GAULT v COWDEN, 2023 ABKB 178
6.49: Application for replevin order
This was an Application for replevin. The Applicant was seeking to replevy a goldendoodle named Luna. The Applicant submitted that Luna was repossessed by the Respondent in a bad faith exercise of contractual discretion. The Guardian Dog Contract (the “Contract”) between the Parties confirmed that the Respondent retained title to Luna, and that she had the discretion to repossess Luna if she felt at any time that such repossession was necessary to ensure Luna’s well-being.
The Court reviewed the basic requirements for a Replevin Order found in Rule 6.49, noting that an Application must include an undertaking and an Affidavit containing facts of the wrongful taking of property, a clear and specific description of the personal property, its value and the Applicant's ownership or entitlement to lawful possession of the personal property. The Court then reviewed the traditional test contained in Ryder Truck Rental Ltd. v Walker,  OWN 114 (HC), the “substantial grounds” test. The "substantial grounds" test requires a high degree of assurance that the Plaintiff will be successful at Trial, and cases in which there is clear documentation supporting the Plaintiff are more likely to meet the test.
The Judge held that the Applicant had failed to prove with a "high degree of assurance" that they would have been successful in the merits hearing of the dispute. The Contract provided the Respondent with broad discretion to repossess Luna for the dog's well-being. While the Applicant's evidence suggests that the Respondent's decision was arbitrary or capricious, it required a credibility assessment that could not be conducted in the Application at bar.
In conclusion, it was held that the Respondent was at least as likely to succeed on the merits of the dispute as the Applicant. The Court noted that this was not a case where the Applicant had brought forward “substantial grounds” to believe that she was entitled to immediate possession of Luna. Therefore, the Applicant’s Application to replevy Luna was denied.View CanLII Details