Moving away from animals as commodities, one pet at a time | Victoria Shroff

Victoria Shroff

It would not occur to most people that their furry family member, their companion animal, their pet, could be seen as a consumer product, a good. However, another area of law where it has been starkly held that animals are property, involves animal breeders and purchasers of companion animals.

While these principles are not novel, a recent animal law case involving sale of a cat named Lyra (R.I.P.) by a breeder to a purchaser, highlights how animals are treated like property. In Mackenzie v. Bolshoy 2021 BCCRT 144 the purchaser claimed he’d been sold a sick cat who had to be euthanized shortly after he took possession of her. Lyra was bleakly diagnosed as having feline infectious peritonitis (FIP) shortly after purchase. Lyra’s purchaser claimed a refund of Lyra’s $1,500 purchase price, and $883.36 for Lyra’s illness-related veterinary costs.

The Civil Resolution Tribunal (CRT) dismissed the claim as the purchaser failed to provide evidence that Lyra was ill when he took her home and that under the law there was not an “implied warranty of durability applied to Lyra’s purchase” under the Sale of Goods Act.

“29. SGA section 18(3) says that an express warranty or condition does not eliminate a warranty or condition implied by the SGA unless the two are inconsistent. I found above that under the parties’ contract, Ms. Bolshoy had no responsibility for infectious diseases contracted more than 72 hours after delivery. I find that term was inconsistent with section 18(c) implied warranty of durability for infectious diseases more than 72 hours after delivery. I also find that Lyra was 12 weeks old when sold and therefore was ‘used goods.’ … I find that no section 18(c) implied warranty of durability applied to Lyra’s purchase.”

In the end, 12-week-old kitten, Lyra, was held to be “used goods“’ when she was sold, the defendant breeder was not held responsible for Lyra contracting FIP.

Implied warranty in animal cases

The concept of implied warranty cases involving animals is not uncommon. Tiberius the parrot case is another example (Davy v. Kidwai 2020 BCCRT 442). Tiberius was sold for just over $2,000 to the applicant, Michael Davy, who had availed himself of a pre-purchase inspection and while the parrot appeared to be well, Tiberius was actually suffering from a horrible disease which became apparent within a few weeks of purchase.

The CRT found that six months was a fair estimate of how long Tiberius should have been healthy post-purchase, sided with Davy, ordered Akhtar Kidwai to pay the applicant $900 in damages, as a 75 per cent refund for the price of Tiberius after finding that Davy had received a short-term benefit from owning Tiberius thereby awarding him most, but not all, of the purchase price, reimbursement for vet bills for a total award of approximately $1,800. (See Ailing parrot case speaks to commodification of animals.)

Cases of animals as “consumer goods” possibly with implied warranties, are not new. Lyra’s case reminded me of the unfortunate case of a sick dog called Bear sold by a breeder in Pezzente v. McClain 2005 BCPC 352. The court, while sympathetic and understanding that animals are not the usual type of property and is seen as a “well loved member of her family,” but still had to apply the law:

3] ... We’re not dealing with the usual “chattel”, but with an animal who, to Ms. Pezzente, is a well loved member of her family.

[4] But the law is coldly unemotional and I really must view Bear as just another consumer product.

Sale of goods in animal cases applies in other parts of Canada as well. The court went on to quote from another similar case in New Brunswick from 1990, which the court outlined two relationships 1) the contract of sale and 2) the special relationship between animals and people. The Gandy case has an ode to the unique, highly valuable relationship and bond between people and dogs.

