Ziggy’s Rescue v. Penko and Dwyer, 2022 BCPC 212

Citation: Ziggy’s Rescue v. Penko and Dwyer 2022 BCPC 212 Date: 20221005 File No: C21805 Registry: Port Alberni IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Civil BETWEEN: ZIGGY'S RESCUE and LAURA SNOEK CLAIMANTS AND: ALLISON PENKO and HERBERT DWYER DEFENDANTS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE A. WOLF Counsel for the Claimants: L. Snoek Appearing on their own behalf: A. Penko and H. Dwyer Place of Hearing: Port Alberni, B.C. Dates of Hearing: March 30 and 31, October 5, 2022 Date of Judgment: October 5, 2022

INTRODUCTION [ 1 ] The claimant and defendants entered into a contract. As a result of that contract, the claimant was paid $600 and the defendants took possession, but the claimant argues not ownership, of a dog named “Maddie”. [ 2 ] The claimant argues that Maddie never did become the property of the defendants, because the contract required that Maddie be spayed in order for the pet adoption to be finalized. The fact is that Maddie was pregnant, and could not be spayed until she gave birth to the puppies.

The claimant argues that because Maddie was ‘still hers’, the puppies also belonged to her. [ 3 ] Maddie gave birth to nine puppies. The claimant says she lost revenue as a result of these puppies not being born into her care. She also says due to numerous breaches of the contract, she also wants Maddie returned to her. THE NOTICE OF CLAIM FILED JUNE 21, 2021 [ 4 ] Laura Snoek, doing business as Ziggy’s Rescue, is suing Allison Penko and Herbert Dwyer. [ 5 ] Laura Snoek claims that the defendants adopted a dog from “Ziggy’s Rescue”.

She claims that the dog was pregnant, and the defendants agreed to give the dog back to Ziggy’s Rescue when it came time to give birth to the puppies. [ 6 ] Laura Snoek writes in her Notice of Claim that she wants the “Return of dog and litter of puppies immediately or $9,000.” In addition, she makes a claim of $1,000 for “vet bills”, and $5,000 for “court fees and legal services.” THE AMENDED NOTICE OF CLAIM FILED NOVEMBER 23, 2021 [ 7 ] Laura Snoek revised her claim.

She was able to obtain and sell seven of the nine puppies to mitigate her revenue losses, but she still claims $1,400 for two of the puppies ($700 x two puppies that died at birth), and $5,000 for “loss of revenue”. In her amended claim, she abandons her request for vet bills. Even though it has been nearly a year and a half since Maddie was transferred to the defendants, the claimant still wants Maddie back. She also wants some damages to help her pay for a lawyer to design a new contract.

THE REPLY FILED AUGUST 12, 2021 AND AMENDED ON DECEMBER 14, 2021 [ 8 ] The defendants indicate that they “purchased a dog” from the claimant. They agree that there was discussion about the dog being pregnant. However, they deny that any agreement was made with respect to the birth of the puppies. The defendants counterclaim for $4,900 for breach of contract, $268 for court filing fee’s, and $709.54 for vet bills. [ 9 ] The amended reply really spells out the defendant’s position.

They write: “We signed a contract with claimants who presented themselves as registered, non-profit animal rescue society, not a dog breeder.” PRETRIAL INTERACTIONS [ 10 ] A review of the court recording shows that Laura Snoek was doing business as (dba) Ziggy’s Rescue and Ziggy’s was in fact not a registered non-profit organization. She confirmed that she has been in business for approximately 12 years. I asked her whether she declared her income and she said “Not at this time.” “We will get caught up.” [ 11 ] I make this observation.

Laura Snoek, dba Ziggy’s Rescue was not very forthright in her interactions with the Court. She was asked directly, a number of times, “are you officially a non-profit organization?” Her responses came across as intentionally vague. She said, “It takes time”, “not at this time”, and “we are working on it.” She asserts that she is the “director” of Ziggy’s. She says Ziggy’s has a board of directors.

She claims paperwork showing monies obtained will be all “caught up on”. [ 12 ] Laura Snoek’s interactions with the Court appeared to be veiled in the idea that Ziggy’s was not a business, but rather, Ziggy’s was a properly registered not for profit society, and that there was nothing money oriented about Ziggy’s. To use Laura Snoek’s words, “I don’t make any money off of any dog.” [ 13 ] I expect how much money Laura Snoek dba Ziggy’s Rescue has made over the course of twelve years is really between Laura Snoek and the Canada Revenue Agency, who will receive a copy of these reasons.

Based on the evidence Laura Snoek gave in this trial, I would estimate hundreds of thousands of dollars have been given to Laura Snoek dba Ziggy’s. I make this comment to ensure that these reasons are transparent. Obviously, it is at the discretion of Revenue Canada to act or not act on information contained in these reasons. [ 14 ] It is possible that Laura Snoek dba Ziggy’s puts all earned income back into Ziggy’s.

However, simply self-identifying yourself as a non-profit organization does not mean you are one. [ 15 ] Laura Snoek claims she does not make money off any dogs, yet she sold the defendants a dog for $600. She originally claimed $9,000 for puppies that could have been sold by her and more recently, she claims $5,000 for “loss of revenue”. By her own claim, if I were to accede to it, this one dog appears to have a monetary value of nearly $15,000 income for her. [ 16 ] It is possible that Laura Snoek has now registered Ziggy’s Rescue as a non-profit society in British Columbia.

While I am unclear why it took her twelve years to properly register this business as a non-profit society, perhaps this registration is in direct response to my suggestion that she was not complying with the law around businesses and societies. November 30, 2021 is when these on the record interactions took place. Shortly after these interactions, and only a few days before we began this trial, Laura Snoek may have registered Ziggy’s as a non-profit society. I say ‘may’, as this is her claim. I still have not seen any official documents confirming her claim.

[ 17 ] For our purposes in this case, I conclude that the claimant Laura Snoek (Sole proprietor), is suing the defendants on behalf of the unregistered business of Ziggy’s Rescue. I mention this because if there actually is a new Ziggy’s Rescue properly registered, it would be a distinct legal entity. THE TRIAL [ 18 ] The claimant and defendants did not have counsel. However, each of them testified on their own behalf. The Claimant Laura Snoek [ 19 ] Ziggy’s business owner Laura Snoek testified.

