Ellis v. Geldrich Date:, 2012 BCPC 462

Citation: Ellis v. Geldrich Date: 20121210 2012 BCPC 0462 File No: C94180 Registry: Kelowna IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: CHERYL ELIZABETH ELLIS CLAIMANT AND: KORNELIA GELDRICH DEFENDANT ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE R.R. SMITH Appearing in person: Cheryl Elizabeth Ellis Appearing in person: Kornelia Geldrich Place of Hearing: Kelowna , B.C. Date of Hearing: December 10, 2012 Date of Judgment: December 10, 2012

[ 1 ] THE COURT: Before me today in small claims court is Cheryl Ellis and Kornelia Geldrich as defendant. Ms. Ellis is the claimant. Ms. Ellis commenced a small claims action in February 2012 requesting $4,676. The dispute is regarding two purebred collies. The claimant, Ms. Ellis, is a very experienced collie breeder having raised perhaps as many as 200 such purebred collies in the last 22 years. Ms. Geldrich, on the other hand, was a novice with regards to this breeding, in relative terms, but she was interested in getting involved in this same type of business. [ 2 ] Ms.

Ellis advertised in multiple ways, one of which was a website. Ms. Geldrich sees the website, contacts Ms. Ellis back in 2006 saying, "I am interested in buying one of your puppies." The negotiations went on for the better part of a year such that on the 28th of April 2007 Ms. Geldrich purchased a male purebred collie 12-week-old puppy from Ms. Ellis. That agreement was reduced to writing. The cost was $1,000.

It had a term that said, "Realize that this dog is sold or otherwise acquired under a non-breeding altered agreement." The claimant states that that meant the defendant was not to breed this male dog Indie, not to use that dog as a stud.

The defendant says that that is not what her understanding was of those words; that in fact there was some discussion of doing just that, using this dog as a stud, but it was all in the context of a separate term of the agreement, which said that this dog Indie in effect had to be neutered either at the completion of the dog being used with attempting to become a champion dog at the championship shows, or alternatively if the dog was not going to be used at shows, that the dog would be neutered after one year.

So here we have these two terms that are somewhat conflicting; non-breeding agreement and the dog needed to be neutered. In some ways they are not conflicting at all, but I am just saying that there were two terms that are kind of from two different angles looking at the same issue of breeding. [ 3 ] At the time in question the claimant actually was not the legal owner of Indie. She was the equitable owner. By that I mean someone else had ownership breeding rights with Indie and had sold those rights to Ms. Ellis, but for whatever reason that sale had not been properly registered.

That is a big deal when they are not registered, because the practice with regards to purebreds is to be very careful to have them registered. Even a layperson such as myself knows that, that there is lots of talk about how important it is to have the I's dotted and the T's crossed with regards to getting the legal registrations of purebreds, and the first question anyone asks that is looking to buy a dog is, is it or is it not a purebred. People are on the defensive if they start hearing some song and dance about how they are a purebred but they are not quite registered.

Any adult that has had any life experience at all will say yes, they have heard this song sung before. I have heard that in multiple court cases over the years. [ 4 ] So the real issue is whether or not this male dog Indie, when sold, in effect had the breeding rights also transferred, or had they been retained by the claimant, Ms. Ellis, in circumstances where eventually the legal owner signed off the paper trail legally placing both legal and equitable ownership of this dog with regards to ownership and breeding to the defendant. [ 5 ] But Ms.

Ellis maintains that notwithstanding all of that legal transfer having happened, that she actually never relinquished the equitable ownership of the breeding right, even though she acknowledges that legally speaking the breeding rights were never in her legal name. But the plot thickens. That dog is now five years old and not neutered and still being shown. There is some dispute on what types of shows that we are talking about, whether we are talking championship shows or some lesser type of shows.

I get it that there is a little bit of a dispute in that regard, but nonetheless you cannot do any show once a dog is neutered. I also get that point. [ 6 ] But the plot thickens all the more because there is a second dog involved, a female. I will use the name of Charm when describing the female. Charm was purchased by the defendant from the claimant for $1,000 back in May of 2008. The dog physically, right away, went to live with the defendant, but yet again the paper trail did not go to the defendant.

There was some type of an agreement between the claimant and defendant, that notwithstanding the defendant having physical possession of that female collie, in addition to getting the $1,000, the claimant would get two litters, the first two litters from that female. [ 7 ] The first litter produced but one dog in April of 2009. The second litter produced nine puppies in February of 2010.

The real dispute here out of all of the potential disputes is whether or not the agreement was that the breeding requirements as part of the purchase price would have been completed after two litters, or whether it was further defined to say that each litter had to have a minimum of three dogs before it was counted as a litter. So here there is ten dogs all involved, but as offspring, but one litter, as I said at the outset, the first litter only had one dog.

All of this eventually gets disputed by the association that does the registration of these dogs, and I cannot remember if you folks told me it was in 2011 or 2012, but sometime I think it was the 13th of June 2011 -- I could be mistaken on the year, but something like that -- [ 8 ] DAVID CLARKE: Yes, that is correct, sir. [ 9 ] THE COURT: -- an order was made to resolve this dispute between the parties. The order that was made was in effect that the registration of the female Charm was transferred to the defendant.

The explanation was that the association was not prepared to look at alleged verbal agreements, that if people in that business wanted to have the paper trail registration they needed to have their I's dotted and their T's crossed; by that I mean the agreements had to be in writing and not just verbal arrangements.

Their finding was that there was insufficient writing agreement to say that that portion of the payment above the $1,000, that is the portion about the two litters, had not been fulfilled, and so legal written title then passed to the defendant. [ 10 ] It was open to the claimant to have some binding non-breeding agreement, and in fact I am told that that is fairly common, that those things can be written up and even registered with this same association, but that just never happened. [ 11 ] Ms.

Ellis, I think it would be wrong for the court to then start second-guessing some association, how they are going to be registering all of this, for the courts to then tell them how to do their job in this regard.

They are the experts with regards to this type of registration process, and if every time there was a dispute like that had to have some judge who is much less experienced in dog registrations start second-guessing what the association was doing, I am not saying that there would never be a fact pattern where that could not happen, but I think if it is ambiguous that a judge ought to err on the side of simply assuming that the association got it right. By that I mean in order for you to prove your case as the claimant, you have to prove it on the balance of probabilities.

If at the end I cannot tell whether the deal was that that first litter had to have a minimum of three puppies or not, because I am hearing each of you say something different in that regard, then if I cannot tell then the tie would always go to the defendant, because the claimant has to prove

that point on the balance of probabilities, and that onus has not been met in this case. [ 12 ] Accordingly I now dismiss the claim of the claimant, but without costs to either party. I direct that a transcript be made of my oral decision. The only reason I say that is because I would actually like a copy of this to go to the association that deals with these kinds of things in hopes that in the future it will help them to know how best to deal with these to avoid the court process if at all possible. (JUDGMENT CONCLUDED)