Efremova v. Spadaccini, 2016 ONSC 7848

CITATION: Efremova v. Spadaccini, 2016 ONSC 7848

COURT FILE NO.: 14-60777

DATE: 20161213

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: LIOUBOV EFREMOVA, Plaintiff

AND:

ALFIERO SPADACCINI et. al. Defendants

BEFORE: MR. JUSTICE CALUM MACLEOD

COUNSEL: Jaime Wilson for the defendant Spadaccini, moving party

Nadim Barsoum for the plaintiff, responding party

HEARD: December 13, 2016

ENDORSEMENT

[1] On May 8^th, 2012 the plaintiff was bitten by a dog while walking in an Ottawa city park. She has sued the defendant pursuant to the Dog Owner’s Liability Act.[^1] That is a statute which imposes strict civil liability on the “owner” of a dog for damages sustained from a bite or an attack. Owner is defined to include “a person who possesses or harbours a dog”. It is not disputed that a person taking a dog for a walk in a park is in possession of the dog within the meaning of the statute.

[2] The defendant brings a motion for summary judgment. It is his thesis that the plaintiff cannot succeed in her action against him because she cannot identify the dog which bit her. He reaches this conclusion because the plaintiff’s description of the dog does not match the description of his dog in certain details and because her description of him is also inaccurate. It is correct that the plaintiff’s physical descriptions of the dog and the owner are materially different from their actual appearance but this is not necessarily fatal.

[3] The material question is whether the plaintiff can identify the owner of the dog that bit her. Frequently in dog bite cases this involves identification of the dog and through that means identifying the owner. That is not the case here.

[4] It is the plaintiff’s evidence that she was bitten by a large black dog, that after the dog bit her it continued to jump up on her and that the defendant came over and put a leash on the dog. She attests that she attempted to get his name and contact information, that he refused to give it to her or to wait for the police, and she followed him to the parking lot and wrote down the licence plate of the car that picked him up.

[5] The evidence also discloses that she reported the matter to the police, that the police traced the licence plate to the defendant and interviewed him, that the police declined to lay charges, and subsequently she had a private investigator locate the defendant by tracing the plate number. For his part, the defendant admits having been in the park with his dog at the time in question, having interacted with the defendant who accused him of allowing his dog to bite her, and that she followed him to the parking lot. In short it is admitted that it was the defendant with whom the plaintiff was interacting in the park and that he was there with his large black dog.

[6] In the plaintiff’s version of events she is able to link the defendant to the dog that bit her because the dog was continuously in her sight until the defendant took control of it. If that is accurate and it is accepted that a dog under the defendant’s control was allowed to bite her, there is no difficulty with identifying the dog owner.

[7] This is not the defendant’s evidence of course. The defendant believes that the plaintiff was bitten by an unidentified dog and then went looking for the dog and its owner. It is his evidence that he was walking his large black German Sheppard (“Citizen Kane”) on its leash when he was accosted by the plaintiff and accused of letting his dog bite her. Thereafter the evidence of the plaintiff and defendant are largely congruent except that she accuses him of threatening to let the dog attack her if she did not leave her alone and he denies it.[^2]

[8] In these circumstances, the fact that she describes the dog that bit her as having white markings on its muzzle and the fact that she told the police the defendant had brown hair instead of grey are reasons to doubt her powers of observation and description.[^3] If physical description was the only way to identify the defendant then summary judgment might be appropriate but here the plaintiff can also rely upon the fact that the large black dog which bit her was continually in her sight until the defendant put it on the leash and took it to a car. The defendant’s own evidence assists her in identifying that he was the person who took the dog to the car.

[9] In this scenario, linking the dog that bit her to the defendant depends on the accuracy of the plaintiff’s evidence of continuous observation and timing. If there is a period of time when the culprit dog was out of her sight and if the defendant is believed that he was walking Citizen Kane on his leash when he first encountered the plaintiff then the case may fail because of the discrepancies in physical description.

[10] This is a case which will hinge on credibility. The credibility issue cannot readily be decided even on the admittedly sparse affidavit evidence submitted by the plaintiff in response to the motion.

[11] I considered conducting a mini-trial but I have concluded it is not appropriate to do so. Amongst other considerations, this is an action governed by Rule 76. As such it should have been scheduled for a pre-trial within 180 days of the close of pleadings.[^4] Nor should the parties have been engaging in extensive discoveries or cross examinations.[^5] Unless the parties agree that a full traditional trial is for some reason required, the expectation is that a Rule 76 action will be resolved by a “summary trial”.[^6] Proceeding to such a trial which should take no more than three days, would be far more proportionate to the damages likely at stake in this action than further prolonging the summary judgment motion.

[12] In conclusion, the motion is dismissed. The trial of this action will proceed by summary trial and the parties are to proceed to obtain the next available date for a trial of less than a week. They are also to schedule a pre-trial before a master or a judge at which time further direction may be given (or agreement reached) concerning the affidavits to be used at trial and the manner in which the material exchanged for the summary judgment motion may be utilized.

[13] I am not prepared to award costs of this motion. Although the plaintiff’s affidavit tendered in response to the motion sets out a coherent story that links the defendant to the dog attack, it was by no means rich in detail and is bare compliance with the duty on the responding party to put its best foot forwards as required by Rule 20.02.

[14] There are other factors. This action has been ongoing for more than 2 ½ years and it should have been set down long before now. If the plaintiff truly believes the case could easily be resolved by a “doggy DNA test” then she should have brought the appropriate motion long ago. There has also been needless squabbling about refusal to give undertakings but neither party has sought rulings from the court. Finally, though the action was brought for $95,000.00 there appears to have been no meaningful attempt to quantify the realistic measure of damages for what appear to be very minor injuries.

Mr. Justice Calum MacLeod

Date: December 13, 2016

[^1]: R.S.O. 1990, c. D.16 as amended [^2]: That was the principle thrust of the police investigation and the police concluded there was insufficient evidence of a threat to warrant criminal charges. [^3]: Those descriptions and her evidence were given at least in part through an interpreter but I am assuming for purposes of the motion that the descriptive discrepancies accurately capture her recollection and her evidence. [^4]: Rule 76.09 (1) [^5]: Rule 76.04 (1) & (2) [^6]: Rule 76.10 (6)