CITATION: Richard v. 2464597 Ontario Inc., 2019 ONSC 2104
COURT FILE NO.: DC-18-000000005-0000
Milton Court File No. 174/17
DATE: 2019 04 02
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
JULIE RICHARD
Elliott Braganza, for the Plaintiff (Respondent)
Plaintiff (Respondent)
- and -
2464597 ONTARIO INC.
Nathan Green, for the Defendant (Appellant)
Defendant (Appellant)
HEARD: November 23, 2018
REASONS FOR JUDGMENT
[On appeal from a decision of Deputy Justice Rolfe of the
Small Claims Court at Brampton delivered
January 4, 2018]
Dennison J.
A. Overview
[1] The appellant operates a dog kennel called Sunset Dog Retreat. The deputy trial judge found that the kennel was negligent in taking care of Maverick, a male South African Boerboel. Maverick stayed at the kennel for five days in January, 2017. Maverick suffered from kennel stress while at the kennel. He was biting on the metal bars, panting, not eating and drinking a lot of water. Maverick, along with some other dogs, also escaped one night and broke into the food room. When his owner picked him up, Maverick was lethargic and not eating. She immediately took him to an emergency veterinarian clinic. Maverick was 7% dehydrated and had lost weight. It was initially determined that he had one broken canine tooth and later discovered that he had two other broken teeth on the same side of his mouth. The teeth were later removed.
[2] The deputy trial judge found that, on the balance of probabilities, the injuries suffered by Maverick were a result of the negligent care he received while at the kennel and awarded the plaintiff damages in the amount of $4,489 which was the amount of the veterinarian bills.
[3] The appellant appeals that decision.
B. Facts
[4] 2464597 Ontario Inc. carries on business as "Sunset Dog Retreat" [also referred to as the "kennel"]. Jason Bahnman is the principal of Sunset Dog Retreat. Dr. Alan Robinson is a licensed veterinarian, although his licence was inactive at the time. He lived on the kennel's property and assisted Mr. Bahnman in caring for the dogs.
[5] The respondent, Ms. Richards, is the owner of Maverick. Ms. Richards went on Sunset Dog Retreat's website on or about December 29, 2016 and entered into a kenneling contract for Maverick to stay with the kennel when she went on vacation in late January, 2017.
[6] Ms. Richards attended at the kennel with Maverick for an initial meet and greet on January 18, 2017 at the request of the dog kennel. The kennel assured Ms. Richards that the dogs would be monitored by a person at a ratio of ten dogs to one person.
[7] The website for the kennel also indicated that the kennel would provide "24/7 care and supervision" and that there was a veterinarian on site. It turned out that a person was only with the dogs from 6 a.m. in the morning until 8 or 9 p.m. at night.
[8] Ms. Richards dropped Maverick off for his five-day stay on January 26, 2017. She provided Maverick's food and dietary supplements to the kennel. She also provided an emergency contact number as she was going to be out of the country.
[9] The kennel's onsite veterinarian, Dr. Robinson, observed that Maverick was reasonably healthy for his age upon admittance. He did not notice anything untoward. No dental examination was conducted on Maverick when he was dropped off at the kennel.
[10] The kennel was set up in a repurposed horse barn and the dogs were housed in individual paddocks with iron bar gates.
[11] On the first night of Maverick's stay, the dogs were allowed to sleep in the barn's common area rather than the paddocks because the dogs were exhibiting high levels of stress. The dogs, including Maverick, escaped the common area and accessed an area where the food was stored. The door handle was metal and somehow the dogs got it open. The dogs had a "late night fiesta" in the storage room where some of the dogs chewed through bags of food.
[12] Dr. Robinson later questioned whether it was wise to have left the dogs unattended in the common area overnight but noted that Maverick was not pawing or biting at the bars when he was in the common area.
[13] On the third day of Maverick's stay, Ms. Richard contacted the kennel to request an update on Maverick. No mention was made of the late night fiesta. Ms. Richards was not advised of the late night fiesta until she picked up Maverick on February 1, 2017.
[14] Dr. Robinson testified that Maverick began suffering kennel stress while at the kennel after the first day. Maverick was agitated, so they let him out frequently. He would bite at the bars and became quite vocal. He was drinking a great deal of water and was panting.
