Tchozewski v. Lamontagne,

• Jurisdiction: Saskatchewan
• Judge: Barrington-Foote, J.
• Neutral Citation: 2014 SKQB 71
• Date: 10 March 2014
• Court: Court of Queen's Bench of Saskatchewan (Canada)

Tchozewski v. Lamontagne (2014), 440 Sask.R. 34 (QB)

MLB headnote and full text

Temp. Cite: [2014] Sask.R. TBEd. MR.044

Orest Tchozewski and Linda Tchozewski (plaintiffs) v. Dana Marie Lamontagne (defendant)

(2010 Q.B.G. No. 361; 2014 SKQB 71)

Indexed As: Tchozewski v. Lamontagne

Saskatchewan Court of Queen's Bench

Judicial Centre of Regina

Barrington-Foote, J.

March 10, 2014.

Summary:

The plaintiffs purchased two crossbred Chihuahua-Yorkie pups from the defendant. The pups immediately fell ill with parvovirus enteritis. The plaintiffs spent $7,323.63 on veterinary expenses to save the pups' lives. They sued the defendant seeking to recover that amount, certain additional expenses they claimed to have incurred, and punitive or exemplary damages. The plaintiffs sought that relief on the basis of breach of express warranties by the defendant that the pups were healthy, and pursuant to Parts II and III of the Consumer Protection Act. The plaintiffs applied for summary judgment pursuant to rule 7-2 of the Queen's Bench Rules.

The Saskatchewan Court of Queen's Bench held that the defendant breached the statutory warranty pursuant to s. 48(d) of the Consumer Protection Act that the pups were of acceptable quality. The plaintiffs were entitled to summary judgment in the amount of $2,090.49.

Animals - Topic 3941

Sale of animals - Warranties - General - On January 15, 2010, the plaintiffs purchased two crossbred Chihuahua-Yorkie pups from the defendant - The pups immediately fell ill with parvovirus enteritis - The plaintiffs spent $7,323.63 on veterinary expenses to save the pups' lives - The plaintiffs alleged, inter alia, breach of express warranties by the defendant that the pups were healthy - The plaintiffs applied for summary judgment - The Saskatchewan Court of Queen's Bench held that the health guarantee on the defendant's website related only to Maltese, and not to these cross-bred pups - As such, it could not become a term of the contract - Even if that were not so, there was no evidence that the plaintiffs relied on that health guarantee, or that it induced them to enter into the agreement to purchase the pups - As to the claim that the defendant made statements at the January 15th meeting that constituted a warranty, that issue was not appropriate for summary judgment two reasons - First, there was a direct conflict in the evidence as to whether the defendant made these statements - Second, the plaintiffs' evidence was not sufficiently clear or detailed to demonstrate that any statements that may have been made by the defendant were a warranty - See paragraphs 33 to 41.

Animals - Topic 3946

Sale of animals - Warranty - Breach of warranty - What constitutes - [See Animals - Topic 3975 ].

Animals - Topic 3975

Sale of animals - Diseased animals - Duties of vendors - The plaintiffs purchased two crossbred Chihuahua-Yorkie pups from the defendant - The pups immediately fell ill with parvovirus enteritis - The plaintiffs spent $7,323.63 on veterinary expenses to save the pups' lives - The plaintiffs sued the defendant and applied for summary judgment - The Saskatchewan Court of Queen's Bench held that the defendant breached the statutory warranty pursuant to s. 48(d) of the Consumer Protection Act that the pups were of acceptable quality - The pups were a "consumer product" within the meaning of s. 39(e) of the Act - The defendant was deemed to have given a warranty pursuant to s. 48 of the Act that the pups were of "acceptable quality" - The "defect" was not one that ought to have been revealed by the inspection and the exemption to the warranty in s. 48(d)(ii) therefore did not apply - In the result, the defendant was liable for damages - The plaintiffs had spent $7,323.63 on veterinary services - The court found that the plaintiffs were entitled to recover $2,000 on that account, being a reasonable amount given the value of the dogs - They were also entitled to $90.49 for replacing dog toys contaminated with parvovirus - Accordingly, the plaintiffs were entitled to summary judgment in the amount of $2,090.49 - See paragraphs 49 to 65.

