Nickerson v. Webb, 2021 NSSM 45

IN THE SMALL CLAIMS COURT OF NOVA SCOTIA Citation: Nickerson v. Webb , 2021 NSSM 45 Claim No: SCCH 20- 501395 BETWEEN: Shannon Lee Nickerson Claimant - and – Patty Webb Defendant Mr. Jack MacDonald appeared for the Claimant Ms. Webb appeared on her own behalf DECISION [ 1 ] This case came before me for hearing at a special time, via teleconference, on May 31 st , 2021. [ 2 ] Ms. Nickerson, the Claimant is seeking the return of the dog “Ruby”, who was “given” to Ms. Webb in November of 2019. I use the term “given” in quotes, because that is the crux of the dispute between the parties. Ms.

Nickerson filed a claim with this Court October 21 st , 2020, claiming for “return of goods”, based upon “condition precedent not met” (reasons for the claim were attached). The issue identified was that Ms. Webb, after one visit, refused to let Ms. Nickerson and her family continue to visit the dog at her (Ms. Webb’

s) home, and refused further contact with Ms. Nickerson. [ 3 ] Ms. Webb defended, stating, “I did not sign any agreement with the claimant she turned her dog over to me, and my partner”, and “I did not make any verbal agreement with the claimant when she turned her dog over to me and my partner”. [ 4 ] Mr. MacDonald, representing Ms. Nickerson at the hearing before me argued that the agreement between the parties constituted a condition subsequent, not precedent, and that the refusal to allow visit with the dog therefore ends the gift, requiring the return of the “gift” (the dog). Evidence: [ 5 ] Ms.

Nickerson testified that the dog was a rescue that she acquired about two and half years previous to the events described herein. In 2019, Ms. Nickerson’s mother became ill and moved in with Ms. Nickerson. Ms. Nickerson described her mother at a frail 82

year old woman. She concluded that it was unsafe for the dog, an 80 pound lab mix, to continue to be in the home. Shortly before this hearing in May of 2021, Ms. Nickerson’s mother moved from her home to an assisted living facility. [ 6 ] Ms. Nickerson says that she recruited the assistance of her cousin Nicole Jacquard-Fry, who posted the dog on Facebook. The posting was not available to be put in evidence, but she testified “I’m pretty sure the ad said the owner needed to check up on the dog”. [ 7 ] Ms. Nicole Jacquard-Fry, Ms. Nickerson’s cousin, testified to posting the Facebook ad.

She could not produce the ad, but stated “it would have said no children or pets”. [ 8 ] Her response with respect to her conversation with Megan Roop, Ms. Webb’s daughter, who was her contact on Facebook in arranging for the dog to be given to Ms. Webb, was “she would have had to have said that’s not an issue for Shannon to go see her”. [ 9 ] I note that these are normative responses, which do not actually prove what was said, or written in the ad. [ 10 ] She also confirmed that to the best of her knowledge, she was not aware of Ms. Nickerson wanting the dog back. [ 11 ] Ms.

Nickerson testified “I don’t think anyone who is a dog lover would ever agree to giving their dog away and never seeing them again. You have to check up on them from time to time. You want to continue to make sure the dog is doing well.” [ 12 ] Ms. Nickerson testified that her number one priority was seeing the dog from time to time: “I promised the kids you could still visit the dog”. [ 13 ] In November of 2019, the dog was delivered to Ms. Webb by Ms. Nickerson, who said that she wanted to see where the dog was going to be living. [ 14 ] Ms.

Nickerson says that she planned to come back the following week, but that Ms. Webb advised her that the dog was upset, and it would be best to let him settle in. There were two telephone conversations with Ms. Webb confirming this. [ 15 ] After this, there are in evidence text exchanges in March, and then April of 2020, between Ms. Nickerson and Ms. Webb, discussing the dog. By then, the global COVID 19 pandemic had led to a virtual shutdown of the province of Nova Scotia, and there is no evidence of visits having occurred. [ 16 ] Communication resumed in August of 2020 with Ms.

