Claim No: 303970
IN THE SMALL CLAIMS COURT OF NOVA SCOTIA
Cite as: Savoie v. Dowell, 2009 NSSM 5
BETWEEN:
JOANNA SAVOIE
Claimant
- and -
TARA DOWELL
Defendant
REASONS FOR DECISION
BEFORE
Eric K. Slone, Adjudicator
Hearing held at Dartmouth, Nova Scotia on January 6, 2009.
Decision rendered on January 15, 2009
APPEARANCES
For the Claimant Self-represented
For the Defendant Self-represented
BY THE COURT:
[1] The Claimant sues for the return of her dog, which is in the possession of the Defendant. There is also a claim for a monetary award which, I must observe, does not make a great deal of sense in the context of this claim.
[2] Many of the facts are not disputed. The dog, a four year old small shih-tzu-poodle cross-breed which the Claimant named “Jolie” and which the Defendant has renamed “Chloe,” originally belonged to the Claimant.
[3] The Claimant operates a nail salon. The Defendant was one of her customers. In friendly conversation the Claimant confided in the Defendant that she was having trouble at home with her dog. Since first acquiring the dog several years ago in B.C., the Claimant had married, had a baby and moved to Nova Scotia. As her child got a bit older (she is now about 2) there had started to be some problems with the dog’s behaviour. On one occasion, the dog had nipped the child when she had grabbed the dog’s toy. In fact, in an email placed in evidence the Claimant told the Defendant that the dog has bitten her daughter four times. This behaviour was creating friction between the Claimant and her husband. According to the Defendant, the Claimant had told her that her husband “hated” the dog. The Claimant denies saying that. However, there is no doubt that the Claimant felt sufficiently conflicted by what was going on that she felt compelled to part with her cherished pet. The Claimant has admitted in another email that her husband kicked the dog when this incident over the toy occurred, and that this made her feel terrible.
[4] Another problem was that because the Claimant’s mother was no longer living at her home, and home during the day, the dog was often spending long hours alone, which she did not think was good for her.
[5] The conversations between the Claimant and the Defendant apparently occurred over a period of several months. The Defendant eventually said that she would take the dog. She offered that she had an ideal situation to look after the dog, and an agreement was made that resulted in the dog changing homes. This occurred in August of 2008.
[6] The questions for this court are:
A. what were the terms of that agreement, and
B. does the Claimant have the legal basis to reclaim the dog?
[7] A considerable amount of the trial was devoted to evidence about how well the dog is doing in the Defendant’s care, and what possible problems there had been when the dog was with the Claimant. The Defendant called as a witness an experienced dog trainer, Susan Jordan, with whom she has been working, who has had an opportunity to contribute to and observe the gains that the dog has apparently made. While certainly interesting, this evidence does not really address the relevant issue.
[8] At law, dogs are property. The “best interest of the dog” is not a concept any more relevant to the law than would be the best interest of the motorcycle in a dispute over a Harley-Davidson. Harsh though the law may be, it is what I must apply.
[9] The Claimant says that a term of the agreement was that the Defendant had to allow her a continuing right to have contact with the dog, and that she retained the right to revoke the deal if she was not satisfied that the new home was working out. Because the Defendant has refused to allow her to visit the dog, she says that she has not been able to assess how it has worked out and now has the right to reclaim the dog.
[10] The Defendant’s version of the agreement is that she retained the right to return the dog if it did not appear to be working out (which she would be in the better position to judge). She did say that there was some discussion about the Claimant being able to visit the dog, but that this would not necessarily be an immediate thing as it would be best to allow the dog to become fully bonded with her new owner and not become confused by seeing the Claimant too soon.
[11] The Defendant testified that she has invested a great deal of time and money into this dog, and would not have done so unless she were confident that it was a firm deal.
[12] She also takes the position that since it is clearly working out well, there is no reason for the dog to be returned. She also testified that she had been willing to allow the Claimant to see the dog, but that the expert advice was to allow sufficient time for “de-bonding to occur.” As to whether there could still be some contact between the Claimant and the dog, if the Defendant is successful in retaining ownership, the problem that now exists is that dispute has escalated and the bad blood has spilled over into the community, such that the possibility of a friendly relationship is doubtful.
[13] In any event, the question for me is to decide what were the terms of the contract. As with all oral contracts, this involves not only assessing the evidence and credibility of the parties, but the inherent probabilities of the situation.
[14] On all of the evidence, I have concluded that the Defendant’s version of events is more probable, and as such the claim by the Claimant has no legal basis.
[15] It is very clear to me that the Claimant deeply loves this dog and that it would have taken an extremely serious situation at home to have made her part with the dog. It took her a long time to reach the decision and to develop trust in the Defendant. While I do not doubt that there was some discussion about the Claimant getting some opportunities to visit the dog, the substance of the contract was that the Defendant would assume ownership and that the arrangement would be revocable only if it did not work out. This is consistent with the Claimant being concerned that the dog’s interests had to be protected.
[16] I also find that there were no clear terms as to when or how often the Claimant might be able to see the dog. That was left open, and in fact I believe there was a mutual expectation that the dog should not be confused by seeing the Claimant too soon.
[17] The fact that the Defendant invested in dog training and various things that the dog needed, is more consistent than not with the Defendant’s expectation of permanent ownership.
[18] I find that what very probably happened here is that the Claimant was in a very confused and emotional state of mind when she made the decision, and that she has regretted it. Perhaps ironically, by insisting on seeing the dog too soon, she may have provoked the very problem of which she now complains - that of being denied access to the dog.
[19] It will be cold comfort to the Claimant to know that this court is sympathetic to the disappointment that she is experiencing, involving as it does the intense feelings that she (like many pet owners) has for this dog. Nevertheless, she must accept the fact that she gave her dog away for legitimate reasons to a person in whom she had confidence, and who by all accounts is living up to the obligation that she assumed to give the dog a good home.
[20] In the result, the claim must be dismissed.
Eric K. Slone, Adjudicator