Date Issued: November 10, 2023

File: SC-2023-000810

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Buckley v. Crocker, 2023 BCCRT 976

Between:

ANDREW BUCKLEY

Applicant

And:

SOPHIA CROCKER

Respondent

REASONS FOR DECISION
Tribunal Member:	Christopher C. Rivers

 

INTRODUCTION

1.      This dispute is about a cat named Tobi. The applicant, Andrew Buckley, and the respondent, Sophia Crocker, shared the care of Tobi during their romantic relationship. After the parties’ relationship ended, Tobi continued to stay with each party for periods of time until the respondent refused to return Tobi to the applicant.

2.      The applicant asks for an order that the respondent return Tobi and claims $2,000.

3.      The respondent says she owns Tobi on the basis of an agreement between the parties. She asks me to dismiss the applicant’s claim.

4.      The parties are each self-represented.

5.      For the reasons that follow, I allow the applicant’s claim for the return of Tobi and dismiss his claim for $2,000.

JURISDICTION AND PROCEDURE

6.      These are the formal written reasons of the Civil Resolution Tribunal (CRT). The CRT has jurisdiction over small claims brought under section 118 of the Civil Resolution Tribunal Act (CRTA). Section 2 of the CRTA states that the CRT’s mandate is to provide dispute resolution services accessibly, quickly, economically, informally, and flexibly. In resolving disputes, the CRT must apply principles of law and fairness.

7.      Section 39 of the CRTA says the CRT has discretion to decide the format of the hearing, including by writing, telephone, videoconferencing, email, or a combination of these. Some of the evidence in this dispute amounts to a “he said, she said” scenario. The credibility of interested witnesses, particularly where there is conflict, cannot be determined solely by the test of whose personal demeanour in a courtroom or tribunal proceeding appears to be the most truthful. The assessment of what is the most likely account depends on its harmony with the rest of the evidence. Here, I find that I am properly able to assess and weigh the documentary evidence and submissions before me. Further, bearing in mind the CRT’s mandate that includes proportionality and a speedy resolution of disputes, I find that an oral hearing is not necessary. I also note that in Yas v. Pope, 2018 BCSC 282, at paragraphs 32 to 38, the British Columbia Supreme Court recognized the CRT’s process and found that oral hearings are not necessarily required where credibility is an issue.

8.      Section 42 of the CRTA says the CRT may accept as evidence information that it considers relevant, necessary and appropriate, whether or not the information would be admissible in a court of law.

9.      Where permitted by section 118 of the CRTA, in resolving this dispute the CRT may order a party to do or stop doing something, pay money or make an order that includes any terms or conditions the CRT considers appropriate.

10.   In her submissions, the respondent argues provisions of the Family Law Act. While the parties are former romantic partners, it is undisputed that they did not live together for at least 2 years. So, I find the Family Law Act does not apply to this dispute because the parties do not meet its definition of “spouses.” I therefore find the CRT has jurisdiction to decide the applicant’s claims and I have not addressed the parties’ evidence or arguments that depend upon terms of the Family Law Act, as they do not apply. I note much of the respondents’ evidence and argument addresses allegations about the parties’ relationship and is not relevant with respect to the issue of who owns Tobi.

11.   The applicant provided additional evidence and argument after the deadline given by CRT staff. The respondent provided a written response to that evidence. So, I find there is no actual prejudice in allowing the applicant’s late evidence and submissions. However, I note nothing in my decision turns on any of this material.

12.   Following the initial exchange of the applicant’s late evidence and the respondent’s response, the respondent requested to provide further late evidence. Given the respondent already had an opportunity to provide late evidence and submissions in response to the applicant and keeping in mind the CRT’s mandate of speedy and efficient dispute resolution, I decline the respondent’s request to provide further late evidence.

ISSUES

13.   The issues in this dispute are whether the respondent must return Tobi to the applicant and/or whether the respondent must pay the applicant $2,000.

EVIDENCE AND ANALYSIS

14.   In a civil proceeding like this one, the applicant must prove his claims on a balance of probabilities. This means “more likely than not”. I have read all the parties’ submissions and evidence but refer only to the evidence and argument that I find relevant to provide context for my decision.

15.   It is undisputed that the parties dated from March 2021 to October 2022.

16.   The parties agree the applicant paid the original $350 cost to adopt Tobi from a third party on November 25, 2021. The respondent says the applicant paid because “one of us had to make the original payment.” The respondent further says she “made payments” to the applicant in respect of Tobi over the course of their relationship but does not say she paid the applicant any share of Tobi’s purchase cost or provide any evidence that she did so. The respondent also does not explain why each party could not have paid half of the upfront cost. So, I find the applicant solely paid for the cost Tobi’s adoption and owns Tobi, subject to any agreement between the parties to the contrary.

17.   I find while the parties each undisputedly contributed to the costs and tasks of Tobi’s care over the course of their relationship, the respondent’s contributions do not change Tobi’s ownership.

18.   The respondent acknowledges that when the parties broke up in October 2022, Tobi stayed with the applicant. The applicant would then drop off and pick up Tobi from “visits” with the respondent. This pattern continued without incident until January 2023.

