Full Case Name:  Cheryl Tulloch, Plaintiff and Peter Melnychuk and Gladys Melnychuk, Defendants

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Country of Origin:  Canada Court Name:  Alberta Court of Queen's Bench Primary Citation:  1998 CarswellAlta 573 Date of Decision:  Friday, June 19, 1998 Judge Name:  Wilson J. Judges:  Wilson J. Attorneys:  G.H. Freund, Esq., for the Plaintiff. E. Kahlke, Esq., for the Defendants. Docket Num:  Edmonton 9603-02125

In this case, the Plaintiff seeks damages from the Defendants for trespass to chattels. She alleged that the Defendants shot her valuable dog. The Defendants countered that they were justified in shooting the dog since it was on their land chasing and worrying their cattle contrary to the Stray Animals Act, R.S.A. 1980, c. S-23, Part 3. Here, the court found credible the testimony from the defendant cow-operator that the dog was chasing a lame cow to the point where the cow was exhausted. The action by plaintiff was dismissed.

Subject: Torts; Civil Practice and Procedure

Animals --- Injury to animals -- Stray animals.

Cases considered by The Honourable Mr. Justice W.E. Wilson:

Cresswell v. Sirl (1947), [1948] 1 K.B. 241, [1947] 2 All E.R. 730 (Eng. C.A.) -- applied

Williams v. Gardiner (1978), 7 B.C.L.R. 316 (B.C. Co. Ct.) -- applied

Statutes considered:

Stray Animals Act, R.S.A. 1980, c. S-23

Pt. 3 -- considered

s. 21 -- considered

ACTION by plaintiff for damages from defendant cattle owner for shooting her dog.

The Honourable Mr. Justice W.E. Wilson:

1 The Plaintiff seeks damages from the Defendants for trespass to chattels. She alleges that the Defendants shot her valuable dog. The Defendants allege that they were justified in doing so, as the dog was on their land chasing and worrying their cattle. They plead the Stray Animals Act, R.S.A. 1980, c. S-23, Part 3. The Defendants counter claimed for damages to their property, but they have abandoned the counterclaim. I was asked to deal with liability only at this time.

2 I have concluded that the Plaintiff's claim should be dismissed. In my opinion the Stray Animals Act is a defence to the claim.

3 It was admitted that the male Defendant shot the dog. Critical to the determination of the case is what happened while the dog was on the property of the Defendants. That property is a quarter section adjacent to a small holding that the Plaintiff occupied. The Defendants conducted a cow-calf operation on that quarter section and they lived there. The Plaintiff raised dogs on the small parcel that she rented.

4 There is no doubt that the dog ran off in the morning of the 7th of September, 1997. The Plaintiff and a friend of hers were home that morning and the friend let the dog out. Shortly after, it disappeared and the two of them spent some time looking for it. The Plaintiff found the dead dog on the Defendant's land some time later. It had been shot once, and the report of the Veterinarian who examined it, showed that the bullet had entered the front of the face, near the eye and had not made an exit wound.

5 The evidence for the Plaintiff consisted of testimony by the friend and the Plaintiff detailing the morning activities in letting the dog out, losing sight of it, searching for it and finding it. They also testified to several reported conversations with the Defendants later that day, conversations that were said to have been between each of them and the Defendants, or one of them, and conversations that took place later in the day and the week, when the Plaintiff and her friends called on the Defendants for permission to go on the land to view the place where the dog died, leave flowers there and take pictures and search the site.

6 For the Defence, both the Defendants testified, as did two neighbours who assisted the male Defendant on the morning of the shooting to round up his cattle and who saw him fixing, or planning to fix, his fences broken in the flight of his cattle from the dog. Another neighbour was called to the stand who testified that she had seen the dog at earlier times unconfined on the Plaintiff's lands and who testified that there were no restraining fences on that land. Her evidence was really collateral to the main issue, which was whether or not the Stray Animals Act, s. 21, was a defence to the case. The purpose of the evidence led by the Plaintiff, as to the conversations, was to show that the Defendant, Peter, had said things at or near the time of the shooting to the Plaintiff and to others, that were inconsistent with his recollection of the events as he recited them in Court before me. The matter was, therefore, one of credibility between the Defendants' version of events given at the trial and the Plaintiff's version of what the Defendants said had happened when they were spoken to shortly after the event.

7 I have considered this evidence carefully. I have concluded that the evidence of the two Defendants, who were both present when the dog was shot, is to be accepted in proof of what the dog's actions were at the time. No one else saw the events. The evidence they gave convinces me that the Defendants were justified in shooting the dog, as the conditions of the Stray Animals Act, s. 21, had been met.

8 A few further comments on the evidence are in order.

9 The Plaintiff testified that she was walking into the Defendants' land on the morning in question looking for her dog and that she heard one shot. The Defendant testified that he fired twice, one a warning shot and the other the fatal shot. The Plaintiff's testimony of the discussions she said she had with the Defendant and his wife that morning in the field are just not accepted. It appears clear that she did not see the Defendants that morning and certainly did not talk to them. She was not in sight when the dog was shot and when she walked up to the dog's body, the Defendants were not in sight.

10 The best evidence of what happened that morning, both of the attacks by the dog on the Defendants' cattle near their home, their sightings of the dog and identification of it, and of the shooting event is that of the Defendants and I accept it. I do not think that it was in any way shaken on cross-examination. I find that the dog that stampeded the cattle in the farm yard that morning was the same dog that later was shot in the pasture. I also accept the evidence that this dog was harrying, worrying and chasing the lame cow in the pasture at the time and shortly before it was shot, herding that animal in the sense that he was driving him around and around, as the lame cow tried to find relief from this conduct. The dog did not leave the scene when the Defendants drove up in the wife's car. The Defendant was justified in the act of shooting the warning shot and in shooting the dog. He had reason to fear that if he backed off from the dog and the lame cow, the attack would continue. He had reason to be concerned that the dog had ignored warning shouts that morning and did not leave when the warning shot was fired. The dog was obviously facing him when it was hit. At that time the lame cow was over to the Defendant's left and the dog was to the right. The lame cow, according to the evidence I accept, was exhausted and its tongue was hanging out. The requirement of the Stray Animals Act is that the owner may kill a dog in the act of pursuing, worrying, or destroying ... livestock. It is not necessary that the dog have his teeth, or his snout, right at the livestock at the moment of shooting. The whole picture here is that the dog was chasing and continuing to worry this cow at the critical time and the farmer need not wait until the fangs are sinking into flesh before exercising his rights under the Act. This is in line with the reasoning of McTaggart, J. in Williams v. Gardiner (1978), 7 B.C.L.R. 316 (B.C. Co. Ct.). It is also, in my opinion, in line with the reasoning of the Court of Appeal in Cresswell v. Sirl (1947), [1948] 1 K.B. 241 (Eng. C.A.) and it is the only reasonable interpretation of the provisions of our Statute. In the instant case I suggest that the Defendant, Peter, had no reasonable alternative if he was to protect his lame cow.

11 It is indeed a shame when a valuable dog is destroyed in the course of a frolic such as that upon which this dog embarked. As a pet owner, I feel deep sympathy for the Plaintiff in her loss, but the balance falls to the Defendants who only initiated this action in protection of their rights.

12 Accordingly, the Plaintiff's claim is dismissed.

Action dismissed.


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