© 2019 Dr. Gail H. Forsythe, Lawyer/Mediator, Aarbo Fuldauer LLP

When an individual, couple or family dream of a new puppy or other pet, the vision is that the new companion will bring joy to the household for many years. The antics of a happy, healthy puppy or kitten bring a smile to one’s heart. Pet health starts with acquiring your pet from a responsible and ethical individual, such as a hobby breeder; or a registered charitable organization dedicated to rehoming animals.

When you acquire your pet, what are the health guarantees to look for, to protect you, as a consumer; and to protect the breeder/seller or charitable organization?  The Canadian Kennel Club’s “Puppy List” is one resource to start your search for a pet.  The Animal Pedigree Act and the CKC’s By-laws, regulations and policies set out requirements for animal sales. 

Buying a registered pet with a pedigree is not snobbery; it is an investment in risk prevention. A pedigree represents decades of verification that your puppy’s ancestors had the physical, temperamental and functional qualities that you want in your pet, once it reaches adulthood. For example, if you want your puppy to have a particular size or body shape as an adult, you can increase the odds by knowing that generations of the same qualities have come together in the past, to create your puppy’s DNA.  

A family can benefit immensely from some degree of predictability regarding a pet’s future size, appearance, temperament and functional capacity; also, that it will be healthy and not require extensive vet care.  A sick or incapacitated pet can be the source of extraordinary vet bills and tremendous economic and emotional stress.

The reality is that animals, like people, can be afflicted with serious medical conditions. No one can predict that a human child will be a healthy, disease free adult. Even so, pet buyers have high expectations; especially if they buy into the notion that a “designer dog” will be healthier, because it is more genetically diverse. The reality is that the “designer dog” might be more prone to health problems, because both parents can carry inheritable conditions. Unlike many purebreds, designer dog breeding stock may not be health tested nor DNA screened to rule out carriers. To address the need for health assurances, reputable breeders health test their adult dogs before making breeding selections. Reputable breeders also offer “pet health guarantees” to minimize the Buyer’s future risk.

How does a pet health guarantee work to protect the Buyer? And, to limit the Seller’s future risk? Let’s look at the case of Pezzente vs McClain to see how a BC Provincial Court Judge answered those questions. In this case, a puppy was born with a shorter than normal tail for its breed. The Breeder sold the dog for much less than its normal value, because of this anatomical quirk of nature. In this breed, a short tail would not normally impact health or function. The dog looked “different” but was otherwise a healthy, normal puppy.  At the time of sale, the Breeder said the puppy was healthy; the Breeder gave a verbal guarantee about the dog’s health.  The Buyer paid $350 for the puppy.

Two years later, the Buyer was in front of the court, asking the Judge to: a) declare the Breeder’s oral statement a “health warranty”; and b) order the Breeder to reimburse $10,000 in vet bills. Experts were called to give evidence about the dog’s medical condition. The dog had a number of medical problems, including an extremely rare condition that was “congenital” (present at birth). The congenital condition related to the length of tail. The congenital condition was undetectable at birth; and remained so for some time.

The Judge concluded that the Breeder’s oral statements at the time of sale created a warranty; however, that warranty could only relate to the medical conditions present at birth; not the dog’s additional medical problems.  The Judge stated that:

“… a warranty cannot be expected to cover all health problems the dog might encounter in a lifetime.” 

The Judge’s conclusion about limits on the scope of the verbal warranty is a reflection of reality; and a financially reassuring principle for sellers, breeders and rehoming agencies. 

Focusing next on veterinary expenses that related to the congenital problem covered by the oral warranty, the Judge noted that under Section 56 of British Columbia’s Sale of Goods Act, a breach of verbal warranty limits damages to an amount that would be the “natural result from an ordinary set of events”. The Judge also applied the common law principle that animals are classified as personal property. Regardless how deeply an owner loves a pet, the common law does not permit a Judge to take emotional attachment into consideration when assessing a pet’s “value”.

Because of the law’s personal property classification, the Judge reframed the case to assess what “a normal set of events” would be, if the Buyer was faced with a broken piece of personal property, such as a stereo worth $350. The Judge concluded that it would not be normal for a person to spend $10,000 to repair a $350 stereo.  Instead of reimbursing vet bills that the Buyer could have chosen not to incur, the Judge ordered the Seller to reimburse the Buyer $350, being the cost of the “goods”. The Buyer was not awarded court costs.     

The Judge commented that this dispute was very emotional for the Seller and the Buyer.  The Judge noted the Seller’s concern for her reputation; and the Buyer’s financial and emotional distress in caring for a sick pet. Although neither party could have prevented Mother Nature from bringing a puppy with a short tail into the world, both parties could have done more to prevent their losses and the cost of litigation. For example, the Seller could have used a properly written contract, instead of a vague oral contract. The Buyer could have required a broader written warranty and insured the puppy against veterinary expenses.  Both parties could have researched veterinary literature on the health implications of a shorter than normal tail, and incorporated identified risks into their written contract. Whether it’s a cute kitten or a car, sellers and consumers need to do their homework, and ensure that their terms of sale are written into a properly drafted and enforceable contact of Sale and Purchase.      

