Haywood v. Carrasco Date:, 2016 BCPC 71

Citation: Haywood v. Carrasco Date: 20160324 2016 BCPC 0071 File No: C15569 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Small Claims Court BETWEEN: RONNIE HAYWOOD CLAIMANT AND: STEPHANIE CARRASCO DEFENDANT RULING ON APPLICATION OF THE HONOURABLE JUDGE P. JANZEN Counsel for the Claimant: G. Munroe Counsel for the Defendant: L.A. Waddell Place of Hearing: Port Coquitlam , B.C.

Dates of Hearing: February 12 and March 23, 2016 Date of Judgment: March 24, 2016 Introduction [1] The Claimant, Ronnie Haywood, seeks an interlocutory order pursuant to rule 17(18)(

a) of the Small Claims Rules, B.C. Reg.261/93 that the Defendant, Stephanie Carrasco, immediately return to him the border collie/Labrador retriever named Kali. A trial isscheduled in June, 2016 to determine whether Kali should be permanently returned to Mr. Haywood. Jurisdiction [2] This Court has express jurisdiction to return personal property under section 3(1)(

b) of the Small Claims Act, R.S.B.C. 1996 c.430, provided that the value of the property is within the monetary jurisdiction of this Court, currently $25,000. [3] Rule 17(18) of the Small Claims Rules gives this Court jurisdiction to make an order for the detention, preservation andrecovery of property, as provided for under Rule 10-1 of the Supreme Court Rules, B.C Reg. 168/2009. Hence, this Court also has thejurisdiction to make an interlocutory order to ensure the detention or preservation of that property. [4] A pet dog is a domestic animal and a domestic animal is personal property (Watson v.

Hayward, 2002 BCPC 259 ,2002 BCPC 0259 and authorities cited therein). Background Facts [5] The parties filed a number of Affidavits in support of their respective positions. From those Affidavits I have gleaned thefollowing facts. [6] Mr. Haywood and Ms. Carraso cohabited in a romantic relationship from late spring, 2014 until March or April, 2015. In Julyand early August, 2014 they visited a breeder together on several occasions and decided to buy one of her puppies. In August, 2014 Mr.Haywood returned to the breeder on his own and purchased Kali as a surprise for Ms. Carrasco.

Both parties looked after Kali whilethey were living together and both parties became very attached to her. [7] The parties split up in March or April, 2015. For several months they each spent time with Kali. Ms. Carrasco characterizedthe arrangement as sharing custody of Kali. Mr. Haywood characterized the arrangement as allowing Ms. Carrasco to have access toKali. [8] Both parties presented bills and receipts for Kali from her veterinarian in their respective names. [9] On May 24, 2015 Ms. Carrasco received a text message from Mr. Haywood complaining that Kali had badly damaged Mr.Haywood’s room and that Ms.

Carrasco should observe what Kali had done and “smack her”. When she arrived at Mr. Haywood’shome she found the door to his bedroom shut with Kali whining and yelping inside. The room was badly damaged with shards of mirroron the floor, ripped bed sheets and ripped papers everywhere. [10] In June, 2015 Mr. Haywood sent Ms. Carrasco an email stating that he would never let Ms. Carrasco have Kali again becauseMs. Carrasco was being rude and talking down to Mr. Haywood. In earlier text messages between them, they argued at times about theproper care of Kali. Mr. Haywood’s decision was communicated shortly after Ms.

Carrasco told Mr. Haywood that she had a newboyfriend and Ms. Carrasco thought that the decision was related to this development. [11] In late July, 2015 Mr. Haywood posted photos on Facebook of further destruction to his residence that he attributed to Kali. Several friends forwarded these postings to Ms. Carrasco. [12] On August 11, 2015 Mr. Haywood left for work around 2 p.m. He left Kali alone and unsupervised in his fully fenced backyard. He expected his house mate to arrive home about two hours after he left for work.

He ensured that the gate was secure. [13] Later that afternoon a stranger found Kali running on the Barnet Highway. She and another stranger followed Kali andeventually captured her. She first tried calling the telephone number for Mr. Haywood found on Kali’s tag but it was out of service. Shethen called Ms. Carrasco, whose telephone number was also on Kali’s tag. [14] Ms. Carrasco picked up Kali from the stranger. Kali was distressed and anxious but very pleased to see her. Ms. Carrascocalled Mr. Haywood at work right away to tell him that she had Kali. She did not reach him but left a message and Mr.

Haywood calledher back. She told him what had happened, that she had Kali and that Kali was safe and unharmed by the incident. [15] Ms. Carrasco was very disturbed by this incident. It confirmed her concerns that Kali was being left alone too often while inMr. Haywood’s care. She was very grateful to the stranger who had been kind enough to rescue Kali and to then call them in order toreturn Kali. [16] The next day she told Mr. Haywood that she had decided to keep Kali in her care. She agreed to Mr. Haywood visiting Kali inher presence. [17] On September 4, 2015 Mr.