She described how she “removed 13 dogs” from a First Nations community in Northern Manitoba and how she brought these dogs back to British Columbia. She explained that she had an “extensive background in rescue”. She confirmed that the two defendants were interested in adopting a dog named “Maddie”.

At first, Laura Snoek was adamant that she knew Maddie was pregnant and that “When they [the defendants] came to meet Maddie, we made an agreement that she was pregnant … and that they would take her home and she was to be returned for the puppies’ birth.” May 12, 2021 [ 20 ] The claimant argues that the defendants signed an adoption agreement and Maddie was transferred to the defendants. The claimant says the contract had specific contractual terms and that the defendants breached a number of those terms. [ 21 ] I have reviewed the document titled “Foster to Adoption Contract” in full.

May 21, 2021 [ 22 ] Laura Snoek went to the defendants’ residence to check on Maddie. June 3, 2021 [ 23 ] Laura Snoek advised the defendants that she was coming over to deworm Maddie. June 4, 2021 [ 24 ] She administered the dewormer and an argument took place between her and the defendants.

Based on this argument, she said she sought “the advice from her board of directors” and the “board of directors made a decision to have the dog give birth at my place.” [ 25 ] Laura Snoek advised the defendants of ‘the boards’ decision and ordered that they drop off Maddie on June 19, 2021. [ 26 ] I pause here to point out that Laura Snoek simply called herself and two others “the board of directors”. The defendant Dwyer also told the court that he had no idea there was any formal board.

There is no indication that there was any “formal board” established, with any particular protocols or record keeping of decisions. Based on the evidence in this trial, at best, it appears that Laura Snoek may have consulted with two individuals that volunteer their time with Ziggy’s Rescue.

June 18, 2021 [ 27 ] Laura Snoek testified that she was in Manitoba during this time period and when she returned, she went to the defendants’ residence and “they had locks on their gate and we got into a heated argument.” It is a bit unclear, but it appears this was the heated interaction where Dwyer says Snoek had called the police and was yelling ‘puppy thieves.’ Herbert Dwyer describes Laura Snoek as “extremely combative” and testified that “She gets really angry and almost on the verge of violence.” June 20, 2021 [ 28 ] Laura Snoek testified that Maddie had nine puppies, but two had died.

I note that this testimony is different from submissions that she previously told the Court. At one point in these proceedings, she claimed that the defendants were hiding two puppies by giving them to their family members. Even in Snoek’s closing, she tells the court that she still believes two puppies are with family members. However, there does not appear to be any truth in this claim. I accept that these puppies died at birth. [ 29 ] Laura Snoek then testified that the seven remaining puppies were given to the SPCA, but that she was able to get them back into her possession.

One of the defendants indicated that the claimant bullied and threatened the SPCA into giving the claimant the puppies. However, the SPCA has not been called upon in this trial. Nor was this suggestion put to Laura Snoek, so I have no way of knowing whether she would agree that her behaviour was bullying or threatening in any manner. In her closing argument, Laura Snoek indicates that she has a good relationship with the SPCA. However, no evidence was led on this point. I only have her submission.

I make no findings as to how Laura Snoek got the puppies from the SPCA. [ 30 ] With respect to revenue loss, the claimant says that she had a list of first responders that were going to prepare a photo shoot with the puppies and that a calendar was to be created. Laura Snoek claims that she “lost at least $5,000 from that.” In her closing argument Laura Snoek submits that the ‘her guestimate is that they lost $7,500’. But as Dwyer pointed out in his testimony, there is no proof of this loss. There were no documents provided to support this claim.

It may be true, as Laura Snoek submits, that she has just released a new calendar and expects to make a fair amount of money. Nonetheless, it is the claimant who must prove the loss from the last calendar venture. That has not been done. [ 31 ] Laura Snoek dba Ziggy’s Rescue lives in a small town and I would think it is natural to be creative in your fund raising for a non- profit organization. In point of fact, I see Ziggy’s Rescue posters up all over town, requesting donations or indicating that a portion of sales go to Ziggy’s. These posters are well made and feature very cute puppies on them.

The puppies are pronounced and clearly the subject of the posters.

[ 32 ] As I walk into different businesses in town, I also see local businesses partnering with Ziggy’s for fund raising. I hope that Laura Snoek dba Ziggy’s Rescue was clear with these community partners, such as the first responders, or the other businesses, that she was running a business, not a non-profit organization.

I decline to include the corporate names that Laura Snoek mentioned in court to protect their confidentiality. [ 33 ] In her testimony, she also claims that this trial has caused her a “great deal of stress, and countless hours of doing this stuff.” I note that in Small Claims Court, both the claimant and defendant need not be represented by counsel, but they must prepare their case. Preparing a case can be stressful, and certainly can take countless hours. [ 34 ] She concluded her testimony by saying that “I do not feel that these people are responsible dog owners. To me it is all selfish.

They didn’t want to give up their dog for a few weeks.” She said that the defendants should be ‘responsible for two puppies at $700 each.’ CROSS EXAMINATION OF LAURA SNOEK [ 35 ] The claimant agreed that the contract refers to a “donation”, which might lead somebody to believe they are contracting with a non-profit organization. In fairness, the claimant also said “I did not sell you a dog”, implying that it was adopted, rather than sold. [ 36 ] In her original evidence, the claimant said that she “knew Maddie was pregnant”. In cross-examination, she agreed that it was “unknown but highly suspected”.

She explained that she first suspected the pregnancy when a “Native from [deleted for privacy] told me”. She said that the dog might be pregnant “because they roam free in First Nations Communities.” [ 37 ] On the topic of going into Indigenous communities and taking dogs from them, I am not certain what the arrangements are between Laura Snoek’s business and Indigenous communities. I might not share the idea that allowing an external business to swoop in and transport out roaming dogs is such a good idea. I am aware of cases where agencies, maybe with good intentions, have accidentally taken family pets.

To be clear, while these social issues are worthy of more discussion, this case is not about the interprovincial controversy that exists between unregistered non-Indigenous businesses making money off Indigenous communities. [ 38 ] In her testimony, the claimant also asserted that she successfully settled three cases in court and that the adoption contract ‘stood in court’. However, when I asked her for the case name or ruling with respect to the contract, she quickly conceded that maybe she was mistaken.

