Jackson V Michelson, 2023 ABCJ 234

In the Alberta Court of Justice Citation: Jackson V Michelson, 2023 ABCJ 234 Date: 20231106 Action number: 2201600030 Registry: Drumheller Between: Debby Jackson - and - Greg Michelson Reasons for Judgment of the Honourable Justice I.L.

Maharaj on the Defendant’s motion for Non-suit Overview [ 1 ] This is a case about a five-year-old quarter horse mare, registered as MM Lena Chex (registration number 5745647), who goes by the barn name “Ruby” (which is the name I shall use to refer to the horse in these reasons), who was purchased by the Plaintiff, Debby Jackson, on November 27, 2021 and boarded and trained at Michelson Stables by the Defendant Greg Michelson in the months following the purchase. Tragically, on or about March 16, 2022, Ruby became injured and was euthanized on March 23, 2022.

What happened between these two dates is the subject of the litigation between Ms. Jackson and Mr. Michelson. The Non-suit Application by the Defendant [ 2 ] At the conclusion of the Plaintiff’s evidence, the Defendant made an application for the

summary dismissal of the Plaintiff’s case, also known as a non-suit application, pursuant to Rule 8.20 of the Alberta Rules of Court , which states: At the close of the plaintiff’s case, the defendant may request the Court to dismiss the action on the ground that no case has been made, without being asked to elect whether evidence will be called. [1] [ 3 ] The Alberta Court of Justice, Civil Division, does not have rules that specifically address non-suit applications.

Therefore, the authority for bringing a non-suit application in the Alberta Court of Justice flows from the application of s. 8(2) (1) of the Court of Justice Act , which states: Rules of Court 8(1) The practice and procedure of the Court shall be as provided in this Act and the regulations.

(2) Where this Act or the regulations do not provide for a specific practice or procedure of the Court that is necessary to ensure an expeditious and inexpensive resolution of a matter before the Court, the Court may

(

a) apply the Alberta Rules of Court , and (

b) modify the Alberta Rules of Court as needed. [2] [ 4 ] In his application for non-suit, the Defendant argued that the Plaintiff had not led sufficient evidence to support a prima facie case of negligence against him and, therefore, the action against him should be dismissed. [ 5 ] In response, the Plaintiff argued that her cause of action is, firstly, that the Defendant was a bailee-for-hire and owed a duty of care to her at an elevated standard of care and, secondly, that the Defendant was negligent in his care of Ruby while she was at his stables for boarding and training.

The Plaintiff argued that she has put forward evidence of the bailment relationship and, to the best of her knowledge, evidence of the alleged negligence of the Defendant. [ 6 ] The result of a successful non-suit application is that the claim against the Defendant would be dismissed on the basis that there is no evidence to support the Plaintiff’s case. The result of an unsuccessful non-suit application is that the trial will proceed with the Defendant being given the opportunity to adduce its evidence.

The Law with respect to Non-suit Applications [ 7 ] The law concerning non-suit applications is not in dispute. In the case of Dr. Adrian A. Bruen v University of Calgary (“ Bruen ”), the Alberta Court of Appeal stated, at paras 11 and 12 as follows: [3] [11] A non-suit application will be granted where the plaintiff fails to adduce some evidence on all legal or evidentiary elements which must be proven in order for the lawsuit to succeed. This Court described the test as follows in Capital [ Capital Estate Planning Corporation v.

Lynch , 2011 ABCA 224 at para 20 , 337 DLR (4th) 523] at paras 19 and 20: The definitive test on a non-suit motion is set out in Prudential Securities Credit Corp LLC v. Cobrand Foods Ltd. , 2007 ONCA 425 , 85 OR (3d)561 at para 35 : On a non-suit motion, the trial judge undertakes a limited inquiry. Two relevant principles that guide this inquiry are these. First, if a plaintiff puts forward some evidence on all elements of its claim, the judge must dismiss the motion.

