Dunham v. Thorpe and Thorpe Date:, 2013 BCPC 349

Citation: Dunham v. Thorpe and Thorpe Date: 20130624 2013 BCPC 0349 File No: 1882 Registry: Powell River IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: ROSALIND DUNHAM CLAIMANT AND: GARY THORPE AND ELEANOR (ELLEN) THORPE DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE A.E. ROUNTHWAITE Appearing in person: R. Dunham Counsel for the Defendants: S. McCausland Place of Hearing: Powell River , B.C.

Date of Hearing: June 13, 2013 Date of Judgment: June 24, 2013 [ 1 ] The law is a very blunt instrument with which to address problems involving love and grief, companionship and loss. But when people bring an insoluble issue to court, a judge must decide what facts have been proven by the evidence in the trial and render a decision based on the law. [ 2 ] In this poignant case, Rosalind Dunham is suing Eleanor and Gary Thorpe for the return of her dog, “Ginn Fizz”, saying she placed the dog temporarily with Ms. Thorpe and wants him back. On behalf of herself and her husband, Ms. Thorpe replies that Ms.

Dunham made a legally binding gift of the dog and they are unwilling to return him because they believe Ms. Dunham is no longer capable of caring for him adequately. [ 3 ] The issue I must decide is a narrow one: whether the evidence in the trial proves on the balance of probabilities that Ms. Dunham made an irrevocable gift of Ginn Fizz rather than placing him temporarily with the Thorpes. Assessment of the evidence [ 4 ] W itnesses gave conflicting testimony in the trial and I must therefore assess their evidence in order to determine what facts have been proven.

When assessing the reliability of witnesses’ testimony a judge may consider factors including the following: • any contradictory statements the witness may have made; • r eliable evidence that conflicts with the witness’ testimony; • evidence that a witness’ observations were influenced by bias or partiality; • evidence that other events have happened since the witness’ observations that have affected the witness’ present beliefs and memory; • the witness’ ability to make accurate observations; and • the witness’ ability to remember accurately. [ 5 ] Ms. Dunham testified movingly.

She described how Ginn Fizz came into her life after her husband died. She rescued him by buying him from people who abused and neglected him; cleaned and “polished” him up; and found him to be a real treasure, a particularly smart, friendly dog. He became her precious companion, making up for the loss of her husband’s companionship, and bonding with her cats to form a family for her. Ms. Dunham said she would never have given Ginn Fizz away because he was so precious to her. [ 6 ] The parties agree that i n August 2010, after seeing that Ms. Thorpe dealt well with Ginn Fizz, Ms.

Dunham made out a written declaration stating her intention that Ginn Fizz pass into Ms. Thorpe’s possession in the event of her death or incapacity. Although she said she regretted this soon after, when she was hospitalized in March 2012 she asked a police officer to ask Ms. Thorpe to look after the dog, which she did for about ten days. [ 7 ] Ms. Dunham said that she returned home from hospital to find that her mobile home had been broken into twice in her absence. She was worried about someone coming in by an insecure door and stealing her dog. She said she went to collect Ginn Fizz; Ms.

Thorpe came to her house; and Ms. Dunham asked Ms. Thorpe to take Ginn Fizz back until the next day when she could have the door fixed. She said she was confused after her hospital stay and doesn’t know how Ms. Thorpe got a box full of the dog’s things. Ms. Dunham said the box was by the door; she was holding the dog and looking for a place to put him after the phone rang; Ms. Thorpe took the dog; and the next thing she knew, Ms. Thorpe, the dog and the box were gone. [ 8 ] Ms. Dunham said she went the next day to collect Ginn Fizz and Ms. Thorpe refused to return him, saying Ms. Dunham had neglected him.