Herbert Dwyer also told the court that he searched for court records and could not locate the cases that the claimant referred to. TESTIMONY OF ALLISON PENKO DEFENDANT [ 39 ] Allison Penko described how she and Herbert Dwyer moved to this area. They bought a house and they were interested in getting a dog. She described how Laura Snoek kept saying there were so many applicants and they were feeling ‘pressure’ to act quickly.

Allison Penko’s testimony gave me the impression that she felt Laura Snoek was intentionally trying to create pressure. [ 40 ] Within a brief amount of time, they were told they could sign the contract and take Maddie right away. Money was transferred. Maddie went home with the defendants. She said it “all happened so fast”, “they did not read the details of the documents they signed”.

She also said she “did not get a copy of the document.” [ 41 ] Allison Penko testified that “We love our dog, and everything we have done is for her health and safety.” She described how she thought when they received possession of Maddie, they owned Maddie. For the reasons below, I agree. [ 42 ] Allison Penko explained how Laura Snoek and others selling dogs “can say whatever they want”.

Her view was that in order to create an impression that “they have a certain legitimate status” Laura Snoek essentially claimed “she was a registered non-profit, but was not”, that Laura Snoek referred to Ziggy’s as a non-profit rescue because she “wanted everyone to think she was a non-profit rescue”.

Essentially, Allison Penko said that Laura Snoek “is not what she said she is.” [ 43 ] Allison Penko described how, from her perspective, “we feel she uses the contract as a weapon.” Defendant Dwyer testified that ever since “we purchased the dog, it has been a myriad of threats and deception to achieve profit from the animal.” I accept Allison Penko’s testimony that neither she nor Herbert Dwyer even saw the contract until the notice of claim was filed with the contract as an attachment.

This does not appear to be disputed. [ 44 ] Allison Penko says there was no oral agreement about Maddie giving birth in any one place or under what circumstances. She described how once Maddie’s pregnancy was confirmed, “everything changed”.

She described how Laura Snoek demanded that “the dog is coming to my house.” That Laura Snoek said things such as “it’s my contract, my rules, my rescue.” She described Laura Snoek as being “very aggressive, super intense and unnecessarily so and that she exclaimed a number of times that she had taken people to court over “my contract”.” None of this was challenged in cross-examination.

I accept that these things were said. [ 45 ] Allison Penko recounted how Laura Snoek said “I had to repossess a dog because they took it to a beach” and that she made a point of “telling us that at any time she could just take the dog from you.” [ 46 ] Allison Penko described how Laura Snoek “shook our gate, screamed puppy thieves and called the police and said “we will bury you.” I note that Herbert Dwyer corroborated some of this information but recollected the exact words she said were “I will bury you”, not “we”.

She described how Laura Snoek put personal information of theirs on social media and how the defendants felt so unsafe they put locks on the gates. [ 47 ] Laura Snoek’s behaviours were described as “spiteful” and “vindictive”. It is apparent to me, based on all the evidence, that there was a breakdown in the relationship between the parties. In Coast to Coast Bully Rescue Society v. Hibbs-Inglis SC-2020-003209 the issue was whether the adopter breached an adoption contract by a number of things, including failing to allow visitation rights.

The tribunal found that the relationship had broken down and it was reasonable to not allow visitation. I accept that not allowing Laura

Snoek to see Maddie was reasonable, considering the breakdown of the relationship. Interestingly, since the dog was spayed within the prescribed time, the tribunal held that ownership passed from breeder to adopter. [ 48 ] Allison Penko described how she and Herbert Dwyer were still trying to determine what the best course of action was with respect to Maddie’s pregnancy. They wanted Maddie to be taken care of, but they had concerns over the claimant’s behaviour.

While they considered returning Maddie to Laura Snoek, they became aware that Laura Snoek was not even going to be at the residence when Maddie was expected to give birth. Apparently, Laura Snoek wanted Maddie dropped off to a residence “that had unvaccinated dogs, other animals, about 13 puppies and two other pregnant dogs.” [ 49 ] I note that Laura Snoek indicated that she was a dog breeder many years ago.

However, it is hard for me to understand how there might be 13 puppies and two other pregnant dogs at Laura Snoek’s residence, and not at least raise the suspicion that there is some aspect of dog breeding taking place. If Allison Penko is correct, and If Maddie was dropped off, that would make it three pregnant dogs under the same roof. I accept that Laura Snoek’s social media shows dozens and dozens of puppies. I recognize that there are probably some adult dogs that have also been assisted by Laura Snoek’s business. But puppies seem to be the face of Laura Snoek’s business.

By Laura Snoek’s testimony, it appears she has ‘placed’ over three hundred dogs in the last few years. At some point in the trial Herbert Dwyer seemed to imply that Laura Snoek may have been intentionally impregnating dogs. He implied that how else would she know exactly how pregnant the dog was? This concept is too speculative, not founded on anything other than his opinion and I find it a bit far- fetched.

I also question Herbert Dwyer’s testimony as whether Laura Snoek told him she ‘simply puts in an order for two pregnant dogs and I go get them.’ [ 50 ] In June 2016 the British Columbia government created a “Consultation

Summary Report” on the Dog and Cat Breeding Industry in B.C. I would invite the public to review this report and I provide the link in paragraph 52. Notably, the report comments that one of the “Marks of irresponsible breeders is profit seeking behaviour.” The report indicates that approximately 84% of anyone involved in transferring offspring to others had a yearly average of 10 young animals (whether that was puppies or kittens).

