Best interest of a dog, Mink Breeders contest phasing out, and a strata fight over a deck

 

This week on Legally Speaking with Michael Mulligan:

A dispute over the adoption of a dog named Maddie ended up in court after the woman who “rescued” and sold her tried to get her puppies back to sell.

The dispute involved a woman in Port Alberni who has a business selling dogs that the judge concluded was misrepresented to be a registered non-profit organization called Ziggy’s Rescue.

A family purchased Maddie from the woman for $600 and signed a document entitled Foster and Adoption Contract.

The contract specified that Maddie needed to be spayed, but it turned out she was pregnant, so this wasn’t possible until the puppies were born.

When the woman who was operating Ziggy’s Rescue found out that Maddie was pregnant, she insisted that she get the puppies because she wished to sell them. The woman showed up at the home of the family that purchased Maddie and was screaming, “puppy thieves,” called the police, and yelled, “we will bury you” at the family.

The woman operating Ziggy’s Rescue ultimately sued the family in small claims court, seeking $5,000 in “lost revenue” and to get Maddie back.

The judge hearing the case, concluded that the woman operating Ziggy’s Rescue was not a reliable witness. He found that she had misrepresented that she was operating a non-profit organization when she was operating a business. The judge asked the woman if she declared her income, and she responded, “not at this time,” and that “we will get caught up.”

The judge concluded that various terms in the Foster and Adoption Contract were unreasonable and unenforceable. He also concluded that Maddie’s best interest should be a consideration when interpreting the contract on the basis that “we need to recognize that dogs, and other pets, are not simply “things” like a chair or a car.”

The judge concluded that “The time has come for Maddie to finally know she is in her forever home and that the defendant’s family are made whole.”

Also, on the show, a case involving BC Mink Breeders is discussed. In 2021 the BC government decided that mink farming should be phased out in the province by 2025 based on the risk they pose to public health. There was evidence that mink could catch and transmit COVID-19 and a concern that this could result in a dangerous mutation of the virus.

The Mink Breeders are challenging the decision, alleging that it was unreasonable. To do so, they are seeking access to the evidence considered by the provincial cabinet. The provincial government did not want to disclose this information.

The judge hearing the case concluded that while the concept of public interest immunity can be used to keep sensitive and confidential documents secret, it was not absolute. As a result, the government has been ordered to provide an affidavit detailing what documents it wished to keep secret and on what basis public interest immunity was being claimed for each of them so that the judge can decide what should be disclosed.

Finally, on the show, a case involving a small strata corporation and permission to cross a deck to get to a set of stairs leading to a backyard is discussed.

The strata, made up of three units, had a backyard. The two upstairs units in the strata had doors to access a stairway to get into the backyard. The problem was that the deck, which needed to be crossed to get to the stairs, was designated as “limited common property” for only one of the units, and the current owners of the unit were not permitting the owners of the other upstairs unit to walk across the deck to access the stairs.

The BC Court of Appeal concluded that a trial judge had made a mistake using the concept of “proprietary estoppel” to permit access to the deck to get to the stairs. Instead, the owners of the unit wishing to access the stairs would need to make an application pursuant to the Land Title Act or Strata Property act to have the designation of the deck changed.

 

Legally Speaking with Michael Mulligan is live on CFAX 1070 every Thursday at 10:30 am. It’s also available on Apple Podcasts or wherever you get your podcasts.

 

An automated transcript of the show:

 

Legally Speaking Oct 13, 2022

Adam Stirling [00:00:00] It’s time for Michael Mulligan, Barrister and Solicitor with Mulligan Defence Lawyers. It’s Legally Speaking. Good morning, Michael. How are you doing?

Michael T. Mulligan [00:00:06] Hey, I’m doing great. Always good to be here.

Adam Stirling [00:00:08] Some interesting stories on the agenda this week. I’m reading the first one here, a question of who owns a dog and her puppies. Does that say.

Michael T. Mulligan [00:00:17] That’s exactly it. Maybe that’s a bigger philosophical question about who can own a dog. And this is a case out of Port Alberni and the case involves a person who went to purchase, from their perspective, a dog from an organization presenting itself as Ziggy’s Rescue. And they showed up and they wound up paying some $600 and signing a contract and then taking home a dog. And the dog seemed to be doing well. The dog, by the way, her name was Maddy. Maddy the dog.

