Schmitz v. Van Der Loos Date:, 2015 BCPC 77

Citation: Schmitz v. Van Der Loos Date: 20150128 2015 BCPC 0077 File No: 21478 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: HALEY SCHMITZ CLAIMANT AND: CHRISTINE VAN DER LOOS DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE G.J. BROWN Counsel for the Claimant: I. Kennedy Counsel for the Defendant: K. Huffman, Articled Student Place of Hearing: Abbotsford , B.C. Dates of Hearing: July 18, December 1, 2014 Date of Judgment: January 28, 2015 [ 1 ] THE COURT : These are my reasons for judgment in the Small Claims proceeding, Haley Mariann Schmitz versus Christine

[ 1 ] THE COURT : These are my reasons for judgment in the Small Claims proceeding, Haley Mariann Schmitz versus Christine Van Der Loos, file 21478. INTRODUCTION AND ISSUES: [ 2 ] Ms. Van Der Loos owned a horse called "Judge My Sugar's Bar" ("Judge") and she sold that horse to Ms. Schmitz in July of 2012 for $30,000. No precise payment

schedule was agreed upon. Although Ms. Schmitz took possession of Judge thereafter, Judge was to remain registered in Ms. Van Der Loos' name with the American Horse Quarter Association until the price was paid in full. [ 3 ] After paying $15,000 of the purchase price over a period of 5 months, Ms. Schmitz inquired if Ms. Van Der Loos would be interested in taking Judge back and there was an exchange of text messages. Ms. Schmitz believed there to be a new agreement where she would return Judge and receive $13,000 back. Ms. Van Der Loos asserts there was no such second agreement. In any event, Ms.

Schmitz took Judge to a barn in Abbotsford and she provided Ms. Van Der Loos with the horse. However, Ms. Schmitz got no monies in return and she felt betrayed. Ms. Van Der Loos simply stated that Ms. Schmitz may receive some monies if Judge is sold and there are monies leftover after taking into account costs associated with the sale and care of the horse. [ 4 ] In the notice of claim, Ms. Schmitz is suing for return of $15,000 and other costs, although she is alleging a second agreement that would see her get $13,000. In the opening statement of her counsel, Ms.

Schmitz is really alleging there were two contracts, one supplanted by the other. The original sale in July of 2012 was supplanted by the second agreement in March of 2013 whereby Judge was to be returned in exchange for return of $13,000. [ 5 ] In Ms. Van Der Loos' reply, there is an allegation of a breach of contract or, alternatively, unjust enrichment. However, in the opening statement of defence counsel, it is submitted that Ms. Schmitz did not make regular payments on the purchase price despite promises to do so. Ms.

Van Der Loos was an unpaid seller of Judge and, in March of 2013, she became the agent for Ms. Schmitz to sell Judge and mitigate the losses. Unfortunately, after Judge was in Ms. Van Der Loos' possession, it was learned that he suffered from Navicular syndrome and he was eventually sold for some $2,740 U.S. The defence argues that the risk remained with Ms. Schmitz and there was a counterclaim for veterinary and other costs associated with Judge's care and sale while he was in Ms. Van Der Loos' possession. [ 6 ] There are a number of issues in this case: 1. When Ms.

Van Der Loos regained possession of Judge in March of 2013, was she simply acting as Ms. Schmitz's agent to sell Judge? If this argument is accepted, is Ms. Van Der Loos also entitled to be compensated for the costs she incurred for Judge's care and subsequent sale? 2. Conversely, was there a second agreement, as alleged by Ms. Schmitz, whereby Judge was to be returned to Ms. Van Der Loos and $13,000 was to be refunded to Ms. Schmitz? 3. There is the issue of costs. BACKGROUND: Agreed Statement of Facts: [ 7 ] An agreed statement of facts was filed as Exhibit 2. Ms.