Second, in assessing whether a plaintiff has made out a prima facie case, the judge must assume the evidence to be true and must assign “the most favourable meaning” to evidence capable of giving rise to competing inferences. . . . In short, a non-suit application will fail if the plaintiff has adduced some evidence on each of the essential elements of her claim. In making this assessment, the trial judge does not weigh the evidence or assess credibility. Furthermore, the trial judge must assume that the plaintiff’s evidence is true, and draw all reasonable inferences from it ... See also Inland Concrete Ltd v.

Commonwealth Insurance Compa ny, 2010 ABQB 600 at para 15 , 37 Alta LR (5 th ) 155. [12] In other words, as set out in Waap v. Alberta , 2008 ABQB 544 at para 135 , 95 Alta LR (4 th ) 167: ... the process for a judge hearing a non-suit application is to ask whether, based on the evidence presented by the plaintiffs, taken at face value and without being weighed, there is enough evidence for a prima facie case against the defendants.

If, on a central issue, the plaintiffs fail to present at least some evidence on which the trial judge or finder of facts could base a finding in the plaintiff’s favour, no case has been made out and the defendants are entitled to a non-suit. [ 8 ] Put another way, the obligation of the Plaintiff in a non-suit application, as set out by the Court, at para 21 of Bruen , is as follows: To successfully resist a non-suit application a plaintiff must lead some evidence on every essential element of his or her claim. The trial judge concluded that Dr.

Bruen had “failed to establish the applicable duty and standard of care” owed to him by the University ... [4] [ 9 ] The law as set out above is not in dispute. I will rely upon the foregoing principles in coming to my decision in this matter. The Law with respect to Bailment [ 10 ] The law concerning bailment is also settled law. In the case of Manchulenko v Aaastro Transmission Ltd ., a decision of the Provincial Court of Alberta (as it then was), the Court states, at para 28: The law of bailment is quite clear.

Without more, a service-provider such as the Defendant which performs work on a vehicle for a fee is considered to be a bailee for hire (reward) of the vehicle for as long as the vehicle upon which the work to be done is in the service- provider’s possession Palmer on Bailment (2 nd Edition, Agincourt: Carswell 1991) at p. 893 and Coggs v.

Bernard (1703) 92 ER 107, at page 109 ... [5] [ 11 ] Although many of the cases on bailment address carriage of goods and work on motor vehicles, there is some law as to whether the law of bailment can apply to animals, in particular, horses, while in the care of boarding stables and trainers. This law is particularly relevant in Alberta where the boarding and training of horses is a significant industry.

[12] In the case of Chief Construction Company v McDonald, Alberta Court of Queen’s Bench (as it then was), the Court states,at para 32: [6] [32] The Ontario Court of Appeal carefully reviewed the law on the point in McCreary v. Thierrien Const. Co., (ONCA), [1951] O.R. 735, [1952] 1 D.L.R. 153, and I quote from the judgment of Laidlaw J.A. at p. 156: In an action for damages for the non-return of the horse, it was held that the onus was upon the defendant to excuse the default. Thedecision rests on the authoritative statement found in the headnote to Phills v. New Claridge’s Hotel Ltd. (1905), 22 T. L.

R. 49, that“where goods are given into the sole custody of a person and accepted by him as bailee, and they are lost while in his custody, the onuslies upon him to show circumstances negativing negligence on his part”. [13] In that case, the law of bailment, particularly as it relates to the care of horses, was addressed.

It is relevant to this applicationinsofar as it addresses the law of bailment in the case where the subject of the bailment was a horse. [14] In reviewing the law on this matter, I came upon an additional case addressing the question of bailment as it pertains to theboarding and training of horses, in particular. In Burns v Sayers, the Court states, at paras 7 to 9: [7] Exhibit 2, the Boarding and Training Contract makes Ara-Mor Stables a Bailee. Ms.

