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Reproduced with permission of Maritime Law Book Ltd.,
which claims copyright in the headnote and indexing.

Maritime Law Book Ltd. Summary:

The plaintiff bought a dog for $325.00. The plaintiff spent $1,400 correcting canine hip dysplasia. The plaintiff sought to recover the cost of correcting the defect or the purchase price from the sellers. The sellers submitted that they would refund the purchase price if the dog was returned to them. The plaintiff wished to keep the dog.

The New Brunswick Court of Queen's Bench, Trial Division, dismissed the plaintiff's claim.

Consumer Law -- Topic 1602

Sale of goods -- General -- Consumer product -- What constitutes -- The Consumer Product Warranty and Liability Act, R.S.N.B. 1973, c. C-18.1, defined a consumer product as an item of "tangible personal property, new or used, of a kind that is commonly used for personal, family or household purposes" -- The New Brunswick Court of Queen's Bench, Trial Division, stated that in the context of a contract for the sale of a dog with a right of return for refund or replacement, a dog was a consumer product -- See paragraph 10.

Consumer Law -- Topic 1808

Sale of goods -- Breach -- Remedies of buyer -- Return of goods for major breach -- The plaintiff bought a dog from the defendants -- The plaintiff spent $1,400 correcting canine hip dysplasia -- The plaintiff sought

[437]

refund of the purchase price or recovery of cost of correcting the defect -- The defendants submitted that the contract expressly warranted refund or replacement for return of the dog -- The plaintiff wanted to keep the dog -- The New Brunswick Court of Queen's Bench, Trial Division, held that the plaintiff's remedy was limited to either refund or replacement -- See paragraphs 10 to 13.

Statutes Noticed:

Consumer Product Warranty and Liability Act, R.S.N.B. 1973, c. C-18.1, s. 1(1) [para. 10].

Authors and Works Noticed:

Morris, Desmond, Dogwatching (1986), pp. 1, 5 [para. 7].

Counsel:

Plaintiff appeared in person;

Defendants appeared in person.

This case was heard before McLellan, J., of the New Brunswick Court of Queen's Bench, Trial Division, who delivered the following judgment on June 28, 1990.

[1]  McLellan, J.: The plaintiff bought a defective dog as a household pet from the defendants at Woodstock on June 14, 1989 for $325.00. The dog, a castrated purebred registered golden labrador retriever, was born on April 25, 1989.

[2] Sometime after the purchase the parties learned that the dog has a serious defect with its hips known as canine hip dysplasia.

[3] The plaintiff has now spent about $1400.00 to replace the dog's right hip and otherwise correct the defect "to

[438]

enable the dog to live a relatively normal, pain free existence".

[4] By this small claim action the plaintiff would like to recover her $1400.00 expenditure from the defendants who sold her the dog. In the alternative the plaintiff wants at least to get her $325.00 back. Either way, the plaintiff wants to keep the dog.

[5] The defendants are willing to make the refund of the purchase price or to replace the dog with another but only if the dog is returned to them or destroyed. The parties agree that was the original oral guarantee of the dog.

[6] There are two relationships or agreements involved in this situation. One is the contract of the purchase and sale of the dog between the parties. The other is the relationship between the plaintiff and the dog.

[7] The relationship between a person and his or her dog in our society has I think been correctly described by Desmond Morris as follows:

"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 . . ."

Dogwatching by Desmond Morris, Jonathan Cape, London, 1986, pages 1 and 5.

[439]

[8] I emphasize that the "contract" between man and dog includes "that if the dog performs certain tasks for us, we in return will provide it with . . . care".

[9] In my view the $14,00.00 [sic] was paid as consideration under that "contract" between the plaintiff and the dog in return for the dog's performance, or anticipated performance of his tasks.

[10] The contract between the plaintiff and defendants for the purchase and sale of the dog with a right of return for refund or replacement is a different contract. In the context of that contract the dog is simply an item of "tangible personal property, new or used, of a kind that is commonly used for personal, family or household purposes". That is the definition of a "consumer product" in the Consumer Product Warranty and Liability Act, R.S.N.B. 1973, c. C-18-1.

[11] Between the parties the court has to treat the contract for the purchase and sale of this consumer product, a dog, like any other agreement for the purchase and sale of any other consumer product such as a home entertainment system or a burglar alarm.

[12] Here the contract provides an express warranty that if this consumer product is defective the seller will take it back and refund the purchase price or replace the product. A new "contract" between the buyer and the dog cannot change that agreement between the buyer and seller.

[13] The defendants as sellers of the consumer product under warranty have at all times stood ready to take back the product and refund the purchase price.

[440]

The law of purchase and sale does not expect sellers of a defective home entertainment system or a defective burglar alarm to do more than that. I am not convinced that there should be a different rule for a defective dog.

[14] Accordingly, the plaintiff's claim is dismissed.

Action dismissd. [sic]

Editor: Janette Blue

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