Laura Snoek’s business appears to have transferred far more puppies to recipients in the course of a year. [ 51 ] When Maddie was adopted, did Laura Snoek have a legitimate, regulated, business or non-profit agency? This is a question that the defendants had. After the relationship broke down between the claimant and the defendants, I understand the defendants wanted to determine whether they were dealing with someone who was simply running a puppy mill out of her residence or just one of the many ‘backyard breeders’. The Consultation

Summary Report clearly indicates that these questions and concerns are not unique to this case. The lines of who is a “breeding business” versus a “hobby breeder” or “importer” or “rescue agency” are all a bit blurry. To make these lines a bit more clear is one of the reasons businesses incorporate or non-profit rescue societies register themselves. Only then are basic protocols, such as licensing and regulatory compliance able to be monitored. [ 52 ] The ‘Consultation

Summary Report’, that can be found at this link: https://www2.gov.bc.ca/gov/content/industry/agriculture- seafood/animals-and-crops/animal-welfare/dog-and-cat-breeding [ 53 ] Allison Penko explained how, in an attempt to learn more about Laura Snoek and her credentials, they did a search of non-profit organizations and businesses. From their perspective, there was nothing to show that Laura Snoek or Ziggy’s Rescue was a legitimate agency of any kind. There was no non-profit agency registered. There was no business license.

There was no indication of incorporation. [ 54 ] Allison Penko testified that with respect to dropping Maddie off to a house with all those other animals, “that wasn’t okay with us” and they called the SPCA and said we were “scared for the health of the animal.” The SPCA worker told them “do what is best for keeping the animal safe.” Defendant Herbert Dwyer also told the court that he did not think the environment was appropriate for birthing puppies. However, on this point, I have heard no expert evidence as to what is helpful to people who are regularly birthing puppies.

I expect Laura Snoek is experienced in this process and has a good understanding of the type of environment that is needed to birth puppies. [ 55 ] I accept Allison Panko’s version of events as to what took place next. Preparation for Maddie’s birth began. Maddie was taken to a vet. Vet consultations took place. A vet technician was helping them with questions. Allison Penko described how two puppies died, but they took care of the remaining seven puppies “day and night for two months”. When the puppies were old enough, they gave the puppies to the SPCA. It is notable that they did not sell these puppies.

They spent time, money and energy for their care. They did not expect anything in return. Herbert Dwyer also said that they “had a network of professionals around them” that assisted in the birthing process. [ 56 ] Allison Penko described how Maddie had been with her and Herbert Dwyer for about a year and that Maddie was happy and healthy. In her closing argument, made on behalf of both the defendants, Allison Penko paints a picture of the 511 day ordeal that has brought them to court. CROSS EXAMINATION OF ALLISON PENKO [ 57 ] She confirmed a number of points. She said she was not given a copy of the contract.

She also confirmed that at some point in time they did agree that Maddie would be dropped off, but that agreement was “made under duress and only after you [the claimant] threatened to take our dog away from us.” THE BROADER ISSUE [ 58 ] Has the claimant Laura Snoek dba Ziggy’s Rescue proven its claim on the balance of probabilities? Have the defendants proven their counterclaim? [ 59 ] Essentially, the dispute involves a contract to transfer a dog named Maddie from Ziggy’s Rescue to the defendants, if certain conditions were met. If there was a breach of the contract, are monies owed by one party or the other?

[ 60 ] A second aspect of this case is who should Maddie be with today? THE LAW [ 61 ] This case involves an

interpretation of the “Foster to Adoption Contract” [the contract] the contact is contained in the court file and marked as Exhibit 4 in Trial. Written Contract Basics [ 62 ] Generally speaking, a contract is simply a document that formalizes a relationship between two or more parties. A contract should be clear as to what obligations one party owes to the other party. [ 63 ] Mutual agreement, expressed by offer and acceptance of that offer as well as some concept of consideration (value) is required. [ 64 ] In this case, there is a document. It defines Allison Penko as the Adopter/Foster.

It also appears to be agreed by all that Herbert Dwyer is also the Adopter/Foster, even though his name is not legibly written on the document, he has initialled and signed it. Oral Contract [ 65 ] The claimant argues that in addition to the written contract, there was an oral agreement with respect to Maddie being pregnant. Specifically, the claimant argues that everyone agreed that Maddie would give birth to the puppies at the claimant’s residence and that the claimant would own those puppies.

The claimant’s theory is since no adoption is finalized until Maddie was spayed, Maddie technically still belonged to Laura Snoek dba Ziggy’s Rescue. Therefore, when the puppies were born, they too would be the property of Laura Snoek dba Ziggy’s Rescue. [ 66 ] The defendants say there was no agreement with respect to Maddie’s pregnancy. They also say that Maddie was adopted (owned) when they took possession of her. [ 67 ] With respect to whether there was an oral contract entered into with regarding the puppies, I conclude that there was not.

Laura Snoek’s testimony gave me great concerns with respect to credibility. Her evidence on this topic shifted. Allison Penko’s evidence on this topic was easy to understand. I had no issues with her credibility. [ 68 ] In fairness, by all the witness’ accounts, there seems to have been discussion around Maddie “possibly” being pregnant, but no discernible agreement as to what the parties would have to do. I accept that Allison Penko did “agree” or at least at some point say “yes” to take Maddie to the claimant’s home.

Equally, I accept that the agreement – if you can call an involuntary agreement an agreement - was made under duress and I am of the view that no party should be held to a promise involuntarily made. After all, the essence of a contract is voluntariness. [ 69 ] There is also the issue of the claimant fraudulently representing Ziggy’s as a registered non-profit society. I pose this question, if Laura Snoek chose to volunteer that Ziggy’s was simply a business that took dogs from Indigenous communities and sold them for profit, would the defendants have entered into the contract?

My impression of the defendants is that they would not have. In essence, Laura Snoek had knowledge that would have informed the defendants’ decision to make agreements, and she chose not to share it. THE SPECIFIC ISSUE [ 70 ] Was the claimant or defendant deprived of the “heart” of what was bargained for? If so, did the deprivation amount to a material breach of the contract? If there was a breach, will monetary compensation be able to address the breach? In attempting to answer this question I ask what the object or purpose of the contract was and whether the parties proceeded in good or bad faith.

GENERAL COMMENTARY [ 71 ] Adoption contracts are often used when you get a “Rescue”. People often prefer to get a ‘rescue’ animal versus go to the ‘backyard puppy breeders’. The fact is that both breeders and rescue agencies can be responsible and humane. The fact is, sometimes the contracts are complicated to understand. [ 72 ] In one case called Patterson vs. Rough Road Rescue , Inc. No ED 104425 Missouri Court of Appeals published in July 25, 2017 the court dealt with some of the same factual issues that are in this case.