Burns and Miss Groot were bailees for rewardbecause they received money for taking the horse. [8] As bailees for reward they had a contractual obligation to train “Duchess” and to stable or board “Duchess.” They were responsible todo both things and they were liable to the owners who are called the “Bailor”, to do both things without negligence. [9] Where there is a Bailment there may be a legal action in either Contract or Torte (sic) or both. In this case the bailee, Ara-MorStables, makes its claim in contract. The Bailor who owned “Duchess” had counterclaimed both in Torte and in Contract.

The Sayersclaim the operators of the stable were grossly negligent because “Duchess” died.[7] [15] The law of bailment is settled and I will rely upon the foregoing principles in reaching my decision in this matter. Position of the Plaintiff Allegations [16] The Plaintiff was looking for a horse to purchase and located Ruby through an advertisement for sale. Ruby was boarded atthe Defendant’s stable for marketing and training.

After purchasing Ruby, she entered into a contract with the Defendant for thecontinued board and training of Ruby, at a weekly rate, for a period of not less than eight weeks. [17] She alleged that by placing her horse in the possession or custody of the Defendant, with the expectation and agreement thathe would provide care and training for Ruby for a specified fee, the relationship of bailor and bailee was created. [18] In addition, she argued that, as a result of the bailment, the Defendant’s standard of care was “higher” than normal and that hefailed in his duty of care to her and to Ruby by being negligent in his care of Ruby. [19] While the Plaintiff has made her submissions with respect to the standard of care owed to a bailor in a case of bailment, at thispoint, I am neither accepting nor denying her elucidation of the law in this regard.

Further submissions may be required to establish thelegal standard of care as between a bailor and a bailee-for-hire in the trial proper. [20] What is clear is that the onus of proof switches to the Defendant in a case of bailment wherein the Defendant is required toprove that he was not negligent in the care of the goods bailed into his possession or custody. [21] The Plaintiff further alleged that the incident on or about March 16, 2022 resulted in Ruby being injured and ultimatelyeuthanized on March 23, 2022.

Testimony of Debby Jackson [22] The application before me is the Defendant’s application for non-suit. [23] The relevant question is whether the Plaintiff provided sufficient evidence touching upon each essential element of the causeof action of bailment such that a prima facie case is made out against the Defendant, based solely on her testimony and submitteddocumentary evidence, without weighing the said testimony and evidence or making any findings of credibility.

In so doing, I amrequired to “assume that the Plaintiff’s evidence is true, and draw all reasonable inferences from it”.[8] [24] By way of background, the Plaintiff testified that she was looking for a horse to ride in amateur reining competitions. Shefound Ruby through an advertisement and made arrangements to view her and ride her at the Defendant’s training facility. [25] She testified that, on November 27, 2021, after a trial ride, the Plaintiff was satisfied that she liked Ruby and purchased herfrom her owner.

The Defendant was not the owner of Ruby at the time that she was purchased by the Plaintiff. [26] She further testified that, the same day, in her capacity as the owner of Ruby, she signed a contract with the Defendant for thetraining and board of Ruby for a further period of at least eight weeks at the Defendant’s boarding and training facility. The contract wastendered as Exhibit 1, Tab 12 (the “Contract”) by consent. That Contract memorialized the agreement between the Plaintiff, as owner of

Ruby, and the Defendant, as trainer and stable owner, to transfer the possession or custody of Ruby from the Plaintiff to the Defendant for the purpose of boarding and training Ruby, for a stipulated weekly fee. Terms of payment, along with other matters, were stated in the Contract. [ 27 ] The authenticity of the Contract is not in dispute. A plain reading of the Contract is that it was entered into by the Plaintiff and the Defendant, that a weekly fee was established for training and board of Ruby.

The testimony of the Plaintiff was that she made bi- weekly payments pursuant to the Contract and that the Defendant appeared to be caring for and training Ruby as set out in the Contract, arguably with the exception of the incident wherein Ruby was injured. Analysis [ 28 ] The Defendant argued that the Plaintiff had not led sufficient evidence of each of the elements of negligence to support a prima facie case of negligence against him.