If you are selling or purchasing a pet or have concerns about a pet health guarantee, contact a lawyer at Aarbo Fuldauer LLP in Calgary.

Address: 3rd Floor, 1131 Kensington Road NW, Calgary, AB, T2N 3P4

Phone: (403) 571-5120

Email: info@aflawyers.ca

The information in the blog is not legal advice. Do not treat or rely upon it as legal advice.  If you require legal assistance, please contact a lawyer.

© 2019 Dr. Gail H. Forsythe, Lawyer/Mediator, Aarbo Fuldauer LLP

Effective January 1, 2022, a new “Responsible Pet Ownership” Bylaw (the “RPO”) will govern Calgarians and animal ownership. The RPO is 44 pages long. It requires careful reading to understand its impact upon Calgary pet owners.

The value of responsible pet ownership, peace and harmony is indisputable. On the other hand, animals are property by common law, with certain protections that arise from the principles of natural justice and due process. The Canadian Charter of Rights and Freedoms guarantees the right to a fair hearing. Despite Charter protection, the City of Calgary RPO substitutes an expeditious complaint process for the jurisdiction of the Provincial Court of Alberta. The removal of the Court’s jurisdiction is one, of ten, legal concerns regarding the fairness and reasonableness of the RPO.

1 – The RPO authorizes the City to euthanize, sterilize or sell an impounded animal within 72 hours of the City posting an impound notice by mail, to the owner. (Sections 61, 64, and 75)

Issue: If a dog temporarily escapes, is impounded and the owner does not receive the City’s notice by mail or is away from Calgary, the owner faces a significant risk of losing their property rights and being unable to retrieve their beloved pet. 72 hours is not a reasonable nor realistic amount of time for an owner to respond to a notice issued by mail.

1. Remedy: require personal service or proof of service.
2. Remedy: extend the time limit to 14 days from the date of service.
3. Remedy: allow 21 days from the date of service for those animals that are designed as purebred, on the dog license application. This provision was in the former bylaw and recognized the additional value that an owner has, in a purebred dog.

2 – The RPO fails to include a hearing process as required by law, for a person to make a proper defence, before a Bylaw Officer finds that an animal is a nuisance or vicious. (Sections 44-47 and 51-57)

Issue: Without the right to due process, how does one know the case alleged and test the credibility of witnesses (i.e. the complainant). The RPO ignores the principle that the separation of executive function from the judicial function is critical to impartiality, fairness and the prevention of power abuse. The RPO authorizes the Bylaw Officer to act as the complaint recipient, investigator, judge and jury. The RPO authorizes the Bylaw Officer to receive the complaint, interview “witnesses”, receive a written submission from the accused person and issue a finding as to the merit of the complaint. If faced with a demanding and persistent complainant, regardless how unreasonable, the “path of least resistance” could easily be taken by a Bylaw Officer to sustain the complaint. Regardless of training, good intentions or experience, a Bylaw Officer may lack the insight into the laws of evidence and requirements for due process expected of a Provincial Court Judge. The Bylaw Officer may also be working under pressure to meet administrative goals or quotas, and worried about job security if the complainant is not satisfied with the outcome. The RPO “appeal process” does not remedy these potentials for the miscarriage of justice.

1. Remedy: limit the Bylaw Officer’s authority to receipt of the complaint, and based upon the complainant’s information, issuing a bylaw infraction ticket. Remove the Bylaw Officer’s authority to conduct an “investigation”, determine if the complaint has merit, and impose penalties. Authorize the “Board” to conduct a hearing de novo, to determine if the accused is in breach of the bylaw, and if so, to determine the appropriate penalty.

3 – The RPO provides an appeal process before a “Board”; but the RPO appeal process does not remedy the lack of due process at the stage where the complaint is found to have been sustained. (Sections 48 and 60)

Issue: administrative law principles are clear that an appeal is not a trial de novo. An appeal of an administrative decision is limited to a review of the “record”. The “record” may be as minimal as the Bylaw Officer’s written decision.

1. Remedy: specify the right to a hearing before the “Board” and specify a right of appeal to the Provincial Court of Alberta.

4 – The RPO excludes people with visual disabilities from applying for, and being granted, a waiver of a license fee for service dogs. (Sections 2(1)(bb) and 7(4))

1. Remedy: amend the RPO definition of Service Dog to include the definition of Guide Dogs under the Blind Persons Act, and also to include a dog or cat that, in the opinion of a registered psychologist or psychiatrist, is required by the owner as support for a psychological disorder as defined in the appropriate Psychiatric Diagnostic Manual. An expanded definition of “service dog” will allow owners of service dogs, guide dogs and emotional support dogs the benefit of a license fee waiver.
2. Remedy: amend the RPO so that the owner may apply for the license fee waiver, not the dog. The current RPO language indicates that the dog must apply for the waiver. Even the most talented service dog would find that task challenging!