Consumer Law - Topic 5

General - Application of consumer protection legislation - [See Animals - Topic 3975 and Consumer Law - Topic 8145 ].

Consumer Law - Topic 204

General principles and definitions - Supplier defined - [See Consumer Law - Topic 8145 ].

Consumer Law - Topic 1602

Sale of goods and services - General - Consumer product - What constitutes - [See Animals - Topic 3975 ].

Consumer Law - Topic 1616

Sale of goods and services - General - Goods defined - [See Consumer Law - Topic 8145 ].

Consumer Law - Topic 1804

Sale of goods - Breach - Remedies of buyer - Damages - [See Animals - Topic 3975 ].

Consumer Law - Topic 8145

Regulation of conduct (incl. offences) - Respecting business practices - Unfair practices - The plaintiffs purchased two crossbred Chihuahua-Yorkie pups from the defendant - The pups immediately fell ill with parvovirus enteritis - The plaintiffs spent $7,323.63 to save the pups' lives - The plaintiffs sued the defendant and applied for summary judgment - One issue was whether the defendant committed an unfair practice within the meaning of Part II of the Consumer Protection Act - The Saskatchewan Court of Queen's Bench held that the defendant carried on the business of selling dogs - She was accordingly a "supplier" within the meaning of s. 3(g) of the Act - Dogs were also "goods" within the meaning of s. 3(d) - This transaction was therefore subject to Part II of the Act - However, the court was unable to find that the defendant committed an unfair practice - The plaintiffs alleged that the statement on the defendant's website that "our puppies come with a health guarantee" was such a practice - First, this statement referred to Maltese, rather than to the crossbred pups sold to the plaintiffs - Further, even if this statement had related to the pups, it was not a representation as to the quality of the pups within the meaning of s. 6 of the Act - It did not constitute a false claim that they were healthy, but rather, offered a guarantee against health problems - It was not an unfair practice to warrant against defects, at least in the absence of evidence that the defendant knew or should have known that the dogs had health problems - See paragraphs 42 to 48.

Practice - Topic 5702

Judgments and orders - Summary judgments - Jurisdiction or when available or when appropriate - The Saskatchewan Court of Queen's Bench discussed rules 7-2, 7-3 and 7-5 of the Queen's Bench Rules - These new summary judgment rules were first considered in Pervez v. Caskey (2013 SKQB) - In that case, the court adopted the "full appreciation" test outlined by the Ontario Court of Appeal in Combined Air Mechanical Services Inc. v. Flesch - However, in January 2014, the Supreme Court of Canada issued its judgments in Hryniak v. Mauldin and Bruno Appliance and Furniture, Inc. v. Hryniak, which were two of the five appeals decided in Combined Air Mechanical Services - In Hryniak, Karakatsanis, J., writing for a unanimous court, rejected the full appreciation test - Accordingly, the central question posed on a rule 7-2 application was whether summary judgment would achieve "a fair process that results in a just adjudication of the dispute before the court" - The answer to this question called for an analysis of the affidavit and other evidence presented and the issues raised by the application, in the context of the litigation as a whole - In Hryniak, Karakatsanis, J., broke that analysis down into discrete steps and key principles (a "roadmap") based on the various elements of the summary judgment rules - The court set out the key elements of that roadmap, in the context of a rule 7-2 application - See paragraphs 26 to 30.

Practice - Topic 5702

Judgments and orders - Summary judgments - Jurisdiction or when available or when appropriate - The Saskatchewan Court of Queen's Bench discussed rules 7-2, 7-3 and 7-5 of the Queen's Bench Rules (new summary judgment rules) - The court stated, inter alia, that "while there are some cases where the issue will be a simple 'either/or' choice between summary judgment based on the affidavit evidence, and a conventional trial, there are others where it will not. The court is not saddled with rigid rules. It can shape the adjudicative process. It can refuse to decide the summary judgment application in whole or in part, while giving directions under Rule 7-6 which shape the pre-trial and trial process to meet the needs of the case. ... The decision as to whether summary judgment should be granted, in other words, is not between deciding all issues raised by the application on the one hand, and business as usual on the other. It is between deciding none, some or all of the issues raised by the application, whether with or without the use of Rule 7-5(2)(b) powers and oral evidence, and if the court deems it appropriate, a process designed to meet the needs of the case" - See paragraphs 31 to 32.