Nickerson again asking to come and see the dog, and to bring with her her stepson and other dog. She asked about seeing the dog on September 30 th , 2020 and was advised that Ms. Webb would be out of town. Her response: Oh! Are you taking Ruby with you? We’d be more than happy to take her for the weekend! Don’t worry we are not angling to take Ruby back! We just would like to see her from time to time! LOL! I truly believe that the best place for her is with you and Mary.

We do miss her however and the kids talk about her often and we’d love to still have her in our lives- even if only on occasion to relieve you and Mary if you are travelling etc. Kindly and respectfully, Shannon [heart emoji] [ 17 ] Ms. Webb responded that they were taking the dog with them, but an arrangement was made for a visit on October 6 th , 2020. [ 18 ] The evidence of Ms. Nickerson was that the visit went well, with Ms. Nickerson and her son going for a walk on the beach accompanied by Ms. Webb and Ms. Reynolds.

[ 19 ] The evidence of Ms. Webb and her partner Ms. Reynolds was that it did not. They allege that Ms. Nickerson’s minor son “jerked” the dog off her feet. Ms. Nickerson’s son, who gave evidence, says that he was preventing her from running into the water. [ 20 ] None of this evidence regarding the treatment of the dog during the visit has any bearing on the decision to be made, although it does provide context for Ms. Webb’s actions following this visit. The question is not who might be the best owner for the dog, it is who has the best ownership interest. [ 21 ] Ms. Nickerson texted Ms.

Webb, thanking her for “accommodating our visit”. On October 8 th , Ms. Webb responded, saying: “You’re welcome Shannon. It was nice to see you and meet your son. And glad I got to meet Pedro. I'm glad you enjoyed your visit. I hope you are not regretting giving Ruby away. It is very strange to us that you would want to stay in touch. I worry that it is confusing and difficult on everyone. Especially the dogs and your son. We don't want to cause pain but feel we shouldn't be having visits anymore.

I hope you believe Ruby he is in good hands and know how much we love her period we are taking very good care of her period I hope you can understand. Thank you for this amazing beautiful dog. Take care and best wishes. [ 22 ] Ms. Nickerson responded with a lengthy text that same day expressing her distress with this decision, in part of which she states: I know you are worried that we are going to want Ruby back, but please try not to. We cannot take Ruby back. We do still love her of course though.

And I'm trying to teach my son that even those situations sometimes end it shouldn't mean that the love and consideration and caring needs to end. Does that make sense? I hope I'm explaining it properly. In the world we live in today relationships with loved ones often end up being all or nothing. I was taught that even those situations might change, it doesn't mean that you can't continue to foster other aspects of a treasured relationship. This is what I'm trying to impart to my kids. I'm sending this to you hoping that you will not feel offended or threatened in any way. Please...

I'm really hoping we can work together on this. [ 23 ] The day after that exchange, Ms. Nickerson sent a text referencing having spoken to a lawyer regarding their “verbal agreement” with respect to the dog, and communication ceased. [ 24 ] It is worthy of comment that the actual arrangement for the gift were made by Ms. Jacquard-Fry and Megan Roop, Ms. Webb’s daughter. It is therefore difficult to be clear in the evidence as to exactly what Ms. Webb was told regarding the arrangement. For example, despite Ms. Nickerson's evidence that the dog was not be around small children, there is no indication that Ms.

Webb knew about this proposed restriction, and that she has a 5 year old grandchild who is regularly with the dog. [ 25 ] Ms. Webb testified that when Ms. Nickerson left the dog with her, she confirmed that she has said she wanted to come visit now and then, to which Ms. Webb testified “I didn't think much of it, it's like when people say they will come for coffee. I didn't take it as seriously as maybe I should have and Mary wasn't even aware of it. I was really uncomfortable with someone I didn't know coming out and spending time with my dog.” [ 26 ] Ms. Webb indicated that Ms.