Haywood filed this Claim for the return of Kali. The Legal Test

[18] In the Watson v. Hayward case (supra), the court applied the following four part test to an interlocutory application respectingthe detention, 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 thesame test with similar objectives to the three part test for an interlocutory injunction set out in the Supreme Court of Canada’s decision inRJR-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. [21] Whether I apply the first two steps of the test set out by Judge Dhillon in the Watson case or the first step of the test set out inthe RJR Macdonald case, the result in this case is the same.

There is clearly an issue to be tried. That issue is whether Kali belongs toMr. Haywood alone, Ms. Carrasco alone or to both of them. Mr. Haywood has a strong prima facie case because he purchased Kali fromthe breeder but this evidence is by no means determinative of the issue to be tried. [22] I must next consider whether irreparable harm will result, not compensable by damages at common law, if the interlocutoryorder is not granted.

This test is usually applied in the context of a commercial arrangement or relationship, not in the context ofspending time with a beloved pet. [23] While I accept that the loss of Kali’s companionship for the weeks leading up to the resolution of this case is harm to Mr.Haywood that cannot be compensated by common law damages, the same harm will be suffered by Ms. Carrasco if Kali is returned toMr. Haywood’s custody.

Hence, unlike many commercial cases where only one party is irreparably prejudiced by the failure to make anorder, this factor does not tip the balance in favour of the Claimant or the Defendant as both will suffer the same harm. As noted above,irreparable harm is not treated as a separate step in the test but as a factor in the balance of convenience test in the Wale case. [24] Consequently, the application turns on whether Mr.

Haywood has persuaded me that the balance of convenience favours thereturn of Kali to him until the trial has concluded. [25] Judge Dhillon in the Watson case noted that competing claims for animals could and should take into account different factorsfrom cases involving inanimate object, including the best interests of the animal concerned. [26] The nature of the relationship between an owner and a pet dog is qualitatively different from the relationship between an ownerand all other forms of personal property.

Most people view a pet as a member of their family to be cared for until death, not a possessionto be bought and later sold in a garage sale or on craigslist or given away to charity when it is worn, outgrown, out of date or no longerneeded or desired by its owner. [27] The law also treats animals differently from other personal property. It is an offence under s. 445.1(1) (

a) of the Criminal CodeR.S.C 1985, c. C-46 for a person to “willfully cause or, being the owner, willfully permit to be caused unnecessary pain, suffering or injury to an animal or bird”. [28] Under

section 445.1(5) evidence that a person “failed to exercise reasonable care or supervision of an animal or a bird, therebycausing it pain, suffering, or injury is, in the absence of any evidence to the contrary, proof that the pain, suffering or injury was causedor permitted to be caused willfully, as the case may be”. [29] The significance of this

section is that the offence is against the animal, not the person who owns the animal, unlike the otheroffences in the Criminal Code that are directed at property such as arson, theft or mischief.

Indeed, this offence expressly contemplatesthat the victim is the animal and the criminal may be the owner of the animal, signaling that the state’s denunciation of the mistreatmentof animals and its commitment to the protection of animals stands apart from and overrides the rights and interests of their owners. [30] The Prevention of Cruelty to Animals Act, RSBC 1996, c. 372 is a sophisticated code of expectations for animal owners in theirrelationship to the animals that they own and establishes that the British Columbia Society for the Prevention of Cruelty to Animals has astatutory right to apply to a court for interim custody of an animal in respect of which a charge has been laid.

In considering anapplication for interim custody, the best interests of the subject animal were taken into account in the case of British Columbia Societyfor the Prevention of Cruelty to Animals v. Montroy [1997] B.C.J. No. 1012. [31] While a dog is a form of personal property and is certainly not a person at law, the law reflects society’s expectations as to howan animal should be treated and the relevance of the best interests of the animal in proceedings related to its custody. The treatment ofKali in the custody of Mr.

Haywood and the best interests of Kali are factors that I can and must take into account in considering thebalance of convenience in this case.

[ 32 ] There is some evidence before me of neglect of Kali when she was in Mr. Haywood’s care. The August 11, 2015 incident could have had catastrophic consequences. Kali could have been hit by a car. She could have been kept by a stranger and never returned to either Mr. Haywood or Ms. Carrasco. Similar concerns have not been raised about Ms. Carrasco’s care of Kali. [ 33 ] Kali has been in the custody of Ms. Carrasco since August 11, 2015. It would be disruptive for her and could also be distressing to Kali to remove her from Ms. Carrasco’s custody and place her in the custody of Mr.

Haywood with only twelve weeks remaining until the trial with its uncertain outcome. I find that it is in the best interests of Kali to remain in the custody of Ms. Carrasco until the issue is determined at the trial. [ 34 ] I have concluded that the balance of convenience favours Kali remaining in the custody of Ms. Carrasco until a final decision is made by the trial judge. I dismiss Mr. Haywood’s application. The Honourable Judge P. Janzen Provincial Court of British Columbia