I appreciate the authority is not binding but I found the analysis of the appellate court very helpful. [ 73 ] In that case, the Rescue agency had placed hundreds of animals with adoptive families. Their sole purpose was to care for stray animals and place them with good families. One of those dogs, named Mack, was placed with the plaintiff Ms. Patterson. [ 74 ] In that case, the adoption process was described by Mr. Patterson this way. “He had stopped at the rescue to donate some blankets that he had made for the dogs housed at the rescue.

While there, they met Mack, and instantly fell in love with him.” He was told there was a lengthy process for adoption that included several visits, background and reference checks and even a home visit. It was mentioned that Mack would have to be neutered. Ms. Patterson believed if she adopted Mack, she would own him and began the process. [ 75 ] The process of adoption was shortened dramatically during the first home visit. Mack was left with the Patterson’s and the adoption was completed that day. An adoption fee was paid, a document entitled “Animal Adoption Contract and Spay/Neuter Agreement” was signed.

Based on a conversation with Mr . Patterson, (not Ms . Patterson), a condition that the Patterson’s build a fence around their yard was inserted into the document. Ms. Patterson, who is the one who signed the document, did not thoroughly read through the document. She specifically did not know that there was a “reclaim” clause that allowed the Rescue to reclaim Mack if the Patterson’s did not comply with the contract and she did not receive a copy of the document.

[ 76 ] Before the fence was built, Mack ran from the yard a few times and the Rescue “reclaimed” Mack and refused to give him back to the Patterson family. [ 77 ] In that case, as in this case, the Rescue had drafted its own adoption contract. [ 78 ] The Patterson family thought once they had possession of Mack, they owned him. The Rescue argued that “ownership remained conditional on Ms. Patterson complying with the terms of the adoption contract.” There were a number of hearings and some interesting arguments with respect to the wrongful taking of a person’s property.

At the lower court level, the trial judge even concluded that the dog was a “good” that could be easily bought and sold. [ 79 ] The Court of Appeal took a different approach. They determined that the issues involved were really a matter of contract

interpretation and they concluded that the only question they needed to resolve was who has the right to Mack. CONTRACT

INTERPRETATION [ 80 ] The following are some accepted principles of contract

interpretation found in that case. They are common principles when interpreting a contract and captured on pages 9 and 10 of the decision. I have incorporated them into these reasons, but have removed the citations: What was the intention of the parties? Where the parties have expressed their final agreement in writing and no ambiguity exists, the court determines the intent of the parties and the contract’s clear meaning solely from the four corners of the contract itself. The Court will not resort to construction where the intent of the parties is expressed in clear and unambiguous language.

To determine whether a contract is ambiguous, we consider the whole document and absent any definition within the contract, give contract terms their natural and ordinary meaning. The test for ambiguity is whether the disputed language is reasonably susceptible of more than one meaning when the words are given their plain meaning as understood by an average person. A contract is ambiguous if the language is reasonably susceptible to two or more

interpretations. An ambiguity exists if the contract promises something in one part and takes it away in another. An ambiguity arises where there is duplicity, indistinctness or uncertainty in the meaning of the words used in the contract. If a contract is ambiguous, we may look past the corners of the contract to ascertain the intent of the parties. In so doing, we construe the ambiguity and interpret the contract in the light most favorable to the party who did not draft the contract.

To aid in construing an ambiguous contract, recourse must be had to evidence of the relationship of the parties, the circumstances surrounding the execution of the contract, the subject matter of the contract, the acts of the parties in relation to the contract, and any other external circumstances that cast light on the intent of the parties. We interpret contracts to reach fair, reasonable, and practical results, for it is to be presumed that the parties contracted to that end. We will reject any

interpretation that involves unreasonable results, when a probable and reasonable construction can be adopted. [ 81 ] After setting out these general principles of contract

interpretation, the court wrote “This Court admires the rescue group’s meritorious mission. But we do not admire their confusing contract.” [ 82 ] They pointed out that one term was the “adopter will provide humane care, giving the animal proper food, water, shelter, exercise and love.” They concluded that this term was aspirational, but subjective and not objectively discernible. Similar terms exist in the adoption contract in this case. [ 83 ] They indicated that the repossession clause said any noncompliance “may” void the contract and “could” give the rescue group the authority to repossess the animal.

The court concluded that “may” and “could” are conditional words as to what might occur, rather than what must result. I note the same phraseology is used in this case.

Ownership [ 84 ] The court looked at the word “owner” and concluded that “ownership of property, as commonly understood, means to have or hold property as one’s own, with full and exclusive rights to that property.” [ 85 ] The court further determined that the repossession provision asserted that the “rescue group has the right to repossess the animal anytime over the course of the animal’s life” yet the word “owner” was used in the adoption agreement, “implying that the adopter acquires ownership, not merely possession of the animal”. [ 86 ] I note that in our case there is a condition that says, “The Adopter agrees that ownership of this dog is not transferable”, to me, implying that the adopter acquires ownership.

There are also other conditions that refer to the adopters obligations “throughout its life”, clearly referring to the animals “life”. To me these references in their simplest

interpretation indicate something more consistent with ownership versus a mere transitory possessory right. [ 87 ] In both cases, the contracts speak of adoption and ownership rights, but then they seek to compromise, limit or lessen or put conditions on the proprietary interest in the animal. [ 88 ] Most notable in our case, is the fact that the document is labelled “Foster to Adoption Contract”. What is this heading trying to make clear?

Black’s Law Dictionary defines “adoption as: the taking and receiving as one’s own and to accept, appropriate, choose or select to make that one’s own property which was not so originally.” “Foster” is not really defined in our context. [ 89 ] To me, the words have two distinct plain meanings. Fostering is temporary. Adoption is more permanent. Of course fostering can lead to a more permanent relationship, but the ultimate purpose of an “adoption” is to give a “forever home.” Both the defendants signed the document as “Adopters”.

The original application indicated that they wanted to “adopt only.” I conclude that they were contracting for a permanent relationship with the dog. Not a temporary relationship.

