Oh v. City of Coquitlam, 2018 BCSC 986

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Oh v. City of Coquitlam, 2018 BCSC 986 Date: 20180615 Docket: S178379 Registry: Vancouver Between: James Kyung Whan Oh Plaintiff And City of Coquitlam Defendant Before: The Honourable Mr. Justice Milman Reasons for Judgment In Chambers Counsel for the Plaintiff: E. Anderson The Defendant appearing in person: J. Oh Place and Date of Hearing: Vancouver, B.C. May 18, 2018 Place and Date of Judgment: Vancouver, B.C. June 15, 2018 Table of Contents I. Introduction .. 3 II. The Evidence .. 4 III. Discussion .. 11 IV. Costs .. 16 V.

Summary and Conclusion .. 18 I. Introduction [ 1 ] This is an application by the defendant, the City of Coquitlam (the “City”), for an order striking or dismissing the plaintiff’s claim in its entirety pursuant to Rules 9-5(1)(

b) and 9-6. [ 2 ] The central allegation in the Amended Notice of Civil Claim appears to be that the City wrongfully accepted the plaintiff’s two dogs for surrender and put them up for adoption without his knowledge or consent, refusing to return them when he demanded them back.

The City defends the claim on the basis that the dogs were validly accepted for surrender from one or both of the plaintiff’s parents, who were co-owners of the dogs having, as such, the requisite authority to surrender them under the City’s governing bylaws and administrative policies. [ 3 ] This is the second attempt by the City to have the claim struck or dismissed summarily. On the first occasion, the parties had brought competing applications for a

summary disposition of the action. The City was initially successful in obtaining an order from this Court under Rule 9-5(1)(a), i.e., striking the Amended Notice of Civil Claim on the basis that it disclosed no reasonable claim. After the plaintiff commenced an appeal from that order, the City obtained a second order from the chambers judge purporting to amend the first order to state that the claim had instead been dismissed under Rule 9-6(5)(a), i.e., on the basis that there was no genuine issue for trial. [ 4 ] The Court of Appeal, in oral reasons delivered March 29, 2018 and indexed at 2018 BCCA 129 , allowed the plaintiff’s appeal

and set aside both orders. With respect to the order under Rule 9-5(1)(a), Griffin J.A., speaking for the Court, found that the chambers judge had erred in striking the claim under that rule relying on evidence, rather than on the face of the pleadings.

She also found that the City could not sustain the subsequent order under Rule 9-6 (apart from the impropriety of having amended the first order following the commencement of the appeal) because the evidence upon which the City had relied to obtain it was unsworn, contested and had not been delivered to the plaintiff in advance of the hearing. [ 5 ] This application was filed on May 8, 2018, following the release of the judgment of the Court of Appeal. [ 6 ] The plaintiff submits that this application too must fail because there is no difference between this application and the matter already decided by the Court of Appeal.

The City responds that what is different this time around is that it now relies from the outset on both Rules 9-5(1)(

b) and 9-6(4) and two new affidavits that were duly delivered to the plaintiff in advance of the hearing. [ 7 ] Having reviewed the pleadings, the evidence adduced by both parties and the submissions made to me during the hearing, I have determined, for the reasons that follow, that the claim should be dismissed in its entirety. II. The Evidence [ 8 ] The first of the new affidavits adduced by the City on this application is made by Sarah Bull, who is the Supervisor of Bylaw, Licensing and Animal Services, for the City. [ 9 ] Ms.

Bull avers that one of the dogs, known as “Remy”, was first licensed, according to the City’s records, on July 21, 2015. Remy had been picked up at large and impounded by City officials the day before. The City was not prepared to release an impounded and unlicensed dog unless it obtained a license. According to the City’s records, Remy was licensed on that date to “James C. Oh” and “Riri Kang”, both of 2431 Leclair Drive in Coquitlam. On August 25, 2015, a second dog, known as “Luna”, was later licensed on the same account.

The name “Riri Kang” was subsequently changed in the City’s records to “Lily Riri Oh.” It does not appear to be disputed that Riri Kang, also known as Lily Riri Oh, is the plaintiff’s mother. [ 10 ] According to Ms. Bull, the City’s records show that Remy was subsequently impounded multiple times after having been found at large on the following dates: December 9 and 16, 2015, May 30 and 31, 2016 and June 27, 2016. [ 11 ] Ms.

