Gault v Cowden, 2023 ABKB 178

Court of King’s Bench of Alberta Citation: Gault v Cowden, 2023 ABKB 178 Date: 20230328 Docket: 2303 01386 Registry: Edmonton Between: Lindsay Gault Appellant - and - Shannon Cowden; Tracy Cowden A.K.A. Tracy Shindell; Robert Cowden; and Shannon Cowden, Tracy Cowden A.K.A. Tracy Shindell, and Robert Cowden Operating Under the Firm Name of Colioco Doodles Respondents _______________________________________________________ Memorandum of Decision of the Honourable Justice N.J. Whitling _______________________________________________________ I. Introduction

[ 1 ] This is an application to replevy a goldendoodle named Luna. In support of this application, the Applicant argues that Luna was repossessed by the Respondent, Shannon Cowden, in a bad faith exercise of contractual discretion. [ 2 ] I find that this replevin application must be denied. The contract between the parties confirms that the Respondent retains title to Luna, and that she enjoys a broad discretion to repossess Luna if she “feels at any time” that such repossession is necessary to ensure Luna’s well being.

The Applicant has not raised “substantial grounds” to believe that the Respondent exercised her discretion in bad faith. II. Facts [ 3 ] On August 11, 2021, the Applicant entered into a written “Guardian Dog Contract” with the Respondent. Pursuant to that contract, the Applicant acquired possession of Luna. The Applicant resides with her mother and half-time with her daughter. The Applicant’s family had Luna in their care for approximately 18 months before Luna was “repossessed” by the Respondent.

They consider Luna to be a member of their family. [ 4 ] The Respondent carries on business under the name “ColioCo Doodles” as a sole proprietorship. Her business is the breeding and selling of doodles. She has been recognized as one of Alberta’s top doodle breeders. She has invested approximately $8,000 in Luna, and she expects to earn some $120,000 to $180,000 from Luna’s puppies. [ 5 ] The Guardian Dog Contract names the Applicant as Luna’s “Guardian” and jointly names ColioCo and the Respondent as the “Breeder”.

In brief overview, the contract provides that Luna will reside with the Guardian and her family, but that ownership of Luna shall remain initially with the Breeder. The contract then anticipates that Luna will be bred in accordance with the instructions of a Reproductive Specialist to produce 4-5 litters of puppies, which puppies will be the property of the Breeder. The contract also anticipates that after the final litter, ownership of Luna will pass to the Guardian at no cost. A central theme and purpose of the Guardian Dog Contract is to ensure that Luna is well cared for.

This mutual concern is reflected, for example, at

Article 5.0 which reads: 5.0 The dog will reside with the Guardian and her family with the following considerations: The dog will be kept as a family companion and treated with love and care. She will live inside the home and be treated as a part of the family. The dog will not be kennelled for extended periods of time. Dogs raised or kept in kennels often do not get the proper socialization, stimulation or love and care that is need for them to become well balanced and happy animals. The guardian agrees to keep the dog in a healthy condition and weight, providing adequate exercise and nutrition.

The Guardian must teach the dog basic commands (sit, down, come, stay). Expenses covered by the Guardian include but are not limited to: high quality food as agreed upon by the Breeder and the Guardian, grooming, toys, dog supplies, supplies for daily care not pertaining to reproductive health, housing, training expenses and emergency vet bills that are incurred by the Guardian. The Breeder assumes no financial liability for such expenses. The Guardian is obligated to inform the Breeder if she has to leave town, take holidays or if a family emergency arises requiring them to leave the fog.

The Guardian is required to bring the dog to the Breeder’s home for care. The dog will always be cared for at the Breeder’s home in absence of the Guardian Family, unless otherwise authorized by the Breeder. The Guardian must communicate and cooperate with the Breeder at all times. Failure to comply will result in termination of contract and the dog will be returned to the Breeder.

The Breeder retains legal ownership and breeding rights to the dog until such time as the contract is fulfilled. [ 6 ] Significantly for the purposes of the present application, the contract confers a broad discretion upon the Breeder to take Luna back “[i]f the Breeder feels at any time that the Guardian home is not fulfilling their duties of being a sufficient guardian to the dog”. This discretion is conferred by

Article 7.3: 7.3 FAILURE TO MEET THE TERMS OF THE AGREEMENT Should the Guardian fail to meet the terms of this agreement by refusing to make dog available to the Breeder for obtaining health testing, veterinary care, breeding, whelping or any other reasons; or failing to communicate with the Breeder in a timely manner; or failing to keep the dog safe, healthy or in a nurturing environment or neglected or abusive in any way shape or form; failing to advise Breeder that the dog is in heat, letting the dog breed with an unauthorized male; is uncooperative in any way the dog will be returned to the custody of the Breeder immediately.

