This is a Provincial Court Civil Claims appeal from an award to plaintiffs/respondents for $865.00 in veterinary expenses as against defendant/appellant. This matter arose out of the sale of a black female Belgian Sheepdog that was eventually euthanized by the respondents at four months of age, two months after it was purchased due to serious hereditary defects. The purchase agreement signed by respondents warranted the puppy against serious hereditary defects or illness until 25 months of age, but limited the damages to replacement of the puppy with another puppy. In affirming the award of damages, this court found that the contract does not specifically exclude compensation for veterinary expenses or for consequential damages; hence, it does not exclude liability by the supplier for the purchaser's veterinary expenses incurred as a result the defective dog.
Subject: Property; Torts; Civil Practice and Procedure
Animals --- Sale of animals -- Diseased animals.
Statutes considered:
Fair Trading Act, S.A. 1998, c. F-1.05
Generally -- referred to
s. 4 -- considered
s. 4(b) -- considered
s. 6(3)(c) -- considered
APPEAL by defendant from judgment awarding plaintiffs veterinary expenses associated with purchase of diseased animal.
Lee J.:
1 This is a Provincial Court Civil Claims appeal from the decision of the learned Trial Judge who awarded the Halls [the Plaintiffs/Respondents] in this matter, judgment in the sum of $865.00 for veterinary expenses as against Ms. Montier [the Defendant/Appellant].
2 This matter arises out of the sale of a black female Belgian Sheepdog who was born on February 21, 2000. The dog has a recurrent bladder infection that was treated with various antibiotics, and also had bouts of lameness which were often due to fractured bones. The dog was eventually euthanized by the Respondents at four months of age, two months after it was purchased.
3 The Respondents had a post-mortem veterinary examination done on the Belgian Sheepdog. This post-mortem examination found generalized osteoporosis which resulted in a severe weakening of the bones, causing multiple pathological fractures. Possible causes of this would include congenital disease and nutritional problems. The Respondents then sued the Appellants for the cost of their various and numerous veterinary bills.
4 This dog had been purchased for $100.00 on April 18, 2000 by the Respondents from the Appellant.
5 A single-spaced, 1 1/2 page typed "purchasing agreement" accompanied the purchase and sale. This document was drafted by the Appellant.
6 Two clauses in the Purchasing Agreement appear to be critical.
7 The first clause reads as follows:
IT IS UNDERSTOOD THAT THE ABOVE DOG IS SOLD WITH THE FOLLOWING HEALTH GUARANTEE:
1 - Dog sold as show quality: All show quality dogs are guaranteed free from hereditary defects, temperament faults (i.e. extreme shyness or viciousness), and any disqualifying faults under the present breed standard. Should the dog demonstrate any of these by the age of twenty-five months, the Vendor will replace the dog with a puppy born from the next available litter.
2 - Dog sold as pet quality: The vendor will guarantee against serious hereditary illness or disease including but not limited to epilepsy, until the above dog is twenty-five months of age. If this dog must be euthanized within twenty-five months of age, for this reason, the Vendor will replace the dog with a puppy born from the next available litter. Full veterinary documentation regarding health conditions is required in all cases. The Vendor retains the right to have a veterinarian of his choice examine the dog at the Vendor's expense.
8 The next critical passage in the Purchasing Agreement reads:
At no time will the Vendor refund any money.
9 The Appellant argues that the Purchasing Agreement is absolutely clear, and the Respondents have only one remedy in this situation, namely the replacement of the dog with a puppy born from the next available litter, which remedy the Appellant is happy to provide the Respondents with.
10 Furthermore, the Appellant submits that the clause indicating that at no time will the Vendor "refund any money" clearly limits the Respondent's remedies.
11 The Respondents argue that the warranty as to the quality of the dog sold is so substantial, that to read the clauses in the Agreement as the Appellant would have the Court interpret them, effectively means that it has no remedy at all for a breach of the "HEALTH GUARANTEE", other than the replacement of the dog with a puppy born from the next available litter.