While this may or may not be the case, the matter to be decided is not whether the Plaintiff has led sufficient evidence of negligence as a cause of action but whether she has led sufficient evidence to support a claim of bailment against the Defendant. [ 29 ] In her submissions to this Court, the Plaintiff clearly articulated that her cause of action was in bailment.

She repeatedly testified that, in her opinion, the Defendant was a “bailee-for-hire”. [ 30 ] As is clear in the law of bailment, the question of negligence is a matter to be considered after the bailor-bailee relationship is determined to exist, based on the evidence, and the onus then shifts to the Defendant to establish his lack of negligence rather than resting on the Plaintiff to prove the Defendant’s negligence directly. [ 31 ] Therefore, the first determination that I am required to make is whether the Plaintiff has led sufficient evidence of each of the essential components of a cause of action in bailment to satisfy me that there is a prima facie case against the Defendant, in the absence of the evidence of the Defendant, and without weighing the evidence or assessing credibility, while allowing for the assumption that the Plaintiff’s testimony is true and that all reasonable inferences may be drawn. [ 32 ] In reviewing the law of bailment, I am satisfied that there is little dispute as to the elements of bailment; those elements are that the goods must be placed into the possession or custody of the bailee, for a fee, and that the bailee agrees to do something with the goods while those goods are in his possession or custody.

That activity could be transportation, storage, alteration, or performing a service on the goods, depending on the nature of the goods bailed into his care and the contract between the bailor and the bailee. [ 33 ] It is not necessary for me to determine whether the case is a strong case or a weak case, or whether there are valid defences that may be available to the Defendant to defeat the Plaintiff’s case against him.

It is not proper for me to weigh the evidence or make findings of credibility at this point in time. [ 34 ] My determination on the non-suit application rests solely upon whether the prima facie case of bailment has been made out by the Plaintiff. [ 35 ] In the case at Bar, the essential elements that are required to establish the relationship of bailor/bailee are as follows:

a) Was there an agreement for the subject of the bailment, in this case the horse named Ruby, to be placed into the possession or custody of the bailee, the Defendant?

b) Was possession or custody of Ruby delivered to the Defendant?

c) Did the bailee agree to do work or perform services with respect to Ruby, being caring for her (boarding) and training her?

d) Was there an agreement that the bailee would be paid a specified amount of compensation to take possession or custody of, care for, and train Ruby?

e) Did the bailee receive some or all of the agreed-upon compensation? [ 36 ] If the Plaintiff has tendered sufficient evidence that establishes a prima facie case, then the Defendant’s application for non- suit must fail. [ 37 ] The threshold for establishing a prima facie case in this matter is relatively low. The law requires there to be “some evidence”, not conclusive or indisputable evidence of the essential elements of the cause of action.

This concept is further emphasized by the admonition in the law that the trial judge is to “assume that the Plaintiff’s evidence is true and draw all reasonable inferences from it”. [9] [ 38 ] I am not to make findings of fact with respect to the outcome of the trial. My task is to determine whether the Plaintiff has led sufficient evidence of the essential elements of the cause of action to establish a prima facie case against the Defendant.

Doing so does not preclude the Defendant from tendering contradictory evidence or raising proper defences to the allegations against him. [ 39 ] As a result of my review of the Plaintiff’s oral and documentary testimony, I have come to the following conclusions, for the purpose of determining the outcome of the non-suit application. [ 40 ] On that basis, I have concluded that the Plaintiff has led some evidence the following:

a) There was an agreement for Ruby to be placed into the possession or custody and care of the Defendant. That agreement memorialized in the Contract, which has been tendered by consent and with respect to which authenticity is not at issue. I rely upon the

plain wording of the Contract to conclude that there is some evidence of an agreement whereby Ruby was placed into the possession or custody of the Defendant. The Plaintiff has also led some evidence that she purchased Ruby and then placed her at the Defendant’s stables to be boarded and trained in accordance with the Contract.

