Full Case Name:  SUSAN FERGUSON and ROSS HAGANS (Plaintiffs / Respondents) and BIRCHMOUNT

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Country of Origin:  Canada Court Name:  Ontario Superior Court of Justice (Divisional Court) Primary Citation:  2006 CarswellOnt 399 Date of Decision:  Friday, January 27, 2006 Judge Name:  Chapnik J. Alternate Citation:  207 O.A.C. 98, 79 O.R. (3d) 681 Judges:  Chapnik J. Attorneys:  Counsel: Plaintiffs / Respondents for themselves. Lior Samfiru for Defendants / Appellants Docket Num:  210/05

In August 2002, plaintiffs’ dog escaped while being exercised at defendant-kennel’s boarding facility. Birchmount appeals from the judgment claiming the court applied the wrong standard of care, and that the court erred in law in awarding the plaintiffs damages for pain and suffering. The reviewing court found that the evidence would likely have led to the same conclusion regardless of whether a “bailment” standard was used. Further, this court was satisfied that the trial judge did not err in law or in fact in making findings and in awarding general damages where there was evidence that the plaintiffs experienced pain and suffering upon learning of the dog’s escape.

Subject: Civil Practice and Procedure; Contracts; Torts

Civil practice and procedure --- Practice on appeal -- Powers and duties of appellate court -- Hearing new issues on appeal.

Contracts --- Performance or breach -- Terms -- Conditions precedent -- Waiver.

Contracts --- Performance or breach -- Breach -- Fundamental breach -- What constitutes.

Damages --- Damages in tort -- Personal injury -- Principles relating to non-pecuniary loss -- Pain and suffering

Loss of pet.

Negligence --- General principles -- Duty and standard of care -- Standard of care.

Negligence --- General principles -- Causation -- Foreseeability and remoteness.

Cases considered by Chapnik J.:

Braber Equipment Ltd. v. Fraser Surrey Docks Ltd. (1999), 1999 CarswellBC 2307, 130 B.C.A.C. 307, 211 W.A.C. 307, 1999 BCCA 579 (B.C. C.A.) -- considered

Housen v. Nikolaisen (2002), 2002 SCC 33, 2002 CarswellSask 178, 2002 CarswellSask 179, 286 N.R. 1, 10 C.C.L.T. (3d) 157, 211 D.L.R. (4th) 577, [2002] 7 W.W.R. 1, 219 Sask. R. 1, 272 W.A.C. 1, 30 M.P.L.R. (3d) 1, [2002] 2 S.C.R. 235 (S.C.C.) -- considered

Painter v. Waddington, McLean & Co. (2003), 2003 CarswellOnt 5400 (Ont. S.C.J.) -- considered

Pezzente v. McClain (2005), 2005 BCPC 352, 2005 CarswellBC 2000 (B.C. Prov. Ct.) -- distinguished

Punch v. Savoy's Jewellers Ltd. (1986), 54 O.R. (2d) 383, 33 B.L.R. 147, 35 C.C.L.T. 217, 14 O.A.C. 4, 26 D.L.R. (4th) 546, 1986 CarswellOnt 154 (Ont. C.A.) -- referred to

Rogers v. Rogers (September 5, 1980), Vannini D.C.J. (Ont. Dist. Ct.) -- distinguished

Somerville v. Malloy (1999), 1999 CarswellOnt 3557 (Ont. S.C.J.) -- considered

Stevens v. Sharpe (November 23, 1988), Doc. 87179 (B.C. S.C.) -- distinguished

Statutes considered:

Family Law Reform Act, R.S.O. 1980, c. 152

Generally -- referred to

Negligence Act, R.S.O. 1990, c. N.1

Generally -- referred to

Sale of Goods Act, R.S.O. 1990, c. S.1

Generally -- referred to

Chapnik J.:

1 In August 2002, the plaintiffs/respondents who are husband and wife, boarded their dog Harley with the defendants/appellants while they went on vacation in Hawaii.The dog escaped from the kennel's enclosed play area while being exercised.

2 The plaintiffs sued the defendants for damages related to the loss of their beloved dog. After a trial in Small Claims Court, Deputy Judge A. Yee awarded them the sum of $2,527.42 in damages plus prejudgment interest and costs as against the defendant/appellant, Birchmount Boarding Kennels Limited ("Birchmount"). The court dismissed the plaintiffs' claim as against the two named defendants.

3 Birchmount appeals from the judgment, claiming firstly, the court applied the wrong standard of care to Birchmount; and secondly, the court erred in law in awarding the plaintiffs/respondents the sum of $1,417.12 in general damages for pain and suffering.

