BRITTNEY KRUDZO PLAINTIFF - v. -, 2023 SKKB 142

KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 142 Date: 20 23 06 29 Docket: QBG-YT-00106-2022 Judicial Centre: Yorkton BETWEEN: BRITTNEY KRUDZO PLAINTIFF - and - DEVIN STEFANYSHYN DEFENDANT Counsel: Shane Wagner for the plaintiff Doreen Clark for the defendant JUDGMENT LAYH J. June 29, 202 3 I. Background [ 1 ] This

summary judgment decision determines who owns Rosco, a three-year old dog. The plaintiff, Brittney Krudzo, claims to own Rosco, as does the defendant, Devin Stefanyshyn. [ 2 ] Rosco was a young pup on July 31, 2020, when Brittney and Devin visited Brittney’s father and his partner in Pine River, Manitoba. Brittney’s six-year-old sister, Madison, had received Rosco from her grandmother.

When Brittney left Pine River, she took Rosco to Yorkton, Saskatchewan having promised Madison that she would bring Rosco to Pine River whenever she returned to visit. [ 3 ] At the time, Brittney was renting an accommodation that did not permit pets. She asked Devin if he would care for the puppy until she found pet-friendly accommodation. As she states in her affidavit, “After much convincing, the Defendant [Devin] reluctantly agreed.” [ 4 ] Sixteen months later, in November 2021, after Brittney had bought her own home, she asked Devin to deliver Rosco to her. He refused.

Brittney last saw Rosco on November 11, 2021. Brittney retained legal counsel and issued a statement of claim on July 19, 2022, seeking possession of Rosco, alleging three legal grounds: breach of contract, unjust enrichment and conversion. [ 5 ] Devin retained legal counsel and defended the action denying each ground of Brittney’s claim. [ 6 ] From the affidavits filed, the court does not know the exact nature of the relationship between Brittney and Devin. Today, though, that relationship is obviously strained. II.

Rosco – from August 2020 to Now [ 7 ] That Devin has taken exemplary care of Rosco cannot be disputed. His affidavit is replete with examples of his generous care of Rosco, including taking Rosco for his veterinary visits and spending over $4,500.00 toward Rosco’s care. Confirming and expanding upon Devin’s fondness and care for Rosco, his father, mother, brother and aunt have sworn affidavits detailing the close bond Devin shares with Rosco. [ 8 ] Brittney bought certain supplies for Rosco, but certainly fewer than Devin.

Brittney states that she was prepared to pay for Rosco’s expenses, but Devin declined to accept payment. Devin denies that Brittney offered to pay for Rosco’s care.

[ 9 ] In her affidavit, Brittney specifically identified over 90 days between August 1, 2020, and November 11, 2021, that she saw Rosco.

Devin does not accept or recall whether all these dates are accurate but accepts that Brittney spent time with Rosco on more than 60 occasions during this period, including several instances when Brittney attended Devin’s residence but also instances when Devin took Rosco to Brittney’s residence, such as October 25, 2020; December 5, 2020; April 18, 2021; April 25, 2021; May 30, 2021; June 4, 2021; June 6, 2021; and September 17, 2021. [ 10 ] Significantly, Devin accepts that he and Britney took Rosco to Manitoba from September 11 to 13, 2020; September 19 and 20, 2020; and October 10 to 12, 2020.

Brittney also took Rosco to Manitoba, unaccompanied by Devin, for five days from April 1 to 5, 2021 and from September 10 to 13, 2021, just weeks before she asked for Rosco’s return. [ 11 ] Clearly, Rosco’s care is not in issue. In issue is the resolution of a dispute between two people who cannot see an obvious answer to their stand-off: that they might agree to share and exchange visits with Rosco (as seemingly they have done for several months). Instead, they have squared off on a simple question: who owns Rosco? III. The Issues [ 12 ] Brittney seeks a

summary judgment. Accordingly, the issues may be stated thus: (

a) Is

summary judgment a suitable legal procedure to resolve the dispute between Devin and Brittney? (

b) If “Yes”, who owns Rosco, Brittney or Devin? IV.

Summary Judgment [ 13 ] The court will not engage in a lengthy discussion of Rule 7-5 of The Queen’s Bench Rules . When this matter first came before the court on May 1, 2023, before hearing argument, I explained to the litigants and their lawyers that my decision would necessarily make one person Rosco’s owner and the other with no rights to Rosco. I also explained that if I found a material conflict in the affidavit evidence, they might well face a trial, which, given the court’s schedule, would be months hence.

I encouraged the parties to spend 15 minutes before trial to see whether they could reach a resolution. After an adjournment, the parties stated that they had seriously discussed a proposal and needed some time to see if the proposed arrangement might be workable. A further court date of June 22, 2023 was reserved. [ 14 ] To my surprise, on June 22, 2023, the parties informed the court that they had been unable to agree to a resolution and wished to receive a judicial determination. [ 15 ] I have found no material conflict in the evidence and agree with the parties that a

summary determination is an appropriate means to resolve Rosco’s ownership. V. Who owns Rosco? a. Dogs are Property and Subject to Principles of Bailment and Ownership [ 16 ] The court begins with a simple truism: dogs are personal property.

