Sagoo v. Murray Date:, 2016 BCPC 376

Citation: Sagoo v. Murray Date: 20161012 2016 BCPC 376 File No: S80237 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Small Claims Division BETWEEN: Sonia Sagoo and Tejpaul Singh Sagoo CLAIMANTS AND: Home at Last Dog Rescue Society and Betty Murray DEFENDANTS RULING ON APPLICATION OF THE HONOURABLE JUDGE V. CHETTIAR Counsel for the Claimants: C. Walker Counsel for the Defendants: R. Breder Place of Hearing: Surrey , B.C. Date of Hearing: September 22, 2016 Date of Judgment: October 12, 2016 INTRODUCTION

INTRODUCTION [ 1 ] The Applicants/Claimants, Sonia Sagoo and Tejpaul Singh Sagoo, seek an interlocutory order pursuant to Rule 17(18) (

a) of the Small Claims Rules , B.C. Reg. 261/93, for interim custody of the Havanese X Shih-Tzu, named Chevy, pending the outcome of their underlying claim for the permanent return to them of Chevy from the Respondent/Defendant, Betty Murray (the “Underlying Claim”). The trial of the Underlying Claim is in the process of being scheduled. Currently, Ms. Murray has custody of Chevy, but the Sagoos have court-ordered visits with Chevy. [ 2 ] The parties consented to removing Home At Last Dog Rescue Society (the “Rescue Society”) as a defendant in these proceedings.

ISSUE [ 3 ] The issue in this application is whether interim custody of Chevy should be granted to the Sagoos pending the outcome of the Underlying Claim at trial. BACKGROUND [ 4 ] The parties filed a number of affidavits. It is from these affidavits I summarize below those facts relevant to the determination of this application. [ 5 ] Ms. Sagoo bought Chevy on March 4, 2009 for about $789.00 when he was about a two-month old puppy. She cared for him until May 31, 2016 when she handed him over to Ms. Murray. [ 6 ] Ms. Murray is in her late 70’s.

She is retired and lives in a detached home with her other dog, Katie. Chevy now resides with Ms. Murray. [ 7 ] On March 3, 2015, Ms. Sagoo gave birth to her first child. A few months after the birth, Ms. Sagoo was diagnosed with post- partum depression and was on medication until about January, 2016. She began full time work in February, 2016. Within a month of Ms. Sagoo returning to work, she started to experience depression as she became overwhelmed with full-time work and caring for the baby and Chevy. [ 8 ] As a result, in March, 2016, she started exploring options to put Chevy up for adoption.

That is when she started communicating with representatives of the Rescue Society. [ 9 ] The Rescue Society is a non-profit, home-based, volunteer organization engaged in saving abandoned, neglected and/or abused homeless dogs. In this case, there is no suggestion that Chevy was abandoned, neglected or abused. The parties agree that Ms. Sagoo loved and cared for Chevy dearly. At Ms. Sagoo’s request, the Rescue Society was assisting Ms. Sagoo with Chevy’s adoption; that is, to find a suitable and caring permanent home for Chevy as Ms. Sagoo was finding it difficult to continue to care for Chevy. [ 10 ] Ms.

Sagoo describes Chevy as follows: outgoing; loving; suffers from separation anxiety; does not like to be left alone for long periods; he is house-trained, but if left alone, he will pee and poop in the house which is his way of acting out. [ 11 ] After the initial discussion between Ms. Sagoo and the Rescue Society, from March 11 to 15, 2016, Ms. Sagoo decided that she did not want to let go of Chevy. [ 12 ] Then on May 5, 2016, Ms. Sagoo contacted the Rescue Society again and indicated that she wanted to find Chevy a better home. There was extensive communication between Ms.

Sagoo and the Rescue Society before Ms. Sagoo handed over Chevy, together with his bed, toys and food, to Ms. Murray on May 31, 2016. Ms. Murray claims that she is Chevy’s owner on the basis that his adoption was complete, whereas Ms. Sagoo claims that she is still Chevy’s owner as her understanding was that she was handing over Chevy to Ms. Murray on a two-week trial basis and if the adoption did not work out for any reason Chevy would be returned to the Sagoos. Ms. Sagoo also claims that Ms. Murray was to provide Ms. Sagoo regular updates, including photographs, as to how Chevy was doing. [ 13 ] It is the

interpretation of this communication that the parties take issue with, and which could be the focus at the trial of the Underlying Claim. It is not necessary for me to delve into the details of this communication for the purposes of ruling on this application. [ 14 ] I will now turn to the analysis of the issue before me. ANALYSIS Jurisdiction: [ 15 ] A pet dog is a domestic animal, and at common law it is well established that a domestic animal is personal property ( Watson v. Hayward , 2002 BCPC 259 , and other authorities cited therein). [ 16 ] Section 3(1) (