[ 90 ] When confining myself to the four corners of the contract, it is noteworthy that the word “adopter” or “adoption” is used at least 37 times. The word “foster” is used three times and each time it is only in the immediate physical proximity of the word “adoption”. [ 91 ] It is possible that the contract designed by Laura Snoek dba Ziggy’s Rescue was meant to be used as a template for two types of legal relationships. One where a person might foster a dog. Another where a person might adopt a dog. In either case, I think these ambiguities must be construed against the claimant.

She testified that it was her lawyer in Saskatchewan that drafted the document. I have doubts as to the veracity of this statement, but that is simply an issue of credibility. There is no other evidence as to how this document was created. [ 92 ] The claimant points to one clause in the contract that says “NO adoption is finalized until the animal has been spayed/neutered”. Certainly it appears that Maddie is spayed now.

In any event, Laura Snoek dba Ziggy’s Rescue argues that ‘Maddie was pregnant, therefore she could not be spayed, and so the adoption was never completed.’ To me, if Laura Snoek dba as Ziggy’s Rescue knew that Maddie was pregnant, she knew that this condition essentially prevented the contract from fulfilling the parties’ intentions. [ 93 ] As well, if Ziggy’s Rescue was on the same “meritorious” mission as the rescue agency in Patterson , then finding a home where Maddie would be healthy and happy was the claimant’s main goal.

A collateral goal seems to be that the dog should be spayed or neutered for any number of reasons. Since this condition (the spaying) could not be accomplished, I find excising it from the overall contract makes more sense to achieve the aim of the parties. In the event that I am wrong, I understand that Maddie is now spayed, and in my view, ownership has long passed from Ziggy’s Rescue to the defendants at the time of the spaying. [ 94 ] In Patterson, the court concluded that “We construe and hold that the adoption contract granted Ms. Patterson ownership of Mack. The contract language and precepts of contract

interpretation compel this conclusion. Moreover, to hold otherwise would result in the rescue group maintaining a long leash on Mack for the duration of his life. Such a result is unreasonable.” Unreasonable Conditions [ 95 ] There are a number of unreasonable conditions in the contract. One of the terms grants permission for a representative of Ziggy’s Rescue to visit the home at any time to check on the well-being of this dog.” There is no ‘with reasonable notice’ term. The term is for the life of the dog.

So, technically, anyone claiming to be a representative of Ziggy’s Rescue could simply show up and demand to see Maddie, no matter how unreasonable the request might be. In fact, that appears to be exactly what Laura Snoek did. She showed up, called the defendants’ names, caused a disturbance, and frightened them to the point that they felt unsafe in their own home. [ 96 ] Another condition says as a result of “any” breach, Ziggy’s Rescue may ask for the dog to be returned within 24 hours of the request to have the dog returned.

One of the conditions throws a wide net and demands that the defendants not only agree to take Maddie to a vet, but also “all other animals he/she owns”. [ 97 ] There is a long list of things that could trigger this request for repossession. If, according to Laura Snoek dba Ziggy’s Rescue, the defendants were not “loving” enough, repossession could be demanded. For the life of the dog, Laura Snoek dba Ziggy’s Rescue argues she had the contractual right to speak to the defendants’ vet. If Maddie were to get loose, Ziggy’s Rescue had to be contacted immediately.

If the dog was not “clean” enough, didn’t get “wholesome dog food”, “was ever left outside”, Maddie could be taken away. I think it is fair to say that the contract has many ambiguities. I echo Herbert Dwyer’s comment he made in his testimony, I simply do not understand why he would sign this contract. Relationship Between the Parties [ 98 ] Laura Snoek dba Ziggy’s Rescue says she has years of experience with rescuing dogs. She says she was the one who arranged for the contract terms to be drawn up by a lawyer. The defendants were looking for their first pet.

I conclude there was a distinct power imbalance. [ 99 ] I accept that the contract was supposed to be designed with the best interest of the animals in mind. However, it appears that Laura Snoek dba Ziggy’s Rescue simply thought of it as a contractual weapon, to be used for her own purposes. Circumstances Surrounding Execution of Contract [ 100 ] It was signed quickly. There is no evidence to show that the defendants had any clue what the conditions were in the contract. I also accept that they did not receive a copy of the document and were not aware of some of the unreasonable conditions in it.

There is no indication that Laura Snoek dba Ziggy’s Rescue brought their attention to any of the more intrusive conditions. Acts of the Parties - Why would Laura Snoek want the puppies and Maddie? [ 101 ] Even if I accept that Laura Snoek dba Ziggy’s Rescue only wanted Maddie and the puppies to be safe, I have this question. Why would Laura Snoek make efforts to take the puppies from the SPCA? After all, they would be safe there. The SPCA would find them good homes.

This would lower the cost for Ziggy’s and allow them to focus on other dogs that were in need. [ 102 ] Here is another question: If the two puppies that died are already not safe, then why does Laura Snoek dba Ziggy’s Rescue think it makes sense to sue the defendants for $700 per puppy? Is this to teach the defendants a lesson that they somehow could have avoided the puppies’ death and they should do better next time? Or is it so she can put the money in her pocket? [ 103 ] The answers to these questions are quite simple and even apparent on the face of the pleadings.

Laura Snoek dba Ziggy’s Rescue wanted the puppies because they were worth money. We know this because when she did not have them, she sued for money. When she got them from the SPCA she was able to sell them for money and lowered the amount that she was now suing for. When she did not get the two dead puppies, she sued the defendants for the exact amount of money that she would have made if they were alive. [ 104 ] If she really cared about Maddie being healthy and happy and in a forever home, why in the middle of this trial did she basically

demand the dog be immediately returned to her? Perhaps this request is less motivated by money and more motivated by some sense ofvindictiveness. [105] At least two Veterinarian doctors had to get legal counsel to come and cancel subpoena’s served on them by Laura Snoek dbaZiggy’s Rescue. They both had been given only a few days’ notice and would have had to cancel urgent surgeries that had beenscheduled.

Other than the undue hardship on the Doctors and the deprivation of their services to animals in need, based on the totality ofthe evidence in this trial, it seems clear that there was no reason why these two doctors would be needed as witnesses. [106] Orders had to be made to make sure that Laura Snoek dba Ziggy’s Rescue removed posts from social media about this case. Itappears the posts were intentionally designed to hurt the personal and professional reputations of the defendants. These posts containedpersonal information, including confidential information regarding the address of the defendant’s residences.