She testified that she then received a telephone call from Audrey Hill of the SPCA who said the dog was in terrible shape and Ms. Dunham was not fit to keep her. [ 9 ] Ms. Dunham is an experienced dog owner. She presented photographs of herself and a dog winning prizes, as well as a box full of many ribbons for prizes including Grand Champion, at dog shows in Alberta in the 1990s. She testified that Ginn Fizz was healthy, happy and friendly while in her care, and that he never had seizures. She said she has worked in a veterinarian’s office and can tell by looking if a dog has liver cancer.

She says that she understands Ginn Fizz was ill in Ms. Thorpe’s care and she attributes this to Ms. Thorpe lacking knowledge about small dogs’ needs. [ 10 ] Ms. Thorpe testified that she and Ms. Dunham were passing acquaintances in 2010; that after she invited Ms. Dunham for tea one day Ms. Dunham asked if she’d be willing to care for Ginn Fizz when she died and when Ms. Thorpe agreed, Ms. Dunham gave her the written declaration. When a police officer asked her to care for Ms. Dunham’s animals during Ms. Dunham’s hospital stay in March 2012 she was surprised because Ms.

Dunham had moved away from their mobile home park and they’d had no contact for some time. Nevertheless, she agreed and went to Ms. Dunham’s home, but the dog snapped, hid, and wouldn’t come out; she couldn’t find the cat; and the back room was messy and soiled with feces and urine. The next day she returned with Ms. Hill from the SPCA; she cleaned some of the mess; put out food and water for the cat; and the dog came to her and was taken home. The day after that she took cleaning supplies and cleaned the back room.

[ 11 ] Ms. Thorpe also said the following. During the time the dog spent at her home she found he wasn’t trained to relieve himself outside so she began that process, taking him outside frequently. The dog was very unkempt and his coat was very matted, so they cleaned him up and cut mats out of his coat. Ms. Dunham appeared to have been feeding the dog dry kibble, some of which appeared too large in size for a small dog’s mouth. When Ms. Dunham came to collect Ginn Fizz on March 10 the dog greeted his owner but returned to Ms. Thorpe. Ms. Dunham took him home overnight but telephoned Ms.

Thorpe the next day saying someone was trying to break in to take the dog; she didn’t want him taken and made into a hospital visiting dog; and asking if Ms Thorpe would take him. Ms. Thorpe understood Ms. Dunham was afraid the SPCA would take the dog from her. [ 12 ] Ms. Thorpe testified that she went to Ms. Dunham’s home and found Ms. Dunham not yet dressed and a box containing all the dog’s things by the door: clothes, toys, grooming equipment. Ms. Dunham went to get dressed and was then concentrating on moving things from one purse to another rather than on the dog. Ms. Thorpe said she asked Ms.

Dunham if she wanted to say goodbye to Ginn Fizz and Ms. Dunham said she already had, adding “I may want this dog back if I ever leave town. Ahhh, I’m too old.” Ms. Thorpe testified that a neighbour of Ms. Dunham’s who was present suggested Ms. Thorpe take the dog and he would take the box; Ms. Dunham was busy with her purse and ignored the dog, saying to the cat “It’s you and me now.” Ms. Thorpe denied that Ms. Dunham merely asked her to take the dog overnight. [ 13 ] Ms. Thorpe testified that once Ginn Fizz was given to her she took him to a groomer and a veterinarian.

There was so much hair between his toes that it was painful for him to walk and too sensitive for the groomer to trim his paws so the vet did this under sedation. Ms. Thorpe also had the dog vaccinated. Ginn Fizz had two seizures in his first six months with Ms. Thorpe; tests showed a problem with his liver; and this problem has been controlled with a special diet, supplements, and medication twice daily in dosages adjusted to his weight. [ 14 ] There was evidence from other witnesses supporting Ms. Thorpe’s testimony that Ms. Dunham made her a gift of the dog and that Ms. Dunham’s care of him was not adequate.