b) of the Small Claims Act , R.S.B.C. 1996, c. 430, provides that this court has jurisdiction in a claim for recovery of personal property if the value of the personal property is equal to or less than the amount prescribed by regulation, which is currently $25,000 . [ 17 ] Rule 17(18) (

a) of the Small Claims Rules provides that Rule 10-1 of the Supreme Court Civil Rules , B.C. Reg. 168/2009 applies

to a proceeding under the Small Claims Act relating to detention, preservation and recovery of property. Rule 10-1 of the Supreme CourtCivil Rules in turn provides that the court may make an order for the detention, custody or preservation of any property that is the subjectmatter of a proceeding. [18] The subject matter of this proceeding is Chevy and Chevy’s value is well within the $25,000 monetary jurisdiction of thiscourt. Therefore, I can clearly make an order for the detention, custody or preservation of Chevy.

The Legal Test: [19] As I said earlier, the issue in this application is who should have interim custody of Chevy until his rightful owner (that is, theSagoos or Ms. Murray) is determined at trial? [20] Counsel for the parties submitted that I should consider the following factors in deciding an interlocutory application regardinga property dispute: (

a) Whether there is an issue to be tried; (

b) Whether the applicant has demonstrated a strong prima facie case; (

c) Whether irreparable harm will result not compensable by damages at common law if the interlocutory order is not granted; and (

d) Where the balance of convenience lies. These are the factors the court in the Watson case considered in dealing with an interlocutory application regarding the interim custodyof a pet dog. [21] The court in Haywood v. Carrasco, 2016 BCPC 71, also dealt with an interlocutory application regarding the interim custody ofa pet dog. The court, at paras. 18 to 20, discussed the various formulations of the legal test as follows: [18] In the Watson v.

Hayward case (supra), the court applied the following four part test to an interlocutory application respecting thedetention, preservation and recovery of property where that property was a pet dog: 1. Whether there is an issue to be tried: 2. Whether the applicant has demonstrated a strong prima facie case; 3. Whether irreparable harm will result not compensable by damages at common law if the interlocutory order is not granted; and 4.

Where the balance of convenience lies. [19] While recognizing that this Court does not have the jurisdiction to grant interlocutory injunctions, that test is effectively the sametest with similar objectives to the three part test for an interlocutory injunction set out in the Supreme Court of Canada’s decision in RJR-MacDonald Inc. v. Canada (Attorney General) 1994 1 SCR 31: 1. Is there a serious question to be tried; 2. Will the applicant suffer irreparable harm that cannot be compensated by damages if the injunction is not granted; and 3.

Does the balance of convenience favour the injunction being granted. [20] A third formulation of the test is found in in the BC Court of Appeal decision in British Columbia (Attorney General) v. Wale,(1986) (BC CA), 9 BCLR (2d) 333, affirmed by the Supreme Court of Canada at (SCC), [1991] 1SCR 62 in which irreparable harm is addressed as a factor at the balance of convenience stage. Issue and prima facie case: [22] In this case, the parties agree that there is an issue to be tried; that is whether the Sagoos or Ms. Murray is the rightful owner ofChevy. [23] Counsel for Ms.

Murray submits that the Sagoos’ case is weak and there is no reasonable prospect of success at trial. She says

Ms. Sagoo clearly intended to give up Chevy for adoption, and she is now experiencing what is akin to “seller’s remorse” and she cannot now undo her willful and intentional transfer of Chevy on May 31, 2016. She submits that the Sagoos have not met the first part of the legal test, and, therefore, their application should be dismissed. I disagree. There is clearly an issue to be tried, and a detailed analysis of the communication between the parties and the Rescue Society will be necessary to determine what the parties truly intended regarding Chevy.

I am satisfied that the Sagoos have demonstrated a strong prima facie case. Irreparable harm and balance of convenience: [ 24 ] As the court in Haywood noted at para. 22 , the third factor relating to whether the applicant will suffer irreparable harm that cannot be compensated by damages if the interlocutory order is not granted is generally applied in a commercial context, and not generally in the context of a personal nature involving a pet. [ 25 ] In this case, the Sagoos describe in detail the depth of the emotional distress Ms.

Sagoo has been suffering and the impact that has had on their family due to the loss of Chevy. The Sagoos insist on Chevy’s return. In fact, Ms. Sagoo, on June 9, 2016, offered a cash sum to Ms. Murray for Chevy’s return, but Ms. Murray declined the offer. Therefore, monetary compensation is not appropriate in this case. [ 26 ] I will take the BC Court of Appeal’s approach in Wale, and consider the irreparable harm as part of the balance of convenience factor. [ 27 ] In this case, both Ms. Sagoo and her family, and Ms. Murray, together with her other dog Katie, claim to have formed a strong attachment to Chevy.

