ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

ANDREA MACKENZIE

Plaintiff

– and –

COUNTRY DRUG STORES LTD. carrying on business as BEN’S PHARMACY, BENJAMIN SMITH also known as BEN SMITH, SAEED TAHIR, SAEEDBHAI PATEL, SAEED ALI, SAID ATTALLA SAYEEDA NATHOO, BEAVERTON CROSSROADS VETERINARY SERVICES PROFESSIONAL CORPORATION, LESZEK SADOCH also known as LES SADOCH and SHIELA LOW

Defendants

H. Richard Bennett and Joseph Figliomeni, for the plaintiff

Stephen G. Ross, Kevin S. Adams and Simon Gray-Schleihauf, for the defendants, Country Drug Stores Ltd. carrying on business as Ben’s Pharmacy, Benjamin Smith also known as Ben Smith, and Ahmed El-Hanan

HEARD: January 25, 2013

Sosna J.

ruling on motion

[1] The defendants, Country Drug Stores Ltd. (“Country Drug Store”) et al seek the following:

(1) An order barring any claim for personal injury damages to be advanced by the plaintiff, Andrea MacKenzie, on the grounds that such damages are too remote and thus unrecoverable at law.

(2) In the alternative, an order that the plaintiff, Andrea Mackenzie amend her statement of claim, produce a further and better affidavit of documents, and attend further examination for discovery within 30 days and all undertakings be answered within 30 days of the completion of such examination for discovery.

[2] Although the defendants have not sought leave for this motion, oral leave was granted by the court on the date of the hearing.

[3] The plaintiff, Andrea MacKenzie seeks dismissal of the defendants’ relief.

Overview

[4] This action relates to the death of the Andrea MacKenzie's dog on August 6, 2007. She alleges that Country Drug Stores is responsible for negligently dispensing a drug which led to the death of her German Shepherd. In MacKenzie's statement of claim she alleges her dog died in a shocking and horrific manner. She alleges she was forced to witness her dog suffer agonizing pain before its death.

[5] Claiming that the loss of her dog and the circumstances under which it died has been totally devastating, MacKenzie contends that she has suffered and is continuing to suffer severe emotional trauma and shock, which has caused her serious difficulty concentrating and functioning both personally and at work in her daily management functions.

[6] In her statement of claim, Mackenzie seeks compensation for general damages for breach of contract, breach of fiduciary duty, mental distress and nervous shock, and loss of care, guidance and companionship in the amount of $2,000,000. She also claims $15,000 special damages and $250,000 in punitive and aggravated damages.

[7] In this motion the defendants submit that it was not reasonably foreseeable that a pharmacist’s negligence in dispensing medication for a dog would cause a recognized psychiatric injury to the owner of that dog.

[8] Relying on the decision in Mustapha v. Culligan of Canada Ltd., 2008 SCC 27, the defendants submit at law the damages sought are not recoverable contending that the plaintiff’s personal injuries were not foreseeable; were not caused by the defendant’s actions those actions being too remote; and the defendants owed no duty of care to the plaintiff.

[9] Further, since pets are a chattel, the measure of damages where a defendant causes the loss of the chattel is normally the replacement cost, that is the cost to put the plaintiff in the same position as if she had not lost her chattel. From a policy perspective, the defendants submit although an exceptionally frail individual may suffer serious psychiatric harm from the damage to a chattel, the courts should be loath to impose a duty in the present circumstances.

[10] On a motion under Rule 21.01 regarding a question of law:

… it must be plain and obvious that the legal conclusion that the defendants wish the court to draw is correct. The court should not strike pleadings if …it is desirable that the legal question be determined against a full evidential background. (Gauthier v. Toronto Star Daily Newspapers Ltd. (2003) 2003 49328 (ON SC), 228 DLR (4th) 748.