I note that Laura Snoekdba Ziggy’s was in possession of this confidential information because of the application process. She was also aware that the residencewas also a place of business. I consider the use of this information in this manner to be very egregious. I am aware that punitivedamages may be awarded in Provincial Small Claims court, and I err on the side of not awarding them, as the defendants have not soughtthem.

Subject Matter of the Contract – Maddie’s Best Interest [107] In the middle of this trial, even with her years of experience, and even though she describes herself as ‘only having the dogs bestinterests in her heart’, Laura Snoek questioned why she could not get Maddie back before the trial was complete. I said I would providesome reasons. Here are some of the reasons. [108] The subject matter of the contract has been described in some legal cases as a “good” or “chattel” or “animal” or “the property”. These descriptors are consistent with the concepts of ownership described above.

Purchase price, monies spent on vets, who buys thefood, who signed the contract of purchase and sale, all can be considered under the ownership of property analysis. Sometimes thesematters are decided on ownership. However, in my view, we need to recognize that dogs, and other pets, are not simply “things” like achair or a car. There is value in opening up the contextual considerations when trying to decide where a dog should be. Who walks thedog, who has the dog bonded with, and generally speaking ‘what is in the best interest for the dog’ are a broader context that might alsobe valuable considerations.

SOME CASES CONSIDERED [109] There are many well-written decisions that assist me in understanding Maddie’s broader contextual best interest. [110] Watson v. Hayward [2002] B.C.J. No. 1628 is a BC Provincial Court decision of the Honourable Judge Dhillon. In Watson theissue had to do with who should have the dog until the trial was completed. This is the same request that Laura Snoek dba Ziggy’sRescue made twice in this trial. In Watson the adopter says that she was the legal owner and entitled to determine what is in the bestinterest of the dog.

The breeder argued that there was a right to terminate the contract if the dog was not receiving adequate care. Thebreeder also said that she had possession of the dog, who needed to lose weight and if returned to the adopter, that rehabilitation wouldbe interfered with. In the Honourable Judge Dhillon’s usual legal precision and legal eloquence, she writes this at paragraph 21: [21] I am satisfied that this Court has the jurisdiction to hear this application. A domestic animal is personal property under commonlaw. I adopt the analysis of C.L. Smith J. in Vallance v. Naaykens, 2001 BCSC 656 , [2001] B.C.J.

No. 959 at paragraph 6, asfollows: In the common law legal system, domestic animals are considered to be personal property. Ownership of pets entails the same rights asdoes ownership of other tangible personal property: Halsbury's Laws of England, 4th ed. (London: Butterworths, 1994) at v. 2, para. 203and v. 35, para. 1204; G. Sandys-Winsch, Animal Law, 2nd. ed. (London: Shaw & Sons, 1984) at pp. 3-4; D.S. Favre & M. Loring,Animal Law (Westport, Connecticut: Quorum Books, 1983) at p. 21.

As observed by Wallace J. in Diversified Holdings v.R. (1982), (BC SC), 35 B.C.L.R. 349 (S.C.) at p. 354: In the beginning, Genesis said mankind should 'have dominion over the fish of the sea, and over the fowl of the air, and over the cattle,and over every creeping thing that creepeth upon the earth'.

However, as society became more sophisticated and man brought certainanimals into a state of subjection, under English law at least it was considered appropriate to distinguish between those animals whichunder normal circumstances are usually found at liberty, animals ferae naturae, and those animals which are generally tame, living inassociation with man, animals mansuetae or domitae naturae. Domestic animals are the subject of absolute ownership, with all the rights, duties, privileges and obligations that legal relationshipentails. [22] In Vallance v.

Naaykens, Smith J. notes that certain pet adoption agreements may purport to limit the rights of the new owner inorder to protect the interest of the animal by retaining in the seller or breeder a limited property interest in the animal. [111] Cusodio v. Pucci [2012] B.C.J. No. 2724 is a British Columbia Provincial Court decision of the Honourable Judge Challenger. Inthat decision, while recognizing ownership issues, such as who paid for what, the court also considered a “broader range of factors”.

Iconclude that even if I am wrong as to when ownership transferred to the defendants in our case, I am still able to consider a broaderrange of factors to consider who Maddie should be with. [112] Brown v. Larochelle, [2017] B.C.J. No. 758 is a decision of the Honourable Judge Cowling that took into consideration the factthat the dog had “cemented her bond” with one party, no matter who actually owned the dog. I conclude, based on the evidence as awhole, Maddie has cemented her bond with the defendants and it makes no sense to disrupt her attachment. [113] Baker v. Harmina [2018] N.J.

No. 65 is a Newfoundland and Labrador Court of Appeal decision. In Baker, the dispute wasbetween a couple who split up and who should get the dog. The court examined whether a chain of ownership with clear moments of

transition should considered, but then adopted a “broader look at the relationship between the parties and the dog.” Justice White writes this at paragraph 17 “At first glance, this case seems to pit traditional legal doctrine [ownership of property] against social realities [with respect to dog and people relationships]. … The Court should be open to modifying legal doctrines to reflect social realities ...” [ 114 ] Haywood v. Carrasco [2016] BCPC 0071 is a decision of the Honourable BC Provincial Court Judge Janzen.

The application was that the applicant wanted to have a dog returned, pending the outcome of a trial that was to take place four months later in June. The court determined the dog was “property”.

At paragraph 25 through 30 Judge Janzen made these observations, of which I fully agree. [25] Judge Dhillon in the Watson case noted that competing claims for animals could and should take into account different factors from cases involving inanimate object, including the best interests of the animal concerned. [26] The nature of the relationship between an owner and a pet dog is qualitatively different from the relationship between an owner and all other forms of personal property.