5 – The RPO fails to “grandfather” animals that are licensed as at January 1, 2022. (Sections 9(1) and 91)

Issue: effective upon the expiry of 2021 licenses, “excess” pets that are in a household of more than 6 pets, are no longer eligible for license renewal. Issue: How will the City enforce this requirement? Will entries and seizure occur, to remove “excess” pets? If voluntary compliance is expected, how will owners chose which of their pets must be removed, euthanized, abandoned or sold to reduce their number to 6? One might argue that “no one needs more than 6 pets”. The reality is that there are responsible owners in Calgary who have more than 6 pets. It is common knowledge that it is not the number of pets that create havoc, it is the lack of responsible ownership. An owner with one noisy dog and a yardful of feces creates much more disturbance than an owner with multiple quiet pets and a pristine yard. Multiple pets are owned by the retired or single person for emotional support or companionship, active competitors for hobby and international competition, rescue groups for temporary placement with Calgary families. After being diligent in licensing all pets, these dedicated owners and groups will be forced in 2022, to make a “Sophie’s choice”; to decide which of their animals must be sold, given away, euthanized or abandoned. How is the failure to grandfather the license renewal of these pets helpful to Calgarians, and to the taxpayers who must bear the financial burden to enforce this harsh bylaw and impound the excess animals? How insensitive is it, to fail to recognize that the goal of limiting a household to six pets, and supporting owners in adjusting to the new limit, can be achieved by attrition? What is the harm prevented by permitting pets that are licensed in 2021, to live the remainder of their lives in the Calgary home they have always known?

1. Remedy: add an exemption for all dogs and cats that are licensed as at January 1, 2022, with the right to renewal for the life of that dog or cat.

6 – The RPO creates an offence with up to a $10,000 fine for people who have puppies under 3 months of age or more than 6 licensed pets as at January 1, 2022. (Section 79)

Issue: see above. Also, the RPO provides that a “defence” exists if the animal is under 3 months of age, however a bylaw infraction ticket must be issued, before a “defence” comes into operation.

1. Remedy: add an exemption to the RPO for all dogs and cats under 3 months of age.
2. Remedy: add Excess Animal Permit license process.

7 – The RPO permits a Livestock Emotional Support Animal Permit for a bison, moose, horse, ostrich or peacock despite limiting the keeping of livestock in the City. (Sections 2(1)(o), 25, and 27)

Issue: the RPO makes no allowance for emotional support dogs or cats; yet large livestock are permitted?

1. Remedy: delete Livestock Emotional Support Animal and substitute Emotional Support Small Animal permit (i.e. dog, cat, or other small domestic animal).

8 – The RPO fails to set criteria or fees for the granting, or revocation, of an Excess Animal Permit for the keeping of more than 6 animals. (Section 10)

1. Remedy: specify criteria such as:
   • No maximum number of dogs or cats so long as each animal is microchipped within 7 days of the animal residing at the Calgary residence; and
   • The applicant must be a Canadian Kennel Club member in good standing for the current license year and a minimum of 5 prior consecutive years; or a recognized Cat Association member in good standing for the current license year and a minimum of 5 prior consecutive years; or a foster home registered with an incorporated not for profit organization that is also a federally registered charitable organization;
   • No conviction for breach of a Calgary animal control bylaw, Calgary noise control bylaw or Provincial Animal abuse legislation, for the current year or within the past 5 years; and
   • Payment of individual license fees for each dog or cat at the standard rate OR Waiver of individual dog and cat licenses upon payment of an annual flat rate for an Excess Animal Permit for all dogs or cats; and
   • Revocable upon being charged with a bylaw violation AND upon being convicted by a hearing that meets the standards of due process and adheres to the principles of natural justice.

9 – The RPO prohibits ownership of personal property (dogs or cats) regardless if that property is kept outside the City of Calgary. (Section 9(1))

Issue: the City of Calgary does not have jurisdiction to restrict a person’s ownership of property. The City of Calgary has jurisdiction to stipulate the number of pets that may be kept within its jurisdiction. A Calgarian has the right to own multiple animals and keep them outside the City of Calgary.

1. Remedy: delete “must not own …” and substitute “must not keep in the City of Calgary”.

10 – The RPO was passed by City Council and by Committee, despite presentation of this information to those persons who had the power and authority to direct the administration to amend the RPO, before it was passed.

Issue: Calgarians should not have to engage in the very costly process of a court challenge to test the constitutionality and fairness of the RPO in order to have the above amendments put into place to protect their rights to property ownership.

1. Remedy: City Council should listen to the public and amend the RPO to protect Calgarian’s property and constitutional rights. I am not the only person to raise these legal issues; the Alberta Civil Liberties Research Centre has also published an article on their problems with the RPO.

If you would like legal advice regarding the new Responsible Pet Ownership Bylaw, contact a lawyer at Aarbo Fuldauer LLP in Calgary.

Address: 3rd Floor, 1131 Kensington Road NW, Calgary, AB, T2N 3P4

Phone: (403) 571-5120

Email: info@aflawyers.ca

The information in the blog is not legal advice. Do not treat or rely upon it as legal advice.  If you require legal assistance, please contact a lawyer.