Van Der Loos owned Judge, who is a barrel-racing horse. For the first half of 2012, Ms. Schmitz and Ms. Van Der Loos discussed the prospect of Ms. Schmitz buying Judge. Ms. Schmitz took possession of Judge from Ms. Van Der Loos at a property on Olund Road in Abbotsford on June 29th, 2012, and Ms. Schmitz wanted to test Judge out. At all material times, Judge was registered in Ms. Van Der Loos' name with the American Quarter Horse Association. [ 8 ] By July 28th, 2012, the parties agreed that Ms. Schmitz would purchase Judge from Ms. Van Der Loos. The terms of the agreement were as follows: (

a) Ms. Schmitz would pay to Ms. Van Der Loos $30,000 in instalments over time. (

b) Ms. Schmitz would continue in possession of Judge. (

c) Judge would remain registered in Ms. Van Der Loos' name until Ms. Schmitz paid the $30,000 in full at which time the registration would be transferred into Ms. Schmitz's name. [ 9 ] Ms. Schmitz made payments towards the purchase price as follows: $5,000 on July 28th, 2012, $5,000 on September 15th, 2012 and $5,000 on December 13th, 2012. The total paid was $15,000. [ 10 ] On March 24th, 2013, Ms. Schmitz advised Ms. Van Der Loos that she would be unable to keep Judge. On March 26th, 2013, Ms. Schmitz drove Judge to the Olund Road property and what transpired there is of some dispute. EVIDENCE OF MS.

SCHMITZ: [ 11 ] Ms. Schmitz is a young woman who is a horse enthusiast. She had a particular interest in jumping horses and, more recently, barrel-racing horses. In late June of 2012, Ms. Van Der Loos suggested that Ms. Schmitz try out her horse, Judge. Ms. Schmitz took Judge for one month and they got along very well. Ms. Schmitz ultimately agreed to purchase Judge for $30,000 and the terms of the contract price were "very casual". Ms. Van Der Loos knew that Ms. Schmitz did not have a lump sum of money to pay her and there was, according to Ms. Schmitz, no payment schedule. Monthly payments were not discussed.

Ms. Schmitz paid Ms. Van Der Loos three instalments of $5,000, as set out in the agreed statement of facts, i.e., in July, September and December of 2012. [ 12 ] While Ms. Schmitz had Judge, she had a farrier come out regularly and she also gave Judge Biotene to improve hoof growth and

hair coat. Additionally, a horse chiropractor gave Judge stretching exercises. Ms. Schmitz noticed no health problems with Judge, although he was a little stiff in one direction. Judge performed well in barrel-racing competitions. [ 13 ] In late March and early April of 2013, Ms. Schmitz communicated with Ms. Van Der Loos by text about the possibility of Ms. Van Der Loos taking Judge back. Ms. Schmitz felt bad about being unable to purchase Judge but she was a student and she was planning to move to Alberta.

In the first text, she inquired: Not sure if you would be interested in taking Judge back and selling him or sending him to be sold. Ms. Schmitz surmised that Ms. Van Der Loos could get more than $30,000 for Judge. [ 14 ] Alternatively, Ms. Schmitz stated by text: Or I can try and sell him...just haven't been sure what to do this whole buying him on a payment basis has not turned out as I had hoped... With the second alternative, Ms. Schmitz felt she would be acting as an agent for Ms. Van Der Loos who was the registered owner of the horse. [ 15 ] In response, Ms.

Van Der Loos texted that she was not mad at all and that she had persons interested in Judge and she needed to pick Judge up. At page 5 of these communications, see tab 1, Exhibit 1, there is a key exchange of texts which I will set out verbatim: Ms. Schmitz: What's happening with the money that was put down on him? Ms. Van Der Loos: Hey, I'm glad you asked. Def something we need to discuss tomorrow when you bring Judge out. I want to be as fair to you as possible. Ms. Schmitz: Well, if I'm not going to get my money back, I can try and find a way to pay you and I'll just sell him.

Then there is a space: I understand if you want to keep 2K as that's fair but it's hard for me to drop him off and not have any sort of money back. Then there is a further space: Especially 'cause I never got a receipt for the first 5K. Ms. Van Der Loos: Yeah, that's fine. I'll see you tomorrow. I need a time you'll be at barn. [ 16 ] There are some further exchanges and at one point, Ms. Schmitz inquired whether Ms. Van Der Loos would have money or a cheque. Ms.

Van Der Loos responded by saying she would get a farrier out tomorrow or Wednesday and she used the word cheque, that is, "c-h-q", which obviously means "cheque". [ 17 ] Based on the above communications, Ms. Schmitz believed she had an agreement that she would return Judge and get her money back less $2,000. She would not be returning Judge unless she got some money back. She explained that she had been paying farrier bills of $220 every six weeks plus other maintenance and feeding costs for Judge. Ms. Schmitz was of the view that Ms.

