Manigeh Sabok Sir - v. -, 2021 SKPC 8

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2021 SKPC 8 Date January 11, 2021 File: 15-1017 Location: Prince Albert _____________________________________________________________________________ Between: Manigeh Sabok Sir - and - Prince Albert SPCA Ms. Manigeh Sabok Sir For the Plaintiff Ms. Joleen McCullagh, Q.C. For the Defendant _____________________________________________________________________________ DECISION R.

LANE , J _____________________________________________________________________________ [ 1 ] This claim was initiated by the Plaintiff alleging that she had sought the assistance of the SPCA regarding a dog (hereafter referred to as “Poochie”) that the Plaintiff had discovered following an evident and unfortunate encounter between Poochie and a porcupine in April, 2014. [ 2 ] In short, the Plaintiff alleges that the SPCA took custody of Poochie and the SPCA subsequently provided medical care and treatment.

The Plaintiff then alleges that the SPCA wrongfully refused to allow the Plaintiff to re-take possession of Poochie once the SPCA was finished with the initial emergency care, and, in fact, the SPCA transferred Poochie to an organization in Saskatoon called New Hope Dog Rescue, which had the ability to house recovering dogs at foster homes located throughout Saskatoon and nearby provinces. The Plaintiff seeks an order for the return of Poochie, or in the alternative, damages in the amount of $30,000.00. [ 3 ] This matter already has an extensive judicial history.

[ 4 ] Provincial Court Judge H. Harradence conducted a case management/settlement conference on this matter in Prince Albert on February 23, 2015 and dismissed the Plaintiff’s claim as an abuse of the process of the court. [ 5 ] The Plaintiff appealed that decision to the Court of Queen’s Bench and on November 4, 2015, Justice A. Rothery allowed the appeal and ordered that a trial proceed in Provincial Court. [ 6 ] Provincial Court Judge E. Kalenith then conducted a case management/settlement conference on December 18, 2017 before embarking on a trial from December 21, 2017, to December 22, 2017.

Judge Kalenith dismissed the Plaintiff’s claim in a fiat dated May 11, 2018. [ 7 ] The Plaintiff appealed this decision to the Court of Queen’s Bench and on April 9, 2019, Mr. Justice Meschishnick allowed the appeal and ordered a new trial, however on very limited evidentiary and legal issues. [ 8 ] I then took over the conduct of this matter, conducting numerous case management/settlement conferences before setting this down for trial for January 29-31, 2020 in Prince Albert, Saskatchewan.

I attempted to make the case conference procedures convenient and affordable to the Plaintiff by allowing her to appear by phone from the various remote northern Canadian locations that she found herself in from time to time. I recall at least during one of the conferences, she was in either Inuvik or Tuktoyaktuk, Northwest Territories, on the shores of the Arctic Ocean/Beaufort Sea. In fact, it seems to me that the Plaintiff called into all of the case conferences from either the Northwest Territories, the Yukon Territory or Northern British Columbia.

While it would have been far preferable to have had the Plaintiff appear at these conferences in person in order for the Plaintiff to better understand the process, and provide the respect that the Court and it’s participants deserved, it would have been far too expensive for the Plaintiff, and I wanted this case decided on the merits. [ 9 ] One of the first tasks for this Court was to analyze the decisions of Justice Meschishnick , and Provincial Court Judge Kalenith to ascertain what the remaining legal issues were, and what evidence would be relevant.

As will be obvious later in this decision, the issue of relevant evidence became very important to the proper conduct of the trial. The whole point of this exercise was to give effect to the order of Justice Meschishnick and to chart an evidentiary path for this retrial. [ 10 ] Justice Meschishnick made the following observations in his judgement of April 9, 2019, at paragraph 16 found on pages 9- 11 (Sabok-Sir v SPCA Prince Albert, 2019 SKQB 96 .): [16] Looking first at each of these reasons for denying the appellant return of the dog I make the following observations: (

a) It was the appellant’s evidence that she was told that the dog would not be returned to her as early as May 2; (

b) If so, the decision could only have been based on the information that the respondent had at that time; (

c) On May 2 it was clear that the respondent took the position that the appellant had not satisfied it of ownership but that it has been found by the trial judge as a reason that the respondent could not rely on to refuse to return the dog; (

d) As well on May 2 there was some evidence that the respondent was aware that the appellant was a non-resident of Canada. That was established by the evidence of Keith Vansteelandt and is found at T125-T127 of the Small claims Hearing trial transcript. It would not be an unreasonable inference to draw from that fact that the appellant may be required to leave Canada before the dog could be returned. It could also be inferred that if the dog was retrieved before leaving Canada and the appellant would soon after have to cross an international boundary that the continuing medical needs of this dog would pose a problem; (

e) But, inferring that because the appellant was a non-resident and was living in temporary accommodations that she had no possibility of having someone else pick-up the dog for her and responsibly care for it until she could retrieve it or until the dog was cleared for transportation to another country is not as logical of a conclusion.

If the appellant would have been asked what her plan was to deal with these contingencies perhaps it would have been apparent that her plan would leave or return the dog to a state of “distress” (within the meaning of s. 2(2)) or would leave the respondent in a situation where it would be required to care for the dog for a period of time that was longer than its busy facility could accommodate.

But, because of the lack of communication with or notice to the appellant she was not given the opportunity to present her plan. [ 11 ] Then Justice Meschishnick stated the following in paragraphs 33 and 34: [33] It was clear on the evidence that the appellant knew that her dog was in the respondent’s care. There was some evidence that the respondent had requested the return of the dog.

There was evidence, if accepted by the trial judge, that the only response provided to that request was that the dog would not be returned to the appellant and there was no evidence that I can see that the respondent was prepared to return the dog to the appellant if she paid the cost of care. [34] While it is not clear if there was any evidence that the appellant was prepared to pay or make arrangements to pay the respondent’s cost that was not an issue that appears to have arisen at trial.

It would be a reasonable inference from the actions taken by the appellant to have the dog returned to her and in prosecuting this action that she would have been prepared to do so if given the opportunity. [ 12 ] Finally, at paragraphs 46-48, Justice Meschishnick stated: [46] I therefore allow the appeal and direct that the appellant shall be entitled to a new trial but solely on the issues outlined above. To the extent that any of the remaining grounds set out in the notice of appeal vary from the issues outlined above those grounds are dismissed for the reasons given by the trial judge.