[15] When Ms. Richards picked up Maverick, she noticed that Maverick was lethargic and had concentrated urine. She also noticed that Maverick's food bag contained double the food it should have, indicating a lack of eating.
[16] Ms. Richards took Maverick to an emergency veterinarian the same day. Ms. Richards testified that Maverick had lost twenty pounds. The veterinarian report noted that Maverick was lethargic, not interested in eating or drinking and that his urine was dark. He was found to be 7% dehydrated, had a fever and his white blood cell count was high. He was given intravenous fluids and antibiotics. It was also noted that he had a right upper canine fracture. There was diarrhea in his rectum and a blood-tinged serious discharge dripped from his nose.
[17] Maverick had several follow-up appointments to ensure that he regained the weight he lost. Two other teeth on the same side of his mouth as the canine fracture were also broken. Maverick had surgery to remove the teeth. Ms. Richards spent $4,489 on Maverick's veterinarian bills.
[18] Ms. Richard's brought an action in Small Claims Court for the expenses she had to pay for Maverick's veterinarian bills.
C. Decision of the deputy trial judge
[19] The deputy trial judge noted that this was a case alleging negligence and that "no party had filed any expert evidence regarding the standard of care to be discharged for a commercial kennel, such as that of the Defendant". To determine the standard of care, the deputy trial judge "looked to the evidence as submitted by the parties". This evidence included the information from the kennel's website that there was 24/7 care and supervision and a professional vet on site, as well as an email the plaintiff received from the kennel outlining the care that her dog would receive while at the kennel. The deputy trial judge found that "these representations set out in part the standard and duties of care to be discharged by the Defendant". In these circumstances, the deputy trial judge found that the duty of care was what "one would anticipate and expect from a professional, full time, practising, licenced vet."
[20] The deputy trial judge found that the kennel was negligent in its care of Maverick. The kennel failed to inspect Maverick's teeth after he was observed chewing on iron bars and was suffering other significant symptoms of kennel stress. As the deputy trial judge found, simply "eyeballing the dog in such circumstances does not discharge that duty of care." The deputy trial judge also found that the kennel was negligent in failing to contact the dog's owner in those circumstances.
[21] With respect to the issue of causation, the deputy trial judge found that "the evidence that was presented was such that it was likely that the tooth was damaged as a consequence of chewing on the iron bars." The deputy trial judge also considered Dr. Robinson's evidence that, in retrospect, Ms. Richards should have been called and the dog sent home, as that would have been the prudent thing to do and was the likely cause of Maverick's injuries. The deputy trial judge did not find that it was likely that the weight loss, dehydration and damage to the tooth took place at any other time than when Maverick was boarding at the kennel. He found that were "no persuasive, non-speculative evidence to indicate any pre-condition to explain the weight loss or the damage to the tooth."
D. Position of the parties on appeal
[22] The appellant submits that the deputy trial judge made three errors in deciding that the kennel was negligent in its care of Maverick and in finding that this negligence caused Maverick's injuries. The appellant submits that the deputy trial judge erred in:
Determining the standard of care by applying contractual terms between the parties where no breach of contract was alleged;
Self-generating a standard of care absent expert evidence when the negligence complained of was professional negligence; and
Finding that the kennel's actions, or failure to act, caused Maverick's injuries.
[23] The respondent submits that the appeal should be dismissed with costs. The respondent submits that the deputy trial judge made no errors in finding that the kennel was negligent in its care of Maverick and that the kennel was liable to pay the $4,489 plus interest to cover the costs of the veterinarian fees to treat Maverick.
E. Analysis
[24] The jurisdiction for this appeal is found in section 31 of the Courts of Justice Act, R.S.O. 1990, c. C.43, as amended. That section provides as follows:
- An appeal lies to the Divisional Court from a final order of the Small Claims Court in an action,
(a) for the payment of money in excess of the prescribed amount, excluding costs; or
(b) for the recovery of possession of personal property exceeding the prescribed amount in value.
[25] Section 2 of the Small Claims Court Jurisdiction and Appeal Limit, O. Reg. 626/00 provides as follows:
- (1) For the purposes of clause 31 (a) of the Act, the prescribed amount is $2,500.