Bull says that in December, 2016, she had a conversation with Dale Oh, the plaintiff’s father, who told her that the dogs had been living with the plaintiff’s parents for the past year or so and that the plaintiff was only occasionally resident in their home. Mr. Oh (Senior) told her that his son, the plaintiff, “was struggling with mental health challenges and was once again not taking his prescribed medications.” Because the parents were planning to leave the country for a period of time, they were concerned about who would be caring for the dogs in their absence. Mr. Oh (Senior) told Ms.

Bell that the plaintiff “was not in fit condition to provide care for the dogs.” He said that the plaintiff “had no telephone number or fixed address where the City could contact him.” [ 12 ] Ms. Bull says that she informed the plaintiff’s father that Ms. Oh, as a registered co-owner of the dogs, could apply for permission to surrender them. [ 13 ] Ms.

Bull says that she based that advice on City policy, which relies on the definition of the term “owner” in the City’s Bylaw No. 4240, 2011, “A Bylaw to regulate the care and control of animals and to establish and operate a municipal animal shelter in the City of Coquitlam.” That definition defines the term “owner” as follows: Owner , in relation to an animal , means a person: i. to whom a dog license has been issued under this Bylaw; ii. ... iii. who owns, is in possession of, or has the care or control of an animal , temporarily or permanently; iv. who harbours, shelters, permits or allows an animal to remain on or about that person’s land or premises; or v. … [ 14 ] According to Ms.

Bull: The Coquitlam Animal Shelter Owner Surrender Program permits any person who is an “owner”, as defined by the Bylaw, to apply to surrender a dog in their possession and control. Consent of all other persons who may qualify as an owner is not required, as this would be impractical in many cases and an inefficient use of the Shelter’s limited resources. … [ 15 ] On December 15, 2016, the plaintiff’s mother submitted two “Applications for Relinquishment of Animal Ownership,” one for each of the two dogs. Those applications are reproduced as exhibits to the affidavit.

Under the heading “Why are you surrendering this pet?” the following was written on both applications: My son James is the owner. Lily Oh his mom is a co-register [sic]. James apparently can’t take care of them. [ 16 ] The applications were approved and on December 20, 2016, one or both of the plaintiff’s parents brought the dogs in to be surrendered in accordance with the policy. [ 17 ] Ms. Bull says that on that occasion, she asked the plaintiff’s father to tell the plaintiff that the dogs had been surrendered and that if he came to retrieve them within a day, they would be returned to him. According to Ms.

Bull, the plaintiff’s father agreed to do

so. [ 18 ] Ms. Bull says that the City’s records show that the plaintiff next went to the shelter on December 26, 2016. He was advised on that occasion to contact Ms. Bull, who was off work on holiday for the winter break at the time. [ 19 ] Ms. Bull says that the plaintiff contacted her on January 9, 2017 after being told on January 7, 2017 (a Saturday) that the dogs had already been adopted. His email of January 9, 2017, which is attached as an exhibit to Ms.

Bull’s affidavit, states as follows: Dear Sarah Bull (Shelter Manager), My name is James and I am an(the) owner of Remy and Luna and I am writing this email to ask you a couple of things regard my kids’ case. I went to your shelter on last Saturday(7 th ) and surprisingly, I got informed they have been ‘adopted’. I hope it was an incorrect information. I’ve been to your shelter a couple times to make sure they are doing good and to find out how things were but employees at that shelter refused to share any information regard this issue but informed me I need to contact you to hear about it.

Also, since they were being ‘surrendered’ to shelter till now, I(owner) of them (remy&luna) didn’t get to be informed anything about this case, or get to see any single document yet regard this yet and it is getting very stressful. it’s been so long since I didn’t get to see my kids. It would be great if I can hear back from you details about my kids’ case and it also would be great if you can arrange things in the way how our society would appreciate better. I miss my time with my kids. Thank you in advance and look forward to hear back from you. James [ 20 ] In a reply email dated January 10, 2017, Ms.

Bull confirmed that the dogs had in fact been adopted. Thereafter, the plaintiff retained a lawyer to assist him in attempting to get the dogs back. After speaking with the lawyer, Ms. Bull inquired of the new owners to ask whether they were prepared to give the dogs back. They were not. As far as Ms. Bull was concerned, that was the end of the matter. [ 21 ] The second affidavit adduced by the City is that of Michelle Buonassisi, who was until recently a Clerical Supervisor in the Legal and Bylaw Enforcement Division for the City. Ms. Buonassisi generally confirms various details in Ms. Bull’s account.