The parties submit they will suffer irreparable harm without Chevy. However, the onus is on the Sagoos to show that the balance of convenience favours Chevy’s return to them until the conclusion of the trial of the Underlying Claim. [ 28 ] As noted in the Watson and Haywood cases, at law, even though animals are considered personal property, they are treated differently. Factors different than those considered for inanimate objects, including the best interests of the animals, are to be considered when addressing competing claims for animals.

This is not surprising in light of society’s changing expectations towards treatment of animals and legislation such as the Prevention of Cruelty to Animals Act , R.S.B.C. 1996, c. 372, and the Criminal Code, R.S.C. 1985, c. C-46, ss. 445.1(1)(

a) and 445.1(3) , providing for the prevention of cruelty to animals, and thereby their protection and well-being. [ 29 ] Therefore, in this case, in determining the balance of convenience, I must consider the best interests of Chevy. [ 30 ] As I said earlier, the Sagoos’ evidence elaborates on the extent of Ms. Sagoo’s depression and anxiety over the loss of Chevy. It does not address what is currently in the best interest of Chevy. However, Ms. Sagoo’s initial statements to the Rescue Society explaining her reasons for wanting to adopt out Chevy indicate what was in the best interest of Chevy.

I quote below a few of Ms. Sagoo’s statements: March 11, 2016: “Looking for some help, as we are unable to care for our 7 year old shitzu x.” “ My husband and I work full time and have a baby. We leave our son in day care and the dog in day care. We are unable to afford the dogs day care and we dont feel its fair that he stays in day care Monday to Friday. He deserves a home where someone can spend more time with him.” March 13, 2016: “To show his [Chevy’s] separation anxiety, he barks and wines. Also scratches the door.

And pee and poop in the house even though he is house trained.” May 5, 2016: “I feel like its time we find him a better home.” May 31, 2016: “I am committed to re-homing Chevy. . . . He is a very needy dog.” [ 31 ] These statements clearly indicate that Ms. Sagoo had Chevy’s best interest at heart and that is why she was seeking to have him adopted out. The following excerpt from para. 11 of the affidavit of Ms. Pickell of the Rescue Society is also indicative of Ms. Sagoo’s best intentions for Chevy: . . . The Claimant [Ms. Sagoo] was crying when she was giving Chevy [on May 31, 2016] to Ms.

Murray and also said that her keeping him was not fair to him as she has to keep him in doggie daycare very often and that she can no longer afford that; that Chevy was being “bounced around” too much between her family’s other homes and daycare and it is not fair for Chevy; her mother had to keep him in a crate when he was at her house because he urinated around the house; and that Chevy was too much for her now that she has a young child to care for and was working full time. [ 32 ] Even though Ms.

Sagoo loved Chevy and had more than seven years’ attachment to him, these statements clearly indicate she was trying to do what was best for him. However, she has now changed her mind and wants Chevy returned to her as she claims to be suffering emotional distress. How could that be in Chevy’s best interest? [ 33 ] Ms. Murray expresses concern for Chevy. In her affidavit, at para. 11, she states: . . . At the time of adopting Chevy, he seemed to have some anxiety and/or separation anxiety issues. Almost every time I left the

house to run some errands, even if it was for only a short period of time (ie: 1 hour), he would urinate in the house. After a few weeks of living with me, Chevy stopped. However, almost immediately after the Claimant started visiting him in July, pursuant to our interim settlement agreement, he started urinating around the house again when I was not home. . . . [ 34 ] Ms. Murray says if Chevy is returned to the Sagoos, he will continue to suffer behavioural issues.

She says she currently takes Chevy for at least three walks a day, he has bonded well with Katie, he has a spacious fenced backyard to play in, and she has a lot of time to spend with him. The evidence indicates that Chevy is happy and adjusting well to his new environment at Ms. Murray’s home. [ 35 ] In light of all of this evidence, I find that it is in Chevy’s best interest to remain in Ms. Murray’s custody until the Underlying Claim is determined at trial. The balance of convenience favours Chevy remaining in Ms. Murray’s custody pending the outcome at trial.

CONCLUSION [ 36 ] I conclude that interim custody of Chevy should not be granted to the Sagoos and Chevy should remain in Ms. Murray’s custody pending the outcome of the Underlying Claim at trial. [ 37 ] Therefore, I dismiss the Sagoos’ application. ORDERS 1. By consent of the parties, the Home At Last Rescue Society is removed as a defendant. 2. The style of cause shall be amended to reflect the removal of Home At Last Rescue Society as a defendant. 3. The Sagoos’ application is dismissed. By the Court The Honourable Judge V. Chettiar Provincial Court of British Columbia