Adam Stirling [00:01:02] Okay.

Michael T. Mulligan [00:01:03] But very quickly, a dispute arose between the Ziggy’s or the woman holding herself for doing business of Ziggy’s rescue.

Adam Stirling [00:01:13] Yes.

Michael T. Mulligan [00:01:13] And the adoptive parents of the dog. And the dispute ultimately the legal dispute centered around this contract, which was signed. And what part of the contract said that the adoptive parents of Maddy needed to have Maddy spade. But it turned out that Maddie was pregnant, so that wasn’t possible immediately. And things got worse when Ziggy, the woman operating a Ziggy’s rescue showed up at the home of the people who purchased the dog, demanding her the dog and ultimately the puppies.

Adam Stirling [00:01:53] huh.

Michael T. Mulligan [00:01:53] And pointing to provisions of the contract that allowed her to attend to the home at any time. There was a screaming match where the woman doing business as Ziggy Rescue was, according to the judge, yelling out things at the person’s gate like puppy thieves and saying things that she was going to call the police. And we will bury you.

Adam Stirling [00:02:22] We will bury you over the puppy.

Michael T. Mulligan [00:02:25] We will bury you.

Adam Stirling [00:02:27] Okay.

Michael T. Mulligan [00:02:28] And so this all wound up eventually in provincial court, in small claims court. Oh, good. The woman doing business with Ziggy’s Rescue claiming for what she said was lost revenue, including from the puppies. And so, the judge, first of all, I mean, it’s a very interesting findings. First of all, the woman operating this or holding herself out of Ziggy’s Rescue claimed to be a non-profit. But the judge concluded that this line, however, simply identifying yourself as a non-profit organization does not mean you are one and concluded that the woman was in fact operating a business. She would charge several hundred dollars for each dog, and she would rescue the dogs. The judge found that woman gave evidence that she had removed dogs from a First Nations community in northern Manitoba, brought them back to British Columbia, and was effectively selling them and then making money, selling puppies as well. And the judge found that the woman was simply not forthcoming about what was going on, that even though she claimed to be a non-profit society, that did not appear to be so. And when the judge asked her questions about things like the amount of money being made and whether she was reporting it, she gave evasive answers like, well, I’m getting to that or things to that effect. But that then brought the judge to okay, well, what’s to be done with Maddy and the puppies?

Adam Stirling [00:04:02] Yeah.

Michael T. Mulligan [00:04:03] And the people who purchased the puppies or purchased Maddy who had the puppies gave the puppies to the SPCA, and somehow the Ziggy person wound up getting the puppies from the SPCA.

Adam Stirling [00:04:20] hmm.

Adam Stirling [00:04:20] And so ultimately, the judge found that it turned on an interpretation of the “Foster or Foster to adoption contract”, which was sounds like something that was made up by Ziggy and the woman operating in Ziggy’s Rescue. And the judge found it to be sort of confusing, confusing contract. And the those concepts the judge pointed out had quite different connotations. Somebody who is fostering a dog suggests something temporary, whereas somebody who is adopting a dog that sounds like something permanent. And some of the legal principles the judge applied to interpreting this agreement involved, first of all, a concept of conditions on a contract being unreasonable and not enforceable for that reason. And the judge found that, for example, some of the conditions written in there included this purported condition to allow anyone from this woman or anyone associated with Ziggy’s to show up at the home at any time without any warning, to deal with the dog forever.

Adam Stirling [00:05:24] Forever. wow.

Michael T. Mulligan [00:05:25] And indeed, indeed, she showed up in that way, you know, calling the defendants names and causing a disturbance and yelling all the things the judge found, she yelled out, and also conditions written in there saying that if there was any breach of the agreement, the dog had to be returned at any time. So, the judge found that those things were unreasonable and not enforceable terms of the contract. The other very interesting thing the judge did is the judge assessed how was a dog to be considered. He said, look, the dog’s been referred to at various times as a good, a chattel, an animal, or the property. And the judge, interestingly, he referred to some previous cases that had moved in this direction. But the judge found that one of the considerations he needed to give when interpreting the contract was Maddy’s best interest.

Adam Stirling [00:06:20] Hmm.

Michael T. Mulligan [00:06:20] Which is very interesting. That’s, of course, the concept we would apply with children.

Adam Stirling [00:06:24] Yeah.