In paragraph 3 of her affidavit, Ms. Buonassisi describes how the dogs came to be registered jointly in the names of both the plaintiff and his mother: James Oh objected to the requirement to license his dog, but ultimately did licence Remy with the City in order to redeem him. I do not independently recall the specifics of the information given by Mr.

Oh that day in order to create the licensing record, but the City’s computerized dog license records, which are filled out by staff members at the time of registration of a dog and maintained as part of the operations of the City’s Animal Shelter, indicate that Remy was registered [sic] day under the names ‘James C. Oh’ and ‘Riri Kang’, both with the address 2431 Leclair Drive, Coquitlam BC. I verily believe that this was the information provided by Mr. Oh to myself or to one of the other clerical employees working under my supervision on that day.

We would have had no other way of independently obtaining this information to enter into the record. On August 25, 2015, a second, Golden Retriever type dog named Luna was also licensed, on the existing account in the names of James C. Oh and Riri Kang. I do not specifically recall the circumstances that led to this transaction. [ 22 ] In his written response to this application filed May 15, 2018, the plaintiff appears to assert that the City’s new affidavit evidence, canvassed above, is deficient because: (

a) the plaintiff’s correct name is “James Kyung Whan Oh”, not “James C. Oh”; (

b) Ms. Buonassisi professes to be unable to recall the specifics of the information the plaintiff gave her when the dogs were registered jointly with his mother; (

c) the City has adduced no evidence establishing that the plaintiff was the source of the dogs’ registration information and in particular, identifying his mother, Riri Oh, as a co-owner; (

d) the registration information was, on the City’s own evidence, inputted solely by the City officials; and (

e) the evidence of the City is inconsistent with its notice of application (in particular, the notice of application alleges that the plaintiff did not visit the shelter until January 7, 2018 but the affidavits acknowledge that he attended in December). [ 23 ] The plaintiff adduced only one affidavit directly in response to this application. It merely attaches extracts from the contents of the appeal book that was prepared for the hearing before the Court of Appeal and certain exhibits to Ms.

Bull’s affidavit – this in an apparent effort to show that some of the new evidence adduced by the City had been placed before the court on the previous applications. The plaintiff has not, in particular, adduced any new evidence responding directly to the new facts alleged in the affidavits of Ms. Bull and Ms. Buonassisi. [ 24 ] On the previous applications, the plaintiff had adduced eleven affidavits - all filed on either October 11 or 12, 2017. These

affidavits were put before me on this application as well. [ 25 ] In them, the plaintiff generally asserts that, as between himself and his parents at least, he was the sole owner of the dogs. He refers to and attaches emails between himself and his parents, veterinary bills and travel documents showing that he was named alone at various times as the dogs’ owner.

He claims that he “never shared any written consent to any other personals to share and/or surrender ownerships of Remy and Luna.” In another affidavit that is to a similar effect, he says that he “never registered Remy and Laura to be co-registered under the Plaintiff’s mother’s name.” [ 26 ] In one of his affidavits, the plaintiff has reproduced an email from his father dated August 17, 2016, stating as follows: James, City of Coquitlam bylaw office left a message this morning to call [number omitted] to talk about the dogs.

Please call the number and leave your name and your email address or other means to reach you. I gave you all the documents related to your dogs and you took only part of it. What ever you left behind I keep it now and will leave it at your door. As explained before, the dogs were registered to David and my address and I took them to change the owner to You James and ask them to check up and treat them properly. They suggested several vaccination necessary in Vancouver. I paid a lot of money because you James and David are my sons. Knowing that you don’t appreciate my effort at all I will not do this any more.

You don’t worry about that.

Now that the dogs are officially registered to you at the shelter, city and at the vet, you can always call them for anything about your dog . [Emphasis added]. [ 27 ] The plaintiff complains in one of the affidavits that he was never advised of the contents of Bylaw No. 4240, 2011 when he had to purchase the dog licenses. [ 28 ] In any event, it appears that the plaintiff had been leaving the dogs with his parents for long periods of time while he was travelling, that he was apprised before their surrender that the dogs were registered in both his and his mother’s names jointly and that his parents proposed to surrender the dogs to the City for adoption if he did not take them with him on his travels.

