2023 QCCQ 10235, 2023 QCCQ 10235

Assaad c. Betty's Tiny Yorkies Inc. (Boutique Betty's Teacup Puppies) 2023 QCCQ 10235 COURT OF QUEBEC «Small Claims Division» CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Civil Division No: 500-32-713333-203 DATE: October 11, 2023 ______________________________________________________________________ PRESIDED BY THE HONOURABLE GILLES LAREAU, J.C.Q. ______________________________________________________________________ AMY ASSAAD Plaintiff v. BETTY’S TINY YORKIES INC. (a.k.a.

Boutique Betty’s Teacup Puppies) Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ APPLICATION FOR REVOCATION [ 1 ] The initial originating application stated that Betty’s Tiny Yorkies Inc. (a.k.a. Boutique Betty’s Teacup Puppies) (BTCP)’s address was 56 chemin des Anglais, Mascouche, an error that meant that the defendant could not be notified of the application. [ 2 ] On January 4, 2021, Ms.

ASSAAD corrected the address to read [...], Mascouche, and informed the court office of the Court of Québec. [ 3 ] On March 31, 2021, Ms. ASSAAD and BTCP were sent a notice of hearing. [ 4 ] On May 19, 2021, the case proceeded by default and judgment was rendered by the special clerk, Mtre Alexandra Cartier, on June 1, 2021. [ 5 ] On June 26, 2021, the court office was informed that the mail sent to BTCP with the notice of hearing had been returned. [ 6 ] BTCP was notified of the judgment on June 25, 2021. It filed a first application for revocation on July 5, 2021.

That application was received on August 3, 2021, and execution of the judgment was stayed. [ 7 ] On December 9, 2021, the court office of the Court of Québec convened the parties to a new hearing, specifically on the application for revocation. The notice of hearing to BTCP was again sent to the wrong address. [ 8 ] BTCP missed the hearing on the application for revocation because it had not been duly convened.

Given the lack of evidence in support of the application for revocation, it was dismissed on February 14, 2022. [ 9 ] On April 12, 2022, the Court office notified BTCP of the judgment rendered on February 14, 2022, this time at the right address. [ 10 ] On April 13, 2022, BTCP filed a second application for revocation. [ 11 ] This application was received by Couture J., who again stayed execution of the judgment. [ 12 ] On the face of the Court record, BTCP was never duly convened to the hearing on both the merits and the application for revocation. [ 13 ] The right to make full answer and defence is a fundamental right that flows from the principles of natural justice.

It necessarily implies that the defendant be duly convened to the hearing. That did not happen here. [ 14 ] The Court adds that the grounds of defence raised by BTCP are serious and warrant the attention and consideration of the Court. [ 15 ] The judgment rendered on June 1, 2021, by Mtre Alexandra Cartier is therefore revoked and the parties restored to their former state. [ 16 ] Given the nature of the case and the principle of proportionality, in accordance with

article 348 of the Code of Civil Procedure ( C.C.P. ), [1] the Court decided to also proceed on the merits.

THE CLAIM [ 17 ] The plaintiff Amy Assaad (Ms. ASSAAD) claims $10,113.48 from the defendant BTCP in reduction of the purchase price and damages after she bought a Teacup Maltipoo puppy who, as an adult, weighs more than the maximum weight allegedly represented by BTCP. She also claims for a microchip that was supposed to be supplied but allegedly was not. [ 18 ] The claim is broken down as follows: - Reduction of the purchase price: $5,000 - Trouble, stress and inconvenience: $3,000 - Punitive damages: $2,000 - Bailiff’s fees: $ 113.48 - TOTAL: $10,113.48 [ 19 ] BTCP contests the application.

It argues that it made no misrepresentation, alleges that Ms. ASSAAD did nothing to mitigate her damages, and that her claim is unfounded and grossly exaggerated. BACKGROUND [ 20 ] On or about June 10, 2020, Ms. ASSAAD bought a Teacup Maltipoo puppy from BTCP for $5,350. She took possession of the puppy on July 1, 2020. [ 21 ] The next day, on July 2, 2020, Ms. ASSAAD sent the following message to BTCP: “ I went to see a vet and I also had a (sic) two trainers for 3 hours. They all said you are a scam. I paid top dollar for a teacup, and she is far from that.

Either we come to an agreement, or I will be taking legal action within the next 48 hours, and we will escalate this to the highest possible degree and will expose your company for fraudulent misrepresentation ” [2] . [ 22 ] BTCP was astounded. She repeated that the puppy was a Teacup Maltipoo and added: “I am not playing no games with you Amy. You don’t like the dog. Give it Back! I’ll find a loving home and grateful family or mommy and refund your money” . [3] [ 23 ] Ms. ASSAAD refused to cancel the sale and receive a refund of the purchase price.

She filed her originating application on October 27, 2020. [ 24 ] The puppy was examined by a veterinarian on July 2, 2020. At the time, he was 3 months old and weighed 1.25 kg/2.76 lbs. He was examined again on September 3, 2020, when he was 5 months old and weighed 2.2 kg/4.85 lbs. [ 25 ] Ms. ASSAAD submits that BTCP told her that the puppy would not weigh more than three pounds. On the date of the hearing, she said that he weighed 8 pounds.