[47] Having granted the appellant a new trial she must be made aware that if she is successful at trial on the question of liability it is most unlikely that the court would order that the dog be returned to her and it may be that s. 10(2) prevents the court as a matter of law from doing so. Similarly, for privacy reasons the appellant should be aware that she will not come to know through this process the name or location of the current owner of the dog.

If the appellant’s only purpose in pursuing this claim is to recover the dog or see it again, she should seriously consider whether she can obtain that relief in this action. [48] If the appellant resigns herself to the fact that the best she can hope for is an award in damages she must also consider what the outcome will be when the respondent raises s. 17 of the Act . [ 13 ] Therefore, this trial was conducted solely on the following issues: 1. Was the Plaintiff willing to pay the costs related to Poochie to the SPCA in return for the transfer of Poochie to her? 2. Was the Plaintiff able to pay those costs? 3.

Why did the SPCA refuse to return the dog to the Plaintiff? 4. In making the decision to not transfer Poochie to the Plaintiff, did the SPCA act in good faith or in bad faith? [ 14 ] Prior to the commencement of this trial, I prepared a list of facts that had been found by Judge Kalenith in the initial trial decision and which were, by inference, affirmed by Justice Meschishnick as follows (Manigeh Sabok-Sir v Prince Albert S.P.C.A. May 11, 2018, Prince Albert, 15-1017 (Sask Prov Ct)): The Plaintiff was staying as a guest of a resident of Ahtahkakoop First Nation, in April, 2014.

While she was there, she took into her care a dog which had an unfortunate encounter with a porcupine and needed medical care. She contacted the SPCA in Prince Albert, Saskatchewan for help, and she was told to contact the RCMP and have the dog shot. She removed the quills, or as many as she could, and she cared for the dog. She then notified the owner of the dog that she was caring for the dog, and the owner agreed. On April 30, 2014, arrangements were made for the SPCA to take Ms. Sabok-Sir and the dog to a veterinarian in Prince Albert for the dog to be treated. On arrival in Prince Albert, Ms.

Sabok-Sir was dropped off outside the SPCA building and the dog was taken for veterinarian treatment. She wanted to be present for the treatment, however, this was not allowed by the SPCA. On May 1, 2014, Ms. Sabok-Sir attended the SPCA in Prince Albert, and was permitted to visit the dog for approximately five minutes.

She learned that the dog had been neutered the previous day, and she testified she was also advised that more quills were removed from the dog, and further, that the dog had been diagnosed with non-contagious mange, and the dog would have to be kept in isolation for one month at the SPCA building in Prince Albert. She asked for the return of the dog and this was refused. Ms. Sabok-Sir then returned May 2, 2014, and offered to adopt the dog if she could be guaranteed the dog would be given to her by the end of one month. The SPCA refused this. She then left a letter with the SPCA claiming the return of the dog.

Ms. Sabok-Sir was then evicted from the SPCA building and police were called and attended. She testified that she was told to obtain proof of ownership of the dog, and she obtained written and video confirmation from the owner, one Vincent Knife. Then, Ms. Sabok- Sir was now the dog’s owner. Ms. Sabok-Sir attended the SPCA building again on May 3, 2014 to show proof of ownership of the dog, but she was denied entry to the building by the SPCA. She was given a letter banning her from the premises. Two police officers again attended, and advised her to leave, and she did.

She then attended the Prince Albert Police Station and left a copy of her letter of ownership of the dog with Constable Braaten, who indicated she would involve her supervisor. Ms. Sabok-Sir was then required to leave Canada by May 5, 2014 due to her immigration permission expiring, so she left for the United States. She made numerous subsequent attempts to contact the SPCA in Prince Albert and others to have the dog returned, but without any success. Ms. Sabok-Sir was prevented from providing proof of ownership by the SPCA. The SPCA, as trial Judge Kalenith found, knew that she had ownership as she claimed.

If the SPCA did not know she owned the dog, it was only through their refusal to communicate with her that they didn’t know this. The SPCA had acted lawfully in continuing to keep possession of the dog after it was delivered to them at the request of Ms. Sabok-Sir. The SPCA was authorized to keep the dog and transfer it to a reputable animal rescue group. Other than for medical reasons, the SPCA didn’t have the facilities to house the dog for more than a few days. [ 15 ] Mr.

Justice Meschishnick, in his decision of April 9, 2019, of the appeal of this matter, also held that the SPCA had satisfied its notification obligations under section 9(3) of The Animal Protection Act , 1999 , SS 1999, c A-21.1 [ Act ], which was in force at the time this cause of action arose. In the decision of Justice Meschishnick, it is clear that he has limited the scope of the evidence on a new trial to the following: Evidence surrounding the willingness of Ms. Sabok-Sir, to pay the costs related to this dog to the SPCA, in return for transfer of the dog to Ms. Sabok-Sir.

Evidence surrounding whether Ms. Sabok-Sir was prepared and able to pay that money to the SPCA if provided an opportunity. Evidence relating to the decision of the SPCA to give the dog away to somebody else, or put in an opposite fashion, what lawful reason did the SPCA have to refuse to return the dog to Ms. Sabok-Sir? Evidence relating to section 17(1) of the said Animal Protection Act as to whether an action may lay against the SPCA or any of their employees etc. for loss or damage suffered by reason that they had not acted in good faith. [ 16 ] As will be clear, I divided the trial into two phases.

The first phase is on the issue of liability. If liability is found in favor of the Plaintiff, the second phase of the trial on damages assessment will be conducted. [ 17 ] At the commencement of the trial, the SPCA conceded that the Plaintiff was at all relevant times, ready, willing and able to pay the costs related to the care of the dog as provided by the SPCA. So, no further evidence would be necessary to establish this.

In fact, the sole issue before this Court is whether the SPCA could claim immunity by virtue of section 17(1) which was in force at the relevant time. [ 18 ] Section 17(1) reads as follows: No action lies or shall be instituted against any animal protection officer, veterinarian, caretaker, humane society or officer or employee of a humane society for any loss or damage suffered by reason of anything in good faith done, caused, permitted or authorized to be done, attempted to be done or omitted to be done, by any of them, pursuant to or in the exercise or supposed exercise of any power conferred by this Part of the regulations or in the carrying out or supposed carrying out of any duty imposed by this Part or the regulations.