Michael T. Mulligan [00:06:25] For example, judges deciding about kids is what’s in the best interest of the child. And so, the judge found that, in his view, he needed to recognize that dogs and other pets are not simply things like a chair or a car or something. And the judge found that it was important for him to consider things like, you know, what kind of a bond the dog has with somebody who took the dog for walks? Had they bonded what was in the best interest of the dog?

Adam Stirling [00:06:52] Interesting.

Michael T. Mulligan [00:06:53] And that was a very important consideration. And so taking into account the best interests of Maddy, how this contract was worded and an assessment of the, I guess, veracity of the evidence given by the woman doing business at Ziggy’s Rescue, the judge concluded that it’s heartwarming, her quote at the end, “every dog must have his day and today is Maddy’s day” and concluded that the dog should know who the dog’s forever home was going to be. And that home was going to be the home of the people who had adopted the dog. And having taken in taken a pretty dim view of this person who had been, according to the judge, holding herself out to be a non-profit organization when in fact she was selling dogs and making a claim for lost revenue from the puppies the dog had and took an extremely dim view of that. And so, at the end of the day, the judge interpreted the contract in a way to find that the people who had paid $600 to the woman doing business at Ziggy’s Rescue were the proper owner of Maddy. And that Maddy can finally know that she’s in her forever home. And the judge considered that, and the defendant’s family are made whole. And so that’s the outcome of the case. Interestingly, if somebody looks Ziggy’ Rescue, which was from Port Alberni, yeah, it was apparently operating. And if you look at their web page, they have things on it like donation buttons and pictures of all these dogs. And it’s really interesting to contrast the at least the online presentation with the findings of the judge in terms of what, in fact is going on at Ziggy’s Rescue. And so hopefully there’s enough people pay some attention to the judgement, they can give some consideration to whether they wish to make a donation or whether that is somebody they want to do business with if they’re looking for a dog.

Adam Stirling [00:09:04] Michael Mulligan.

Michael T. Mulligan [00:09:05] Sorry Maddy

Adam Stirling [00:09:05] Michael Mulligan with Mulligan Defence Lawyers. That’s one story, another interesting story or two I’m seeing here on the agenda. We’ll take a quick break, and we’ll return with all the latest right after this.

[00:09:17] COMMERCIAL.

Adam Stirling [00:09:17] Legally Speaking continues on CFAX1070, joined as always by Michael Mulligan barrister and solicitor with Mulligan Defence Lawyers. Up next, Michael, I’m reading here the Canadian Mink Breeders Association and a request for material used by cabinet. What’s going on here?

Michael T. Mulligan [00:09:34] Well, we’re keeping with the animal theme.

Adam Stirling [00:09:36] All right.

Michael T. Mulligan [00:09:37] First, we just going on. But what’s going on here is that you may recall during the height of COVID, there being a concern that COVID can be passed to and from mink. And there was a concern that a number of mink had tested positive for COVID. And of course, the concern was there might be some mutation caused by that and the disease passed along in some other way, obviously not desirable, to put it mildly. And so, the British Columbia government, in the form of the Provincial Cabinet, the Governor in Council, passed some regulations with the objective of phasing out all mink farming operations in British Columbia by 2025, citing the risk the industry poses to public health. And not surprisingly, that didn’t go over well with the mink farmers, nor the Canadian Mink Breeders Association. We have such a thing. And there’s a provincial version the British Columbia Mink Producers Association,.

Adam Stirling [00:10:38] hmm.

Michael T. Mulligan [00:10:38] So well represent a group of mink farmers. And so, there is a judicial review going on with those associations and the farms that would be shut down by 2025 challenging that those regulations. And so, one of the issues that has arisen is what right do the mink farmers and the association, associations have to the documents that Cabinet relied upon when making the decision to wind up that industry. And the argument being made by the Mink Breeders Association and company are that they need to have access to those things to be able to make their argument that the government decision was unreasonable in some fashion.

Adam Stirling [00:11:33] hmm.

Michael T. Mulligan [00:11:33] And that has been opposed by the provincial government. And it’s been opposed on the basis of that, the broad concept that cabinet discussions and material are privileged.

Adam Stirling [00:11:46] Exactly. Yeah.

Michael T. Mulligan [00:11:47] And that has been a longstanding position, right?

Adam Stirling [00:11:52] Yeah.

