Case: Gaudet v. Folland, 2021 PECA 12
Keywords: border collie; liens; Warehousemen’s Lien Act, R.S.P.E.I. 1988 W-1
The Respondent owns two border collies. (Am trying my best to [unsuccessfully] not mention this hoary Scottish chestnut: Bonnie Prince Charlie, he was named after three Scottish sheepdogs). She leaves the dogs with the Appellant, the owner of a dog kennel business, pursuant to a one-page contract indicating the dogs are to stay for one night and one day at a cost of $10 per dog. (See para. 2).
The contract also includes a sentence permitting the Appellant to take the dogs to a veterinary clinic, if needed. (See para. 2).
The Respondent extends the time (“on at least three occasions”) for the kennel stay. After nearly a month, the Appellant sends an invoice for $860.69, which includes a sum for veterinary fees. The Respondent advises she will only pay $20, and asks for the return of her dogs. The Appellant refuses to return the dogs until the payment of outstanding fees. (See para. 2).
The Respondent commences an action for the return of her dogs. The Appellant commences an action for payment of kennel fees. These actions are consolidated by a Prothonotary. (See paras. 2-4).
The Trial Judge determines,
- the Appellant’s $860.69 invoice is reasonable;
- the Respondent’s assertion that she owes $20 was unreasonable;
- there was no common law or statutory lien available and no implied agreement for kenneling beyond what was contemplated in the one-page contract;
- the Appellant’s continued possession of the dogs without legal right constitutes detinue; and
- that the resulting damages for detinue owing to the Respondent was $860.69. (See paras. 5-6).
The Court of Appeal (“By the Court”; does that make the judgment a particularly important one? The C.A. did use the word “saga” in para. 2) finds the Trial Judge erred by determining there was no applicable common law lien or statutory lien in the province and that continued possession of the dogs had no basis in law. (See para. 8). Accordingly, the Trial Judge’s Order that the Appellant pay damages in the amount of $860.69 is quashed and the Respondent must pay that amount to the Appellant, plus $1,715 costs. (See paras. 14-16).
The Court of Appeal found that, contrary to the Trial Judge’s assertion that no common law or statutory lien was available, the Warehousemen’s Lien Act, R.S.P.E.I. 1988 W-1 applied in these circumstances. (See paras. 8-9).
Section 2(1) of the Act creates a statutory lien and provides that every “warehouseman” (defined as “a person lawfully engaged in the business of storing goods as a bailee for hire”) has a lien on goods deposited with them for storage. For the Court of Appeal, the Act creates a possessory lien over the dogs once the Respondent transferred them for kennel services. This is because the definition of “goods” in the Act includes “personal property of every description” and dogs are considered “personal property”. (See para. 9).
As explained by the Court of Appeal, “[t]he essence of a possessory lien is the right to retain chattels until charges incurred in respect thereof have been paid. The dogs were in [the Appellant’s] possession and she had a right to retain the dogs until [the Respondent] made payment or until she legally sold the dogs pursuant to the Warehousemen’s Lien Act.” (See para. 10).
As a result of this finding, the Court of Appeal quashed the Trial Judge’s Order that the Appellant pay damages for wrongfully withholding the dogs from the Respondent. (See para. 10).
We note that the Appellant raised a secondary issue – namely, a “well meaning…desire to keep the dogs”. (See para. 13). This provided the Court of Appeal an opportunity to further explain the contours of the lien. Citing Pennington v. Reliable Motors Works Ltd.,  1 K.B. 127, at p. 129 and Middleton v. City Automatic Transmission, 1981 CanLII 2423 (SK QB),  13 Sask.R. 270 (Sask.Q.B.), at para. 19, the Court of Appeal stated the following propositions of law:
- “A lien is the right of one person to retain property in his/her possession but which belongs to another person until payment of a debt has been made.”
- “A lien is nothing more than security for debt. It is not the debt itself.”
- “A lien is extinguished by loss of possession of the chattel.”
- “Extinguishment of the lien does not extinguish the debt.” (See para. 12).
Applying these principles, the Court of Appeal determined that the Appellant’s lien could not be re-established following the transfer of the dogs back to the Respondent. Accordingly, the Appellant’s secondary issue was dismissed. (See para. 14).
Counsel for the Appellant: Mary Ellen Gaudet (Self Represented)
Counsel for the Respondent: Evan Marlene Folland (Self Represented)