She added that the animal’s weight was an essential consideration for her purchase, without which she would never have bought this puppy. [ 26 ] The heart of the claim is therefore to sanction what Ms. ASSAAD describes as a misrepresentation, even fraud, about the type of puppy sold. Because the puppy is in perfect health, her complaint concerns only his weight and the fact that there was no microchip. [ 27 ] Ms. ASSAAD referred to a page on the BTCP website where it is written: “ What exactly is a teacup puppy? It is merely a term we use to describe the size of a dog that is smaller than average.

Most of our puppies range from 1.5 pounds to 3 pounds ”. Ms. ASSAAD considers this the representation on which she relied to do business with BTCP. [ 28 ] BTCP replied that it is impossible to predict a puppy’s exact weight as an adult and as such, any representations on the puppy’s weight were merely an estimate based on the puppy’s family history. It added that an adult dog’s weight may depend on several factors, including how the puppy is fed. [ 29 ] As for the microchip, BTCP states that it was attached to the puppy’s cage because it was too young to insert the microchip under its skin.

ANALYSIS [ 30 ] This case raises the following issues: - Did BTCP make misrepresentations to Ms. ASSAAD about the type of puppy and its weight? - Did BTCP supply a microchip with the puppy? - Did Ms. ASSAAD mitigate her damages? THE PUPPY’S WEIGHT [ 31 ] Ms. ASSAAD submits that BTCP told her that the adult puppy would not weigh over three pounds. BTCP vigorously contests this version and affirms that it only estimated the animal’s weight.

[ 32 ] Ms. ASSAAD relies heavily on a page from BTCP’s website (cited above in paragraph [27] of this judgment) to corroborate her argument. [ 33 ] Teacup Maltipoo is not a breed of dog, but a description used for very small dogs. The evidence before the Court on this type of dog’s normal adult weight comes from website excerpts introduced in evidence by BTCP.

They indicate that an adult Teacup Maltipoo can weigh between 5 and 20 pounds according to Puppies.com , 5 to 10 pounds according to thehappypuppysite.com , around 5 pounds according to puptraveller.com , 5 to 12 pounds according to labradoodlehome.com , and less than 5 pounds according to Google. [ 34 ] This weight range is consistent with the testimony of BTCP’s representative and even its 2017 website that stated: “Most of our puppies range from 1.5 pounds to 3 pounds”.

A puppy is not an adult dog and to state that a puppy can weigh 1 to 3 pounds does not mean that it cannot weigh more than 5 pounds as an adult. [ 35 ] But there is more. [ 36 ] The sale contract specifically states the following: “There is no guarantee that any puppy will be an exact weight at adult age. We do our best to give best estimates” . [4] [ 37 ] Ms. ASSAAD therefore knew perfectly well that BTCP did not guarantee the animal’s weight as an adult.

An exclusion that makes sense when you consider that an animal’s weight can be influenced by various genetic and environmental factors. [ 38 ] Even if we take the example of Google that a Teacup Maltipoo can weigh up to 5 pounds, the difference with the 7.8 pounds the animal now weighs is far from being sufficient to find that BTCP acted fraudulently and sold something other than a Teacup Maltipoo. MICROCHIP [ 39 ] The evidence on the microchip to be supplied with the puppy is contradictory. Ms.

ASSAAD claims she never received it whereas BTCP alleges that it was attached to the puppy’s cage. [ 40 ] Two elements of the documentary evidence tend to make BTCP’s version more reliable than Ms. ASSAAD’s version. The [ translation ] “animal quarantine health certificate” from Korea mentions the presence of microchip #410100012635106 (Exhibit D-5). The same is true for the inspection and vaccination certificate (Exhibit P-2), which refers to the same microchip number.

It becomes difficult to conclude that it was in BTCP’s interest not to supply the microchip already identified with the puppy. [ 41 ] BTCP therefore is not at fault, and this reason suffices to dismiss the originating application. However, the Court would like to make a few remarks on the other aspects of Ms. ASSAAD’s claim, particularly the damages claimed. [ 42 ] It is worth recalling a few principles. [ 43 ] This case involves contractual liability.

In this regard, BTCP is bound only for damages that are a direct and immediate consequence of the contractual nonperformance. [5] Moreover, the creditor of an obligation to compensate damage has the responsibility to try to minimize the damage. [6] [ 44 ] Ms. ASSAAD is claiming $3,000 for stress, trouble, and inconvenience due to living with a dog that weighs 3 pounds more than what she expected. Need the Court recall that the puppy’s health is not at issue, merely its weight. [ 45 ] Ms.

ASSAAD even said at the hearing that she had to buy a car since she could no longer take an UBER because her animal now weighs 8 pounds. [ 46 ] Aside from the fact that there is no evidence that this puppy has given Ms. ASSAAD anything other than affection and enjoyment, to find a causal connection between a puppy’s weight and the obligation to buy a car is, in the circumstances, an exercise that must clearly be rejected.

This part of the claim on its own is a serious indication of the frivolousness and unreasonableness of this application. [ 47 ] To the same effect, to claim punitive damages from BTCP after it offered to refund Ms. ASSAAD on the first day she expressed dissatisfaction with the puppy is totally abusive. [ 48 ] Ms. ASSAAD could have easily avoided this entire dispute by agreeing to cancel the sale and receive a refund. In this way, she would have contributed to minimizing her damage. She instead decided to refuse this offer in favour of bringing her dissatisfaction before the courts based on grounds doomed to fail.

FOR THESE REASONS, THE COURT: DISMISSES the application. WITH legal costs. __________________________________ GILLES LAREAU, J.C.Q. Date of hearing: June 6, 2023