[12] Somewhat surprisingly, [counsel for the defendant] Mr. Astaforoff was able to cite a case quite similar to this one Gandy v. Robinson [1990] N.B.J. No. 565, a decision of the New Brunswick Provincial Court. The claimant had bought a dog from the defendant only to discover that the dog had hip dysplasia. He spent $1,400 to have the hip replaced and sought to recover damages in that amount from the defendant. McLellan J. referred to the fact that there were two relationships or agreements involved in this situation — one being the contract of the purchase and sale of the dog between the parties and the other being the relationship between the plaintiff and the dog. The judge quoted a wonderful passage from Desmond Morris’s book, Dogwatching, which describes the relationship between a person and his or her dog:

The contract that was drawn up between man and dog is over 10,000 years old. Had it been written down, it would have stated that if the dog performs certain tasks for us, we in return will provide it with food and water, and with shelter, companionship and care. The tasks it has been asked to carry out have been many and varied. They have so much to offer us. They are playful companions when we are in the mood for fun; they are loving companions when we are lonely or depressed; they are health-giving companions when they stir us into taking long walks; they are calming companions when we become agitated, apprehensive or tense; and they still carry out their age-old duties of alerting us to intruders in our homes and protecting us from attack.

Issues

Many issues arise in cases like this, but back to first principles: I strongly encourage adopting animals from shelters, rather than buying and selling animals from breeders, pet stores or online classified adverts.The breeder-purchaser relationship creates a commercial relationship where the animal is treated like a consumer product. The attenuating commodification of companion animals as property follows. Some breeders adhere to high health and ethical standards, but others do not, and may be puppy or kitten mill operators, churning out baby animals in sickening conditions. (Please see this article on the animal welfare nightmare that is the puppy mill, Pet adoptions linked to horrific puppy mills.

I urge people to be aware that the animal they bought may have come from a heinous puppy or kitten mill and to stay clear of those establishments and to report when necessary. I suggest researching pet shelters, checking with humane societies, vets, SPCAs for where to adopt. During COVID-19, there’s been a surge not only of pet adoptions, but also in the sale of animals as COVID-comfort companions. At my law firm, we have heard from a number of people who have adopted or bought sick animals and want to know what legal action they can take. However, it’s much better to take preventative steps and to help shut down cruel animal mills by not buying animals.

Adopt don’t shop campaign: President Biden’s pets

The public is still buying pets instead of adopting from animal shelters. I continue to work on promoting change through the legal system and creating awareness with my educational campaign of #AdoptDontShop on Twitter and other media. I am very pleased to be collaborating with Champ and Major Biden, U.S. President Joe Biden’s beloved family dogs, to promote adoption of shelter pets. The dogs are very active on Twitter through their fan account, though to be clear, it appears that the Twitter account @TheOvalPawffice does not originate with the White House. (See There Is A Twitter Account For Joe Biden's Dogs & It's Hilarious. Also see the American Bar Association article of March 2021 that shows that Oval Pawffice is the twitter account for the Biden dogs.)

Major is lauded as being the first presidential pooch to have been adopted from a shelter (Delaware Humane) and is a wonderful endorsement for adopting shelter animals. The famous puppers along with their feline cousins Winston and Charlie, are powerful animal champions, raising money for animal welfare and bringing attention to animal law issues.

We are also working on several other animal law issues including bringing a halt to cruel vanity surgeries like ear cropping and tail docking. They have even appointed my tuxedo feline Ariel, as the Canada-U.S. animal law catbassador to their Oval Pawffice, to advocate on animal law issues internationally.

If society wants to move away from the commodification of animals as consumer goods or property, it’s not just law that needs to shift. Consumer habits have to change. Lyra, Bear and Tiberius’ cases demonstrate that animals may be valued family members at home, but in law, they are mostly treated like property.

(Editor's note: This story has been updated to clarify information regarding the Biden animal Twitter account.)

Victoria Shroff is one of the first and longest serving animal law practitioners in Canada. She has been practising animal law civil litigation for over 20 years in Vancouver at Shroff and Associates and she is erstwhile adjunct professor of animal law at UBC’s Allard Hall Law School and Capilano University. She is recognized internationally as an animal law expert and is frequently interviewed by media. Reach her at shroff@telus.net, @shroffanimallaw or LinkedIn.

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