(2) For the purposes of clause 31 (b) of the Act, the prescribed amount is $2,500.
[26] The standard of review when dealing with questions of law is correctness. With respect to questions of mixed fact and law, the appellate court will only interfere if the deputy trial judge made a palpable and overriding error, or made findings of fact that are clearly wrong, unreasonable or unsupported by the evidence: see Briarwood Estates (Tottenham Ltd.) v. Gordon, 2017 ONSC 6330, at paras. 12-14.
[27] In considering this appeal, it must be remembered that reasons from the Small Claims Court may not be as comprehensive as the reasons from the Superior Court of Justice, due to the functional restrictions of the Small Claims Court. The reasons must be sufficiently clear to permit judicial review on appeal and explain to the litigants what has been decided and why: see Maple Ridge Community Management Ltd., v. Pell Condominium Corporation, No. 231, 2015 ONCA 520 at para 35.
[28] The appellant submits that the deputy trial judge made two separate errors regarding the standard of care. I believe these two issues should be considered as sub-issues under the broader issue of whether the deputy trial judge erred in applying the proper standard of care, rather than viewing the errors alleged in isolation. I will then address the appellant's arguments with respect to causation.
1. Did the deputy trial judge err in determining the standard of care applicable in this case?
[29] The appellant submits that the deputy trial judge made two errors in formulating the standard of care to be applied in this case. First, it is asserted that the deputy trial judge "imbibed the reasonable person with contractual responsibilities" and transmuted the negligence standard into a breach of contract analysis. Second, the appellant argues that the deputy trial judge erred in applying a standard of care for professional negligence in the absence of an expert evidence.
[30] The standard of care in negligence cases is that of a prudent and reasonable person in the circumstances. As stated in Ryan v. Victoria (City), 1999 706 (SCC), [1999] 1 S.C.R. 201, at para. 28:
Conduct is negligent if it creates an objectively unreasonable risk of harm. To avoid liability, a person must exercise the standard of care that would be expected of an ordinary, reasonable and prudent person in the same circumstances. The measure of what is reasonable depends on the facts of each case, including the likelihood of a known or foreseeable harm, the gravity of that harm, and the burden or cost which would be incurred to prevent the injury. In addition, one may look to external indicators of reasonable conduct, such as custom, industry practice, and statutory or regulatory standards. [Emphasis added]
i. Did the deputy trial judge improperly incorporate a breach of contract analysis into the negligence standard?
[31] I do not accept the appellant's argument that the deputy trial judge improperly used contractual terms in defining the applicable standard of care to be applied in this case.
[32] The deputy trial judge recognized that "neither party tendered any expert evidence as to what the standard of care would be for a commercial kennel". As a result, the deputy trial judge determined the standard of care "based on the evidence as submitted by the parties in aid of establishing that duty of care to be borne by the Defendant, in these particular circumstances."
[33] The deputy trial judge determined in the circumstances of this case, a high duty of care applied "that one would anticipate and expect from a professional, full time, practising, licenced vet". In coming to this conclusion, the deputy trial judge considered the circumstances in which the care was to be provided. This included the fact that the kennel's website referred to experienced staff, 24/7 monitoring and a professional vet being on site. In addition, the deputy trial judge referred to the email that was sent to the respondent where the kennel stated again that there was a veterinarian on the property full time and that the rule of thumb was supervision of ten dogs for one person.
[34] The deputy trial judge was cognizant of the fact that this was a negligent case, not a breach of contract case. The deputy trial judge noted that there was no request to amend the pleadings to include a breach of contract claim. He also stated that if this matter proceeded by way of a breach of contract, that he would have found the representations made to be part of the contractual relationship between the parties, but that was not his case. The judge recognized that this was a negligence case and that "these representations set out in part the standard and duties of care to be discharged."
[35] I see no error in the deputy trial judge's reasoning. He clearly understood that this was not a breach of contract case. He determined the standard of care based on the circumstances as they existed. Those circumstances included the fact that the dogs were to be monitored 24/7 and that there was a veterinarian on site to take care of the dogs. To avoid liability the kennel had to exercise a standard of care that would be expected of an ordinary, reasonable person in the same circumstances. I see no error in the deputy trial judge's reliance on the information provided by the kennel in determining the standard of care to be applied in the circumstances of this case.
ii. Did the trial judge err in applying a standard of care without expert evidence?