WITNESSES : [ 19 ] The Plaintiff sought to subpoena 26 witnesses for the trial. While it is critical to allow the Plaintiff to fairly present her case, the Court is obligated to ascertain whether the witnesses that the Plaintiff sought to subpoena had relevant evidence to offer. To ask, or worse yet, order 26 people to come to the court house or to testify by video link potentially tying them up for three days (the time allotted for this trial) is to ask a lot, and in my view, the witnesses had to be vetted to determine relevance.

I believe I conducted eight case conferences in this matter (the last one being the day before the trial, January 28, 2020), and it became concerning to me that the Plaintiff had significant difficulty in understanding what was relevant evidence, given the limitations imposed by Justice Meschishnick (based on factual findings made by Kalenith J. at the initial trial). [ 20 ] In particular, the Plaintiff seemed to struggle with the concept of good faith/bad faith as it related to the factors the SPCA considered when deciding to decline to allow the Plaintiff to take Poochie.

On my reading of the decision of Justice Meschishnick, along with

section 17 of the Act , the only evidence to be called was on whether the SPCA acted in good faith or bad faith in making that decision. In other words, if there was evidence, for example, that would tend to show that the SPCA decided not to return Poochie to the Plaintiff simply because the SPCA did not like the Plaintiff, or alternatively in order to punish the Plaintiff, that would establish bad faith. In that event, the SPCA could not rely on

section 17 of the Act to avoid liability. [ 21 ] Evidence as to how the SPCA treated Poochie while he was in the SPCA’s care was NOT evidence of bad faith as contemplated by Justice Meschishnick. Evidence of the SPCA refusing to allow the Plaintiff to know where the dog had been sent, or who had adopted the dog, was only relevant if it somehow related to an inference that the SPCA simply wanted to deprive the Plaintiff of the dog. [ 22 ] I am not saying that ONLY evidence related to whether the SPCA disliked the Plaintiff or wanted to punish the Plaintiff would establish bad faith.

These are simply obvious examples, in my view, of bad faith. There may well be many others. [ 23 ] During a case conference conducted by phone on January 20, 2020, the court specifically dealt with the issue of which witnesses the Court would authorize subpoenas for. The test that I applied was a two-step process: 1. What evidence did the Plaintiff anticipate a particular witness to provide? 2.

What caused the Plaintiff to believe that this witness would testify to that effect? [ 24 ] I felt that I had to ensure that the Plaintiff was not simply on a fishing expedition hoping that sooner or later, no matter how many people were called as witnesses, she might find one that had something relevant to say. [ 25 ] The following is the list of witnesses whom the Plaintiff applied to have subpoenas issued for, along with a brief description as to why or why not I decided to issue a subpoena:

a) Debbie Lehner- She was an employee of the SPCA at all relevant times. I felt she would be relevant and thus ordered a subpoena for her. Because she was involved in the admission and care-making decisions for Poochie, I did not feel I had to explore what the Plaintiff anticipated this witness to say.

b) Leanne Roberts- She was also an employee of the SPCA at all relevant times and thus I ordered a subpoena for her.

c) Jerred Epp- He was also an employee of the SPCA at all relevant times and thus I ordered a subpoena for him.

d) Carlynn Seguin- She fostered Poochie the day after the SPCA released Poochie from their care. The Plaintiff stated Ms. Seguin would be able to testify on the condition of Poochie and, she reasoned, this might illuminate bad faith. As the condition of Poochie was only a marginally relevant factor to the decision of the SPCA to decline to give Poochie to the Plaintiff, I declined to order a subpoena.

e) Joanne Hayes- She was an employee of New Hope Dog Rescue and the Plaintiff speculated that maybe she would know of the SPCA’s reasons for declining to give Poochie to the Plaintiff. Without something more concrete than speculation or mere guess work that this person may just know something, I declined to order a subpoena.

f) Shauna Harris- The Plaintiff essentially described Ms. Harris as an acquaintance who the Plaintiff had asked for help. Specifically, she asked Ms. Harris to phone the SPCA on her behalf presumably to get information on the condition/whereabouts of Poochie, once the SPCA stopped communicating with the Plaintiff. The Plaintiff hoped that Ms. Harris might have learned why the SPCA declined to return Poochie to her. While it was not clear to me what Ms. Harris might be able to say that would be relevant, I felt there was at least a chance that she may have received an admission of something from someone employed by the SPCA and accordingly, I ordered a subpoena.

g) John Morash- The Plaintiff stated that Mr. Morash was a supervisor for the SPCA subsequent to the Plaintiff’s involvement with the SPCA. The Plaintiff stated that Mr. Morash might know why the SPCA refused to give Poochie to her. Given that this person had no involvement with Poochie, or with the Plaintiff, and given that the Plaintiff had no idea what she thought he might have to say, I declined the subpoena.

h) Kathleen Howell- Ms. Howell was a director and eventually CEO of the SPCA from December, 2016 to February 2019. Even though her involvement with the SPCA only started two years after the Plaintiff’s involvement ended, unlike John Morash, she did occupy a management position and I hoped that she might be able to cast some light on this situation. Thus, I ordered a subpoena.

i) Debbie Kellet- She was a former employee of the SPCA, who became involved subsequent to the Plaintiff’s involvement ending. Unlike Ms. Howell (witness # 8) who was a manager and director of the SPCA, and I felt this person would have no relevant evidence to give and thus I declined to order a subpoena.

j) Liana Malone- She too was a former employee who arrived on the scene after the involvement of the Plaintiff and I declined the subpoena. Once again, the Plaintiff could only say that maybe she would have relevant information to offer.

k) Jodi Schellenburg- Ms. Schellenburg was at all relevant times a newspaper reporter whom the Plaintiff had contacted in an effort to have a story printed in the local newspaper. She had no relevant evidence to give, and at best would have to try to rely on hearsay. I declined the subpoena.

l) Cst. Butcher- This was a Prince Albert Police Service (PAPS) officer who was involved in the eviction of the Plaintiff from the SPCA’s premises. He had nothing to say on the issue of good faith/bad faith. I declined the subpoena. There was no suggestion by the Plaintiff that this person was privy to any conversations or admissions by the SPCA that might shed light on the issue.

m) Cst. Lynn Bratten- in the same category as Cst Butcher.

n) Cst. Keith VanStellant- in the same category as Cst. Butcher.

o) Tara Janzen- She was an employee of the SPCA at the relevant time and I ordered a subpoena.