The Standard of Review

4 The applicable standard of review on a question of law is that of correctness. At the same time, trial judges are recognized to have expertise and an advantageous position with regard to factual findings. Thus, factual findings are not to be reversed unless it can be established that the trial judge made a palpable and overriding error (Housen v. Nikolaisen, [2002] 2 S.C.R. 235 (S.C.C.) at p. 248).

The Evidence

5 The plaintiffs adopted the dog, Harley, in 1994 and regularly boarded him with Birchmount commencing October 12, 1996. On August 28, 2002, they left Harley in the care of Birchmount while they went on vacation in Hawaii. On August 29, 2002, while being exercised, Harley escaped from the kennel's enclosed play area by "squeezing between two boards" on the six-foot high fence.

6 The co-owner of the kennel testified that he examined the fence after the incident but was unable to see a hole or gap in the fence, and although there was a loose board, the nail heads and spacing between the boards remained intact. The evidence also established that the kennel staff conducted daily visual inspections of the fence, that only two other dogs out of thousands of dogs had previously escaped from the yard, and that a "ride on" mower used by their gardening service could have struck and loosened the subject board.

7 The plaintiff, Susan Ferguson, gave evidence that prior to letting the dog out in their own backyard they would visually inspect their fence but would not check each board individually. She also gave explicit testimony as to the effect the incident had on her -- that she was emotionally distraught and hysterical with the news of Harley's escape and unable to return directly to Toronto; then after her return, she suffered from insomnia and nightmares and had to take time off work.

8 Eventually, in late October 2002, the plaintiffs replaced Harley with another dog of the same breed.

The Standard of Care

9 The court found on the evidence that Birchmount did not take reasonable steps to ensure that the entire fence was secure so as to prevent Harley's escape, and that a visual inspection of the fence was not adequate in the circumstances. Having found that Birchmount was negligent in its standard of care and boarding of Harley, the judge found this to be a fundamental breach of contract, such that the defendant could not rely on its "waiver" in the kennel contract.

10 The appellants submit that the trial judge applied the wrong standard of care and erred in her application of the evidence to that standard. Indeed, according to the appellant, the proper standard was one based on the law of bailment, and to reach the conclusion that Birchmount was negligent, the learned judge would first have to find that Birchmount failed to take some precaution or other measure that the owner of the dog would have taken in a similar situation.

11 The appellant further reasons that since the evidence was that Birchmount took the same measures for ensuring the safety of the dog as the plaintiffs took in their own backyard, it cannot be said that the defendants breached their duty of care.

12 There are several problems with the position taken by the appellant on the appeal. Firstly, the issue of bailment was not argued by the appellants (the defendants) in the statement of defence or at trial. They relied upon and pleaded waiver based on the contract and the provisions of the Negligence Act, R.S.O. 1990, c. N.1. An appellate court will permit a new argument to be raised on appeal where the record in the court below is as complete as if the issue had been raised squarely at trial, and provided there is no prejudice to the other party (Braber Equipment Ltd. v. Fraser Surrey Docks Ltd. (1999), 130 B.C.A.C. 307 (B.C. C.A.) at para. 3). In this case, the prejudice to the respondents in their not having done so, is manifest.

13 In any event, in my view, the appellants have in their arguments misconstrued the law of bailment. The question to be determined is what care a prudent owner would have exercised for the safety of the article entrusted to him, under similar circumstances. But the law of bailment also imposes on the bailee an onus to prove that he took the appropriate care or that his failure to do so did not contribute to the loss; that is, the burden is on the bailee to show that the damage occurred without any neglect, default or misconduct on the part of himself or his servants. See, for example, Punch v. Savoy's Jewellers Ltd. (1986), 54 O.R. (2d) 383 (Ont. C.A.). Moreover, in cases where bailment is at issue, the courts have recognized that the precautions required of a bailee for reward "may be more exacting than those required of a gratuitous depository" (Painter v. Waddington, McLean & Co., [2003] O.J. No. 5458 (Ont. S.C.J.) at para. 34, citing Halsbury's Laws of England, Fourth Edition, Vol. 2, p. 856, para. 1839)..

14 In this case, the court specifically found that the defendant did not take reasonable steps to ensure the entire fence was secure so as to prevent Harley's escape. Moreover, if the gardener struck the fence board with his "ride on" lawn mower and Dr. Barrett could foresee that happening, the court found it would have been prudent for the defendant to inspect the fence board. Because of his failure to do so, the court found it was reasonably foreseeable that Harley would be able to escape through the fence.

