ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-10-2874-SR
DATE: 2014 06 26
BETWEEN:
NARINDER RAI
Michael Giordano for the Plaintiff
Plaintiff
- and -
KIM FLOWERS AND TEDDY FLOWERS
In Person
Defendants
HEARD: June 2, 2014
REASONS FOR JUDGMENT
EMERY J
[1] The plaintiff Narinder Rai brings this action against the defendants under the Dog Owners’ Liability Act, R.S.O. 1990, c. D.16 as the owners of a dog that attacked her on August 8, 2009. The action was commenced under simplified procedure and therefore the provisions of Rule 76 apply.
[2] At the opening of trial, counsel for Mrs. Rai filed a Request to Admit. It was marked as Exhibit 1, and a Response to Request to Admit which was marked as Exhibit 2. By operation of Exhibits 1 and 2, the defendants admitted the truth of the following facts:
The dog (“Kahlau”) came into contact with the plaintiff on the day of the incident, being August 8, 2009 (“the incident”);
Kim Flowers and Teddy Flowers are the owners of Kahlau.
Kim Flowers is the owner of Kahlau.
Teddy Flowers is the owner of Kahlau.
Kim Flowers agreed to pay for the plaintiff’s medical expenses incurred as a result of the incident between Kahlau and the plaintiff; and
Teddy Flowers was walking Kahlau on the day of the incident.
[3] The defendants also admitted the authenticity of the police reports and the notes of the investigating officer taken on August 8, 2009, the Toronto Police Service Event Details Report printed on June 6, 2011 and various hospital and medical notes and records.
[4] Mrs. Rai testified that she was walking with her son across the parking lot at Finchdale Plaza, in Toronto, at approximately 8:20 in the evening on August 8, 2009. She testified that suddenly, and without warning, a large dog jumped up on her from behind. She testified that she suffered puncture wounds to her buttocks, and scratches to her back.
[5] At an earlier court attendance, the parties had agreed to conduct a summary trial. Mrs. Rai filed an affidavit, sworn on May 6, 2014, as Exhibit 3, pursuant to rule 76.12 to form part of her evidence.
[6] Mrs. Rai deposed in her affidavit that on the day of the incident, the defendant Teddy Flowers (“Teddy”) was walking a large dog. She has been informed that the large dog was a mixed breed German Sheppard and Rottweiler named Kahlau. As Teddy crossed behind her with the dog, Kahlau jumped up on Mrs. Rai with his front paws on her back, and bit her on the right buttock. In testimony, she reported puncture wounds on her back as well as scratches.
[7] Mrs. Rai testified during her examination in-chief that people who witnessed the incident called the police and an ambulance. When the ambulance arrived, the attendants gave Mrs. Rai an injection and took her to this hospital. None of the witnesses who called the police were asked to testify, and no one from the ambulance service or emergency response team was called to give evidence at trial.
[8] Apparently, Mrs. Rai’s son gave a statement to the police later that evening over the telephone. Neither Mrs. Rai’s son or the officer who took his statement was called as a witness at trial. Mrs. Rai did not speak to the police over the telephone.
[9] Mrs. Rai was treated at Humber River Regional Hospital-Finch site on August 8, 2009, and released later that night.
[10] At the hospital, Mrs. Rai’s wound was cleaned and dressed.
[11] She reports that after her release, she was seen by her family doctor for pain medication.
[12] When asked if she has any scarring, she responded that she has only a little bit but is not sure if she has any or not. No photographs were tendered of the injury, and no evidence was given whether photographs were taken at all.
[13] Mrs. Rai testifies that she remains afraid of dogs.
[14] On cross-examination, Mrs. Rai admitted that her husband may have taken her to the hospital instead of being transported there by ambulance.
[15] At the hospital, she reported no back pain. She states that the back pain started after attending the hospital for this injury. She states that she never told anyone of her back pain at the scene when the ambulance arrived to treat her, because no one asked her about it.
[16] Between August 10, 2009 and September 21, 2009 she took medication for the pain. She would visit her doctor regularly until November 2, 2009, but admits that she would see him for general purposes and not just for the injury to her backside suffered from the incident.
[17] Mrs. Rai reports that she still has back pain but she is not sure if it is a result of this incident. When asked if she has any further and continuing injuries as a result of the incident, she responded, “That’s it.”