Failure to comply with repossession of the dog will result in legal action. If the Breeder feels at any time that the Guardian home is not fulfilling their duties of being a sufficient guardian to the dog, she will be removed and taken back into the Breeder’s care . [Emphasis added] [ 7 ] At the time they entered into the Guardian Dog Contract, the parties were on friendly terms. Things began to go badly, however, when the Applicant decided to euthanize Yoshi, another goldendoodle that had been entrusted to her care by the Respondent.

Yoshi had been acquired by the Applicant pursuant to a “ColioCo Doodles Sales Contract and Non-Breeding Agreement” (the “Yoshi Contract”) between the parties dated January 24, 2021. The Yoshi Contract contained the following provision of significance to the present dispute: PUPPY RESALE/PUPPY SURRENDER/PUPPY REHOMING Buyer agrees the puppy is not being purchased for resale, will never be sold to a pet shop or Puppy Mill, and will never be used for Scientific Research. Buyer agrees to return dog to Breeder or allow Breeder to rehome dog should it be necessary.

Breeder should be the first contact if Buyer can no longer keep the dog. Breeder offers a lifetime rehome policy. If you rehome the dog without Breeder’s permission, the Health Warranty is void. Breeder never wants one of ColioCo Doodles dogs to end up in a shelter, rescue or to be bounced from home to home. Breeder will take the dog back and provide screening to locate a new forever home. Breeder will be refunded the amount Seller is able to re-sell the dog for less any costs incurred for the dog.

[ 8 ] On the evening of December 29, 2022, Yoshi began acting aggressively. The Applicant states in her Affidavit that Yoshi bit the Applicant’s mother on the finger, “started barking and growling aggressively” at the Applicant, bit Luna’s leg, and “tried to attack” the Applicant and her mother. Alarmed by this behaviour, the Applicant contacted the Respondent by phone and text message.

The text messages are in evidence and speak for themselves, but what was said between the parties during the phone calls is in dispute. [ 9 ] At paragraph 15 of her Affidavit, the Applicant states that upon learning of Yoshi’s behaviour, the Respondent told her to euthanize Yoshi immediately: 15. Following these violent outbursts [by Yoshi], in tears I called Ms. Cowden.

Amongst other things, she told me that Yoshi needed to be euthanized immediately. [ 10 ] In response, the Respondent states in her own Affidavit that she actually expected the Applicant to return Yoshi to the Respondent, and that she did not authorize the Applicant to euthanize him: 42. At paragraph 15 of the Applicant’s Affidavit, she alleges that I told her during this call that Yoshi needed to be euthanized immediately. This is categorically untrue. [ 11 ] The Applicant re-asserts her original position in her Reply Affidavit: 21. There is no truth – at all – to Ms.

Cowden’s statement in her affidavit that I unilaterally decided to have Yoshi euthanized. As I stated in my Affidavit filed January 23, 2023, at paragraph 15, Ms. Cowden explicitly told me over the telephone on the evening of December 29, 2022 that Yoshi needed to be euthanized. [ 12 ] Whether authorized by the Respondent or not, the Applicant had Yoshi euthanized that evening. The Applicant reported the event to the Respondent in a brief text message: “He’s gone.” [ 13 ] In the aftermath of Yoshi’s death, the parties discussed how the news would be communicated to the online doodle community.

The Respondent was concerned that her business interests would be harmed if that community learned that she had supplied the Applicant with an overly aggressive doodle. The Respondent therefore proposed by text message that the Applicant post false accounts of the incident on social media: Say he tragically ran out the front door and got hit by a car Say there was a tragic accident involving Yoshi. Yiu [ sic ] are too broken up to discuss it at this time [ 14 ] It does not appear that the Applicant agreed to post any of the versions of the event proposed by the Respondent.

From that point on, their relationship deteriorated. [ 15 ] On January 6, 2023, the Applicant texted the Respondent about the fact that Luna had vomited twice that morning. Luna had, by that point, become pregnant in accordance with the procedures specified in the Guardian Dog Contract. Later that day, the Respondent advised the Applicant that Luna needed to be seen on an urgent basis at a certain veterinary clinic. Pursuant to that request, the Applicant brought Luna to the clinic. [ 16 ] There followed an ugly incident at the veterinary clinic.

