Digest: Melnick v Tapp, 2018 SKQB 163

• Date: May 18, 2018

Reported as: 2018 SKQB 163

Docket Number: QBG 364/17 JCR , QB17550

Court: Court of Queen's Bench

Date: 2018-05-18

Judges:

• Elson

Subjects:

• Civil Procedure � Queen�s Bench Rules, Rule 7-2
• Contract Law � Condition of Sale � Breach
• Statutes � Interpretation � Sale of Goods Act, Section 16.1

Digest: The plaintiff applied for summary judgment pursuant to Queen�s Bench rule 7-2 of his action against the defendant alleging a breach of contract of sale and negligent misrepresentation. The defendant agreed that the matter could be appropriately determined by way of summary judgment. The defendant owned horses and rode them in barrel racing as a hobby. In 2013 she purchased a quarter horse that was five years old that had competed in barrel racing and other events. Shortly afterward the horse experienced one episode of colic after a race. A veterinarian treated the horse successfully and the colic symptoms ceased and did not recur. In the spring of 2016 the plaintiff purchased the horse from the defendant for $11,000. The evidence of the parties conflicted on what they had discussed before the sale. The plaintiff deposed that he told the defendant he wanted to acquire a horse for barrel racing and that she told him the horse was in good health and could be used for such a purpose. The defendant stated that the plaintiff said he was acquiring a horse for his daughter and that he did not inquire about the horse�s medical history. She claimed there was no discussion at all and she did not disclose the earlier episode of colic. In September 2016, the horse experienced severe colic after a race. The veterinarian diagnosed the horse as suffering from serious conditions: colon torsion; and large colon displacement. Because the animal was not a good candidate for surgery, it had to be euthanized. No necropsy was performed. The plaintiff told the defendant that if he had known that the horse had a colic problem he would have purchased it nonetheless but would have treated the horse for colic to manage the problem. A veterinarian, qualified as an expert, submitted in his affidavit that horses can develop colic as a symptom of various gastric problems and this case, the diagnoses given by the attending veterinarian was reasonable but that without a necropsy, it would be impossible to determine the cause of the colic more definitively. The issues were: 1) whether the plaintiff had established on the balance of probabilities that...