15 In all the circumstances, the court found the defendant negligent in its standard of care and boarding of Harley. In a bailment situation, it is clear that the defendant failed to show that the damage would have occurred or the dog would have escaped, without neglect; or in other words, Birchmount failed to discharge the onus to prove it took appropriate care of the dog.

16 The decision of the learned judge was well supported by the evidence. Despite her failure to use "bailment language", the evidence and the law would likely have led to the same conclusion. I can find no error of law in the standard of care the court applied or in its application of the facts to the relevant legal principles, as alleged.

17 This ground of appeal must, therefore, fail.

The Award of General Damages

18 The court below awarded the plaintiffs $1,417.12 for pain and suffering. The appellants argue that the learned trial judge failed to recognize that a pet is considered in law to be the owner's chattel, precluding an award for pain and suffering upon its loss. They say that the law is conflicting on this point.

19 I disagree. The cases cited to me by the appellants are easily distinguishable on their facts. Rogers v. Rogers, [1980] O.J. No. 2229 (Ont. Dist. Ct.) dealt with an application by a wife under the Family Law Reform Act for access to a dog owned by and in the possession of her husband. The issue was whether the dog could be viewed as a family asset. The case of Pezzente v. McClain, [2005] B.C.J. No. 1800 (B.C. Prov. Ct.) involved the purchase of a dog that had a myriad of health problems. The issue in the lawsuit was whether to the breeder should reimburse the purchaser for veterinary fees incurred as a result of those medical problems.

20 The court in that case awarded the plaintiff damages in the amount of the purchase or in the alternative, replacement of the dog by the defendant. It denied the plaintiff's claim for the additional medical costs. In doing so, the court likened the dog to a chattel, stating, "If Bear [the dog] were a stereo, the most Ms. Pezzante could recover in damages is the $350 she paid" (at para. 16). The court viewed the dog as just another consumer product. In my view, that characterization as a general proposition, is incorrect in law. Moreover, not only was the decision fact-driven, but it was based on the law of warranty under the Sale of Goods Act.

21 The case of Stevens v. Sharpe, [1988] B.C.J. No. 3007 (B.C. S.C.), also relied on by the appellant, deals with an action for damages arising from a motor vehicle accident in which the plaintiff's dog was killed. In applying the principle of restitutio in integrum, the court assessed the value of the dog immediately before its destruction. There is no indication in that case of a claim for general damages, or for pain and suffering resulting from the loss.

22 Both parties relied on the decision of Sheppard J. in Somerville v. Malloy, [1999] O.J. No. 4208 (Ont. S.C.J.). In that case, the plaintiff and his chihuahua wereattacked by a pit bull. The plaintiff experienced emotional trauma stemming from the attack on him personally and the savage killing of his own pet dog before his eyes.

23 The court based its decision to award the plaintiff damages for the effect the dog attack had on him and particularly the emotional trauma sustained by him, on two legal principles: first, a tortfeasor must take his victim as he finds him; and, second, the recognized head of damage in tort actions based on mental distress. In that regard, the court stated: "...as for recovering damages for emotional trauma or mental distress, our courts regularly compensate victims in this respect without the victim having to establish that he or she experienced nervous shock. One needs only look to the many decisions in the field of damages for wrongful dismissal to see that mental distress is a proper head of damage when the circumstances are proven to exist" (at para. 15).

24 In the circumstances of this case, Deputy Judge Yee detailed the effects the loss of the dog had on the plaintiff Susan Ferguson: her emotionally distraught and hysterical state; the fact that she and her husband were unable to return home from their trip due to the unavailability of flights and times; the search efforts to locate Harley; the relationship Ms. Ferguson and her husband had with the dog for 7 1/2 years; her inability to work; and the insomnia and nightmares she experienced upon his loss. In summarizing this, the learned judge concluded:

Based on the evidence of the plaintiffs' relationship with Harley and Harley's unique abilities and nature, I accept the plaintiffs' evidence that they experienced pain and suffering upon learning of Harley's escape from the defendant kennel company.

She, therefore, allowed the plaintiffs' claim for pain and suffering in the amount of $1,417.12.

25 I am satisfied that the trial judge did not err in law or in fact in making findings and in awarding general damages in this case. Mental distress is a proper head of damages when the appropriate underlying circumstances are proven to exist. The court made no palpable or overriding error in that regard; that is, the findings of the trial judge were well supported by the evidence.

26 Accordingly, this ground of appeal also fails.


27 The appeal is dismissed. The plaintiffs/respondents are entitled to costs as against the defendant, Birchmount, which are fixed in the sum of $1,000.00 and are payable forthwith.

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