In that regard, the plaintiff has attached to one of his affidavits filed October 11, 2017 an email to him from his father dated December 14, 2016, in which his father stated as follows: Dear James, La Nina will bring us bitter weather. I worry about the dogs. Please take the dogs with you and I will give you a check for $1,000. This severe weather will last long. Not hearing from you about dogs safety I have discussed with City of Coquitlam legal department about safety of the dogs. They told us that you have registered both dogs under your name and your mom’s name as the co-register.

And the city legal department says your mom as a co-register may bring the dogs to the shelter for the safety of the dogs and the shelter will look for a new host family for the dogs . I believe you love the dogs as much and you have to take the dogs with you. That is why I’m offering you $1000 for taking the dogs with you. Dad [Emphasis added.] [ 29 ] The plaintiff responded to that email on December 19, 2016, refusing to take the dogs with him.

He asked that his parents “let them be there and freely play around for a week or more or so as the weather will be very permitting …”. [ 30 ] The plaintiff’s father responded by email on December 21, 2016 as follows: Dear James, I know you love the dogs. But I could not wait anymore and surrendered them to the shelter. If you really want them to stay with you, go to the shelter immediately and speak to Barb or Diane. If you really want them don’t be late. I have paid $450. – to surrender. If you go today and take the dogs with you, they promised to reimburse the money to me then I will send you $1,000.

If you really want them back go now. FYI

Dog Collars are in front of the front door. Shelter phone number: [number given] Barb & Diane are in charge now Don’t bring the dogs back to home. It’s too cold and wet this year. They need better place to stay. [31] The plaintiff also appears to acknowledge that he received notice of the dogs’ surrender from his father on December 21, 2016. In one of the affidavits filed on October 11, 2017, the plaintiff complains that: Defendant(

s) refused to show/serve and or return any documents of Remy (and Luna) who was/(were) surrendered not by Plaintiff toDefendant’s Animal Shelter at Plaintiff’s first visit to Defendant’s Animal Shelter after Plaintiff got informed From Plaintiff’s father via email on 21st December, 2016 that Plaintiff’s two sentient beings were surrendered. [Emphasis added]. [32] The plaintiff’s father apparently did not, however, communicate to the plaintiff clearly that if he did not retrieve the dogs thatsame day (December 21, 2016) he would forfeit the ability to do so thereafter.

Nevertheless, the plaintiff does not explain why he waiteduntil December 26, 2016 before attending at the shelter. III. Discussion [33] I agree with the City that much of the contents of the Amended Notice of Civil Claim should be struck under Rule 9-5(1)(b). That rule states in relevant part as follows:

(1) At any stage of a proceeding, the court may order to be struck out or amended the whole or any part of a pleading, petition or otherdocument on the ground that … (

b) it is unnecessary, scandalous, frivolous or vexatious, … and the court may pronounce judgment or order the proceeding to be stayed or dismissed and may order the costs of the application to bepaid as special costs. [34] I refer in this regard to paragraphs 1, 4, 5, 7, 9, 12, 22, 23, 24, 25, 26, 37 and 39 of

Part 1 of the Amended Notice of Civil Claim,which are either unnecessary, frivolous or vexatious or a combination of all three. They either repeat allegations made more clearlyelsewhere or are in the nature of evidence or argument rather than proper pleading. I am striking the allegations pertaining to theplaintiff having complained about his loss of the dogs to the police, the mayor and others and about his being barred from postingmaterial on the City’s social media websites, on the same grounds. [35] I am striking paragraph 1 of

Part 2 of the Amended Notice of Civil Claim. It appears to be an unnecessary and argumentativepreamble to the list of relief claimed in the subsequent paragraphs. Paragraphs 3-5 and 7-8 of

Part 2 appear to be subsumed within thegeneral claim for damages or other relief advanced in paragraphs 6 and 9 and should be struck. Paragraphs 10, 11 and 13-15 of

Part 2likewise appear to be unnecessary and should be struck. [36] Under

Part 3 of the Amended Notice of Civil Claim, I am striking paragraphs 5-24 as unnecessary and argumentative. [37] The fate of the remainder of the claim falls to be determined under Rule 9-6(4) and (5). Those provisions state in relevant partas follows:

(4) In an action, an answering party may, after serving a responding pleading on a claiming party, apply under this rule for judgmentdismissing all or part of a claim in the claiming party's originating pleading.