Most people view a pet as a member of their family to be cared for until death, not a possession to be bought and later sold in a garage sale or on craigslist or given away to charity when it is worn, outgrown, out of date or no longer needed or desired by its owner. [27] The law also treats animals differently from other personal property. It is an offence under s. 445.1(1) (

a) of the Criminal Code R.S.C 1985, c. C-46 for a person to “willfully cause or, being the owner, willfully permit to be caused unnecessary pain, suffering or injury to an animal or bird”. [28] Under

section 445.1(5) evidence that a person “failed to exercise reasonable care or supervision of an animal or a bird, thereby causing it pain, suffering, or injury is, in the absence of any evidence to the contrary, proof that the pain, suffering or injury was caused or permitted to be caused willfully, as the case may be”. [29] The significance of this

section is that the offence is against the animal, not the person who owns the animal, unlike the other offences in the Criminal Code that are directed at property such as arson, theft or mischief.

Indeed, this offence expressly contemplates that the victim is the animal and the criminal may be the owner of the animal, signaling that the state’s denunciation of the mistreatment of animals and its commitment to the protection of animals stands apart from and overrides the rights and interests of their owners. [30] The Prevention of Cruelty to Animals Act , RSBC 1996, c. 372 is a sophisticated code of expectations for animal owners in their relationship to the animals that they own and establishes that the British Columbia Society for the Prevention of Cruelty to Animals has a statutory right to apply to a court for interim custody of an animal in respect of which a charge has been laid.

In considering an application for interim custody, the best interests of the subject animal were taken into account in the case of British Columbia Society for the Prevention of Cruelty to Animals v. Montroy [1997] B.C.J.

No. 1012 . [31] While a dog is a form of personal property and is certainly not a person at law, the law reflects society’s expectations as to how an animal should be treated and the relevance of the best interests of the animal in proceedings related to its custody. [ 115 ] The court concluded that to remove the dog from one party to the other party, even temporarily for three months, would be disruptive and distressing for the dog. In this case, the claimant has asked twice for Maddie to be transferred to her. I find that her request is guided by unfounded claims of neglect.

It is inexplicable to me how a Laura Snoek dba Ziggy’s Rescue does not seem to acknowledge how distressing such a shift might be after cementing a healthy and happy bond with the defendants for nearly a two year time period. Maddie was only about one year old when she was placed into her home. [ 116 ] One conclusion easily drawn from the evidence is that Laura Snoek dba Ziggy’s Rescue was simply not exercising the right to possess in good faith. While not binding, I agree with the courts conclusions in Jardine v. Before the Bridge Senior K-9 [2019] M.J.

No. 214 that even if a repossess clause was valid, which I have indicated I have significant doubts about in our case, it was still incumbent on the claimant to exercise any rights under the contract in good faith and meet the duty of honest performance. To me, Laura Snoek’s actions are more consistent with “profit” or “vindictiveness” than the best interests of Maddie. [ 117 ] In Kaczor v. Palfrewy File No: 12-40175 is a Vancouver Provincial Court decision of the Honourable Judge Ehrcke.

It considered a case where one party was the owner, but where another party actually cared for the dog for over a year, trained him, did everything to provide for the dogs needs by taking care of him, including paying for all expenses and licences. At paragraph 26 Judge Ehrcke writes: [2] There are various tests that have been applied by the courts where the ownership of a dog is in question. One is simply which party has the most legitimate claim to ownership, but another test is to look at the interests of the animal, because an animal is a living creature, not an ordinary piece of property.

CONCLUSIONS [ 118 ] The contract is ambiguous. I have examined other factors outside the four corners of the contract to try and ascertain the true intentions of the parties. At the risk of oversimplifying matters, I accept that Laura Snoek dba Ziggy’s efforts are trying to place homeless dogs into loving and caring homes. Whether there is “profit” or not distracts from the idea that she in fact does this for money. Whether it is donations, a puppy sale, or money raised from the community, she still does it for money. I accept that Allison Penko and Herbert Dwyer just wanted a dog to love.

They love Maddie and have created a safe, loving and happy home for her. It is unfortunate that this conclusion did not satisfy the claimant. [ 119 ] Now that Maddie is spayed, I conclude that there is no doubt to me that defendants are the owners of Maddie. Even if not spayed, I find the argument that ‘adoption means permanent’ very compelling and favour that conclusion in this case. I come to this conclusion, after considering who drafted the contract and what

interpretations can exist with respect to the meaning of ‘adoption’. I conclude that the defendants had a sincere belief that they “owned” Maddie when they took possession of her. Their views were reasonable in the circumstances. It follows that they are responsible for the vet bills they incurred.

[ 120 ] I have also considered the behaviours of all parties in relation to the contract. Arguably, there may have been some merit to the argument that Laura Snoek dba Ziggy’s Rescue simply wanted Maddie to give birth in a safe environment. This argument is weakened by the behaviour of the claimant after Maddie gave birth. Today the only motivation seems to be Laura Snoek dba Ziggy’s wants money.

I conclude her requests for Maddie to be returned, and her insistence that she should get $1,400 for two dead puppies has nothing to do with the best interests of Maddie. [ 121 ] I have considered whether the monies for selling the seven living puppies should be paid to the defendants. This is the $4,900 counterclaim. In my view, if the defendants did not transfer them to the SPCA, they would have been the rightful owners as there was no oral contract about the pregnancy.

I acknowledge that it seems a bit unjust to enrich Laura Snoek dba Ziggy’s Rescue with seven puppies to sell, especially after the defendants did everything that was reasonable and in their power to give these puppies care and love and a safe environment. Equally, for their own reasons, the defendants chose to transfer the puppies to the SPCA, and for their own reasons, the SPCA chose to transfer them to Laura Snoek dba Ziggy’s Rescue.

It is not the claimants ‘fault’ that she made money off this transfer. [ 122 ] With respect to damages, I conclude that neither party has proven on the balance of probabilities that any damages should be payable to the other. However, the Claimant was not successful in her claim. In the circumstances, I do think it only fair that she reimburse the defendants filing and service fees.

The claimant shall pay to the defendants $268 forthwith. [ 123 ] In conclusion, I will borrow the Honourable Justice Brewers opening and closing comment in the Patterson case, but I will personize his comments with Maddie’s circumstances. “Every dog must have his day.

And today is Maddie’s day.” “Animal-welfare advocate Roger Caras once remarked that Dogs are not our whole life, but they make our lives whole.” [ 124 ] The time has come for Maddie to finally know she is in her forever home and that the defendant’s family are made whole. [ 125 ] That concludes these reasons. _______________________________ The Honourable Judge A. Wolf