Van Der Loos would not be acting as her agent in the sale of Judge; the horse was not in Ms. Schmitz's name. [ 18 ] On March 26th, 2013, Ms. Schmitz took Judge to the Olund property and met Ms. Van Der Loos. According to Ms. Schmitz, Ms. Van Der Loos grabbed a piece of paper, as if she had a cheque. Ms. Schmitz put Judge in a stall and Ms. Van Der Loos' husband stood in front of the stall. Ms. Schmitz inquired about a cheque and Ms. Van Der Loos switched from being very nice to being confrontational. Ms. Van Der Loos told Ms. Schmitz she would not be getting her money back; furthermore, Ms.

Van Der Loos explained she had to take these steps to get Judge back from Ms. Schmitz because Judge was otherwise kept in a fenced place. Ms. Schmitz felt betrayed and intimidated. She left the barn but did call the police, who felt, appropriately, that this was a civil dispute. Ms. Van Der Loos did say that if she sold Judge, Ms. Schmitz may get some money. [ 19 ] Later that same day, Ms. Schmitz attempted to resolve the matter with Ms. Van Der Loos by providing $15,000 to her in exchange for Judge with a bill of sale. According to the text messages, Ms.

Van Der Loos was originally open to this resolution and she

wanted cash or a certified cheque. However, on March 28th, 2013, Ms. Van Der Loos expressed concern about a certified cheque because a bank would take time to verify the funds. Ms. Schmitz was not comfortable providing cash in these circumstances so this attempt at resolution failed. Ms. Schmitz also explained that Janet Cunningham was Judge's trainer even before she had Judge and this person would be providing evidence. [ 20 ] In cross-examination, Ms. Schmitz did agree that prior to the agreement of July 28th, 2012, she asked Ms.

Van Der Loos for permission to take Judge on barrel races in Merritt or the U.S. because she did not own Judge. However, she maintains that she asked for similar permission after the sale of Judge. [ 21 ] Ms. Schmitz was adamant during cross-examination that there was no fixed timeline for payment of the $30,000 purchase price. There certainly were text messages wherein Ms. Van Der Loos was requesting payments and, for various reasons, Ms. Schmitz did not comply with those requests. These text messages were found at tab 22 of Exhibit 1. Ms.

Schmitz conceded that she only made three payments in five months but she denied that Ms. Van Der Loos was frustrated. At page 122 of tab 22, Ms. Van Der Loos does request a payment

schedule just prior to receiving the second $5,000 instalment in September of 2012. [ 22 ] On November 17th, 2012, Ms. Schmitz explains via Facebook that she is having vehicle problems but she hopes to get $10,000 to Ms. Van Der Loos that week but that never happened. Ms. Van Der Loos responds by saying that she should not have to chase Ms. Schmitz down for money. Ms. Schmitz felt that $15,000 in five months was not unreasonable and, over the phone, Ms. Van Der Loos was content to have full payment within one year. [ 23 ] Ms.

Schmitz said during cross-examination that she could not sell Judge because he was not in her name. She also explained that Judge saw a veterinarian before he went to the U.S. with her. A farrier also saw Judge every four to six weeks. Judge was never lame with her. She was surprised to learn that Ms. Van Der Loos could only sell Judge for $2,740 U.S., apparently because he had Navicular syndrome. [ 24 ] Also, while under cross-examination, Ms. Schmitz admitted she never ended up going to Alberta. She also admitted to selling two other horses after March of 2013.

She reiterated that on March 26th, 2013, there was no agreement that Ms. Van Der Loos would act as her broker to sell Judge, as she did not own Judge. Ms. Schmitz had agreed to return Judge in exchange for $13,000. EVIDENCE OF JANET CUNNINGHAM: [ 25 ] Ms. Cunningham gave evidence and she is a professional barrel-horse racer and a horse trainer and coach. She testified that Ms. Schmitz was a very good rider and that horses have blossomed in Ms. Schmitz's care. Ms. Cunningham worked with Judge when Ms. Van Der Loos had care of him. Judge was an extremely good barrel horse but he had lost his confidence. Ms.

Cunningham continued to work with Judge after the sale to Ms. Schmitz. Ms. Schmitz treated Judge well and his body tone and coat were healthy. Judge's confidence improved. She did not see Navicular syndrome ever in Judge. [ 26 ] During cross-examination, Ms. Cunningham explained that she did act as a broker for Ms. Van Der Loos concerning Judge. There was some dispute about her payment of commission. According to Ms. Cunningham, a horse's value may not necessarily drop due to a Navicular syndrome diagnosis. EVIDENCE OF MS. VAN DER LOOS: [ 27 ] Ms.