[18] Mrs. Rai’s allegation that Kahlau bit her during the incident is a significant part of her case. It is a major element of the defence that Kahlau was muzzled at all material times and could not have bitten her because of the muzzle. On cross-examination, Mrs. Rai admitted that she did not see the dog before the incident occurred as Teddy and the dogs he was walking crossed behind her at the time. In her examination in-chief, Mrs. Rai stated that she saw Kahlau afterwards and observed that she was wearing no muzzle. Mrs. Rai later admitted under cross-examination that she was screaming hysterically after the incident and did not see Kahlau at all. It was her son who saw Kahlau and told her that Kahlau was not wearing a muzzle. Again, her son was not called to testify at trial. I consider any observation that the son may have communicated to his mother to be hearsay and not admissible into evidence.
[19] Mrs. Rai testified in-chief that Teddy and the dogs ran across the parking lot and away from the scene after the incident. She conceded on cross-examination that she did not see the dogs to know if she had been attacked by a large or a small dog. She relies upon the information provided by those individuals who reportedly observed the incident. I consider statements attributed to those individuals who were not called as witnesses at trial to be hearsay and not admissible in evidence.
[20] Teddy Flowers gave evidence for the defendants. He described how he and his mother received Kahlau as a puppy. He testified that the dog had never bitten any person. He described how Kahlau was a compatible companion with his cousin named Kane, who was an autistic child, when Kane came to visit.
[21] Teddy testified that he was walking the two dogs on the evening in question. He was walking a smaller dog, Bella, on a leash in his left hand, and Kahlau on a seven foot leash on his right. He was coming home from walking the dogs in the park. To exit from the park they had to walk across the Finchdale parking lot to the front of the apartment building where he and his mother reside.
[22] Teddy states that a young boy ran towards the dogs making barking sounds. This was presumably Mrs. Rai’s son who was walking with her that evening.
[23] Teddy testified that prior to the incident, Bella was walking approximately 2 feet behind him and Kahlau was 7 feet out in front. He did not think at the time that Kahlau made contact with Mrs. Rai when she jumped up. However, Teddy and his mother have admitted by the Response to Request to Admit that Kahlau came into contact with Mrs. Rai on the day of the incident and I accept that as a fact.
[24] Teddy was adamant in his testimony that Kahlau was wearing a muzzle that evening.
[25] Teddy testified that Kahlau’s front paws grazed the back of the woman when she jumped up on her. Teddy states that he asked the woman if she was okay after the incident occurred and she replied, “Yes, I’m fine”.
[26] After Teddy and the dogs had walked across the parking lot, a grey van pulled up and individuals said to him, “Your dog bit that lady”.
[27] Teddy states that he never saw Mrs. Rai’s wounds.
[28] Mrs. Rai admits that Teddy never saw the wounds she claims to have suffered as a result of the incident.
[29] When the police later visited the apartment where Kim and Teddy Flowers live, the attending officer told them that the lady was fine. However, the officer required Kahlau to be taken in and kept for a 72-hour quarantine. Teddy cannot remember what happened after that 72 hours expired.
[30] Under cross-examination, Teddy conceded that Kahlau had been taken to the Toronto Humane Society when his parents split up in December, 2008. Kahlau remained at the Toronto Humane Society until Teddy and his mother obtained their own apartment. They secured Kahlau’s return on or about July 15, 2009.
[31] Teddy testified that Kahlau was “testy” upon her return to his family. Consequently, and to ensure safety during the transition period between the Humane Society and family life, the Humane Society provided Teddy and his mother with a muzzle. Teddy described this muzzle as long in the snout with an opening at the end for Kahlau to breathe.
[32] Teddy testified that he walked Kahlau every day after school. He testified that Kahlau’s behavior was normal when she was at home with Teddy and his mother. Teddy explained that the muzzle was a good idea during the transition period between returning home from the Toronto Humane Society, and also because the landlord in their apartment building had three large dogs they might encounter at any given time.
[33] Mrs. Rai admits that Kim Flowers was not present when the incident happened. Apart from Kim Flowers being one of Kahlau’s owners, Mrs. Rai does not know of her.
ANALYSIS
[34] This action is brought under section 2 of the Dog Owners’ Liability Act that provides as follows:
Liability of owner
- (1) The owner of a dog is liable for damages resulting from a bite or attack by the dog on another person or domestic animal. R.S.O. 1990, c. D.16, s. 2 (1).
Where more than one owner
(2) Where there is more than one owner of a dog, they are jointly and severally liable under this section. R.S.O. 1990, c. D.16, s. 2 (2).
Extent of liability
(3) The liability of the owner does not depend upon knowledge of the propensity of the dog or fault or negligence on the part of the owner, but 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. R.S.O. 1990, c. D.16, s. 2 (3).
