COURT OF APPEAL FOR ONTARIO
Gillese, Lang and LaForme JJ.A.
BETWEEN
David Barry
Plaintiff (Appellant)
and
Susan Nattress
Defendant (Respondent)
Paul J. Pape, for the appellant
R. Benjamin Mills and Wilfrid Menninga, for the respondent
Heard and released orally: July 27, 2009
On appeal from the judgment of Justice R. Boyko of the Superior Court of Justice, sitting with a jury, dated April 11, 2008.
1The appellant, David Barry, brought an action against the respondent, Susan Nattress, after being bitten by one of Ms. Nattress’ dogs on October 15, 1997. The trial was conducted by Boyko J., sitting with a jury.
2The jury found Mr. Barry to be 100% at fault in causing or contributing to the damages resulting from the dog biting incident. It gave four reasons for so finding:
Based on the appellant’s own testimony, he exhausted his “invitation to knock” at either the front door or the first side door on the west side of the property.
The appellant ignored the respondent’s warning by failing to stop and confirm the respondent’s verbal instructions;
The appellant ignored the warnings of the dogs and the respondent when he heard intermittent barking;
The appellant continued to advance towards the dog and the respondent and reached out with his left hand, which could have been construed as an aggressive gesture by the dog.
3Further, the jury found that it was not as a result of the dog biting incident that Mr. Barry sustained a herniated disc requiring surgery in November 1997. The jury assessed general damages for injuries to Mr. Barry’s abdomen and forearm at $1,000; it assessed $0 for loss of income, both past and future.
4Mr. Barry appeals. He pursues two grounds of appeal before this court. First, he submits that the trial judge erred in her charge on the issue of causation (the “causation issue”). Second, he argues that the finding that he was 100% at fault for the incident cannot stand (the “apportionment issue”). He asks that the judgment below be set aside and a new trial be ordered.
BRIEF FACTUAL OVERVIEW
5In October 1997, the appellant was canvassing door-to-door in the Town of Westwood as part of his campaign for the upcoming municipal election. On arriving at the respondent’s home, he walked to the side of the home with the goal of contacting the homeowner. A sign on the home warned “Beware of Dog”.
6The respondent was in the backyard of her home with her three dogs, none of which was leashed or penned. The respondent’s evidence was that she called out to the appellant, warning him not to come closer until she put the dogs in their pen.
7The appellant continued to walk towards the respondent. One of the respondent’s dogs – Sadie – was between the two of them. The appellant then raised his left hand, intending to give the respondent his business card and/or a pamphlet that he was handing out. Sadie jumped up and bit him. According to the appellant, the force of the impact slammed him into a car in the driveway. He testified that he did not hear the dogs barking or the respondent warning him to stay where he was.
8The appellant has a history of back problems. In 1985, he had a herniated disc that was operated on in Edmonton. He was off work for a month at that time and recovered well. His back pain flared up in 1988 and then he was pain-free until the fall of 1997. In late September of 1997 – about two weeks before the dog biting incident – he played a game of softball. After the game, he suffered pain in his back and by October 10, 1997, he was in so much pain that he decided to go to the hospital. He attempted to drive himself there but the pain was so severe that he had to call an ambulance for transportation.
9On October 14, 1997 – the day before the dog biting incident – he visited his family physician. After examining the appellant, the doctor noted that the appellant might have a herniated disc.
10In November 1997, the appellant underwent an operation for a herniated disc.
ANALYSIS
11Counsel for the appellant (who was not trial counsel), concedes that if this court finds against him on the apportionment issue, it is a full answer to this appeal. Thus, we begin by considering that issue.
12While the appellant acknowledges that the wording of the question put to the jury on the apportionment issue is correct, he contends that the instruction was in error because it focused on causation, not fault. He says this would have caused the jury to understand that they were to apportion liability based on the degree of causation attributable to the parties and not based on their respective fault.
13We begin by noting that the appellant made no objection at trial to the manner in which the trial judge charged the jury on the matter of apportionment. We also note that the trial judge’s instruction raised considerations of fault and used the language of the legislation. In our view, the trial judge made no error in her instructions on the issue of apportionment. The charge reflects the provisions of s. 2(3) of the Dog Owner’s Liability Act, R.S.O. 1990, c. D.16, which provides that “the court shall reduce the damages awarded in proportion to the degree, if any, to which the fault or negligence of the plaintiff caused or contributed to the damages.”
14In any event, reading the charge as a whole, we are satisfied that the jury understood its task. Indeed, its answers to the question of apportionment – which are recited above - show that the jury was focused on the appellant’s conduct and the matter of fault.
15We reject the argument that it was not open to the jury, as a matter of law, to attribute 100% of the fault to the appellant. There is nothing in the wording of s. 2(3) that limits the jury in that fashion. Accordingly, we are of the view that it was open to the jury to find the appellant 100% at fault for causing or contributing to the damages he suffered.
16Finally, the jury’s apportionment of liability was based on its findings of fact. Those findings were fully available to the jury, on the record, and we do not accept that they are so plainly unreasonable and unjust that they should be set aside.
17In light of our conclusion on the apportionment issue, it is unnecessary to consider the causation issue.
DISPOSITION
18Accordingly, the appeal is dismissed with costs to the respondent, fixed in the amount of $20,000, inclusive of disbursements and GST.
“E.E. Gillese J.A.”
“S.E. Lang J.A.”
“H.S. LaForme J.A.”