Van Der Loos is an experienced horse owner and, in early 2012, she owned four horses, including Judge, for pleasure and for barrel racing. Ms. Van Der Loos had purchased Judge in the winter of 2011. Judge had a good reputation and Ms. Van Der Loos discussed the horse with Ms. Schmitz in early June of 2012. Ms. Schmitz took possession of Judge at the end of June 2012 with the plan to try him and hopefully purchase him. Many text messages were exchanged between the parties and Ms. Van Der Loos did give permission for Ms.

Schmitz to race Judge in Merritt and in Oregon, U.S.A. [ 28 ] Ultimately, the parties came to an agreement for Ms. Schmitz to purchase Judge for $30,000 with a down payment of $5,000 and payments thereafter. The text messages and Facebook messages demonstrate Ms. Van Der Loos' attempts to collect on the purchase price. Although Ms. Schmitz had only paid $15,000 by December of 2012, Judge remained with her until March of 2013. [ 29 ] In March of 2013, Ms. Van Der Loos received text messages about Ms. Schmitz moving to Alberta and whether or not there was an interest in taking Judge back. Ms.

Van Der Loos responded by saying that she was not mad and she may have people interested in purchasing Judge. At page 148 of tab 22 of Exhibit 1, Ms. Van Der Loos simply indicated that the money Ms. Schmitz put down on the horse was "something we need to discuss tomorrow when you bring Judge out". [ 30 ] Ms. Van Der Loos provided her

interpretation of the key text passage found at page 5 at tab 1 or page 149 of tab 22. When Ms. Van Der Loos responds by saying, "Yeah, that's fine," she simply meant that she will discuss the various options put forward by Ms. Schmitz. [ 31 ] On March 26th, 2013, Ms. Schmitz did bring Judge to the Olund Road property and Judge was in good condition, although missing a horseshoe. Ms. Van Der Loos says that the parties did not come to an agreement that day. Ms. Schmitz wanted her money back and Ms. Van Der Loos explained that it would be hard to sell the horse and recoup the costs involved.

Any monies leftover would go to Ms. Schmitz. [ 32 ] Ms. Van Der Loos testified that she later got a text that Ms. Schmitz would come up with the balance owing for Judge but that was never provided. [ 33 ] On April 6th, 2013, Ms. Van Der Loos sent Ms. Schmitz a letter demanding that Ms. Schmitz pay the balance within 30 days from March 26th, 2013, or else Judge would be put up for sale. Ms. Schmitz also would be responsible for additional maintenance costs for the horse in the interim. There was no response.

[34] Subsequently, Ms. Van Der Loos had a farrier care for Judge and the farrier noticed Judge had a sore shoulder. Ms. Van DerLoos then retained the services of two veterinarians who were of the opinion that Judge had Navicular syndrome in his foot. Thisdiagnosis was apparently sometime in August of 2013. In March of 2011, Ms. Van Der Loos had Judge examined then by a veterinarianand there were no findings. [35] The Exhibit 1 book of documents, as well as Exhibit 4, contain many of the expenses incurred by Ms. Van Der Loos uponreturn of Judge.

These include farrier costs, veterinarian bills, horse boarding fees and transport costs. It was difficult to market Judgewith a disclosure of his Navicular syndrome. Judge was eventually sold for $2,740 U.S. in June of 2014. The total expenses incurred byMs. Van Der Loos were some $14,063.79. [36] During cross-examination, Ms. Van Der Loos conceded that Judge was entered in races upon his return to her. He managed to"place" but not win. Ms. Van Der Loos did not provide any documents detailing Judge's diagnosis of Navicular syndrome or treatmentrecommendations. [37] Ms.

Van Der Loos, in cross, agreed that her counterclaim was for the 13 months following Judge's return but she denied thatthere was an agreement she would cover Judge's costs while selling the horse. Ms. Van Der Loos also admitted that the costs she wasclaiming for Judge included travel costs, lodging and meals when she was attempting to sell Judge. [38] Also, during cross-examination, Ms. Van Der Loos stated that she did not feel Ms. Schmitz was in breach when she wanted toreturn Judge in March of 2013. The parties were simply discussing options. She knew Ms. Schmitz could not pay and there was achoice for Ms.