Michael T. Mulligan [00:11:53] Part of the ideas are you want government to be able to have all sort of free discussions about things. But the Supreme Court of Canada, in a case from 1982, Smallwood and Sparling concluded that the claim of privilege for Cabinet material is not absolute.

Adam Stirling [00:12:10] Hmm.

Michael T. Mulligan [00:12:11] It’s. There’s what the court found to be a qualified public interest immunity.

Adam Stirling [00:12:15] Interesting.

Michael T. Mulligan [00:12:16] And so the court found that the Supreme Court of Canada found in that case that there is not this absolute blanket privilege, is not an automatic right. But on the other hand, individuals don’t have an automatic right to discover to discovery of sensitive and confidential documents held by the state. you know, somebody can’t say, look, they want to challenge your decision to, I don’t know, send equipment to the Ukraine. And so, to do what they want, all of the information you have about the war or something, people will be hold on we can’t have that going on. But what the court concluded in the in this mink breeders’ case is a middle ground. And the court has concluded that and ordered the government to prepare a detailed affidavit setting out what all the documents were in the Cabinet relied upon. And yes, if there is going to be a claim made for public interest immunity to avoid providing those documents to the mink breeders. There needs to be an argument made as to why that so, for each of the documents. The court found that, you know, in some cases that kind of a claim is going to be so clear that it’s not going to be necessary for the court to review the documents, like, for example, with a war going on. If somebody said, I want to see all the tactical maps used to make the decision to do X or Y. The Court can say, look, we don’t even need to review that. No, you don’t get the, you don’t get the tactical maps of the Ukraine.

Adam Stirling [00:13:54] No.

Michael T. Mulligan [00:13:54] A challenge to the government decision.

Adam Stirling [00:13:56] No.

Michael T. Mulligan [00:13:57] Sorry, but on the other hand, there can be other documents when there is this sort of detailed description of them that the court may well find it’s appropriate for them to be reviewed by the court, at least in a closed setting, to determine whether they are things that should be properly provided to allow a meaningful review. Because you can imagine it’s pretty difficult if you’re trying to challenge some decision of being unreasonable, if you have no basis to point to, well, how is this decision made? What did you rely upon? Was there evidence saying that if we don’t ban, you know, mink farming by 2025, there’s going to be a risk to the public. Maybe the material said there’s no particular risk at all. I guess to my mind, one of the immediate things that causes me to think about is if this is a serious problem, why are we waiting till 2025?

Adam Stirling [00:14:47] Yeah.

Michael T. Mulligan [00:14:49] If these minks are mink of the possibility of causing a mutation of a disease in a way that could make it worse, perhaps you want to act faster than 2025. But in any case, that’s the interim decision here. And so, the government has been ordered to provide that detailed information, and then there can be a decision made about whether there are particular claims with respect to some of those things. And the court will then determine whether it’s obvious that those kind of things are protected by public interest immunity or whether it’s necessary to review the material to determine whether there is some important, you know, government information there that shouldn’t be disclosed in order to permit the litigation to go ahead. So, the mink breeders there, they’re on it.

Adam Stirling [00:15:37] Fascinating. What’s next?

Michael T. Mulligan [00:15:41] The final case on the agenda for today is a case out of the Court of Appeal. And it’s a case dealing with a dispute at a small strata, I think should be a cautionary tale for people and caused you to look carefully if you’re purchasing strata, property and the essence of the dispute, it’s a small strata with only three units in it and two of the, and there’s a backyard area of a strata and there’s a deck along with a flight of stairs that runs off of a small landing. And two of the units would need to go down the stairs to get into the back yard where things like the garbage is kept and the, you know, the carport or garages, things of that sort. And the trouble arose because the deck area was described as what’s referred to as limited common property. Which is kind of a what’s that? And the idea with a strata is that you can have property which is described as limited common property, meaning it’s common property, it’s owned by the strata, but it’s been set aside for the exclusive use of one particular strata owner. Right. So, an example, a common example of that might be a parking space, right? In a strata development that parking space is for the exclusive use of a particular unit. Right. Even though the parking overall is owned by the Strata Corporation. And so what happened here is that for a number of years, everything seemed to work fine in that the even though this deck was designated as the limited common property of one of the units it owned, all of it, or had the exclusive use of it, the other unit needed to walk across the small landing to get from their door to go down the stairs, and for years everything was fine dispute how that was legally defined. Everyone just kind of acted reasonably. But human affairs don’t always go well. And so various disputes over things like where garbage was going to be kept and whether there should be tenants and various planter, it would seem led eventually to the owners of the Strata unit that had this deck designated as limited common property, saying to the owners of the other unit, you can’t cross it, which meant that they were unable to walk down the stairs to get to the back yard. And so, off the case went to court. And the argument made at trial, this is a court of appeal decision, by the owners of the unit that hade to cross to go across this little landing to then walk into the back yard. Their argument was a concept of promissory estoppel, sort of,.