p) Gord Thompson- The Plaintiff was unable to shed any light on what this person might reasonably be expected to say. I declined the subpoena.

q) Catherine McCauley- this was an American woman from Colorado who claimed to have some insight into animal rights and treatment. She also offered to help the Plaintiff by lending /paying the money needed to cover the SPCA’s costs for Poochie, if the SPCA would give Poochie to the Plaintiff. The Plaintiff did not allege that this person ever spoke with the SPCA. I could see absolutely no relevance in what she might have to say.

r) Tami Vangool- She was the Executive Director of New Hope Dog Rescue at all relevant times, and I hoped that she might have something relevant to say. I ordered a subpoena for her.

s) Dr. Kessler- He is a Veterinarian who could comment on the Poochie’s physical condition around the time that Poochie arrived at the SPCA’s premises. As that had no bearing on the issue of good faith/bad faith, I declined a subpoena. I am sure a busy veterinarian would find it very difficult indeed to sit in the court house to wait for his turn to testify. Unless I had some assurance that what he had to say at this trial was relevant, I would not order his attendance.

t) Orchard Veterinarian Care- In the same category as Dr. Kessler

u) Erindale Animal Hospital- In the same category as Dr. Kessler.

v) A business named “All about Dogs”- The Plaintiff could not say what they might have to add on the issue of good faith/bad faith. I declined to issue a subpoena.

w) Dave Young- Mr. Young was a supervisor for the SPCA from November, 2014 to January, 2015. I concluded that anything he might have to say given his late involvement with the SPCA would be irrelevant at best, and hearsay at worst. If there had been an indication that he had something specific to say about what he may have learned about this incident while employed by the SPCA I

would have ordered a subpoena. But, at best, this was a risk and hope situation where the Plaintiff risked very little, and hoped that maybe, just maybe, he had something to help her case. I declined to issue a subpoena.

x) Jocelyn Young- I believe that the Plaintiff indicated that this person either adopted Poochie or saw Poochie. The Plaintiff felt that she might be able to shed light on Poochie’s condition when she saw it. As this was not relevant, I declined to issue a subpoena.

y) Courtney Fisher- The Plaintiff could not articulate what relevant evidence this person could possibly give so I declined the subpoena.

z) The manufacturer of the microchip that was inserted into Poochie while in the care of the SPCA. The Plaintiff seemed to believe that the SPCA had taken complex steps to conceal the location and identity of Poochie from the Plaintiff. The Plaintiff wanted to try to prove that the dog the SPCA had located (as part of a possible resolution) was not truly Poochie, and that there was a conspiracy involving the SPCA to hide the whereabouts or even the continued existence of Poochie from the Plaintiff.

I felt this was not relevant to the issue of good faith/bad faith and declined the subpoena. [ 26 ] The trial commenced on January 29, 2020. As some of the witnesses testified by phone and had limited availability, I had to dictate the order in which some of the witnesses were called by the Plaintiff. Most had not been properly served their subpoena or conduct money and I speculate were simply making themselves available out of a desire to comply with my sincere wish that we have some closure on this trial, and due to some encouragement provided by the lawyer for the SPCA, Ms. McCullagh.

There is no doubt that the Plaintiff had a great deal of trouble properly subpoenaing these people. How she treated these people in the past clearly had come back to haunt her. Their testimony, where I allowed it, showed their annoyance at and their sense of intimidation by the Plaintiff. [ 27 ] In this decision, I do not intend to review all of the evidence of each of the witnesses.

Given that very little of what the Plaintiff anticipated the witnesses would say, actually came to fruition, most of their evidence is not relevant to the issue of good faith/bad faith. [ 28 ] The Plaintiff’s first witness was Shauna Harris. Ms. Harris testified that she met the Plaintiff when the Plaintiff had come into her store, located in Prince Albert, Saskatchewan in the winter of 2013. To her memory, that was the only occasion she had ever met the Plaintiff. As it was a cold day, she allowed the Plaintiff and her then dog to come in and warm up.

The Plaintiff in one way or another (presumably by email) asked Ms. Harris if she would contact the SPCA on the Plaintiff’s behalf to inquire about Poochie (after the SPCA stopped communicating with the Plaintiff). [ 29 ] Various emails passed between the Plaintiff and Ms. Harris, but the gist of the evidence of Ms. Harris is that the Plaintiff asked her to contact the SPCA on her behalf and that is exactly what Ms. Harris did. Ms. Harris was advised by the SPCA that Poochie was doing much better than he was upon admission to the SPCA’s premises.

She transmitted that information to the Plaintiff. [ 30 ] During the trial, the Plaintiff began to question Ms. Harris about problems that she, Ms. Harris had experienced in her dealings with the SPCA. Against my better judgement, I allowed the questions and the answer was simply that Ms. Harris had an incident where a friend of hers had adopted an unruly dog from the SPCA, and the SPCA refused to allow the dog to be returned to it. This was the worst she could say about the SPCA. She also speculated that the SPCA did not even know of the dog’s propensities. Just that the SPCA would not take the dog back.

When I allowed that line of questioning, I had hoped that this witness might have something relevant to say about the issue of good faith/bad faith. I was wrong. Ms. Harris testified in a forthright manner and was not at all argumentative. In short, I accept all of what she had to say. Unfortunately, none of it was relevant. [ 31 ] Given the schedules of the witnesses, in order to use the court time effectively, the Plaintiff was the next to commence her testimony. I shall summarize that later. [ 32 ] The Plaintiff’s third witness was Leanne Roberts.

She testified that she was employed by the SPCA from 2005-2015 (with the exception of an eight-month period). Her position was eventually Director of Operations. I allowed the Plaintiff great leeway in her questioning of this witness and most of what she testified to had no bearing on the issue at bar. However, she recalled the Plaintiff calling the SPCA in April 2014 about a stray dog that she had found.

She recalled that two employees of the SPCA were sent to Ahtahkakoop First Nation around April 30 or May 1, 2014 and when there, picked up the Plaintiff and the injured stray dog that the Plaintiff had called about, then returned to the SPCA’s premises. She was aware of the Plaintiff’s aggressive behavior at the SPCA’s premises, to the point that she got the Prince Albert Police Service to assist her in dealing with the Plaintiff. She described in detail her interactions with the Plaintiff. However, the Court must stick to the issue. Ms.