(5) On hearing an application under subrule (2) or (4), the court, (

a) if satisfied that there is no genuine issue for trial with respect to a claim …, must … dismiss the claim accordingly, … [38] The City argues that the remaining claim sounds only in negligence and should be dismissed on the basis that the City owed noduty of care to the plaintiff, but if it did, it did not breach any such duty.

The City asserts that it acted at all times pursuant to municipalpolicy, i.e., the “Coquitlam Animal Shelter Owner Surrender Program.” While the City argues that it cannot properly be held liable forthe contents of the policy itself, it acknowledges that it may be exposed at the operational level for its negligence, if any, in theimplementation of that policy: Brown v. British Columbia (Minister of Transportation and Highways), (SCC), [1994] 1S.C.R. 420.

[39] The plaintiff’s claim as pleaded does not appear to be framed primarily in negligence, however. Another potential cause ofaction that could be said to arise from the surviving allegations in the Amended Notice of Civil Claim, and which appears to reflect moreclosely the actual claim being made is the tort of detinue. [40] The elements of that potential cause of action were set out in Schaffner v.

Insurance Corporation of British Columbia, 2016BCSC 1186 at para. 11, in which Crawford J. cited Salmond on the Law of Torts, 16th ed. (London: Sweet & Maxwell, 1973) at 113, tothe effect that: A claim in detinue lies at the suit of a person who has an immediate right to the possession of the goods against a person who is in actualpossession of them, and who, upon proper demand, fails or refuses to deliver them up without lawful excuse. [Emphasis added.] [41] Fridman, The Law of Torts in Canada, 3rd ed. (Toronto: Thomson Reuters, 2010) at 138, describes the elements of a claim indetinue as follows: The tort of detinue involves the wrongful detention of another’s goods.

Unlike conversion, detinue does not entail any denial of theplaintiff’s title. Any retention of goods is actionable as detinue. To negate liability, the defendant must prove either that he is notdetaining the goods or that, if he is detaining them, such detention is not against the will of the plaintiff. To be wrongful, the detentionmust not be lawful.

Hence, retention of the plaintiff’s goods would not be wrongful if the defendant were exercising a lien. [Emphasis added.] [42] It is therefore a complete defence to a claim in detinue if the defendant had reasonable grounds to retain the goods despite theplaintiff’s demand for their return. [43] In Schaffer, the plaintiff’s truck had been stolen. After the truck was recovered by the police, the defendant held the truck forapproximately one month for the purpose of conducting an investigation into the theft.

Crawford J. held that the plaintiff’s consequentaction in detinue failed because, among other reasons, the defendant was lawfully holding the truck so that it could investigate thematter.

Crawford J. held that for the purpose of making out a valid claim in detinue, “[i]t is only if the refusal [to return the goods ondemand] is unreasonable or without lawful excuse that there is a wrongful detention.” [44] I am satisfied that there is no triable issue in this case, whether the plaintiff’s claim sounds in negligence, detinue or both. [45] Assuming that the City owed the plaintiff a duty of care in negligence, I have concluded that the City fulfilled that duty.

As theCity argues, it had good grounds to accept the surrender of the dogs from the plaintiff’s parents, including the plaintiff’s mother’s statusas a registered co-owner of the dogs and the parents’ joint status as owners of the property where the dogs primarily resided.

Theplaintiff does not appear to contest that the plaintiff’s mother was at least formally registered as a co-owner of the dogs and that the dogsresided primarily at the parents’ address. [46] Based on those uncontested facts, the plaintiff’s parents had ostensible authority to surrender the dogs to the City on theplaintiff’s and their own behalf. That is so even if, as the plaintiff contends, he and his parents had agreed, as among themselves, that hewas to be the sole owner of the dogs.

That arrangement, assuming it existed as the plaintiff contends, was not necessarily binding on theCity. [47] After the dogs were surrendered, I find that the City had no duty to return them to the plaintiff when he sought to retrieve themrelying on his purported status as their sole owner. [48] In defending its conduct generally, the City relies not only on the plaintiff’s parents’ status as co-owners of the dogs, but also onan apparently well-founded concern for the dogs’ welfare.