12 This, the Respondents submit, is an unfair practice for a supplier under the Fair Trading Act, c. F-1.05.
13 Under s. 6(3) of that Act:-
It is an unfair practice for a supplier
(c) to include in a consumer transaction terms or conditions that are harsh, oppressive or excessively one-sided.
14 Section 4 of the Fair Trading Act states that:
If a consumer and a supplier enter into a consumer transaction, ... and
(b) a provision of the document is ambiguous ,
the provision must be interpreted against the supplier or licensee, as the case may be.
15 Section 4 then essentially codifies the contra proferendum rule of common law.
16 The Appellant argues that the learned trial judge erred in this regard in applying s. 4 of the Fair Trading Act and the presumption against the supplier, and accordingly made an error of law, disregarding the terms of the contract fairly entered into by both parties.
17 The learned trial judge concluded at page 21 line 23 to page 22 of the trial transcript, the following:
THE COURT: Well, Ms. Montier, I am deciding in favour of the Plaintiffs in this Action. I realize that your contract, strictly speaking, limits your liability...to the replacement of the puppy. However, I believe the evidence of Marjorie Hall that I have heard. And I, on the whole of the evidence, I think they acted reasonably and responsibly with respect to this animal. And under the provisions of the Fair Trade Practices Act which governs sale of various things, and contracts are to be construed against the supplier, which you are.
I do not think that it is unreasonable to allow them the vet bills which, of course, exceed the price and exceed what replacement costs would have been. But it seems to me that there is an offence under the Fair Trades Practices Act in that this contract has to be construed against you, and that they took reasonable steps in trying to see if the puppy could be corrected.
Obviously, they spent a great deal of time and money at veterinarians at trying to make the best of, what turned out to be, a defective puppy. And I am giving them their judgment for $840.29 and $25.00 cost of the action. You have the right of appeal and if there ...
CONCLUSION
18 I conclude that there is an "ambiguity" in this contract which must be construed against the maker of the contract, the Appellant. The contract does not exclude specifically compensation for veterinary expenses or for consequential damages, which essentially is what this claim is about. As such, the contract does not specifically exclude liability by the supplier for the purchaser's veterinary treatment expenses incurred as a result of having a defective dog supplied to it.
19 If this interpretation as to the "ambiguity" is in error, I further conclude that it would be an unfair practice under the Unfair Trading Act to include any consumer transactions such as this terms and conditions that are "harsh, oppressive or excessively one-sided", which I find this contract to be if the Appellant's interpretation of the contract is correct.
20 Assuming for the moment that there is no "ambiguity", the terms of this contract would by implication somehow remove all of the Respondent purchasers' rights to claim for their veterinary expenses for the treatment of the sick animal, which is not a fair contract provision in this regard.
21 The Appellant submits that such an interpretation by the Courts would essentially result in almost all purchases and sales that take place in shopping malls being subject to the fair trading agreement provisions with respect to consumer transactions that are "harsh, oppressive or excessively one-sided". The Appellant's counsel points out that most retail establishments only provide for the return of items, not cash refunds.
22 With respect, what this argument misses is that in this case the Respondents are not suing for the return of their own $100.00 purchase price, but rather are suing for the extensive veterinary expenses that they incurred in treating the animal incurred in trying to determine what was wrong. Consequential damages, unless specifically excluded in the contract, are generally actionable, especially in circumstances of such a fundamental failure which in this case is represented by the dog that has a hereditary problem at two to four months of age so serious that it had to be put down.
23 By contrast, most retail mall transactions do not usually involve such a fundamental failure, or consequential damages of this relative magnitude. If they did however I see no reason why the same action for consequential damages arising from the fundamental failure to supply a proper product could not be actionable, as is the case here.
24 Essentially then I conclude that the learned trial judge, while he may not have articulated the reasons precisely, did come to the right conclusion in awarding judgment in favour of the Respondents for $840.29 plus $25.00 costs.
25 As such, I conclude that the appeal should be dismissed, and that the judgment in favour of the Respondents is upheld.
Appeal dismissed.