[36] It is not disputed that in cases alleging professional negligence, expert testimony is generally required. There are two exceptions to this general rule. The first is where the court is faced with non-technical matters or those of which an ordinary person may be expected to have knowledge. The second is where the actions are so egregious that it is obvious that the conduct has fallen short of the standard of care, even without knowing precisely the parameters of that standard: see 495793 Ontario Ltd. (Central Auto Parts) v. Barclay, 2016 ONCA 656, at paras. 53-57.
[37] In determining the standard of care the deputy trial judge held that he considered the evidence as submitted by the parties, which included the information provided by the kennel and the evidence of Dr. Robinson.
[38] The appellant states that the question to be asked is how much kennel stress a dog can exhibit before it should be sent home, and that this is a technical matter that requires expert evidence. I do not view the question as being quite so complicated. The question to be asked was whether a dog kennel who had a vet on site should have either checked on the dog or contacted the owner to send him home where the dog was chewing on a metal bar and was not eating.
[39] Dr. Robinson had relevant evidence to give with respect to the care of dogs while under veterinarian care and what happened when Maverick was in the care of the kennel. Dr. Robinson was a fact or participant witness because his evidence was derived from his observations and involvement in the care of Maverick. He was not an expert who was hired by a party to given an opinion: see Westerhof v. Gee Estate, 2015 ONCA 206.
[40] The appellant relied on Dr. Robinson's experience as a veterinarian to demonstrate that the kennel was not negligent in how it cared for Maverick. The appellant does not assert that the deputy trial judge erred in considering that evidence. If that evidence was relevant to the determination of negligence, so too was Dr. Robinson's evidence that supported the plaintiff's position with respect to standard of care to be applied and the fact that it was breached in this case.
[41] Dr. Robinson testified in examination in chief that he was a licensed veterinarian but that he was currently inactive. He testified that there was no prohibition to him practising and that he has practiced veterinarian medicine for forty-three years with small animals and a mixed animal practise.
[42] Dr. Robinson gave evidence about the type of veterinarian care that would be expected. He explained that in most veterinarian hospitals dogs are left 6 to 8 hours unattended if they are contained.
[43] Dr. Robinson was also asked if in his experience"are dogs normally examined by a veterinarian when they come to a kennel?" His response was "No especially if it means an oral examination". He then stated that he did not do a check of Mavericks' mouth prior to, during, or when he was released from the kennel.
[44] Dr. Robinson also gave evidence about kennel stress and when care should be provided. He was asked by the appellant about kennel stress and how it how manifested itself with Maverick. He explained that "he'll' scratch at the bars, bite at the bars or at the cage doors, and barking". He observed these symptoms after the first day that Maverick was in the kennel. Dr. Robinson noted that when Maverick was with other dogs he did not do this. Dr. Robinson gave the opinion that Maverick did not need any veterinarian care at that time, but that he noticed him drinking quite a bit of water.
[45] With respect to the midnight fiesta, the appellant asked Dr. Robinson "in your practise and in your personal observations have you ever come across dogs before that were capable of opening doorknobs?" His response was "yes, rarely."
[46] The appellant also asked Dr. Robinson to interpret a veterinarian report regarding Maverick to suggest that Maverick suffered from bleeding gums before he came to the kennel and that what occurred at the kennel did not contribute to that. After reviewing the document when he was asked "what that would mean to you as a doctor?" He explained that the report mentioned some dehydration and there was gingivitis. He explained the dangers of gingivitis could cause a problem for dogs anytime over the age of five.
[47] The fact that Dr. Robinson did not testify formally as an expert witness does not mean that the deputy trial judge erred in considering his evidence in determining the proper standard of care given the flexibility of admitting expert evidence at a Small Claims Court trial.
[48] The deputy trial judge retains the discretion with respect to what evidence to admit at a Small Claims Court trial and how expert evidence will be placed before the court. See Prohaska v. Howe, 2016 ONSC 48 (Div. Ct.) at para. 32.