Contribution by person at fault
(4) An owner who is liable to pay damages under this section is entitled to recover contribution and indemnity from any other person in proportion to the degree to which the other person's fault or negligence caused or contributed to the damages. R.S.O. 1990, c. D.16, s. 2 (4).
[35] A dog owner’s liability for the damage caused by his or her dog is a strict liability claim.
[36] Mr. Giordano referred me to the decision in Zantingh v. Jerry, an unreported decision of Justice I.F. Leach, released on December 3, 2013. This case provides guidance as to how the strict liability provisions of the Dog Owners’ Liability Act should be applied. In Zantingh, Justice Leach considered the overview on the law provided in an article written in 2006 by Paul Perell, now Justice Perell, in the Advocates Quarterly, volume 31, that explains that the liability of dog owners was historically based on the “doctrine of scienter.” This doctrine, being the knowingness or knowledge operating on the mind of the dog owner as to an animal’s propensity to commit harm, was at one time relevant to find liability on that dog owner for injury caused by the dog. This was the basis for the “one bite rule” that gave rise to the notion that every dog and its owner should have a second chance before liability was found, which essentially made foreseeability a factor.
[37] Justice Perell’s article discusses how the common law rule was displaced by statute when the legislature in Ontario enacted the Dog Owners’ Liability Act. That Act contains provisions relating to offences and to civil liability in dog related cases. Justice Leach quotes from page 349 of the article to describe the regime introduced by the Dog Owner’s Liability Act and similar statutes in other provinces this way:
In contemporary times, in some provinces, statutory claims have displaced reliance on the scienter claim. For example, the Ontario Dog Owners’ Liability Act imposes strict liability on the “owner” of a dog that bites or attacks a person or domestic animal. There is comparable legislation in other provinces. To varying degrees, these statutes dispense with the common law requirement that the plaintiff must establish a previously known mischievous or vicious propensity in the dog. To varying degrees, the statutes do away with the commonly held but mistaken notion that “every dog is entitled to one bite” and impose strict liability on the dog owner simply if it is shown that the dog has bitten or attacked another person or domestic animal. Thus, section 2(3) of the Ontario Act provides that “the liability of the owner does not depend upon knowledge of the propensity of the dog or fault or negligence on the part of the owner, but 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”. Thus, under the Ontario Act, an owner may be liable without any negligence or fault.
[38] Based on the strict liability provisions under the Dog Owners’ Liability Act, there is no alternative but to find Kim Flowers and Teddy Flowers, being the admitted owners of Kahula, to be strictly liable for any damages resulting from a bite or an attack by Kahlau on another person. It is agreed by the parties on the admitted facts that Kim Flowers is the owner of Kahlau and that Teddy Flowers is the owner of Kahlau are simply alternatives to the joint admission that Kim Flowers and Teddy Flowers are the owners of Kahlau. By operation of section 2(2) of the Act, this makes them jointly and severally liable for the damages claimed by Mrs. Rai.
[39] Counsel for the plaintiff has provided me with two decisions with respect to the range of damages Mrs. Rai is seeking. The first is the Zantingh v. Jerry decision discussed above. In that case, a small boy had entered the neighbour’s yard to retrieve a small plastic ball. The neighbour’s dog was chained to a stake in that yard but unfortunately, the boy came within range of the dog and the dog attacked him, pinning him and biting him several times. The boy’s mother entered the yard and distracted the dog in order to throw her son clear. She herself was then attacked by the dog and bitten on the leg until she was able to remove herself from the dog’s reach.
[40] In Zantingh, the trial judge had the benefit of extensive reports from the young boy’s treating physician and plastic surgeon. The boy suffered multiple lacerations to his face and head, including significant lacerations to his right cheek near his eye, his scalp, his right ear as well as his neck and left arm. Photographs were tendered at trial described as “graphic” and “injuries that would be cringe-worthy if sustained by anyone, particularly a child.” The trial judge stated that he had no doubt that the injuries were extraordinarily painful by their inherent nature. This pain was confirmed by reports from hospital staff, documenting his screaming and crying during the course of treatment.
[41] The boy suffered from trauma that included bed wetting and nightmares for a number of weeks. He reportedly received ongoing treatment in the form of medication and antibiotics. His scarring also made him the target of unwanted attention and harassment by school children at school. For these injuries, Justice Leach assessed damages in the amount of $60,000.
[42] The mother did not seek damages for her own personal injuries, but rather confined her claim to the Family Law Act.