Roberts’ evidence of the Plaintiff’s aggressive and disruptive behavior might, along with other relevant evidence, lead to an inference that the SPCA might want to act in bad faith, or at a minimum, may dislike the Plaintiff. However, this witness’s evidence showed nothing but a compassionate attitude towards animals and their people. In cross examination by Ms. McCullagh, she testified at T256 as follows: Q- But you testified that she was aggressive and demanding, and that she frequently attended the shelter. You said that she made other people uncomfortable.

Is it possible that you chose not to return the dog to her because of those reasons, and that you did not like her? A- No. That had absolutely nothing to do---working in the animal welfare industry, emotions always run high. But you have to---you have to see through all of that, and act in the best interest of the animal. And that’s what I was doing at the time.

I have dealt with many, many unreasonable people over the years. [ 33 ] She testified that she was unaware of the “72 hour notice provision” to an owner to pay associated costs of care for an animal as contained in the Animal Protection Act at page T252-253: Q- At the time this—these events occurred, were you aware of a requirement under the Animal Protection Act to give what’s called the

responsible owner three days to pay expenses associated with an animal? A- No. Q- And then, were you aware that if those fees are paid, that the dog had to be returned to the responsible owner? A- No. Q- So, would it be accurate to say that this was not a situation where, and you were aware of that requirement and just—just chose to blatantly disregard it? A- Absolutely not. That---that was not my intention. Q- Would it instead be accurate to say that you were not aware of those requirements, and your decision to not return the dog to Ms.

Sabok-Sir was based upon what you believe to be in the best interest of the dog? A- Absolutely. [ 34 ] I have no hesitation in accepting all of the evidence of this witness. I accept that she based all of her decisions on the best interest of Poochie. I am convinced that she, in her capacity of Director of Operations for the SPCA, did act in good faith in the decision to not return Poochie to the Plaintiff. [ 35 ] The Plaintiff’s next witness was Debbie Lehner, who was the Executive Director of the SPCA from November, 2007 to October, 2014. [ 36 ] Ms.

Lehner was not a “hands-on” employee of the SPCA in the sense that she never once saw Poochie. She testified about how she came to know the Plaintiff and her situation. She said that around the end of April or early May of 2014, when the Plaintiff phoned in to the SPCA, the Plaintiff said that she had found an injured stray dog at Ahtahkakoop First Nation. Ms. Lehner asked two of the SPCA’s employees to drive out and try to find the Plaintiff and Poochie. [ 37 ] She described that the two young employees who found and transported Poochie to Prince Albert had also driven the Plaintiff there.

She testified that transporting a person who found a stray dog is unheard of and she was initially upset with her employees for proposing this. However, she testified that she learned that the Plaintiff was quite aggressive and determined to catch a ride to Prince Albert with the employees and accepted that they did break protocol. The employees had phoned the SPCA for permission to transport the Plaintiff and were given the go-ahead to do so. [ 38 ] She then described what she perceived as a chaotic situation at the SPCA’s premises created by the Plaintiff who was demanding to see Poochie.

She testified that the Plaintiff’s behavior was frightening some of the staff, especially the volunteers and the younger staff. She decided that she had to enlist the help of the Police and called them. [ 39 ] I reviewed my notes and the transcripts from this trial and, interestingly enough, Ms. Lehner was not questioned by either the Plaintiff or the SPCA as to why the SPCA would not give Poochie to the Plaintiff. Nor were any questions asked about what went into that decision. Ms. Lehner’s evidence is relevant really only to provide some factual context, and some idea of the inner workings of the SPCA.

She said nothing that would have to do with the issue of good faith/bad faith. I accept her evidence as being truthful. [ 40 ] The Plaintiff’s next witness was Jarred Epp, a former employee of the SPCA from 2010 to 2015. He testified that he was young when he started working for the SPCA. He further testified that he had no memory of the Plaintiff, or of Poochie, or this incident. I have no reason to disbelieve him or even suspect he was being less than truthful. This was after all, nearly six years after the incident, and he saw hundreds if not thousands of dogs in his career.

He simply had no evidence to offer. [ 41 ] The Plaintiff’s next witness was Kathleen Howell, a former director, vice president and executive director of the SPCA from December 2016 to 2019. It is noteworthy that Plaintiff’s involvement with the SPCA occurred more than two years before Ms. Howell became involved with the SPCA. It was anticipated that she might have some evidence to address the issue of good faith/bad faith.

She testified that she arranged for searches of the SPCA’s files in order to find anything relevant to this case. [ 42 ] Unfortunately, the only relevant information she was able to find was that the day that the Plaintiff brought Poochie in, it was understood that Poochie was either a stray or surrendered dog. Plus, the assessment of the SPCA was that Poochie required at least one month of medical and general care, and because of a lack of local foster families, Poochie was transferred to New Hope Dog Rescue in May 2014.

Subsequent to that assessment, Poochie was adopted out, presumably in the Saskatoon area. [ 43 ] The Plaintiff was concerned throughout these proceedings that the SPCA had either destroyed or altered records that might document Poochie’s whereabouts, presumably in an effort to prevent the Plaintiff from ever seeing Poochie again. The Plaintiff asked Ms. Howell at T360-361 about problems the SPCA had locating records and the following is that interaction: Q- So can you say normally about dogs that are getting transferred in the SPCA, do you find records about them easy?

Do you usually find them, or do you have difficulties like with this dog, generally? A- Because I’m under oath I will admit that we do sometimes have difficulty finding our paperwork. We’re a non-profit that is often under-staffed and over-worked and our paperwork is not always, unfortunately, up to snuff, but we do our very best. Q- You’re saying sometimes or the majority of the time? A Sometimes

Q- Sometimes? A- It’s—it’s not completely uncommon for our paperwork to not be 100 percent correct, unfortunately. Q- So, would you agree or disagree with Ms. Maloney’s statement that the file regarding—relating to this dog had been removed from the SPCA’s system? A- I wouldn’t speak to it. I could neither confirm nor—I can’t agree or disagree with that. I have no idea. [ 44 ] Ms. Howell is clearly describing an organization that does the best it can, relying on volunteers, donations and hard work in order to help the animals it encounters.

I accept her testimony and her description of how this organization survives from day to day. [ 45 ] Other than her general description of the work the SPCA does and the daily struggles it faces, she had no evidence to give on the issue of good faith/bad faith. [ 46 ] I will summarize the evidence of the SPCA’s witnesses before I summarize the evidence of the Plaintiff, in order to maintain some continuity. This was a witness that the Plaintiff wanted to hear from in any event. [ 47 ] The SPCA’s first witness was Tara Janzen who was employed by the SPCA from 2010-2015.

