Court File and Parties
SUPERIOR COURT OF JUSTICE – ONTARIO
(DIVISIONAL COURT)
IN THE MATTER OF an appeal pursuant to s. 31
B E T W E E N:
PETER J. BROWN and CAROL A. BROWN Plaintiffs/Respondents
- and –
DR. PAUL EDWARDS, EDWARDS VETERINARY SERVICES and P & J EDWARDS SERVICES INC. Defendants/Appellants
BEFORE: JUSTICE T. D. LITTLE
COUNSEL: The Plaintiffs/Respondents self represented M. Smith, for the Defendants/Appellants
HEARD: Wednesday, September 6, 2006
E N D O R S E M E N T
1This appeal proceeded on the sole grounds that the Deputy Judge, while acknowledging the correct standard of care, applied a higher standard in his specific findings.
2The correct standard to apply to the defendant was that of a simple bailee.
3It was incumbent upon the defendants to show that they took such due and proper care as a prudent owner, in similar circumstances, might reasonably be expected to take. (Romo Seafood Ltd. v. James, 1990 7777 (NB QB), 112 N.B.R. (2d) 305). The defendants had a duty to the bailor to take reasonable care, but were required to use no more than that degree of diligence which prudent persons use in looking after their own dog. (Rosario Equipment Limited. v. Bruno’s Contracting (Thunder Bay) Limited [1990] O.J. No. 215 at p. 5. This standard was recently reiterated by Chapnik J. in Ferguson et al v. Birchmount Boarding Kennels Limited et al, 79 O.R. (3d) part 9 p. 681.
4The Deputy Judge’s fact-findings must not be disturbed. He was correct in finding that the ordinary standard of care applicable to bailee’s applies in this case.
5In determining negligence, the Deputy Judge found that:
(a) the strange surroundings;
(b) the dog’s likely aversion to the appellant Dr. Edwards, and
(c) the inadequacy of the second leash
were all factors to be considered.
6The Browns gave evidence at trial that:
(a) they only ever used one leash when walking their dog, Tina;
(b) Tina was never known to slip out of her collar;
(c) everyone else that had control of Tina at any time on earlier occasions had no problem with her;
(d) when friends and relatives had on earlier occasions walked Tina they had utilized the single leash.
7The findings of the Deputy Judge raise the bar far above the precautionary levels required to be taken by a prudent owner. Dr. Edwards used the same leash on Tina as was provided by the Browns. He also used a second leash. The dog was also hooked up to an intravenous line when Dr. Edwards, in his capacity as a “walker” and not a “vet” walked Tina on the evening in question.
8Dr. Edwards cannot be found negligent. He could simply have been walking the dog on its own leash and collar or, if the factors upon which the Deputy Judge found that negligence did exist, the use of a second leash was an adequate precaution.
9Tina’s unprecedented action in escaping from her own leash and breaking away from the appellant and pulling out the intravenous needle was an accident with tragic results that was not reasonably foreseeable. The dog’s reaction in breaking away while restrained by two leashes was extraordinary. Adequate precaution was taken. Dr. Edwards could simply have been walking the dog on its own leash and collar but, as an increased safety precaution, utilized a second leash. The possible defect in the construction of the second leash is something that would only apply if the appellant was placed in the position of something like an insurer of the safety of Tina or was subject to some higher standard than that found by the Deputy Judge.
10As a result, the appeal will be allowed and the action dismissed.
11I may be spoken to with regard to costs, if sought by the appellant, for the appeal and the trial, if the matter cannot be resolved.
“Justice T. D. Little”
Justice T. D. Little
DATE: September 11, 2006