The Respondent took Luna into her own possession and excluded the Applicant from the examination room. The Applicant called the police. At least three officers attended the scene. After anxious discussion with the parties and consultation with their supervisor, the police sided with the Respondent since Luna’s microchip was registered in the Respondent’s name. The Respondent then left the premises with Luna. The Applicant states that she “did not even get to say goodbye”. III.

Legal Principles [ 17 ] In Alberta, applications for replevin are governed by rules 6.48 to 6.53 of the Alberta Rules of Court , AR 124/2010 . The basic requirements for such an application are set out in r. 6.49 : 6.49

(1) A party may apply to the Court for a replevin order without serving notice of the application on any other party unless the Court otherwise orders.

(2) The application for a replevin order must include in the application an undertaking (

a) to conclude the action for recovery of the personal property without delay, (

b) to return the personal property to the respondent if ordered to do so, and (

c) to pay damages, costs and expenses sustained by the respondent as a result of the replevin order if the applicant is not successful in the action for recovery of the personal property and the Court so orders.

(3) The application for a replevin order must be supported by an affidavit that (

a) sets out the facts respecting the wrongful taking or detention of the personal property, (

b) contains a clear and specific description of the personal property and its value, and (

c) describes the applicant’s ownership or entitlement to lawful possession of the personal property.

[ 18 ] The traditional test for replevin is contained in Ryder Truck Rental Ltd. v Walker , [1960] OWN 70 (HC Master) , aff’d [1960] OWN 114 (HC) , where the Senior Master wrote: The first matter for consideration is the scope of the enquiry under Rules 359-360.

Having regard to the nature of the relief obtainable in a replevin action, which allows a preliminary taking of possession before trial, in my view it is not contemplated that the court at this stage should embark upon a trial of the issues raised but only require the plaintiff to show the facts upon which it bases its claim, and if these facts afford substantial grounds for the plaintiff’s claim, then the order should be granted. This is consistent with Gilchrist v.

Conger (1854), 11 U.C.Q.B. 197, where it was held on an application to set aside a praecipe order that the question of whether the defendant did in fact either take or detain the goods must be left to be ascertained upon the trial as that involved the merits of the case.

Therefore, in my opinion the enquiry is limited to determining whether there are substantial grounds for the plaintiff’s allegations , which if proved, bring the case within the statute. [Emphasis added] [ 19 ] The above principles from Ryder Truck Rental have been adopted in several Alberta cases, such as Dresser Canada Inc. v Vos (1984), 53 AR 226 (QB Master) , Reddick v Barry’s Place Collision Repairs Ltd. , [1984] AJ No 448 (QB Master) , and Peters v Skyline Motor Co. , [1988] AJ No 48 (QB Master) . [ 20 ] The “substantial grounds” standard in Ryder Truck Rental was examined by Molloy J. in the following passage of Clark Door of Canada Ltd. v Inline Fiberglass Ltd. , [1996] OJ No 238 (SCJ) : 23 Clearly, the test for whether a replevin order should be made is not going to be exactly the same as the test for any type of injunction.

However, the term “substantial grounds” is somewhat vague and it helps, in my opinion, to put it in a contextual framework. As I have said earlier, it is obvious that the substantial grounds test is a lesser standard than the test for

summary judgment. Similarly, I consider the Mareva injunction “strong prima facie case” requirement to be too high a standard for replevin orders which are much less draconian and far reaching. On the other hand, the “substantial issue” test (not frivolous or vexatious) applied generally in prohibitive injunction cases is, in my view, too low a standard for a replevin order which requires one party to actually deliver up possession of property to the other.

It must be remembered that before obtaining a prohibitive injunction, a party must satisfy other requirements not imposed on applicants for replevin (eg. the requirement of demonstrating irreparable harm which damages cannot remedy). As the replevin order is more in the nature of a mandatory injunction and is a greater interference with responding parties' rights than a prohibitive injunction, a stronger standard is required.

Accordingly, I am of the view that the “substantial grounds” test for interim recovery of property requires a high degree of assurance that the plaintiff will be successful at trial . 24 Cases in which there is clear documentation supporting the plaintiff are more likely to meet the substantial grounds test. Cases in which straight issues of credibility will determine the action are less likely to meet the test. However, that is not to say that the presence of a credibility issue is fatal to the plaintiff's success or that a solid “paper trail” is unrebuttable by a defendant.