In answer to the City’s evidence suggesting that the plaintiff had been aneglectful owner, the plaintiff has adduced no evidence as to the quality of the care he gave the dogs before their surrender or what theCity officials knew or ought to have known about that.

In the circumstances, I find that it was open to the City officials to conclude, asthey apparently did based on the information available to them at the time, that the dogs were in need of better care than they had beenreceiving and were likely to receive from the plaintiff. [49] There is authority in this Province and elsewhere in Canada for the proposition that although dogs and other similar pets areregarded under our law as a species of personal property, the property rights associated with them also carry certain unique features.

Inparticular, it has been held that the general rules applicable to ownership of personal property may, in the appropriate case, be interpretedand applied flexibly so as to allow the court to make reasonable provision for the welfare of such animals. [50] In Brown v. Larochelle, 2017 BCPC 115, Cowling, P.C.J. summarised some of those authorities as follows, at paras. 11-16: 11 The legal system fundamentally treats issues as to dog ownership the same as a dispute over personal property. (Henderson v.Henderson 2016 SKQB 282, Danyliuk, J.; Warnica v. Gering, , ONT, C.A.); Ireland v.

Ireland, 2010 SKQB 454). 12 Two other cases which are of some relevance to my decision are: MacLean-Beaudet v. Belanger, (ONSCSM) and Rogers v. Rogers [1980] O.J. No. 2229. … 14 What I extract from the collective wisdom of these cases and some others is as follows: (

a) pets will not be treated in a manner such as children; (

b) courts are unlikely to consider interim applications for pet possession;

(

c) Canadian Courts are unlikely to find that joint sharing or some form of constructive trust remedy is apt; (

d) that pets are a variant of personal property; 15 The above being acknowledged it is also clear that in Canada there is a legal requirement that animals (and in particular dogs and cats) be treated ‘humanely’ unlike any inanimate personal possession. 16 In personal property law terms if someone owns a pet and brings that pet into a relationship or if someone is gifted or acquires prima facie sole possession of a pet during a relationship then absent exceptional circumstances that pet remains their property when they leave the relationship (see: Thompson v. Thompson , 2005 BCSC 1604 and McIntosh v.

Daoust , 2016 MBQB 194 ). [Emphasis added]. [ 51 ] To a similar effect is the decision of the Court in Baker v. Harmina , 2018 NLCA 15 . The Court summarised the applicable law as follows, at para. 12: In the eyes of the law a dog is an item of personal property. That doesn’t mean dogs aren’t important. It means that when two people disagree about who should get a dog, the question is not who has the most affection for the dog or treats it better ( so long as both parties treat the dog humanely ).

The question is who owns it. [Emphasis added.] [ 52 ] Very recently, the Civil Resolution Tribunal of this Province had occasion to address a dispute over ownership of a dog that was complicated by an allegation of neglect or abuse by one of the parties. In Eggberry v. Horn et al , 2018 BCCRT 224 , the applicant, Mr. Eggberry and one of the respondents, Ms. Horn, had previously been in a long-term relationship and had had children together. They had also adopted a dog. Mr. Eggberry had signed the canine adoption papers as sole owner but the tribunal did not find that fact to be determinative because Ms.

Horn was also found to have been involved in the adoption process. The dog became a family pet that the tribunal found had, as such, been jointly owned by both of them. [ 53 ] After the couple separated, the dog continued to live with Mr. Eggberry, although he occasionally left the dog with Ms. Horn when he was travelling or otherwise unable to care for it himself. On one such occasion, when Mr. Eggberry was spending the day with the couples’ children, Ms. Horn took the dog for the day and noticed that it appeared to be suffering from a skin irritation. Ms.

Horn formed the opinion, based on that observation, that Mr. Eggberry was not properly caring for it. She decided, for that reason, to give the dog to the other respondents, the Brescianis, who were friends of hers. When Mr. Eggberry learned of this, he demanded the dog back from them, but the Brescianis refused to return it on the basis that Mr. Eggberry was not a fit owner. [ 54 ] After referring to some of the authorities cited above, the tribunal concluded that “the cases make it clear that a dog is a special type of property” and that in resolving the matter it could “consider whether returning it to Mr.

Eggberry would result in abuse or neglect.” [ 55 ] In the end, the tribunal found that there was no reliable evidence that Mr. Eggberry had failed to care for the dog properly, as the respondents alleged, and therefore ordered that it be returned to Mr. Eggberry. [ 56 ] In this case, however, there is such evidence.

