Court battle begins for Winnipeg couple suing to get their dog back from animal rescue

A Winnipeg couple is trying to get temporary custody of their dog before their lawsuit against the rescue who took him goes to trial.

The couple is asking the court to grant them temporary custody of their dog until a trial begins

A Winnipeg couple is suing a local rescue group for taking their weiner dog Nicolas while they were on a vacation in Mexico in February. (Kevin Jardine)

A Winnipeg couple is fighting for temporary custody of their dog, who was taken by an animal rescue, while they vacationed in Mexico.

Barbara Rudiak and Kevin Jardine are suing Before The Bridge Senior K9 Rescue, the same organization they adopted their dog Nicolas from earlier this year.

While a trial date has yet to be set, the couple was in Court of Queen's Bench Thursday morning filing a notice of motion for temporary custody of Nicolas.

Their lawyer, Kevin Toyne, said in his submissions that while establishing legal ownership of the dog has yet to be determined by the court, he argued the dog should be returned to Rudiak and Jardine for the time being.

"In cases where people are fighting about who owns a particular piece of property, you can go to court and ask to get your property back until the court can hear the full trial," Toyne told reporters outside of the Law Courts Building.

"Just because the property in this case is a dog it doesn't mean you can't do that."

In February, Rudiak and Jardine went to Mexico, taking two of their four dogs with them. They left Nicolas and their puppy Jazz with a friend, who is also a volunteer with the rescue.

The court heard while the couple was in Cancun, Jazz had bitten Nicolas on the ear. The incident is said to have happened at least twice.

Rudiak said she was told the bite was not that serious and said she left instructions for the dog-sitter to keep the dogs in separate kennels until another friend could take Nicolas later that week.

But when the couple returned from their trip, Nicolas was gone, taken away by staff at Before The Bridge.

Court heard Nicolas is now in the care of another foster family.

Toyne argues the animal rescue had no right to take the dog.

"There isn't a signed contract in this case," Toyne argued in court, adding his clients made a verbal agreement with the rescue to adopt Nicolas for $250.

"Encouraging rescues to steal animals is something this court should not be doing," he said. "Denying this motion sends the wrong message to these organizations."

The defendants in this case, Before the Bridge Rescue, argues they believed the dog was in danger when they took Nicolas.

Court heard Rudiak had signed an application from the rescue to adopt a different dog in the past.

The application form indicates the rescue group can reclaim the pet if it is believed the animal is being mistreated or abused at home.

The rescue's lawyer, Bill Gange, said in court he took issue with allegations the rescue is stealing animals, calling the use of the word 'steal' inappropriate.

Gange said his clients care for the animals they take in. 

Oral contract

"There was no written statement?" Gange said. "So what?"

Gange argued that parties under the law have "unrestricted freedom of contracts."

He said that means even if there was no written contract, Rudiak was well aware that the rescue group could take the dog back if it is later believed to be in danger, a clause that is posted on the application forms on the rescue's website.

"Parties can agree to an oral contract," Gange said.

He said the rescue group had reason to believe the dog was not being properly cared for at home.

Court heard evidence of messages exchanged between a friend of the couple and staff from Before the Bridge about concerns for the dog's well-being. 

One of the messages by the friend alleges that Rudiak often ignored the dog at home, something Rudiak's lawyer says is false.

Toyne argues the rescue gave up ownership of the dog when the couple paid the $250 fee to adopt Nicolas.

"The rescue has an adoption form on their website that they typically ask people to sign and that wasn't done here," Toyne said.

The court must now decide whether the dog should be returned to Rudiak and Jardine until the trial starts. 

Master Jennifer Goldenberg has reserved her decision until a later date.