Cases Noticed:

Pervez et al. v. Caskey et al., [2013] 12 W.W.R. 794; 431 Sask.R. 201; 2013 SKQB 377, consd. [para. 27].

Combined Air Mechanical Services Inc. et al. v. Flesch et al. (2011), 286 O.A.C. 3; 108 O.R.(3d) 1; 2011 ONCA 764, refd to. [para. 27].

Park Derochie Coatings (Saskatchewan) Inc. v. 607911 Saskatchewan Ltd. et al. (2013), 434 Sask.R. 104; 2013 SKQB 422, refd to. [para. 27].

Royal Bank of Canada v. Hrenyk (2014), 436 Sask.R. 129; 2014 SKQB 15, refd to. [para. 27].

Hryniak v. Mauldin (2014), 453 N.R. 51; 314 O.A.C. 1; 2014 SCC 7, appld. [para. 28].

Bruno Appliance and Furniture Inc. v. Hryniak (2014), 453 N.R. 101; 314 O.A.C. 49; 2014 SCC 8, refd to. [para. 28].

Demarais v. Fawcett, [1924] 1 W.W.R. 1035 (Sask. C.A.), refd to. [para. 35].

Dick Bentley Productions Ltd. and Another v. Harold Smith (Motors) Ltd., [1965] 2 All E.R. 65, refd to. [para. 36].

Vallance v. Naaykens, [2001] B.C.T.C. 656; 2001 BCSC 656, refd to. [para. 45].

Savoie v. Lavoie (1991), 115 N.B.R.(2d) 38; 291 A.P.R. 38 (T.D.), refd to. [para. 45].

Schroeder et al. v. DJO Canada Inc. et al. (2010), 356 Sask.R. 162; 2010 SKQB 125, refd to. [para. 46].

Prebushewski v. Dodge City Auto (1984) Ltd. et al., [2005] 1 S.C.R. 649; 333 N.R. 201; 262 Sask.R. 281; 347 W.AC. 281; 2005 SCC 28, refd to. [para. 46].

Seidel v. Telus Communications Inc., [2011] 1 S.C.R. 531; 412 N.R. 195; 301 B.C.A.C. 1; 510 W.A.C. 1; 2011 SCC 15, refd to. [para. 46].

Hadley v. Baxendale (1854), 156 E.R. 145; 9 Exch. Rep. 341, refd to. [para. 56].

Pezzente v. McClain, 2005 BCPC 352, refd to. [para. 57].

Gandy v. Robinson (1990), 108 N.B.R.(2d) 436; 269 A.P.R. 436 (T.D.), refd to. [para. 57].

Hall v. Montier (2002), 314 A.R. 299; 2002 ABQB 70, refd to. [para. 62].

Statutes Noticed:

Consumer Protection Act, S.S. 1996, c. C-30.1, sect. 3(d), sect. 3(g) [para. 44]; sect. 5, sect. 6, sect. 8, sect. 14, sect. 16(1) [para. 43]; sect. 39(e) [para. 50]; sect. 48(d) [para. 49]; sect. 57, sect. 59, sect. 65 [para. 55].

Rules of Court (Sask.), Queen's Bench Rules, rule 7-2, rule 7-3, rule 7-5 [para. 26].

Authors and Works Noticed:

Fridman, Gerald Henry Loius, The Law of Contract in Canada (6th Ed. 2011), p. 434 [para. 34].

Counsel:

David D. Kowalishen, for the plaintiffs;

Ronald G. Gates, Q.C., for the defendant.

This action was heard before Barrington-Foote, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Regina, who delivered the following fiat on March 10, 2014.