b) Possession or custody of Ruby was delivered to the Defendant and he accepted possession or custody of Ruby after the Plaintiff acquired ownership of Ruby and placed her at the Defendant’s stables to be boarded and trained as of November 27, 2021. I accept that the Plaintiff has led some evidence that Ruby was already at the Defendant’s stable for training and marketing and remained there after the Plaintiff purchased her until she was transported to the veterinary clinic where she was ultimately euthanized.

c) There was an agreement that the Defendant would be paid to board and train Ruby. Among other things, the Defendant took care of Ruby and trained her; he acquired special feed for her to supplement her weight; he rode her in training; and he ensured that she was tended by a veterinarian when she injured herself on or about March 16, 2022. I accept that the Plaintiff has led some evidence in this regard. The Plaintiff has testified that she does not take issue with the general care of Ruby, with the specific exception of the day when she was injured and, potentially, thereafter.

While the Plaintiff was not present to see that the Defendant was caring for Ruby, she testified that she visited the Defendant’s stables in February 2022 and took 3 days of riding lessons from the Defendant on Ruby. She was in a position at that time to ascertain whether the Defendant was complying with the Contract as it pertained to board and training of Ruby.

d) The Contract stated, on its face, that the fees for training and boarding Ruby were $290.00 per week plus GST. Additional fees were to apply to supplementary feeding, trailering, showing, veterinary costs, and farrier costs. I accept that the Plaintiff has led some evidence in this regard.

e) The Defendant has not disputed in his pleadings that he received some compensation for boarding and training Ruby. The Plaintiff tendered evidence of bi-weekly payments that she made pursuant to the provisions of the Contract. Defendant received compensation for caring for and training Ruby. The documentation tendered by the Plaintiff that she had paid for some, if not all, of the days of training and board between November 27, 2021 and March 23, 2022, when Ruby was ultimately euthanized, has been led by the Plaintiff in support of her case.

There may be a discrepancy of a small amount but there is clear evidence that payments were made by the Plaintiff, in the amounts specified in the Contract, for a sufficient period of time to establish that the Defendant received compensation pursuant to the Contract. [ 41 ] The law with respect to non-suit applications does not require the evidence tendered by the Plaintiff to be conclusive but the evidence must touch upon the essential elements and establish a sufficient basis for a prima facie case against the Defendant if believed, in the absence of weighing of the evidence and the assessment of credibility of the Plaintiff’s witnesses.

Conclusion [ 42 ] I find that there is sufficient evidence tendered by the Plaintiff, if believed and uncontradicted, to establish the essential elements of the cause of action of bailment and to establish a prima facie case against the Defendant. In coming to this conclusion, I have not weighed the evidence or assessed the Plaintiff’s credibility.

I have assumed that the evidence led by the Plaintiff is true and have drawn reasonable inferences with respect to the evidence that I have heard. [ 43 ] Having considered the oral and documentary evidence tendered by the Plaintiff, the submissions from the Plaintiff on her own behalf, the submissions of counsel for the Defendant, and having conducted some independent research on the law, I have concluded that the Defendant’s non-suit application shall be denied and the trial will proceed. [ 44 ] Costs with respect to this application will be addressed at the conclusion of the trial of this matter.

Next Steps [ 45 ] I emphasize that that my determination of the non-suit application is that the Plaintiff has met the threshold of a prima facie case in bailment, if believed and uncontradicted, only but that it is not conclusive of this action. That is to say that the Defendant still has the opportunity to provide a full defence to the action against him and to call whatever evidence he feels supports his position. [ 46 ] The next step will be for the parties to

schedule a continuation of the trial so that the Defendant can tender its evidence. I.L. Maharaj A Justice of the Alberta Court of Justice

Appearances: Debby Jackson for the Plaintiff Andrew MacGregor for the Defendant