[11] A psychiatric report dated March 12, 2012, authored by Joel Sadavoy, MD, FRCPC found that the plaintiff, MacKenzie:

… suffers from psychiatric disorder and concurrent personality disturbance…this problem does not arise from the loss of her dog per se but rather, her dog's death precipitated the return of deeply rooted, emotionally intense reactions associated with early life trauma….The death of her dog reactivated underlying emotional vulnerabilities and it is my opinion that had the event not occurred she would not be suffering the symptoms that she now demonstrates…I have concluded that her current psychological dysfunctions, major depression and anxiety state are directly caused by the death of her dog. (Motion record of the defendants volume 1 tab H)

[12] I find given Dr. Sadovay’s report, it is desirable that the legal question raised by the defendant “… be determined against a full evidential background” in order to provide full context to the plaintiff’s claim. Only in a trial can the issues of forseeability alleged to arise from a recognizable psychiatric disorder, duty of care and alleged loss of past and future income be fully canvassed. Therefore I dismiss the defendants’ motion that this court bar the plaintiff from advancing any claim for nervous shock, income or pecuniary losses as set out in her statement of claim.

[13] Further, for the following reasons this court orders that the plaintiff attend for a further examination for discovery and that all undertakings be answered after completion of that examination on a timetable to be set by this court.

[14] The statement of claim was issued July 21, 2008. Examinations for discovery were completed on March 22, 2011. The matter was set down for trial on December 27, 2011.

[15] On July 24, 2012, the defendants were served with a loss of earnings report (“the Malamed Report”). This report set out the plaintiff’s loss of earnings from employment salary alone. The Malamed Report was the first formal disclosure that the plaintiff was claiming damages for loss of income, although the statement of claim pleaded economic losses.

[16] On August 13, 2012, the plaintiff served a vocational report prepared by Evergreen Rehabilitation Services (“the Evergreen Report”). This report set out a causal connection between the alleged psychological injuries of the plaintiff which she attributes to the loss of her dog and vocational difficulties she has experienced.

[17] At a pre-trial on October 22, 2012, the defendant, Country Drug Store, indicated their readiness to proceed to trial. On November 9, 2012, six days before the scheduled trial date the defendants were served with a loss of business earnings report (“the Daum Report”). This report sets out the plaintiffs alleged ongoing income losses and those of the plaintiff’s company Mackenzie Trade Development Group Ltd as opposed to only the employment salary losses as provided in the earlier Malamed Report. More specifically the Daum Report posits a theory of income loss based on the plaintiff’s company financial results and the alleged impact the death of her dog has had on the profitability on that company presently and into the future.

[18] I agree with the defendant’s submission that pursuant to Rule 31.09 the information in the Malamed Report, the Daum Report, the Evergreen Report, and Savoy’s medical report which also provided information concerning the plaintiff’s other business ventures (Mackenzie Trade Investments, Sampling Experts Inc.) is information subsequently obtained. In these circumstances, the defendants are entitled to have the plaintiff produced for further examination for discovery. Accordingly the following is ordered:

(1) Discovery by way of oral examination is to take place within 30 days of the release of this endorsement.

(2) Further Affidavit of Documents and the documents set out therein are to be provided to the defendants 7 days prior to discovery.

(3) Given that the discovery is limited to review only the plaintiffs and her company’s (Mackenzie Trade Development Group Ltd.) claim for economic loss, a maximum of 4 hours is allotted for the discovery.

(4) All undertakings at discovery are to be fulfilled no later than 30 days thereafter.

(5) The trial of this action is peremptory on the defendants to proceed in the May Sittings 2013

[19] If the parties cannot agree on costs, written submissions are to be provided to this court by the defendants within 30 days of this endorsement. The plaintiffs are to file their written submissions no later than 15 days thereafter. Reply, if any, by the defendants is to be provided no later than 10 days thereafter. All written

submissions are to be filed in the Superior Court of Justice filing office at 150 Bond Street East, Oshawa, Ontario.

The Honourable Mr. Justice Alexander Sosna

Released: February 19, 2013