[49] The discretion to admit evidence at a Small Claims trial is provided in section 27(1) of the Courts of Justice Act, R.S.O.), 1990, c. C. 43, which states:
Subject to subsections (3) and (4), the Small Claims Court may admit as evidence at a hearing and act upon any oral testimony and any document or other thing so long as the evidence is relevant to the subject-matter of the proceeding, but the court may exclude anything unduly repetitious.
(2) Subsection (1) applies whether or not the evidence is given or proven under oath or affirmation or admissible as evidence in any other court.
[50] The formal requirements for the introduction of expert witnesses are not necessarily required in Small Claims Court. For example, there is no requirement that a voir dire take place prior to hearing expert evidence: see Sutherland Estate v. MacDonald, [1999] O.J. No. 785 (Small Claims Ct.). An expert report is not required to be filed in order for an expert to give evidence at a Small Claims Court trial: see Steckley v. Haid, [2009] O.J. No. 2014 (Small Claims Crt.); Prohaska v. Howe, supra. Nor does a witness have to be explicitly tendered as an expert witness to give an expert opinion: see Untinen v. Dykstra (2016) ONSC 4721 (Div. Ct.) at paras. 9, 29-31.
[51] The deputy trial judge made no error in relying on all of the evidence filed by the parties in determining the proper standard of care was that of a professional, full time practising veterinarian. Whether or not Dr. Robinson was qualified as an expert witness, he had relevant opinion evidence to give with respect to the standard of care dogs would receive under veterinarian care and whether that standard of care was breached in this case. The trial judge made no error in considering his evidence.
[52] It was also reasonable for the deputy trial judge to find that the standard of care that one would expect of a kennel that had a licenced vet was breached in this case. The deputy trial judge found that a reasonable veterinarian would have either contacted the owner, given the significant symptoms of kennel stress, or inspected Maverick after he was observed chewing on the iron bars of the paddock and gate. As the deputy trial judge found simply "eyeballing" the dog was not sufficient. His finding that the standard of care was breached in this case was supported by the evidence of Dr. Robinson, who testified as follows:
- it was a judgment call not to call the owner sooner.
- it was not common for a dog to lose 15 to 20 pounds of body weight during a five-day stay.
- kennel stress can cause dehydration and a flare up of gingivitis.
- "in retrospect, it was thought of [sending Maverick home]. We didn't think it [kennel stress] was any more than any other dog. But, considering what went on afterwards it might've been advisable to phone the owner".
- "it would have been better is to send him home because of the stress but they thought they could deal with it".
- the dehydration was a mystery as Maverick was drinking two buckets of water.
- He believed that chewing on the gate was what caused Maverick's tooth problem.
[53] It was also up to the deputy trial judge to determine what weight to give Dr. Robinson's evidence given that his opinions were made in hindsight after Maverick's injuries were discovered. Based on the evidence, it was open to the deputy trial judge to find that the appellant was negligent in the care of Maverick and that the kennel should have looked at his mouth and contacted the owner given the kennel stress that Maverick suffered.
[54] Even, if I am wrong in my assessment that the deputy trial judge was entitled to consider the opinion evidence of Dr. Robinson when determining the proper standard of care, the deputy trial judge did not err in finding that the standard of care was breached in this case. Although not addressed in his reasons, I find that it would have been open to the deputy trial judge to find that this was one of those cases where the conduct had fallen so short of the standard of care of any person taking care of a dog that no expert evidence was required. Maverick was continually biting on metal bars and had significant kennel stress. He was not eating and was drinking a significant amount of water. A reasonable person would expect that if a dog was behaving in this manner, that a person, and even more so, a professional kennel, or veterinarian would check on the dog's well-being or call the owner. In these circumstances, the impugned actions of the appellant were so egregious that it was obvious that the appellant's actions fell short of the standard of care without even knowing precisely what the parameters of the standard of care were.
2. Did the judge err in finding that the actions of the kennel caused Maverick's injuries?
[55] Based on the evidence, it was open to the deputy trial judge to find that that, but for the negligent conduct of the kennel, Maverick would not have suffered his injuries.