Most cases will fall somewhere in the middle with some but not perfect, documentation and some issues of credibility. The case before me falls into that category. [Emphasis added] [ 21 ] Given the similarity of the applicable rules in Ontario and Alberta, I adopt the above principles from Ryder Truck Rental and Clark Door for the purposes of the present application. [ 22 ] The issues between the parties in the present case turn upon the duty to exercise contractual discretion in good faith recognized in Bhasin v Hrynew , 2014 SCC 71 .

That duty was considered in Wastech Services Ltd. v Greater Vancouver Sewerage and Drainage District , 2021 SCC 7 , where Kasirer J. wrote: 88 In sum, then, the duty to exercise discretion in good faith will be breached where the exercise of discretion is unreasonable, in the sense that it is unconnected to the purposes for which the discretion was granted. This will notably be the case where the exercise of discretion is capricious or arbitrary in light of those purposes because that exercise has fallen outside the range of behaviour contemplated by the parties.

The fact that the exercise substantially nullifies or eviscerates the fundamental contractual benefit may be relevant but is not a necessary pre-requisite to establishing a breach. IV.

The Parties’ Positions [ 23 ] In their affidavits, the parties advance arguments respecting a number of alleged breaches of the Guardian Dog Contract by the Applicant, such as by failing to provide a safe and nurturing environment for Luna, by registering Luna in her own name, by allowing Yoshi to “tie” (engage in sexual intercourse) with Luna on several occasions, and by allowing Luna and Yoshi to ingest socks and other household items. I do not find it necessary to sort through these ancillary arguments.

The main dispute between the parties relates to the euthanization of Yoshi. [ 24 ] In relation to that issue, the Applicant argues that this step was necessary for the safety of all concerned, and that it was verbally authorized by the Respondent.

The Applicant argues that the Respondent exercised her contractual discretion to repossess Luna in bad faith since the true motivation for that decision was a personal animus towards the Applicant which arose from the Applicant’s refusal to post false statements about Yoshi’s death on social media, and to generally conceal Yoshi’s aggressive nature from the online doodle community. [ 25 ] The Respondent argues in response that she repossessed Luna on the basis of her belief that the Applicant’s decision to euthanize Yoshi was morally wrong and a breach of the Applicant’s obligations under the Yoshi Contract, notably the Applicant’s duty to allow the Respondent to rehome Yoshi.

Given that the Applicant had euthanized one of her valuable goldendoodles, the Respondent had legitimate concerns for Luna’s well-being, and Luna was repossessed for that valid reason.

V. Conclusions [ 26 ] Having considered all of the evidence, I find that the Applicant has failed to raise a “high degree of assurance” that she will be successful at the merits hearing of this dispute. The Guardian Dog Contract confers a broad discretion upon the Respondent to repossess Luna “[i]f the Breeder feels at any time that the Guardian home is not fulfilling their duties of being a sufficient guardian to the dog”. It is apparent from the overall language of the contract that the purpose of this discretion is to ensure Luna’s well-being.

The fact that Yoshi, another of the Respondent’s valuable goldendoodles, was euthanized, provides at least some reasonable basis for the Respondent to conclude that Luna was not in an optimal living environment in the Applicant’s home. [ 27 ] The Applicant has led evidence capable of supporting the conclusion that the Respondent actually decided to repossess Luna for arbitrary or capricious reasons, such as a personal resentment for the Applicant, or to conceal certain facts from the online doodle community.

But the determination of these allegations requires a credibility assessment that cannot be conducted in the context of the present application. The fact that the Applicant’s claim hinges upon this credibility issue is a factor that weighs against her position on this application to replevy Luna. [ 28 ] At the end of the day, I conclude that the Respondent is at least as likely to succeed on the merits of this dispute as the Applicant.

This is not a case where the Applicant has brought forward “substantial grounds” to believe that she is entitled to immediate possession of Luna. [ 29 ] The Applicant’s application to replevy Luna is denied. Heard on the 23 rd day of March, 2023. Dated at the City of Edmonton, Alberta this 28 th day of March, 2023. N.J. Whitling J.C.K.B.A. Appearances: Pierre Asselin Asselin Law for the Applicant Alex Darling Miles Davison LLP for the Respondents