She was also one of the two employees who travelled to pick up Poochie and at the same time, give the Plaintiff a ride to Prince Albert. [ 48 ] Ms. Janzen described her duties while in the employ of the SPCA as follows at page T381: Q- And what was your position there? A- I was a kennel attendant for the first couple of years that I was there.

And when we moved into the new shelter I worked as the lead kennel attendant in charge of training our new employees and worked in our adoption gallery in charge of going through application and adopting out animals. [ 49 ] Perhaps a more apt description of her duties can be found at page T391: Q- So there was nothing, like, there was no recordings that a voice mail was left with—with you on my side asking for help? You don’t recall that there was any issue that—we heard testimony of Ms. Lehner that the RCMP was trying to be contacted, as there was a statement made the dog was being shot.

Have you—do you have any recollections of that? A- No. As I said, I wasn’t in charge of answering the phones. My job at the kennel at that time was to clean dog poop out of kennels.” [ 50 ] Ms. Janzen, and Jarred Epp were the two employees of the SPCA who travelled to Ahtahkakoop First Nation using Ms.

Lehner’s personal vehicle to assist the Plaintiff and, as it turns out, to transport the Plaintiff to Prince Albert. [ 51 ] While there is some general testimony by this witness about her involvement with the Plaintiff, the most relevant evidence that might illuminate the challenging relationship that began to develop between the Plaintiff and the employees of the SPCA is found at pages T385-386: Q- Do you—were you informed by Ms. Roberts or Ms. Lehner, as to their reasoning? Or sorry, first of all, was it their decision not to give the dog back to Ms. Sabok-Sir? A- Yes.

Q- And were you informed by them of their reasoning for not doing so A- Yes Q- And what was the reasoning you were informed of? A- The reasoning behind it was that the dog was a stray. Mya had no permanent residence, had, as far as we knew, she was calling us for medical help, no funds to help the dog medically. We had incurred the vet bills already and there—as far as my knowledge goes, was no adoption application filled out either. Q- Okay. And during this timeframe, were you required—whether or not Ms. Sabok-Sir was—was required to leave—I’m sorry, were you aware whether Ms.

Sabok-Sir was required to leave the country? A- When I picked the dog up, I did not know at the time. Within a week after all of this began, I had heard a rumor that yes, she was not supposed to be in the country. Q- And were you involved in any decision of what—of where this dog was to go or what was to happen with this dog? A- No.

Q- Okay. Are you aware of what happened to the dog? A- Yes. Q- And what was that? A- He was transferred out to New Hope Dog Rescue, due to the fact that he was going to require ongoing care. Medical bills for the SPCA, when we have high medical bills, wasn’t something that we covered because we’re a non-profit organization. New Hope Dog Rescue was set up to put the dog into a foster home, cover his medical bills and give him the attention that he needed. And that’s where he was transferred to. Q- And is New Hope in Saskatoon? A- Correct Q- Who took the dog to Saskatoon? A- I did. [ 52 ] Ms.

Janzen describes her initial interaction with the Plaintiff on pages T393-394: Q- I—I really would’ve appreciated if you had a video because a video that I wanted to introduce was a video of the life dog one day before the SPCA came, so to have a confirmation of how the condition of the dog was at the time, but unfortunately, the video is not working. So the next question is, so what happened after? So the dog was there, I was there and then— A- I called Debbie Lehner, our boss, we let her know of the condition of the dog, let her know that he did need medical attention.

We had a conversation with Debbie about how yourself was insisting on coming back to Prince Albert with us in the personal vehicle that we had driven out there. We had conversations with you about how we can’t take you, we’re working, we’re on work time, we can’t drive you to Prince Albert, we’re not a taxi service. Debbie Lehner gave us instruction that if it meant the dog was getting the medical attention that it needed at that time, then we were permitted to drive you to Prince Albert to a location which you were supposed to figure out for yourself. [ 53 ] Then at page T395, she observes: Q- Okay.

So you—so you were believing it was a stray dog and so you are saying that—or—or that was passed on to you that I asked for —that the SPCA taking the, like, paying for the veterinarian treatment? A- As far as I was told, which I will state for a third time now, we were going to Ahtahkakoop to pick up a stray dog which needed medical attention. That is what I knew. [ 54 ] The SPCA’s next witness was Tami Vangool, who worked for New Hope Dog Rescue in Saskatoon.

She testified that she started with New Hope Dog Rescue as a volunteer in 2012, eventually becoming Executive Director in 2016. [ 55 ] She was asked by the Plaintiff if she had been aware of why the SPCA was no longer able to care for Poochie: Q- Ms. Vangool, I do see that it says 9th of May, but I don’t see a year on it. A- Well I—I didn’t put that in there. But I—I have it in front of me, the conversation, it says May 9th, 2014, at 1:57PM, Karlin emailed the foster coordinators with New Hope asking if she could take this dog. Q- Ok. Thank you.

And in that email—it’s saying that the dog was not doing great in their care. Are you aware of any more reasons that the SPCA provided to New Hope Dog Rescue for not wanting, or being able to take care of the dog? A- No, I am not. It just said that the dog had mange and it wasn’t doing great in the shelter. That was what was provided to the foster coordinators. This email did not come to the director at the time, it went to the foster coordinators who is the team of volunteers that— that she was asking if—if we could take the dog in.

So it—it didn’t come from the SPCA and it didn’t go to the director. [ 56 ] This witness had no other evidence to provide on the motivation of the SPCA in transferring Poochie to New Hope Dog Rescue. [ 57 ] The Plaintiff asked this witness as with other witnesses many, many questions but few had anything to do with the issue in play: good faith/bad faith. [ 58 ] It should be noted that most of the Plaintiff’s witnesses were only available to the court due to the efforts of Ms. McCullagh, counsel for the SPCA, as they had not been properly served with a subpoena and conduct money.