Van Der Loos to sell Judge on Ms. Schmitz's behalf or for Ms. Schmitz to somehow pay the full price. Ms. Van Der Loosdenied any agreement to return $13,000. [39] When Ms. Van Der Loos says at page 8 of Exhibit 1, the word "chq", i.e. cheque, she meant that if she has any money leftoverfrom the sale of Judge at a later time, the payment to Ms. Schmitz would be by cheque. Ms. Van Der Loos agreed that there was seriousmistrust between the parties by March of 2013. A later attempt at resolution did not work because Ms. Van Der Loos was willing toaccept a certified cheque for $15,000 but the funds had to clear first.

WAS MS. VAN DER LOOS SIMPLY ACTING AS AN AGENT TO SELL JUDGE ON MS. SCHMITZ'S BEHALF OR ATTHAT POINT WAS THERE A SECOND AGREEMENT AS ALLEGED BY MS. SCHMITZ? AGENCY ARGUMENT: [40] I find it improbable that in March of 2013, Ms. Van Der Loos was acting as an agent to sell Judge on behalf of Mr. Schmitz. Icome to this conclusion for the following reasons: 1. Even Ms. Van Der Loos conceded that there was a high level of mistrust between the parties by March of 2013. From Ms.Schmitz's perspective, she felt completely betrayed on March 24th, 2013. I cannot conceive that there would be an agreement then thatMs.

Van Der Loos would act as an agent for Ms. Schmitz. Ms. Schmitz wanted money back when she relinquished possession of Judge. 2. The demand letter written by Ms. Van Der Loos in April of 2013 further illustrates that there was no agency agreement. Herletter states that if there is no payment in full by April 25th, 2013, she assumes Ms. Schmitz does not intend to fulfil her obligation andJudge will be listed for sale. Ms. Van Der Loos is behaving as an owner not an agent. An agency agreement cannot be created upondemand by one party. 3. In my view, the property in Judge remained with Ms.

Van Der Loos at all material times so she could not be an agent for Ms.Schmitz. The original agreement was casual as to its terms but I consider it to be an agreement to sell under s. 6(5) of the Sale of GoodsAct, as opposed to an outright sale under s. 6(4). S. 6(5) states that if the transfer of property and goods is to take place at a future time,or is subject to some condition to be fulfilled later, the contract is called an agreement to sell. I conclude that the property in Judge wasnot to pass to Ms. Schmitz until the payments were made in full.

Only at that time was the registration of Judge to be transferred to Ms.Schmitz. [41] The following evidence supports this conclusion: (

a) While the transfer of registration does not necessarily mean the transfer of property in many cases, it is clear here that theregistration of Judge was an important component of the original agreement, however casual. The certificate of registration for Judge attab 24 refers to Ms. Van Der Loos as the "current owner" and Ms. Schmitz was not going to be registered as an owner until payment infull. Section 23(1) of the Sale of Goods Act states that unless a contrary intention appears, the intention of the parties is governed by s.23(2) which legislates that the property passes when the contract is made.

In this case, I find the parties had a contrary intention. Property would not pass until the price was paid in full. Ms. Schmitz had possession of Judge when she made her payments but shenever received a bill of sale or change of the horse's registration. This case is distinguishable from Hendrickson v. Mid-City MotorsLtd., (AB KB), [1951] 3 D.L.R. 276 (Alberta Trial Division). Justice Egbert there ruled that property passed at thetime the contract was entered, despite a reservation of title and the deferral of payment. The court properly ruled that "title" and"property" are two entirely different things.

In that case, the sales agreement said that title of the goods shall remain in vendor at thepurchaser's risk until all amounts were paid. No such wording applies to the agreement to sell Judge here. (

b) As discussed above, Ms. Van Der Loos behaved like a property owner and not an agent. In March of 2013, she simply tookJudge without paying anything back to Ms. Schmitz. Interestingly, she refers to Judge as "my horse" in her demand letter written in Apriland she dictates that the "horse will be listed for sale" if payment is not made. I appreciate that s. 23(2) of the Sale of Goods Act saysthat ordinarily property passes at the making of a contract and is immaterial if the time for payment is postponed. However, as explainedabove, s. 23 is subject to the phrase "unless a contrary intention appears".

Here, the terms of the original agreement and Ms. Van DerLoos' own actions evidence that contrary intention. In short, there is no agency agreement here.

[42] In March of 2013, Ms. Van Der Loos simply took her own horse back. The horse remains at Ms. Van Der Loos' risk until hewas to be transferred to Ms. Schmitz at a later date, upon full payment. See s. 25(1) of the Sale of Goods Act. This means that Ms. VanDer Loos has assumed all risk for Judge, including any costs associated with his later care or sale and including the costs associated withhis Navicular syndrome. [43] For all the above reasons, the counterclaim cannot succeed and this will be reinforced in my reasons below. In any event, Ifound that Judge was previously well cared for by Ms.

