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No implied warranty for 'used goods' kitty in case that highlights pets as property

Lawyer says courts have come a long way from 2005 case in which ailing dog was compared to a stereo.

Vancouver animal law lawyer Rebeka Breder

In this stock image, a Siberian cat is seen in all its luxuriant glory. A B.C. man has lost his bid to sue a breeder for the sale of a Siberian cat that died less than two months after he bought it. (Shutterstock/Sergio Photone)

The language of the law can be cold. Which is why even a creature as fluffy and adorable as a 12-week-old Siberian kitten can be described as "used goods."

The cat in question was Lyra. And the writer was a member of B.C.'s Civil Resolution Tribunal (CRT) — a small claims court — who was asked to weigh in on a dispute between a B.C. breeder and a client who claimed he was sold a dud kitty.

Lyra tested positive for feline coronavirus a month and a half after her new owners took possession of her. She was euthanized less than four weeks later.

The CRT dismissed the claim — finding the new owner hadn't provided any evidence the cat was sick before entering his home.

But beyond that, tribunal member Chad McCarthy said there wasn't any "implied warranty of durability applied to Lyra's purchase" under the law.

A 72-hour warranty

The decision is the latest to highlight the gap between the value of companion animals in the hearts of their owners and their worth in the eyes of the law — which views them as property.

B.C. animal law expert Rebekah Breder says it's become a hot topic during the pandemic as isolated individuals consider pet ownership.

Rebeka Breder Animal Law Lawyer

We name them, post pictures of them on social media and pamper them, but in the eyes of the law, pets are property, no matter how cute.(Ermolaev Alexander/Shutterstock)

"I think it's very relevant," Breder says. "Especially now during COVID, because people are buying."

In Lyra's case, the owner claimed the cat had no appetite when she first arrived in his home on Feb. 15, 2020. But the animal quickly bounced back.

Siberian cats trace their heritage and luxurious fur back to the forests of northern Russia and have featured in art and literature dating back centuries. They've been owned by former prime ministers and presidents.

Lyra had no time to grow into the glory that was her birthright.

One month after purchase, she became lethargic, with a fever and intestinal problems. In the following weeks, she tested positive for feline coronavirus and was given just one month to live. The new owner had her put down.

According to the decision, the seller said the contract for the cat's sale provided "no warranties for communicable diseases beyond 72 hours after delivery."

The case of the defective parrot

The new owner claimed the breeder had breached an "implied warranty" under the terms of the province's Sales and Goods Act, because Lyra was "not of merchantable quality, not reasonably fit for the intended purpose and did not last a reasonable amount of time."

He wanted back the cat's $1,500, plus the $883.36 spent on veterinary costs.

It's not the first time the question of an implied warranty has come up in a dispute over a sick animal.

Rebeka Breder Animal Law Lawyer

Last year, a small claims suits was launched over the sale of Tiberius, a parrot who appeared to be well, but for a few lost feathers at the time of purchase. The buyer was awarded more than $2,500 for the defective bird.(Facebook/Michael Davy)

In a case eerily similar to a Monty Python sketch, a CRT member awarded more than $2,500 to a B.C. man last year after he claimed he'd been sold a defective parrot. In that case, the tribunal found that the implied warranty on the bird was six months.

In another pet sale case, the tribunal rejected a claim for Mia, a Coton de Tulear puppy that died of an epileptic seizure 10 months after purchase. The CRT said the implied warranty for the dog was six months, whereas the purchaser thought it should be two years.

As for the Siberian cat, McCarthy said there was no implied warranty because of the 72-hour contract releasing the breeder from responsibility.

And "I also find that Lyra was 12 weeks old when sold and therefore was 'used goods,'" McCarthy wrote — meaning the section of the law that granted an implied warranty would not apply.

'Just another consumer product'

Harsh — but not as blunt as the words of a provincial court judge who ruled in 2005 on a claim related to a constantly ailing Samoyed puppy named Bear.

"The law is coldly unemotional and I really must view Bear as just another consumer product," wrote North Vancouver judge Jane Auxier.

Rebeka Breder Animal Law Lawyer

Animal lawyer Rebeka Breder, seen here with one of her three rescue cats, says the Civil Resolution Tribunal only handles claims worth up to $5,000, which doesn't come close to the inherent value of many companion animals.(Rebeka Breder)

Bear's owner claimed $10,000 in veterinary bills to treat the dog's "myriad of health problems."

Auxier found the law left her no choice. The owner only paid $350 for Bear in the first place.

"If Bear were a stereo, the most (the owner) could recover in damages is the $350 she paid," the judge wrote. "I must find the situation is the same for a beloved dog."

Breder says it would have been difficult for Lyra's new owner to make a case without evidence the cat was sick before the sale.

She says judges have come a long way since Bear was unceremoniously compared to a stereo, particularly in family law cases and custody disputes.

Breder says the law may still view animals as property, but judges now also consider the well-being of the animal.

"The law is certainly changing where judges are grappling with the idea that technically — yes — animals are still property," she says.

"But on the other hand, companion animals — in particular — have to be dealt with a little bit differently."

Inherent value of a companion animal?

Breder says six months is not a long implied warranty for an animal that could have a life span of nearly two decades if healthy.

And she questions the jurisdiction of the civil resolution tribunal — which handles claims of up to only $5,000 — over animal disputes.

"Who is to say that the value of a companion animal is only up to $5,000 or less?" she says.

Breder says the cost of food, training, veterinary care and services like doggie daycare should be factored in.

"If you're just looking at it from a financial point of view, that alone is worth more than $5,000," she says.

"And in addition to that, I would say there is this inherent value, that it's hard to pinpoint exactly what that is."

Originally Published Feb 09, 2021

Jason Proctor · CBC News


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