Joyce Fitzgerald testified that in August 2012, Ms. Dunham visited her, was very upset, and said “they” wanted her to take the dog back but he was very ill and she didn’t feel she could deal with that because she’d been through her husband’s terminal illness and didn’t want to watch the dog die. [ 15 ] Gregory Roadknight, manager of the mobile home park where Ms. Thorpe lives and Ms. Dunham used to live, testified that about a year ago Ms. Dunham came to him and asked if he could help her get her dog back. He said he replied that he thought she had given the dog away and Ms.

Dunham said she did, but had heard the dog was being abused and didn’t smile anymore. He said he assured her the dog was not being abused and told her he couldn’t help her. His wife, Monique Roadknight, said she overheard Ms. Dunham tell her husband that she did give the dog away but he was being abused and didn’t smile anymore. [ 16 ] Ms. Roadknight also testified that Ginn Fizz did not look healthy when he lived with Ms. Dunham.

She said she saw the dog in an almost crazed state, running back and forth, shaking, leaving a trail of urine, then stopping, falling over, lying motionless, and reviving to repeat the behaviour. She said Ms. Dunham ignored the dog’s behaviour and when questioned about it said “Oh, he does that all the time” and kept talking. She said Ginn Fizz smelled and when she mentioned his matted paws to Ms. Dunham she replied that she took him in all the time. She also described an occasion when Ginn Fizz was tethered outside in a hard rain, hid under a car and wouldn’t come out. When she asked if Ms.

Dunham would like her to help get him out, Ms. Dunham said no, and left him outside for another hour, finally standing at the door and using the rope to drag him inside with his nails gripping the ground until he reached the bottom of the stairs and ran inside. Ms. Roadknight said she has seen positive changes in the dog since he has lived with Ms. Thorpe: he seems very healthy, happy, friendly, walks without a lead and gets along with the Thorpes’ other dog. [ 17 ] Ms. Dunham said she had moved away from the mobile home park where the Roadknights and Thorpes live because people there were so unfriendly to her.

She suggested that the Roadknights were biased against her. However, I found no evidence of bias in the testimony of the Roadknights or Ms. Fitzgerald. They exhibited no hostility or antagonism towards Ms. Dunham; they did not appear to exaggerate their evidence but spoke in matter of fact tones about what they had seen or heard. [ 18 ] Ms. Fitzgerald showed sympathy for Ms. Dunham. She made notes of her conversation with Ms. Dunham shortly after it occurred at the request of Ms. Hill and this helped her to remember the conversation accurately.

I found the testimony of these three witnesses sufficiently reliable to prove on the balance of probabilities that Ms. Dunham has made out of court statements that contradict her testimony that she did not give Ginn Fizz to Ms. Thorpe. [ 19 ] The testimony of Ms. Roadknight and the vet bills, Exhibit 4, support Ms. Thorpe’s testimony that Ginn Fizz was in poor condition when she picked him up at Ms. Dunham’s request in March 2012 and contradicts Ms. Dunham’s testimony that Ginn Fizz was healthy and well cared for in her home.

The vet bills show that the vet sedated Ginn Fizz and shaved his mats on March 30, 2012, and that Ms. Thorpe has regularly purchased renal medication and products for Ginn Fizz from the vet. [ 20 ] I found Ms. Thorpe a reliable and credible witness. Her testimony was detailed and consistent. She showed no hostility towards Ms. Dunham although she spoke with emotion when cross-examined on a conversation between them after the settlement conference. Ms. Dunham argued that if Ms. Thorpe’s testimony were true she would not have offered to return the dog after the settlement conference if Ms.

Dunham would pay the vet bills. However, Ms. Thorpe explained that when she made that offer she was feeling great stress from the lawsuit and was worried that she’d lose. Ms. Dunham refused the offer although during the trial she said she’d do anything Ms. Thorpe wanted to get the dog back. Things said during settlement negotiations cannot be admitted as evidence in court, but even if this evidence were admissible I would not consider either woman’s conduct during an emotional discussion of possible settlement to detract from the credibility of their testimony. [ 21 ] During the trial I observed that Ms.

