Shu v. Hughes Date:, 2015 BCPC 456

Citation: Shu v. Hughes Date: 20150224 2015 BCPC 456 File No: 14-49741 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Small Claims BETWEEN: DANNA SHU CLAIMANT AND: RENEE HUGHES DEFENDANT REASONS FOR JUDGMENT OF HIS WORSHIP L.A. KAHN Appearing in person: Danna Shu Appearing in person: Renee Hughes

Place of Hearing: Vancouver , B.C. Date of Hearing: February 11, 2015 Date of Judgment: February 24, 2015 [ 1 ] This case concerns a purchase of a sheltie dog by the Claimant, Ms. Shu, from the Defendant, Ms. Hughes. The purchase price was $1,200. The Claimant purchased the dog pursuant to a contract dated October 21, 2013. [ 2 ] Ms. Hughes required Ms. Shu to complete an application, as at all times it was intended by Ms. Hughes, who is a breeder and trainer of shelties, to ensure that a purchaser was committed to raising the puppy appropriately. Ms.

Shu completed the application which is dated August 27, 2013. [ 3 ] Prior to delivery of the puppy, Ms. Hughes sent Ms. Shu a copy of the Purchase and Sale contract. At the time of the delivery of the puppy, Ms. Shu, along with others who were receiving a puppy from the same litter, as I understand it, met at Ms. Hughes’ facility and the purchasers, together with Ms. Hughes, reviewed the contract. [ 4 ] Some of the important provisions of the contract are as follows: Under the terms of this contract, Renee Hughes has the right to investigate the care of this dog should circumstances warrant.

If Seller feels this dog is not getting proper care and treatment, Renee Hughes has the right to have this dog examined by a licensed veterinarian, holistic pet care professional, or animal behaviourist of Renee Hughes’s choice at Renee Hughes’s cost. If the animal care professional finds the dog to be subject to ill treatment or neglect, Renee Hughes’s shall take possession of the dog with no refund of the purchase price to the Purchaser. (my emphasis) … If Seller takes this dog back for placement in another home, signed transfer of registration papers must accompany the dog.

No refund or purchase price will be made upon the return of the dog to Renee Hughes or the subsequent sale/placement of said dog. If Seller re-homes this dog and receives any monetary value in exchange for this dog, this same value will be passed along to the Purchaser who surrendered the dog within 2 weeks of resale. [ 5 ] Ms. Shu signed the contract on October 29, 2013. [ 6 ] Ms. Shu testified that she paid little attention to either the application form, or the contract.

I concluded that she did not take the effort to fully understand the contract, nor did she appreciate the commitment required to care for the puppy according to the terms of the contract. [ 7 ] Not long after Ms. Shu took ownership of the dog, she began posting messages on Facebook which alarmed Ms. Hughes. These messages suggested that Ms. Shu was having difficulty training and caring for the puppy. Not surprisingly, Ms. Hughes was very concerned about the care of the puppy. About 3 months later, Ms. Shu decided it was best to return the puppy to Ms. Hughes. In doing so, Ms.

Shu thought that she would be receiving a full refund from Ms. Hughes. [ 8 ] On Wednesday, January 29, 2014, there was an email exchanged between the parties. At 9:34 am, Ms. Shu sent the following email: U can take him back as long as I can get my money back. He was off leach because he was winding his long leash which I always have on him whenever we go to a off leash park around my legs and if I fell, I wont be able to get up again without at least 2 people picking me up. I don’t know which is more dangerous, me falling down breaking something in my body or me taking a few shots of him without the leash.

U r very intimidating and I don’t take that well. If you want to seize him back then come and get him. I want my full refund, he is too big anyway. [ 9 ] At 1:28 pm, Ms. Hughes responded, as follows: I need time to go by the bank, and I’ll see you mid afternoon. [ 10 ] At 1:28 pm, Ms. Shu responded, as follows: Wont be here need to go supervise the reno [ 11 ] Finally, at 1:30 pm, Ms. Hughes responded, as follows: I’ll meet you and Edmund where ever you are, just need an address. [ 12 ] When the parties met at Ms. Shu’s residence, Ms. Hughes took possession of the puppy and Ms. Shu signed the transfer papers.

However, Ms. Hughes did not pay Ms. Shu. Ms. Shu expected payment, and I conclude that the expectation was borne out by the above email exchange. [ 13 ] Ms. Hughes argued that she was entitled to retake ownership of the puppy pursuant to the contract as a result of Ms. Shu’s inability to care for the puppy. Ms. Hughes cares deeply about the puppies that she raises. Her commitment to the puppies is for a lifetime and in return, she expects a purchaser will take the terms of the contract seriously and provide exemplary care and training for a

puppy. [ 14 ] When Ms. Hughes regained ownership, she began retraining the puppy according to her standards. She filed a Counterclaim for approximately $2,400 and provided a detailed account of her time to retrain and care for the puppy so that the puppy could be re-homed. Ms. Hughes spent approximately 98 hours at $60 an hour, which I am satisfied was a reasonable charge for a person of her experience. However, to her credit, Ms. Hughes recognized that all her time may not be appropriate and decided to charge Ms. Shu $2,400. [ 15 ] I am satisfied that Ms.

Hughes’ concerns of the puppy are borne from the emails and the testimony of Ms. Shu. I have concluded that Ms. Shu did not understand the extent to which she was required to train and care for this particular breed of dog. Although Ms. Shu had every intention of being a caring and loving owner, she was not able to do what was expected of her. As well, I have concluded that the concerns expressed by Ms. Hughes were well founded, and it was appropriate for Ms. Hughes to retake ownership of the puppy. [ 16 ] To determine whether or not there is a refund due to Ms. Shu or Ms.

Hughes’ counterclaim should succeed, I must rely upon the contract. [ 17 ] The portion of the contract set out in paragraph 4 does not make any reference to Ms. Shu being entitled to a refund in the circumstances that a professional, i.e. a veterinarian determines that the puppy has been mistreated. There was no evidence that a professional provided the required opinion. [ 18 ] The agreement also provides that no refund is due unless the dog is re-homed and any monies Ms. Hughes obtains for the dog is to be returned to the Purchaser. [ 19 ] When a puppy is returned to Ms.

Hughes either from mistreatment or, in these circumstances, because Ms. Shu was unable to care for the dog in the manner that Ms. Hughes expected, it does not entitle Ms. Hughes to recover monies for her time to retrain the puppy so that the dog can be re-homed. As well, Ms. Hughes must have known that she would incur time for retraining so that she could re-home the puppy. As a result, I dismiss the counterclaim. [ 20 ] Ms. Hughes was paid $600 for the puppy upon its being re-homed. Pursuant to the contract, that amount is payable to Ms. Shu. Although Ms.

Shu expected a full refund, she was not entitled to any refund pursuant to the contract unless the puppy was re-homed. I am not prepared to conclude that the email exchange was confirmation by Ms. Hughes that she would pay $1,200 to Ms. Shu. Conclusion [ 21 ] There will be judgment in favour of Ms. Shu, as follows: Monies received to re-home puppy $600 Filing Fees $100 Service Fees $20 Total: $720 [ 22 ] The Counterclaim is dismissed. [ 23 ] Under the circumstances of this case, I am not prepared to award pre-judgment interest. __________________________ Lawrence A. Kahn Adjudicator