Nickerson “never indicated that we were fostering or on probation”, stating: I can't wrap my head around previous owners showing up it's not closure. The dog is loved, fed well in a good home. I don't understand how the Court could take the dog and give it back to a previous owner who had given the dog away. There was no written agreement with respect to any of this. [ 27 ] In cross-examination Ms. Webb stated: I didn't see it as an agreement I didn't realize it was part of the agreement to have the dog. It was not a deal. Ms.

Nickerson said she wanted to visit the dog from time to time and I did tell her that would be fine but I had no idea it was a legal agreement. I didn't see this as

“do this or you don't get the dog”. [ 28 ] The final witness to testify was Ms. Reynolds, Ms. Webb's partner. Of all of those who gave evidence, it was clear that Ms. Reynolds was the most upset, and she found it difficult to testify regarding her close relationship with the dog. She stated: Shannon brought Ruby to our home and I fell in love with her the minute I saw her. All Ruby ever wants to do is roll over and get belly rubs. I did not hear any mention of coming to visit her from time to time.

There was no suggestion as far as I knew that Shannon was going to want a continued physical relationship- I would not have agreed to an ongoing relationship with someone I don't know . [ 29 ] Ms. Reynolds pointed out the vet records that has been put in evidence, showing their care of the dog since they had been given her. Regarding the walk in October of 2020, she testified to being upset at the way the dog was treated and confirmed that she did not want that to happen again, and that the visits were upsetting for both herself and her partner. Argument: [ 30 ] Mr.

MacDonald in his closing suggests that this is a very simple case. He cited the case of Faulkner v. Hunt, 2019 NSSM 52 , which quotes with approval MacDonald v. Pearl 2017 NSSM 5 , for the proposition that dogs are personal property. As a result, disputes are determined on the basis of ownership not on the basis of the best interests of the animal. [ 31 ] Mr. MacDonald is correct in his analysis of the law. A dog in Nova Scotia is a piece of property, with ownership to be determined as a question of law determined by the facts in the case. [ 32 ] Under

section 9 (

c) of the Nova Scotia Small Claims Court Act , RSNS 1989, c. 430 , this Court can make an Order “requesting the delivery to …[the claimant] of specific personal property where the personal property does not have a value in excess of $25,000.” [ 33 ] The Claimant seeks delivery of the dog to her under that section. [ 34 ] In terms of what type of property transaction took place regarding the dog, Mr. MacDonald says, and I agree, that the transfer of the dog to Ms. Webb by Ms. Nickerson was a gift.

The transaction meets the criteria for what is described in legal terms as a “gift given while the parties are alive” (in Latin, a “gift inter vivos ”). [ 35 ] The criteria for that gift are threefold: 1) There must be an intention to donate; 2) There must be a sufficient act of delivery of the gift, 3) there must be acceptance. [ 36 ] There is no dispute on the part of the Claimant that the gift was perfected in those above criterion. However, Mr. McDonald argues that the gift is restricted by a “condition subsequent”. [ 37 ] That condition subsequent he says was the requirement that Ms.

Nickerson continue to have access to the dog on terms that are not exactly specified, but which, using the words of Ms. Nickerson in one of the text messages, he described as being “from time to time”. [ 38 ] Mr. MacDonald then outlined the conditions that could sever a condition subsequent from the gift. It is clear from the case law provided that in the event that the condition is severed, the giving survives and the gift remains in the possession of the donee. [ 39 ] Mr.

MacDonald identified as the only potential grounds for severance, 1) impossibility 2) uncertainty of the condition 3) public policy and 4) restraint on alienation.

[ 40 ] Mr. McDonald argued that the condition is neither impossible nor uncertain – it required only that Ms. Nickerson be allowed to visit the dog from “time to time”. [ 41 ] Other than COVID protocols, Mr. McDonald argued that there was no public policy reason to prevent the conditions subsequent from operating. With respect to restraint on alienation, Mr. McDonald argued that there was none created by this condition. Ms. Webb could have sold the dog or given her away, and there was nothing that Ms. Nickerson could have done about it, because the gift would have ceased to be effective. [ 42 ] Finally, Mr.