It is, moreover, uncontested. [ 57 ] I am satisfied, in all the circumstances, that the potential causes of action in negligence and detinue do not give rise to a triable issue because the City had good grounds to accept the dogs for adoption from the plaintiff’s parents and then to refuse to return them to him when he sought their return from the shelter. [ 58 ] There being no genuine issue for trial, I am dismissing the claim in its entirety under Rule 9-6 (to the extent it is not already struck under Rule 9-5(1)(b)). IV.

Costs [ 59 ] In a competing application, the plaintiff seeks to be paid the costs of his successful appeal in the amount of $4,480 – which is the amount fixed by a registrar of the Court of Appeal by a Certificate of Costs dated April 19, 2018. Pursuant to Rule 69(2) of the Court of Appeal Rules , that certificate “may be enforced as if it were a judgment of the court…” [ 60 ] The City resists the plaintiff’s collection effort on the basis that the appeal costs should be set off against the costs to which it claims to be entitled following the dismissal of the entire action, which I have now ordered.

The City argues that in the absence of a right to apply such a setoff, it is unlikely to recover any of its costs from the plaintiff.

It notes in this regard that the plaintiff applied for and received an order from the Court of Appeal relieving him from the obligation to pay filing costs in the Court of Appeal, on the basis that he could not afford to do so. [ 61 ] Although the Court of Appeal found that the City had engaged in an improper process in this Court when it obtained the order that was set aside on appeal, the Court of Appeal’s award of costs was not stated on its face to be payable forthwith and in any event of the cause.

In reconciling the parties’ competing entitlement to costs, I cannot ignore the fact that the entire underlying action has since been shown to be without merit. [ 62 ] As authority for the appropriateness of the setoff it seeks to apply, the City cites Reilly v. Insurance Corporation of British Columbia , 2007 BCCA 261 . One of the issues that arose in that case was whether ICBC, as insurer, could properly apply an equitable setoff to reduce the amount that it was required to indemnify its insured, Mr. Reilly. Mr.

Reilly was an unsuccessful defendant in a motor vehicle action in which he was held liable for, among other things, the plaintiff’s trial costs. After Mr. Reilly was found liable at

trial, he successfully appealed the quantum of damages and was awarded costs on that appeal. The plaintiff then sought and was refused leave to appeal from that decision to the Supreme Court of Canada, again leading to another award of costs in favour of Mr. Reilly. The trial judge refused to allow ICBC to set off the two levels of appeal costs against the trial costs award. On appeal, the Court of Appeal disagreed and allowed ICBC to do so.

I agree with the City that the case supports its submission that I can, if I consider it appropriate, allow the City to apply the setoff it seeks. [ 63 ] In these circumstances, I agree with the City that it is entitled to the costs of the action (apart from the appeal and the applications in this Court leading to it).

I also accept that in order to recover at least some of those costs, its only practical recourse is to set off that entitlement against the award of costs that the plaintiff received following his successful appeal. [ 64 ] I therefore award the City its costs of the action at Scale B, except for the costs of the first set of competing applications for

summary disposition and the resulting appeal. That award of costs in favour of the City is to be setoff against the plaintiff’s award of $4,480 in costs flowing from the appeal. [ 65 ] The City must pay the plaintiff any amount outstanding on the plaintiff’s appeal costs once the City’s recoverable costs from the action are settled and the resulting setoff is applied. V.

Summary and Conclusion [ 66 ] The following paragraphs of the Amended Notice of Civil Claim are hereby struck pursuant to Rule 9-5(1)(b): (

a) paragraphs 1, 4, 5, 7, 9, 12, 22, 23, 24, 25, 26, 37 and 39 in

Part 1; (

b) paragraphs 1, 3-5, 7-8, 10, 11 and 13-15 in

Part 2; and (

c) paragraphs 5-24 in

Part 3. [ 67 ] The remainder of the claim is dismissed pursuant to Rule 9-6(5)(a). [ 68 ] I award the City costs of the action at Scale B, except for the appeal and the competing applications in this Court leading to it. [ 69 ] The City’s award of costs may be set off against the plaintiff’s $4,480 award of costs from the appeal. “Milman J.” The Honourable Mr. Justice Milman