[43] In the case of Chatterton v. Cowan and Kish, 2010 ONSC 4314, Justice Lauwers (as he then was) assessed the damages of a 48-year-old woman who had encountered a large Alaskan Sheppard on a public street. The large dog had grabbed her by the hip, threw her to the ground and had bitten her, imposing two puncture marks. The dog pinned her to the ground for about 5 minutes until the dog’s owner finally attended to pull the dog off. Counsel for the plaintiff in Chatterton suggested general damages in the range of $15,000 to $20,000, but gave Justice Lauwers no case law for suggesting this range.
[44] Justice Lauwers had this to say about the nature of general damages and their purpose:
[5] As a matter of first principle, general damages, or “non-pecuniary” damages are not attached to any particular expense. As the Supreme Court of Canada noted in Andrews v. Grand & Toy Alberta Limited, these damages are intended to provide the injured person “with a reasonable solace for his misfortune”, including “pain and suffering, loss of amenities and loss of expectation of life.” In Lindal v. Lindal, the Court stated, “the purpose of making the award is to substitute other amenities for those that have been lost, not to compensate for something with a money value.”
[45] Justice Lauwers goes on to review a number of decisions that provide a range of damages for the injuries suffered by the plaintiffs in each case. Suffice it to say, dog attack claims and damages awarded to the plaintiff in those actions must be decided on a case by case basis. Justice Leach awarded general damages to the plaintiff in the amount of $8,500 for her injuries. From the review made by Justice Lauwers in Chatterton to assess those damages, the awards made in cases ranged from a high of $35,000 to a low of $2,500 in Collins (Litigation Guardian) v. Amour. In that case, the Court awarded $2,500 to a 3 year old plaintiff who required treatment that included 2 sutures.
[46] On the evidence before me, I am not satisfied that the punctures to Mrs. Rai’s buttock or backside were caused by a dog bite because I am not satisfied on the balance of probabilities that the dog was not muzzled at the time of the incident. Only Mrs. Rai’s son observed the dog to be in a position to counter Teddy’s evidence that Kahlau was wearing a muzzle, and only Teddy testified as to that fact. I find that Mrs. Rai’s injuries were just as likely to have been caused by the claws and the paws of Kahlau when she jumped upon Mrs. Rai. There is no evidence of any stitches or other medical treatment given to Mrs. Rai beyond the injections she received to protect her from tetanus or rabies.
[47] Given that the court is generally guided by previous cases to make decisions on a principled basis, I rely upon Chatterton for guidance and the Collins case to which it refers as a fact situation that resembles those here. I therefore award Mrs. Rai $2,500 for general damages, plus prejudgment interest.
[48] On the question of damages, section 2(3) of the Act mandates the court to reduce the damages awarded in proportion to the degree, if any, to which fault or negligence on the part of the plaintiff caused or contributed to the damages. The defendants have pleaded that Mrs. Rai’s damages were caused or contributed to by neglect or reckless acts or omissions of the plaintiff and individuals for whom she is at law responsible. In particular, they allege that the plaintiff was reckless in the supervision of her child.
[49] I heard no persuasive evidence that Mrs. Rai’s son, whether taunting the dog or not, excited the dog to the extent that it caused Kahlau to jump up on Mrs. Rai. I heard no expert evidence about how a dog might react to the noise or movement made by a child walking with an adult person. There was no evidence to assist me in making any finding that the noise or movement of one person would lead a dog to jump up on another. Therefore, I make no finding of contributory negligence or fault on the part of Mrs. Rai under section 2(3) of the Act that caused or contributed to her damages, and I make no reduction of damages in that regard.
[50] Counsel for Mrs. Rai advised me that OHIP did not ask him to protect their interests and I therefore make no order in that regard. Mrs. Rai did not make a claim for loss of income and no financial information was provided as evidence in any event. Therefore, I award no damages for loss of income.
[51] If any party wishes to make submissions regarding costs, I invite those submissions in writing by fax at Judge’s Chambers, to the attention of my judicial assistant, Sherry McHady, at 905-456-4834, by July 9, 2014. Such written submissions should refer to and attach any offers to settle that may be relevant on the issue of costs.
EMERY J
Released: June 26, 2014
COURT FILE NO.: CV-10-2874-SR
DATE: 2014 06 26
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
NARINDER RAI
Plaintiff
- and -
KIM FLOWERS AND TEDDY FLOWERS
Defendants
REASONS FOR JUDGMENT
EMERY J
Released: June 26, 2014