Adam Stirling [00:18:27] huh.

Michael T. Mulligan [00:18:28] Hey, for years we were allowed to do this. Basically, we should be permitted to continue to do this. It’s not fair that this person could cut us off, even though they’ve had some unhappiness over a planter and the garbage and renters and various other things. And they succeeded, at least at the trial level. But that still wasn’t the end of it and this case went off to the Court of Appeal, which is the decision that just came out. And the, I suppose on one level the judgement at trial is a kind of a practical solution to this problem, right? Because you’ve got these two units, they both have doors, both people need to get to the back yard. And really, what does it matter if somebody is walking across a landing to go down the stairs? But the Court of Appeal, of course, is, of course, concerned with things like setting precedent and making sure that decisions are all in accordance with the law. And the Court of Appeal found that that concept of promissory estoppel, the hey, I was permitted to do this for a long time by other people, wasn’t a basis to enforce a right to keep going over this little landing, go down the stairs. And so, they reversed the judge and found that no, indeed, the owners of the strata unit who had this deck designated as limited common property meant effectively that was theirs to do with as they want. And they didn’t have an obligation to permit the other property owners to go across it to get down the stairs. They were allowed to deny that. And so that’s the decision. And what it means is that the people who have the other unit, the one that don’t have the debt designated as limited common property for their use, have a door which they can’t go through because as soon as they would go through it, they would be on this deck, which they don’t have any right to be on. And so, the Court of Appeal, that’s the decision, the Court of Appeal. But the court did point out that it’s not as if there’s no possible remedy. The court pointed out that there is authority for the Registrar of land titles to correct an error on a strata plan. Like if there’s an erroneous strata plan drawn up.

Adam Stirling [00:20:43] Yeah.

Michael T. Mulligan [00:20:43] there’s a mistake.

Adam Stirling [00:20:44] Yeah, there’s an authority for the registrar to correct that. And so, the court suggested perhaps that’s an avenue, on the basis that, look, it was clearly contemplated that the people in the other unit would be able to go out this door to get into the back yard. And so that’s a possible remedy. And the court also pointed out that there’s another section of the Strata Property Act, which is the act that regulates how people interact in a Strata, which section 164. And that section allows an application to be made by, interestingly, either an owner or a tenant to the Supreme Court in order to seek a remedy for an unfair action by a strata corporation. It’s pretty broad.

Adam Stirling [00:21:31] Yeah.

Michael T. Mulligan [00:21:32] And so the argument there would be there might be an effort to have the strata corporation change the designation of the deck. And if that didn’t work, perhaps there could be an application made under that section of the Strata Property Act. And so, the Court of Appeal said, look, there may be a couple of legal remedies for this problem, but that concept of promissory estoppel, the last people let us do it for a long time wasn’t a possible remedy. And so, at the moment, the owners will need to stew in their unit and not go across the landing to get to the stairway, to get into the backyard. And they’ll need to consider one of those other remedies if they want to take their Trash out.

Adam Stirling [00:22:12] Legally speaking, Michael Mulligan, Barrister and Solicitor with Mulligan Defence Lawyers. During the second half of our second hour of a Thursday, you’re on CFAX 1070. Michael. It’s a pleasure, as always. I find these segments endlessly fascinating as you often see the endless complexity of human affairs and how courts find when faced with those circumstances.

Michael T. Mulligan [00:22:30] It never ends. But, you know, happily, many of the decisions end in the way the first one did with a happy ending for Maddy.

Adam Stirling [00:22:39] I like that one,.

Michael T. Mulligan [00:22:39] Always a pleasure.

Adam Stirling [00:22:40] It was a good one. Thanks, Michael. Appreciate it. Talk to you next week.

Automatically Transcribed on October 17, 2022 – MULLIGAN DEFENCE LAWYERS