I should comment that it was not through lack of effort by the Plaintiff that these witnesses had not been properly served. It would appear that some of them took efforts to avoid being served, but in any event, the most relevant witnesses did appear. Based on the fact that some of the witnesses voluntarily

appeared, I felt I had to take even greater pains to accommodate their personal schedules and could not have them testify in the order that the Plaintiff wanted or preferred. So, for the Plaintiff’s sake, and in order to hear from all the witnesses who might have something relevant to contribute, where necessary, I had the witnesses testify in the order that best suited their schedules. [ 59 ] The Plaintiff testified on her own behalf. She confirmed much of the factual background of the period from April 30 - May 15, 2014 that other witnesses had described.

Her evidence, of course, was presented from her perspective and through her eyes. The simple version of the facts as the Plaintiff saw them may be summarized as follows: • She visited Ahtahkakoop First Nation in April of 2014 and while there, encountered a dog which was apparently named “Poochie”. This dog had been injured during an encounter with a porcupine. • On or about April 29-30, 2014, she called the SPCA to seek help in getting medical attention for Poochie which she originally indicated was a stray dog that she had found.

As it turns out, she was also seeking the SPCA’s help in giving her a ride into Prince Albert, some 90 kms away. • The Plaintiff was given a ride along with Poochie to the SPCA’s premises. From there, Poochie was taken to a veterinarian for medical treatment.

The Plaintiff was not permitted to accompany the dog. • The Plaintiff attended the premises of the SPCA the next few days and was eventually removed from the property by the Prince Albert Police Service. • The Plaintiff attempted to provide proof that she now owned Poochie, however, was unsuccessful in doing so, due to the SPCA wanting not to deal with her anymore. • The plaintiff who is from Germany and was on a visa permitting her a limited amount of time in Canada.

That visa was set to expire May 5, 2014, at which time the Plaintiff entered the United States. • The Plaintiff continued to try to communicate with the SPCA from the United States but received no replies. [ 60 ] The Plaintiff testified, or attempted to testify on a wide range of topics, including but not limited to the efforts she believed some of the witnesses went to in order to avoid service of the subpoena and conduct money, to the fact that some of them did not testify at the first trial in 2017.

In addition, she focused on what she perceived as the SPCA’s efforts to conceal the whereabouts or even the continued existence of Poochie.

I tried on many, many occasions during case conferences and the trial itself to explain that the only remaining live issue in the trial for which evidence, direct or circumstantial could be called was whether the SPCA acted in good faith or bad faith when it decided what to do with Poochie. [ 61 ] I understand that for a non-lawyer, many of the legal concepts such as what is relevant evidence, onus of proof, the boundaries of proper examination in chief and cross examination are sometimes incomprehensible.

And furthermore, I got a sense that notwithstanding the Plaintiff only spent approximately two weeks with Poochie back in 2014, the Plaintiff clearly loved and continues to love Poochie. However, I too must focus on the issue which is to be decided in this case. [ 62 ] Throughout her testimony, the Plaintiff seemed to focus on what she perceived to be a secretive SPCA who would not communicate with her. She failed to see that what was described as her aggressive and persistent behavior may have contributed to or caused that communication break-down.

She also focused on the physical condition of Poochie including her disapproval of the decision of the SPCA and the veterinarian to neuter Poochie at the same time it was treating Poochie’s injuries. [ 63 ] She described her efforts to locate Poochie including her contacting the manufacturer of the microchip that had been injected into Poochie by the veterinarian. She seemed to believe that the employees of the SPCA were involved in a conspiracy to conceal all information about Poochie by providing her with false information about where Poochie was.

She also described her efforts to retake possession of Poochie first asking for his return and then offering to adopt. [ 64 ] Her testimony covered over 100 pages in the transcript of the trial, but she had no direct evidence of the SPCA’s bad faith or good faith and only minimal circumstantial evidence. I have no doubt that she believes that the SPCA acted in bad faith in many ways including how Poochie was medically treated and how Poochie was transferred to New Hope Dog Rescue and she could not seem to understand why the SPCA would refuse to return Poochie to her.

She could only conclude that the refusal of the SPCA to give Poochie to her was a decision made in bad faith. [ 65 ] However, this Court cannot decide this issue based on her suspicions. The court must decide it based on admissible evidence . [ 66 ] The onus is on the Plaintiff to prove that the SPCA did not act in good faith, or alternatively put, acted in bad faith when making the decision not to give Poochie to the Plaintiff.

If I were to boil down her evidence to even what circumstantial evidence might exist from which the court could possibly infer bad faith, unfortunately, even by her testimony, there is very little. [ 67 ] She does not accept that her aggressive behavior is, as I am finding as a fact, the main, if not the only reason the SPCA stopped communicating with her.

I accept as true the testimony of Leanne Roberts that those working in the animal rescue industry deal with unreasonable and emotional people all the time, and they must continue to focus and do focus on the best interests of the animal rather than whatever personal feelings they may have about a particular individual. [ 68 ] The Plaintiff seemed unable to comprehend that her behavior may have contributed to the problems she encountered when trying to serve witnesses with subpoenas and conduct money.

She described that in one instance, a homeowner, who she believed to be a witness for the trial, set free an aggressive German shepherd to scare the Plaintiff off her property. In another, she described how the son of a witness attacked the car that she was in by striking it with a shovel in an apparent attempt to scare her off. I have no idea how the

Plaintiff knew this was the son of a witness. This might be evidence that these people wanted the Plaintiff to leave their property, but without more, it does not show bad faith. [ 69 ] As focused as she was on preparing for this trial, it appears to have never crossed her mind that those on her list of witnesses may have better things to do with their time than waiting around the court house, or at a phone, potentially for the three days this trial was scheduled for, in order to testify. [ 70 ] She filed many exhibits.

Most of those, such as a photo of a dog, or medical reports, may have been relevant at her first trial, but, given the findings of facts from that trial, these were not relevant at this trial. That trial was over and facts were found by Judge Kalenith. Few, if any, of her exhibits had any bearing on the issue of good faith/bad faith in this trial. [ 71 ] None of the witnesses that she called to support her allegation of bad faith provided any evidence that would point to bad faith.

In fact, those who could recall the interactions with the Plaintiff from late April to early May of 2014, testified very clearly that the decisions made relating to Poochie were made solely in the best interests of Poochie. I accept that evidence as being true and I find that as a fact. [ 72 ] I had no sense that any of the witnesses who could not recall details or much of anything that occurred were holding anything back.

