At first glance, this title may seem a little strange. Indeed, it is unusual to hear a veterinarian say that our domestic pet has a hidden defect. However, this is the legal term used when your pet suffers from a serious health issue or other similar problem that you were not aware of at the time of sale.

Although the Civil Code of Québec recognizes that “animals are not property” but rather “sentient beings” that have “biological needs”, it nevertheless extends the application of its rules, including those dealing with hidden defects, to animals. The following is a general review of these rules and the jurisprudence on the subject.

What Are the Essential Criteria for Determining Whether Your Pet Exhibits a Hidden Defect?

The criteria are the same as those established for goods and discussed in detail in this article on hidden defects. However, given that these four criteria are decisive in a claim for hidden defects and that an animal has particularities that a table cannot have, we will nevertheless discuss them.

First, we have the gravity of the defect. Not every problem affecting an animal constitutes a hidden defect within the scope of the Civil Code. In fact, the defect must be so serious that the animal can no longer serve the purpose for which you bought it, or, alternatively, that you would have bought the animal at a lower price if you had been aware of the defect.

Second, the defect must be hidden. It must be a defect that a prudent and diligent buyer, not being an expert in the field, could not have discovered in similar circumstances. It is not necessary to have your pet examined by a veterinarian before the sale in order to fulfill your obligation of prudence and diligence, just as a person who buys an immovable does not have to hire a building inspector. For example, an animal with a difficult behaviour does not constitute a hidden defect if a buyer noticed it at the time of purchase.

Third, you must not be aware of the defect when you purchase the animal. In other words, if the seller discloses the defect to the buyer, the buyer will have no right to complain about it after the sale.

Lastly, the defect must predate the sale. Unless otherwise agreed, the seller is only required to guarantee the condition of the animal at the time of sale.

The ruling in the case of Poulin v. Hêtu[1] is a good illustration of recourse for an animal’s hidden defect. In this decision, a party had purchased a mare for the purpose of having her compete in equestrian competitions. However, after the purchase, the party noticed that the mare had begun to suffer from involuntary muscle contractions. Concerned, the new owner took the mare to a veterinarian, who concluded that the contractions were due to a serious incurable hereditary disease.

The court has found from the evidence that no symptoms of the disease had manifested themselves at the time of purchase. Moreover, the court also concluded that the disease prevented the horse from being used for the purpose for which it was purchased, namely to compete in equestrian competitions. Consequently, the court had determined that the horse was affected by a serious, hidden, presale defect unknown to the buyer. Therefore, the court granted the buyer a reduction of the sale price. If, on the other hand, the defect had originated in an incident subsequent to the sale or if it had not been possible to demonstrate the existence of the defect, the claim would have been dismissed.

What Recourse Do You Have If Your Pet Is Affected by a Hidden Defect?

If the conditions for a claim for hidden defects are met, you may request that the contract be cancelled, or the purchase price reduced. Cancellation of the contract implies that you return the animal to the buyer in exchange for the sum you paid to acquire it. Any cancellation of sale is exceptional; the defect must be considered objectively serious for the court to grant it.

If you have become attached to the animal and prefer to keep it, the ideal solution is to ask the court for a reduction in the purchase price, which implies that the seller will have to reimburse you part of the sale price. The reduction in the selling price may sometimes be based on the cost of caring for the animal to correct the defect, if necessary.

In addition, you can claim damages if you prove that the seller was aware of the defect at the time of the sale or could not have been unaware of it. For example, in Paré v. Cliche,[2] the plaintiff had purchased a horse so that his daughter could use it at equestrian competitions. Prior to the purchase, the plaintiff had questioned the seller about a problem that had been reported to him regarding the horse’s difficulty entering a riding arena during competitions. The seller had reassured him that the issue had been resolved.

However, during competitions, the horse was indeed too nervous to enter the arena and therefore could not be used for the purpose for which it had been purchased. Consequently, the court concluded that the animal was affected by a hidden defect known to the seller. Thus, the court awarded damages to the plaintiff’s daughter for the loss of enjoyment caused by the defect, considering in particular the fact that the daughter had lost confidence in her abilities to manage a horse because of this negative experience.

In addition to loss of enjoyment of the animal, which is an often-cited ground for claiming damages due to a defect known to the seller, it is also possible to claim compensation for the non-material harm suffered. In Bouchard v. Lebœuf, a dog had died as a result of a hidden defect, and the court awarded the purchasers compensation for the psychological impact caused by the animal’s premature loss.[3]

Furthermore, the hidden defect will be presumed to be known to the seller if the seller is a commercial seller. Consequently, the seller will have to prove that it was impossible for them to be aware of the defect at the time of the sale in order to be exonerated from their liability. Companies specializing in animal husbandry may be qualified as professional sellers by the courts. These businesses are characterized by an organized commercial activity whose purpose is the sale of animals. In concrete terms, the use by the seller of contracts containing warranty exclusion clauses, public announcements to potential buyers concerning the availability of future litters and a list of care to be given to the animal are characteristics of a commercial seller.[4]

Find Out More About the Criteria or Legal Recourse Related to a Hidden Defect.

In short, if your animal is affected by a serious, hidden, presale defect unknown to you, you are entitled to cancel the contract or have the purchase price reduced. If you need specific advice regarding an animal or a good affected by a hidden defect, do not hesitate to contact us.

[1] Poulin v. Hêtu, 2019 QCCQ 3233 (CanLII).

[2] Paré v. Cliche, 2019 QCCQ 2763 (CanLII).

[3] Bouchard v. Lebœuf, 2019 QCCQ 3303 (CanLII).

[4] Ibid.