McDonald argued that “in a perfect world we would be seeking specific performance” and that “the unreasonable actions of Ms. Webb and Ms. Reynolds led to the need to make this application.” [ 43 ] Ms. Webb in her submissions stated that she did not understand much of the argument, but reiterated that Ms. Nickerson had stated on many occasions that she thought they were perfect for the dog and that she didn't want the dog back. Decision: [ 44 ] I thank Mr. MacDonald for his review of the law regarding gifts.

As indicated above, disputes of this nature are resolved by way of answering a question of law based upon the proven facts. On the evidence provided, I find that the dog was in law personal property, and that the elements of gift were satisfied. Ms. Nickerson intended to part with dominion over the dog, she chose to deliver the dog to Ms. Webb, and the dog was accepted by Ms. Webb. [ 45 ] The challenge in this case, related to the creation of a condition subsequent. It goes without saying that parties to an agreement, are bound by the agreement they had made.

That means, that in addition to meeting the test for gift, the parties had to enter into a condition subsequent to the gift. This can be a difficult proposition when agreements are made only verbally, but there must be evidence to support the finding that the parties intended to be bound by such a condition. I find that such evidence has not been proven. [ 46 ] First of all, there is the problem that the condition, if articulated, was articulated by Ms. Roop and Ms. Jacquard-Fry. Ms. Webb’s evidence was that she had no understanding that the agreement to allow Ms.

Nickerson to visit was legally enforceable, and that it could lead to her losing possession of the dog. [ 47 ] That in and of itself might not be fatal to the gift subsequent, but for the fact that Ms. Nickerson repeatedly indicated to Ms. Webb throughout the course of events that she had no intention of regaining custody of the dog, and she reassured Ms. Webb that that was not her intention, more than once. I find that the condition subsequent had to be created, and communicated, to Ms.

Webb at the creation of the gift, and not months later. [ 48 ] The reality that is a narrative that runs through the decision, and confirmed by Mr. McDonald's closing, is that the challenge for Ms. Nickerson was that this Court does not have the authority to order specific performance. She wanted to be able to visit the dog, not regain custody. [ 49 ] I therefore find that at the time that the gift was created there is no evidence to support the finding that the common intention of the parties was to create and rely upon a condition subsequent which required that Ms.

Nickerson be permitted to visit the dog, or the gift would fail and the dog be returned. As a result, that part of the gift must fail and the gift of the dog becomes a gift absolute to Ms. Webb. [ 50 ] If I am wrong in this conclusion, and the condition was created, I further find that the condition subsequent must fail on the basis of uncertainty. There being no agreement in writing, the best that can be said of the required condition is that Ms. Nickerson asserts the right to “visit the dog from time to time”. It would be virtually impossible for Ms.

Webb to refuse any visit, not matter how frequent, without a constant threat of losing the dog. It is also unclear who Ms. Webb must give access to, whether it is only Ms. Nickerson, or her family members, one of whom already were included in the October 2020 visit, how long the “visits’ need to be, whether they must take place at Ms. Webb’s home, or whether the visits include the right of Ms. Nickerson to remove the dog for walks and bar the participation of Ms. Webb and Ms. Reynolds, or to take the dog elsewhere.

I find that to impose such a condition subsequent on the lives and privacy of complete strangers, and to restrict their possession of the dog in this way, requires far more specificity of expectations at the time of

the creation of the gift, and so the condition subsequent must fail, leaving only the gift absolute to Ms. Webb remaining. [ 51 ] Based upon both of these grounds, I therefore dismiss this claim in its entirety, and an order will issue accordingly. Dale Allane Darling, QC Adjudicator Dated at Halifax, Nova Scotia on July 21 st , 2021