This trial was almost six years and hundreds, if not thousands of dogs later for most of these folks. [ 73 ] While I have no doubt that this incident was hugely significant in the Plaintiff’s life, it was not much more than another dog and another rescue for the witnesses who worked in the animal rescue industry. [ 74 ] As previously stated, Leanne Roberts specifically testified that the employees of the SPCA must deal with emotional and sometimes unreasonable people in these stressful situations with some frequency and that they, as employees must stay above that and continue to focus on the best interests of the animal. [ 75 ] I accept as a fact that the decision made by the SPCA to transfer Poochie to New Hope Dog Rescue was made solely in the best interests of Poochie.

The SPCA did not have the facility to house Poochie while he recovered and had to rely on the foster care system New Hope Dog Rescue could provide. [ 76 ] I should also comment on one of the many reasons that I accept the testimony of the SPCA’s former employees as truthful. It was clear from the evidence at the trial that the SPCA is a non-profit organization that has a bare bones budget. It depended on donations, fundraisers and especially on the volunteers who came forward, whether in the context of hands on work at the kennels, or at fund-raisers like the garage sale that was described by Debbie Lehner.

Given the limited resources the SPCA had, it would not surprise me that the bulk of their employees were young people, likely in their first job. It seems that there was significant staff turnover which would be consistent with what appear to be entry level, low paying jobs. The SPCA’s employees were described as being over worked, and understaffed. With the extremely limited resources, the SPCA had to work at maximum efficiency, and I am certain that is another reason that some witnesses had trouble recalling this specific case. Overworked and understaffed. However, the lack of resources was not anyone’s fault.

It was just reality. [ 77 ] I conclude that the Plaintiff has not proved on a balance of probabilities that the SPCA failed to act in good faith when deciding what to do with Poochie. I find that the evidence proves the SPCA acted in good faith. So even if the onus of proof was on the SPCA to disprove bad faith, or alternatively, prove good faith, I find that the SPCA has done so. [ 78 ] Thus, I dismiss the Plaintiff’s claim. [ 79 ] On the issue of costs, the Court must look at many things including the merits of the Plaintiff’s claim.

Throughout the trial, I granted the Plaintiff much leeway to call witnesses who might possibly have evidence to support her claim. I allowed her to ask questions that were either only marginally relevant, or in retrospect, totally irrelevant in my unending hope that something relevant might surface, as the Plaintiff had led me to believe in our case conferences. As it turns out, her claim had very little merit (on the issue of good faith/bad faith). However, it is not uncommon to see a presumptively strong case unravel as witness after witness fails to testify as hoped or expected.

So, on the decision of costs, I place little weight on the merits of the case. [ 80 ] However, the behavior of the Plaintiff at the many case conferences and at the trial was another matter. She was rude, condescending and argumentative. At the trial, she would visibly roll her eyes or laugh out loud at decisions I made. She mocked and ridiculed Ms. McCullagh, counsel for the SPCA. There were numerous instances where I would order her to not ask a particular question of a witness, and she would look me strait in the eye and ask the witness that very question.

To the point that I had to order the witness not to answer the question. And that was not an uncommon situation with this Plaintiff. It happened with frequency during the first morning of trial. [ 81 ] With regard to trial preparation, the Plaintiff initially wanted to subpoena 26 witnesses. We had an 80 minute conference call the week prior to trial and reviewed who each of the witnesses were, their anticipated evidence, and how the Plaintiff came to believe that their evidence would be such.

She demonstrated absolutely no empathy for those proposed witnesses or that they would have to commit their attention to the three day time slot during which this trial was scheduled. [ 82 ] She insisted that she should be able to call the order in which the witnesses testified, which in and of itself is not a problem, as that is something the Court usually allows.

But when witnesses asked for a certain time slot during which to testify having regard to their employment or personal schedules, she made it clear, inferentially or explicitly, between her comments at case conferences and during the trial, that her preference would be that if they could not be available when she wanted them, that the court should order them to be available, or worse yet, use any other means to force them to appear before the Court as directed.

When she didn’t get her way as to order of witnesses testifying right at or just after the commencement of the trial, she advised that she would not be proceeding with the trial until the witnesses testified in the order she wished. I believe that I advised her that if she did not attend, the trial would be conducted in her absence, and she capitulated.

[ 83 ] She seemed to be pursuing some sort of a conspiracy theory, where she believed that the SPCA and anyone who supported them were trying to conceal any and all information about Poochie.

She even proposed to call as a witness a representative of the Corporation that manufactured micro-chips, one of which had been injected into Poochie, in what she described as an effort to demonstrate that the dog the SPCA maintained was the dog she surrendered to it, was actually a different dog, and that the original Poochie had been concealed, or perhaps been euthanized, or perhaps had died, and that for reasons only apparent to her, would not disclose that information. [ 84 ] There are many other examples of her behavior that can be found throughout the transcript of the trial. [ 85 ]

Section 36 of the Small Claims Act, 2016 sets out the power of the Court to order or alternatively, consider ordering costs. In particular, section 36(3)(e), (

f) and (

g) set out the following:

(3) Subject to the regulations, in addition to any costs awarded pursuant to subsection (1) or (2), a judge may, at the conclusion of a matter, award additional costs, other than lawyer-related costs, on any terms and conditions that the judge considers appropriate if the judge is of the opinion that additional costs are appropriate after taking into account one or more of the following factors: (

e) the conduct of the parties (

f) the failure of a party to comply with an order of a judge made pursuant to this Act ; (

g) any other factor that the judge considers appropriate [ 86 ] Section 6(3) of the Small Claims Regulations, 2017 states as follows: (6)

(3) The total costs awarded in favour of a party pursuant to section 36(3) of the Act shall not exceed the greater of the following amounts: (a) $200.00 (b) 10% of the amount of the claim [ 87 ] In the circumstances, I order her to pay costs in favor of the SPCA in the amount of 10% of her original claim which will total $3,000.00. Hopefully this will deter Ms. Sabok-Sir and other like-minded individuals from pursuing claims under the Small Claims Act, 2016 with such reckless disregard and disrespect for the Court and its participants. [ 88 ] On a final note, I must commend Ms.

McCullagh on her conduct of these proceedings. It was largely through her efforts that the court was able to hear from the most relevant witnesses for the Plaintiff who were formerly associated with the SPCA. She acted professionally and in a civil fashion throughout, notwithstanding the insulting and aggressive behavior of the Plaintiff. Dated this 11th day of January, 2021, at the City of Prince Albert, in the Province of Saskatchewan. “ original signed by ” R. Lane, J