As Justice Zarzeczny wrote in Ireland v Ireland , 2010 SKQB 454 at para 12 , 367 Sask R 130, “a dog is a dog.” And, as Justice Danyliuk elaborated in, Henderson v Henderson, 2016 SKQB 282 at para 23 , “And for legal purposes, there can be no doubt: Dogs are property.” [ 17 ] Because dogs are personal property, they may be subject to legal transactions engaging basic, long-established principles of property law, including principles of ownership and bailment, with each of these principles being distinct and affording the holder unique rights and obligations. [ 18 ] I would see no difference in my analysis if Brittney had given a bicycle to Devin, understanding that until she returned from a planned trip, he would care for it.

Notwithstanding that Devin may have housed the bicycle, repaired it, rode it, improved it, and liked it more than any other bicycle he had ever ridden, he would remain a mere gratuitous (albeit generous) bailee and Brittney would remain the legal owner.

This comparison is compelling but not completely apt since, in this instance, Brittney continued exercising her ownership interest in Rosco during the entire time Rosco principally resided with Devin. [ 19 ] Simply put, a bailment is the transfer of possession of personal property from an owner (the bailor) to another person (the bailee), understanding that the bailee will return the property to the bailor. Importantly, ownership does not change under a bailment.

The bailor remains the owner during the period of bailment. [ 20 ] Ownership, on the other hand, creates a permanent interest or title in the personal property, allowing the owner, for example, to sell, provide a gift or enter a bailment of the property.

An owner has the ultimate right to exclusive enjoyment and use of the property; a bailee only has possession of the property. [ 21 ] Justice Currie, in Scrimbit v Schmaltz 2005 SKQB 171 at para 10 , 263 Sask R 67, quoting from Halsbury’s Laws of England , 4th ed. reissue, vol. 2 (London: Butterworths, 1991) at 830, para. 1801, accept the following description of a bailment: A bailment, traditionally defined, is a delivery of personal chattels on trust, usually on a contract, express or implied, that the trust shall be duly executed, and the chattels redelivered in either their original or an altered form, as soon as the time or use for, or condition on, which they were bailed shall have elapsed or been performed.

Under modern law, a bailment arises whenever one person (the bailee) is voluntarily in possession of goods belonging to another person (the bailor). The legal relationship of bailor and bailee can exist independently of any contract, and is created by the voluntary taking into custody of goods which are the property of another, as in cases of sub-bailment or of bailment by finding. The element common to all types of bailment is the imposition of an obligation, because the taking of possession in the circumstances involves an assumption of responsibility for the safe keeping of the goods....

[ 22 ] This description of a bailment is apt and sets the legal framework for the court to consider Devin’s position that he, not Brittney, owns Rosco. b. Devin’s Position [ 23 ] Devin does not present any evidence to suggest that Brittney held less than full ownership of Rosco when he and Brittney brought Rosco from Pine River on August 1, 2020.

That is not a completely accurate statement since, in his brief of law, Devin states that “a six-year-old (Brittney’s sister, Madison) cannot give something on a legal basis.” I find this an odd position to advance since, if enforced, Rosco should be returned to Madison and neither he nor Brittney would own Rosco. [ 24 ] Furthermore, Brittney’s father and his partner have sworn affidavits stating that they were present when Madison gifted Rosco to Brittney and Madison “made no mention of Rosco also being a gift to the Defendant.” Both affiants identically state that they were present for the conversations between Brittney and Devin and understood that Rosco would stay with Devin and he and Brittney would share time with Rosco until Brittney got a residence that allowed pets. [ 25 ] That Devin knew Brittney owned Rosco and that he agreed to care for Rosco are conclusion the court can make, even absent Brittney’s affidavit.

For example, in his affidavit, Devin states: - At para. 2: “…before Rosco came to live with me….” - At para. 3: “…this has helped me in looking after Rosco…” - At para. 8: “…I look after him most of the time…” - At para. 11: “She wanted me to look after the puppy on a full-time basis and I agreed to do so.” [ 26 ] By his own admission, Devin states that he agreed to “look after” Rosco.

Looking after Rosco is consistent with a bailment and inconsistent with ownership. [ 27 ] One might ask Devin how and when he became Rosco’s owner, understanding that initially Rosco was Brittney’s dog, and he was to “look after” him. Devin argues that his bond to and exemplary care of Rosco made him Rosco’s owner. Apparently, then, if he had cared less for Rosco or was less fond of him, he would not have become Rosco’s owner. Devin suggests that the court can and should measure the amount of expense and the nature of care of personal property that would be sufficient to turn a bailee into an owner.

Such has never been the law. [ 28 ] Devin justifies his ownership claim, not on legal principles, but on his personal wishes. At para. 18 of his affidavit, Devin states: The Plaintiff did contact me in late 2021. By that time, I did not want to give Rosco to her as I had looked after him for a year and a half and paid for all of his expenses. Rosco is used to me as his owner and he is used to my home, the conditions there, as well as the shop. [ 29 ] The court may be sympathetic to Devin who obviously has enjoyed Rosco’s company for three years.

However, this case is determined on legal principles of ownership and bailment. Devin’s refusal to return Rosco is consistent with the tort of conversion of Rosco. The court orders that Devin deliver Rosco to his rightful owner, Brittney, within two days of this judgment. [ 30 ] The evidence presented by Devin and Brittney augurs for only one result: Rosco was given to Brittney and Devin voluntarily took possession of Rosco. Brittney is Rosco’s owner; Devin is Rosco’s bailee. [ 31 ] No costs, other than disbursements are awarded in Brittney’s favour. This matter could have been brought in Small Claims Court. J.

D.H. LAYH