Schmitz and she in no way was aware of any ailments. SECOND CONTRACT ARGUMENT: [44] The original contract regarding the agreement to sell Judge was rather poorly defined and "very casual", as Ms. Schmitz put it. Nevertheless, when Ms. Schmitz asked to return Judge in March of 2013, that action could possibly have been treated as an anticipatorybreach in repudiation of the contract. Ms. Van Der Loos did not view Ms. Schmitz's actions in that way and, in fact, she did not feel therewas any breach. Instead, Ms. Van Der Loos regained possession of Judge in a high-handed manner on March 24th, 2013. In my view,Ms.

Van Der Loos was breaching a second agreement which existed between the parties. This agreement is proven in the text messages. When Ms. Van Der Loos replies with "Yeah, that's fine," it only makes sense that she is agreeing to Ms. Schmitz's text above offering todrop off Judge in return for money back less $2,000. [45] Ms. Van Der Loos argues that these text messages are too vague and Ms. Schmitz is attempting to pluck out certain texts tomake an agreement. However, I must look at Ms. Van Der Loos' own actions following these texts.

She arranges for return of Judge atthe Olund property and that act is effectively an acceptance of Ms. Schmitz's offer to return Judge for some money back. Moreover,when Ms. Schmitz inquired if Ms. Van Der Loos would have money or cheque, Ms. Van Der Loos said "chq". Her explanation in courtthat this meant a cheque to be provided later when Judge was sold is disingenuous. [46] Even if Ms. Van Der Loos did not expressly accept Ms. Schmitz's offer returning Judge, which is not my finding, Ms.

Van DerLoos acted as though there was an agreement and she is estopped from denying that such an agreement exists. [47] Looking at the evidence in its totality, Ms. Van Der Loos does accept Ms. Schmitz's offer to return Judge and this is acceptancesimpliciter in these circumstances. There is also consideration for the second agreement: return of the horse in exchange for refunding ofsome but not all monies received. This second agreement supplants the first agreement. Rescission of the former agreement is impliedbecause the two agreements cannot be simultaneously operative. See McDougall v.

MacKay, (SCC), [1922] 64 S.C.R.1. [48] Under the second agreement, Ms. Van Der Loos got the horse back but she refused to provide any funds to Ms. Schmitz. She is,therefore, in breach. [49] I appreciate there were subsequent communications wherein Ms. Schmitz discussed buying Judge for the balance owing underthe original agreement, but I consider those communications to be settlement negotiations or the parties' attempt to mitigate theirrespective positions.

Regardless, there certainly was no meeting of the minds and amongst many disparaging remarks in the textmessages, there was a dispute about whether a certified cheque was a suitable form of payment. No one acted on these negotiations. CONCLUSION: [50] There was no agency agreement, as alleged by Ms. Van Der Loos. There was a second agreement whereby Ms. Schmitz was toreturn Judge in exchange for receiving $13,000. Ms. Van Der Loos breached that agreement by providing no funds. Ms. Schmitz didattempt to mitigate by offering to complete the original agreement with a further payment of $15,000.

I do not view the $13,000 as anavoidable loss. COSTS AND PENALTY: [51] Although Ms. Van Der Loos' actions on March 24th, 2013, were high-handed and in breach of a second agreement, she wasattempting to retrieve her horse in circumstances where future payments by Ms. Schmitz were in question. I also note that Ms. Schmitz'spayment history under the original agreement was sporadic and she was not charged any interest while she had use of Judge. Moreover,Ms. Van Der Loos has suffered a significant loss here. Although it appears Judge was competing after he was returned, he wasultimately sold for a very low price. Ms.

Van Der Loos also spent a lot on Judge's care and she now owes $13,000 on this judgment. [52] The counterclaim was unsuccessful. It was based on a wrongfully-founded agency claim and misinterpretation of text messagesbut I cannot say there was no reasonable basis for success. Ms. Van Der Loos' position was worthy of some consideration. [53] Based on all these circumstances, I refuse to award any penalty here under Rule 20(5). In fact, each party shall bear their owncosts in this proceeding. RULING: 1. The counterclaim is dismissed. 2. Ms. Schmitz shall have judgment against Ms.

Van Der Loos for $13,000 without pre-judgment interest. 3. Each party shall bear their own costs. G.J. BROWN

Provincial Court Judge