Dunham’s eyesight and hearing are impaired. She had trouble locating the box containing her dog show ribbons when it was in front of her, and trouble reading documents. She was provided with headphones connected to the court recording equipment in order to assist her to hear what was being said in court. It appears likely that in recent years Ms. Dunham was unable to provide her beloved pet with the same level of care that she has offered pets in the past because declining sensory perceptions had limited her ability to perceive and meet his needs. It also appears probable that after her hospitalization, Ms.

Dunham realized she was not able to care for Ginn Fizz as well as Ms. Thorpe could and decided to give him to a person she knew rather than risk

his being taken by the SPCA. [ 22 ] Since March 2012, it appears that Ms. Dunham has forgotten the details of what was said when she gave Ginn Fizz to Ms. Thorpe. She has missed him terribly and become concerned that he was being abused. The combination of feelings of love and loss and concern appears to have affected her memory and convinced her that she did not give her dog away. I conclude that Ms. Dunham’s testimony that she only placed Ginn Fizz temporarily with Ms. Thorpe is not reliable. I accept Ms. Thorpe’s account of the events because it was credible and supported by other evidence.

Application of the law to the facts proven [ 23 ] The legal definition of a gift is “a voluntary transfer to another with the full intention that the recipient will retain the thing as his or her own without restoring it to the giver”: Halsbury’s Laws of England, 4 th ed., Vol. 20 at p. 2. A person who asserts that they were given a gift must prove on the balance of probabilities that the giver had the necessary intention: Singh Estate v. Shandil, 2007 BCCA 303 . [ 24 ] I n this case, Ms. Thorpe must prove that Ms. Dunham intended her to retain Ginn Fizz as her own without giving him back.

A judge can never know all the facts but must decide cases based on the evidence presented during the trial. Here, I find that Ms. Thorpe has proven on the balance of probabilities that Ms. Dunham gave Ginn Fizz and all his belongings to her so that he wouldn’t be taken by the SPCA and because she recognized that she was no longer able to care for him as well as she would want. [ 25 ] I have considered whether Ms. Dunham’s statement “I may want this dog back if I ever leave town. Ahhh, I’m too old.” indicates that the gift was temporary or might be revoked in future. I have concluded that it does not.

I interpret the words “Ahhh, I’m too old.” as retraction of a fleeting thought that she might want Ginn Fizz back if she left town and got away from Ms. Hill of the SPCA. I conclude that with those words Ms. Dunham was acknowledging that her decision to give Ginn Fizz away was the right one and confirming it. I also note that Ms. Dunham did not tell Ms. Fitzgerald or Mr. Roadhouse that her gift to Ms. Thorpe had been conditional. [ 26 ] Ms. Dunham owned Ginn Fizz and had the legal capacity to make a gift of him. Although she was confused after being in hospital, I am satisfied by her statements to Ms.

Thorpe that she knew what she was doing and intended to make an irrevocable gift. Ginn Fizz was delivered to Ms. Thorpe at Ms. Dunham’s home and Ms. Thorpe accepted the gift. [ 27 ] I have great sympathy for Ms. Dunham’s unhappiness and sense of loss. I recognize that Ginn Fizz was her treasured companion and she misses him terribly. However, I find that the evidence in this case proves that she gave him to Ms. Thorpe so that he would be well looked after, and that her gift is binding in law. [ 28 ] I hope Ms.

Dunham can become reconciled to the thought that she acted unselfishly in order to give Ginn Fizz a good home, and as a result of her great love for him and her strength in putting his needs before her own he is now thriving and well cared for. That was a very difficult decision to make and Ms. Dunham deserves credit for it. [ 29 ] For all these reasons I dismiss the Claim against Eleanor Thorpe. There being no evidence to support the Claim against Gary Thorpe, I dismiss it as well. A.E. Rounthwaite Provincial Court Judge