[56] The "but for" causation test must be applied in a robust common sense fashion. It is established by inferences. In this case, the deputy trial judge recognized that there was no direct evidence as to precisely how and when the injuries occurred and that it was the plaintiff's onus to establish on the balance of probabilities that the kennel's negligent care caused Maverick's injuries. It was however open to the appellant to call evidence that the injuries suffered were caused without the appellant's negligence: see Clements v. Clements, 2012 SCC 32, [2012] 2 S.C.R. 181, at paras. 6-16.
[57] Based on all of the evidence, it was reasonable for the deputy trial judge to draw the inference that the kennel's negligent care of Maverick caused the injuries he suffered. As the deputy trial judge stated:
I do not find it likely that the weight loss, dehydration, damage to the tooth and other maladies shown in the veterinary reports took place at any time other than during the time the Plaintiff's dog was boarded with the Defendant.
[58] There are several pieces of evidence that permitted the deputy trial judge to reasonably draw the inference that Maverick's injuries were caused by the negligent care he received while at the kennel.
[59] Maverick was last seen by a veterinarian on January 6, 2017. At that time, there were no issues concerning weight loss, dehydration or cracked teeth. His weight was noted as 147 pounds. That was less than four weeks prior to his stay at the kennel. At the time he was taken to the emergency veterinarian his weight was 58.1 kilograms, which is approximately 128 pounds.
[60] Dr. Robinson testified that Maverick, upon entry to the kennel, was reasonably healthy for an eight year old dog. Ms. Richard also testified that there was nothing untoward or unusual about Maverick's health at the start of his visit. It is clear that Maverick's teeth were not inspected by anyone prior to his entry to the kennel.
[61] During his stay at the kennel, Maverick suffered from kennel stress. He was observed chewing on a metal bar repeatedly. He was not eating his food. His mouth was not inspected despite the kennel having observed Maverick chewing on the iron bars and the gate. The kennel did not contact the owner to come and get the dog.
[62] As noted by the deputy trial judge, Dr. Robinson observed Maverick suffering from kennel stress and said that, in retrospect, after weighing the circumstances in his mind, the kennel ought to have called the owner and sent the dog home. Dr. Robinson stated that he believed that chewing on the gate was what caused Maverick's tooth problem.
[63] After leaving the kennel, Maverick was immediately taken to an emergency veterinarian clinic. At that time, it was noted that Maverick's canine tooth was fractured. He was experiencing a blood-tinged serious discharge from his nose. He was 7% dehydrated and was running a fever.
[64] A report dated February 8, 2017 from Dr. Corlett, a veterinarian, was also filed. It stated that Maverick actually had two other broken teeth on the same side of the mouth as the broken canine tooth. He was still bleeding from the mouth and nostrils and was running a fever.
[65] The deputy trial judge found that "there was no persuasive, non-speculative evidence to indicate any precondition to explain the weight loss or damage to that tooth." As noted in Clements, above, direct evidence as to the cause of the injury is not required where an inference can be drawn based on the evidence. Similarly, the plaintiff does not have to prove at what precise time the tooth was broken, just that, but for the negligence in caring for Maverick, the injuries he suffered would not have occurred.
[66] Given the evidence in this case, it was reasonable for the deputy trial judge to conclude that but for the kennel's negligence in not inspecting Maverick and in not calling the owner to come and get him earlier, Maverick would not have suffered his injuries.
F. Conclusion
[67] The appellant's appeal in this matter is dismissed.
G. Costs
[68] The parties are encouraged to resolve the issues of costs in this appeal. However, if the parties are unable to agree to costs, they may file written submissions to me that are no more than two pages long double-spaced as well as a bill of costs. The respondent may file her costs submissions within twenty days of receipt of this decision. Upon receipt of the respondent's materials, the appellant will have fifteen days to file his submissions with respect to costs. Upon receipt of the appellant's cost submissions, the respondent may file a one page long double-spaced reply within five days.
Dennison J.
Released: April 2, 2019
CITATION: Richard v. 2464597 Ontario Inc., 2019 ONSC 2104
COURT FILE NO.: DC-18-000000005-0000
Milton Court File No. 174/17
DATE: 2019 04 xx
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
JULIE RICHARD
Plaintiff (Respondent)
- and -
2464597 ONTARIO INC.
Defendant (Appellant)
REASONS FOR JUDGMENT
Dennison J.
Released: April 2, 2019