19.   On January 11, 2023, the applicant texted the respondent to say he was having “second thoughts” about dropping Tobi off for a visit with the respondent as he was concerned the respondent would not return the cat. The respondent replied to reassure the applicant, writing “why? i said that i would” and “and i’d give him back.” The text messages, reproduced as written, make it clear the respondent promised to return Tobi to the applicant.

20.   On January 11, 2023, the applicant dropped off Tobi for a visit with the respondent. Text messages between the parties show the applicant saying “Have fun with Tobi! I’ll probably come get him on Saturday or Sunday.” The respondent replies to say she will be in touch with a good time for the applicant to arrive.

21.   On January 14, 2023, the applicant texted the respondent to say he would get Tobi the following day around 2 o’clock. The respondent said the time would not work and said she would respond when she could. The applicant followed up twice more the same day but received no response.

22.   On January 15, 2023, the applicant texted to say he was coming to get Tobi. The respondent replied that she had gone to stay at a friend’s house for a month and could “send updates” on Tobi if the applicant gave her space. The respondent has not returned Tobi since that time. The applicant filed his application to the CRT on January 24, 2023.

23.   At law, pets are considered personal property. See: Brown v. Larochelle, 2017 BCPC 115 and Henderson v. Henderson, 2016 SKQB 282. I have already found that Tobi is the applicant’s personal property, subject to any agreement between the parties to the contrary.

24.   The respondent says the parties agreed that if the applicant was to move out of town, the respondent would have sole ownership of Tobi and provided text messages in support of her claim. However, I find the texts do not assist her.

25.   In one text message, the applicant says, “I will not confirm that I won’t give him to a new person because he’s my cat.” In another, the applicant acknowledges that the respondent would give Tobi what the respondent describes as “the best and most loving home and…communicate positively abt him” but says it doesn’t matter. I find neither of these establish an agreement about changing Tobi’s ownership but do confirm the applicant’s continued ownership of Tobi.

26.   Furthermore, I find the respondent’s texts promising to give Tobi back at the end of the January visit establish she knew the parties did not have an agreement that she could keep Tobi. If she did, she would not have promised to return Tobi to persuade the applicant to drop him off. So, I find the parties did not have an agreement changing Tobi’s ownership.

27.    While he does not use the words specifically, I find the applicant’s claim is grounded in the tort of conversion or what is known in law as detinue. Previous CRT decisions have considered conversion and detinue in respect of pets in abandonment decisions. See: Lancaster v. Dreger, 2023 BCCRT 591 and Andersen v. Andersen, 2021 BCCRT 85. While previous CRT decisions are not binding on me, and there is no allegation of abandonment here, I find the conversion and detinue analysis persuasive and apply it here.

28.   The tort of conversion involves wrongfully holding on to another person’s property and claiming title or ownership of that property. Detinue refers to continuous wrongful detention of personal property, with the general remedy being the asset’s return or market value damages. See Li v. Li, 2017 BCSC 1312. For the purposes of this decision, nothing turns on the difference. 

29.   To succeed, the applicant must prove:

a.    A wrongful act by the respondent involving the applicant’s personal property;

b.    The act must involve handling, disposing, or destroying the goods; and

c.    The respondent’s actions must have either the effect or intention of interfering with (or denying) the applicant’s right or title to the goods.

30.   Here, I find the respondent has committed a wrongful act by keeping (and thereby handling) the applicant’s property, Tobi. The respondent’s actions have had the effect of denying the applicant’s right to Tobi.

31.   The applicant claimed the return of Tobi and $2,000. However, none of his argument or evidence addresses the monetary claim, and the Dispute Notice unambiguously states “I WOULD LIKE THE RESPONDENT TO RETURN THE CAT,” reproduced as written. The applicant provided no evidence about the market value of Tobi. Given the above, I allow the applicant’s claim for Tobi’s return and dismiss his claim for $2,000.

32.   Under section 49 of the CRTA and CRT rules, the CRT will generally order an unsuccessful party to reimburse a successful party for CRT fees and reasonable dispute-related expenses. I see no reason in this case not to follow that general rule. I find the applicant is entitled to reimbursement of $125 in CRT fees. The applicant did not claim any dispute-related expenses.

ORDERS

33.   Within 10 days of the date of this decision, I order the respondent to make Tobi available for pick up by the applicant, or someone the applicant has designated in writing to pick up on his behalf, at Tobi’s veterinary office (located at 955 N Part St., Victoria, British Columbia) or some other mutually agreeable location, on 3 days’ written notice.

34.   Within 14 days of the date of this order, I order the respondent to pay the applicant a total of $125 for CRT fees.

35.   The applicant is entitled to post-judgment interest, as applicable.

36.   The applicant’s remaining claims are dismissed.

37.   Under section 58.1 of the CRTA, a validated copy of the CRT’s order can be enforced through the Provincial Court of British Columbia. Once filed, a CRT order has the same force and effect as an order of the Provincial Court of British Columbia.