if he
had been asked to consult with Dr. Geertsema, he would have
agreed.
[70]
In addition, Ms. York testified that Mr. Henze was present during
the conversation she had at 12:15 with Mr. Van Dongen during which
she states she advised Mr. Van Dongen of their concerns, and
requested that he agree to have the horses examined by a
veterinarian. Mr. Henze’s affidavit with respect to that
conversation is extremely detailed. However, the only
conversation between Ms. York and Mr. Van Dongen that he describes
is in relation to the hay silage after which he deposed Mr. Van
Dongen walked away from them. If there had been such a
conversation as described by Ms. York, Mr. Henze would have heard
it and, given the importance of the issue, would have referred to
it in his evidence.
[71] I
conclude that representatives of the respondent Society did not
ask Mr. Van Dongen to agree to consult with a veterinarian within
24 hours and agree to follow his recommendations for treatment.
It follows that there was no basis upon which they could conclude
that Mr. Van Dongen had not or would not act promptly to relieve
the distress. The precondition to seizure specified by section
11(a) of the Act was not satisfied and accordingly,
the seizure was not authorized and was unlawful.
[72] I
find further that it was unreasonable in the circumstances to
proceed with a seizure of the animals without making such a
request. The animals were clearly not in critical distress. Dr.
Steinbach had not been able to examine Tinker, but had only
observed her condition from a distance. He was of the opinion
that she required an examination to determine if she was in pain
which if untreated would lead to distress. He had formed no
opinion about Star’s condition because she was injured after he
left the Property. The agents were aware that Dr. Geertsema was
involved in the animal’s care. It was unreasonable to subject
these young animals to the stress of the seizure without making an
attempt to have the concerns about their evaluation resolved
through recourse to Dr. Geertsema.
CONCLUSION
[73]
The petitioners have established that they are entitled to the
declaratory relief sought. I grant:
(a) a declaration that the decision of the respondent to
seize custody from the petitioners of the three young horses on
December 2, 2003 was unauthorized and invalid;
(b) a declaration that the petitioners are not liable for
costs to the respondent pursuant to section 20 of the Act.
COSTS
[74]
The final matter is costs. The petitioners sought an order for
special costs based on what was submitted to have been
reprehensible conduct by the respondent amounting to an abuse of
authority:
(a) in relation to the seizure of the animals;
(b) thereafter in maintaining custody of the animals while
attempting to extract conditions in circumstances in which the
Society should have applied to the court for directions;
(c) in the case of Tinker, proceeding unilaterally, and
without a court order, undertaking invasive procedures and
treatment while refusing consultation with Dr. Geertsema.
[75]
The respondent Society submits that the conduct of the agents of
the Society has not been reprehensible, scandalous or outrageous.
At all times, they acted in good faith, in the best interests of
the horses and in what they believed to be their authority.
Counsel submits that, as in Stiles v. Workers’ Compensation
Board of British Columbia (1989), 38 B.C.L.R. (2d) 307, 39
C.P.C. (2d) 74 (BCCA) per Lambert J.A., “at most, one could
suggest that there might have been better communication between
the parties and a little more give and take...”.
[76]
In this case, I have found that the failure of the respondent’s
agents to communicate with Mr. Van Dongen amounted to a fatal
defect in their authority to seize the animals. I find a great
deal that is troubling with respect to the conduct of agents of
the respondent in relation to this matter. For example, I find it
troubling that the agents would proceed with a seizure, in the
absence of critical distress, in circumstances in which the owner
advised that the animal is under the care of a veterinarian, prior
to any discussion with the veterinarian. However, I do not find
that the conduct has been reprehensible.
[77]
In addition, Mr. Van Dongen’s conduct also contributed to the
unsatisfactory state of affairs. There has been, in my view,
unfortunate conduct on the part of both petitioner and agents of
the respondent. I accept that all the participants were motivated
by what they believed were the best interests of these young
animals. What is most unfortunate, in my view, is that their
collective actions and reactions caused unnecessary stress and
injury to the very animals they were attempting to protect.
[78]
In the circumstances, I decline to award special costs. The
petitioners are entitled to their costs of the proceedings.
“C.
Ross, J.”
The Honourable Madam Justice C. Ross