Court File and Parties

Court File No.: CV-16-549732 Date: 2020-03-13 Superior Court of Justice - Ontario

Re: Jessica Medeiros, Plaintiffs And: Petopia Ltd. and Chris Campbell, Defendants

Before: Sossin J.

Counsel: Ryan Truax, for the Moving Party, the Defendant Chris Campbell Ava Williams, for the Responding Party, the Plaintiff Jessica Medeiros Angel Ju, for the Defendant Petopia Ltd.

Heard: February 28, 2020

Reasons for Judgment

Overview

[1] This motion for summary judgment is about whether the owner of a dog is responsible for biting injuries to an employee of a kennel where the dog was staying while the owner was away.

[2] The dog, Mali, is a female purebred Thai Ridgeback, who was approximately eight years old at the time of the biting incident. Chris Campbell (“Campbell”), the co-defendant, is Mali’s owner.

[3] Jessica Medeiros (“Medeiros”), the plaintiff, was an employee at the kennel, owned by the defendant, Petopia Ltd. (“Petopia”).

[4] Campbell travels often for work and as a result, Mali has been kennelled at Petopia on a weekly basis since she was six months old. The incident giving rise to this action took place on April 15, 2014, and involved Mali biting Medeiros in the cheek area, causing significant injuries.

[5] On March 30, 2016, Medeiros issued a statement of claim against Petopia and Campbell, claiming $1,000,000 in damages.

[6] Petopia delivered a statement of defence and crossclaim on October 6, 2017, while Campbell delivered his statement of defence and crossclaim on November 15, 2016.

[7] Campbell now moves for summary judgment to have the action against him dismissed.

[8] Petopia takes no position on this motion.

[9] The earlier cross-claims between Campbell and Petopia have been withdrawn.

[10] As a preliminary matter, the parties indicated that several aspects of the statement of claim are no longer in issue, including any potential liability of Campbell under the Dog Owners’ Liability Act, or arising from waivers signed when Campbell began using Petopia’s services for kennelling Mali.

[11] The remaining cause of action involving Campbell is negligence.

Analysis

[12] There is no dispute with respect to the issues to be determined under Rule 20.04 of the Rules of Civil Procedure in relation to summary judgment. These were set out by Karakatsanis J. in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 SCR 87, at paras. 47, 49:

[47] Summary judgment motions must be granted whenever there is no genuine issue requiring a trial (Rule 20.04(2)(a)). In outlining how to determine whether there is such an issue, I focus on the goals and principles that underlie whether to grant motions for summary judgment. Such an approach allows the application of the rule to evolve organically, lest categories of cases be taken as rules or preconditions which may hinder the system’s transformation by discouraging the use of summary judgment.

[49] There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.

[13] Campbell takes the position that, based on the record, there is no genuine issue for trial relating to his potential negligence and liability.

[14] With respect to the special circumstances which may give rise to negligence in an owner for the conduct of an animal, Campbell relies on the Ontario Court of Appeal’s decision in Wilk v. Arbour, 2017 ONCA 21, in which Weiler J., for the Court, held (at para. 40):

[40] Nevertheless, to establish liability for animals in negligence, special circumstances must exist. The owner of an animal cannot be negligent if the animal acts in an unexpected way and injures someone. For a person to be held negligent there must be foreseeability of harm and unreasonable conduct, or put another way, it must be found that “the owner of the particular animal, with its particular characteristics, in the particular circumstances [could] have reasonably foreseen the danger that could result in damage”: Lewis N. Klar, Tort Law, 5th ed. (Toronto: Thomson Reuters Canada Ltd., 2012), at p. 666; Bates (Guardian of) v. Horkoff, 1991 ABQB 270, at p. 276.

[15] Campbell argues that, in the incident giving rise to this action, Mali acted in an unexpected way when she bit Medeiros. Campbell submits that there is no genuine issue for trial with respect to foreseeability of harm or with respect to unreasonable conduct.

[16] Medeiros argues that there are genuine issues for trial, particularly with respect to Campbell’s knowledge of a previous biting incident involving Mali. She relies on evidence in the record involving Jasmine Laise, a former employee of Petopia, and alleging a prior biting incident involving Mali. Medeiros also relies on evidence from Mr. Cho, Petopia’s representative, that owners would usually be informed of biting incidents when they occur.

[17] However, there is no evidence in the record to show that Campbell was advised of any earlier incident, and he has denied any knowledge of a previous incident.

[18] There is no evidence of communication between Petopia and Campbell about any concern with respect to Mali, nor any special instructions regarding Mali’s care which would indicate a history of biting.

[19] Medeiros relies on evidence from a private investigator who spoke with Ms. Laise. According to the investigator’s affidavit, Ms. Laise recalled a “nipping” incident involving Mali. Ms. Laise is reported to have referred to Mali as “not an aggressive dog” and the incident as “not like a serious bite.” Ms. Laise herself declined to provide evidence.

[20] Medeiros argues that the discrepancy relating to this prior incident raises credibility issues, and questions of fact which properly should be left for a jury to determine.

[21] In a summary judgment motion, parties are expected to put their best foot forward; Cuthbert v. TD Canada Trust, 2010 ONSC 830, at para. 12.

[22] Based on this slim record of a possible prior incident, the absence of evidence that Campbell was made aware of the incident, and the fact that a single, minor prior incident about which there is no documentary evidence in the record could not support a finding of a “propensity” on the part of Mali to bite in any event, I find that there is no genuine issue for trial on the question of foreseeability.

[23] Similarly, I find no genuine issue on the question of whether Campbell acted unreasonably. Mali had been kennelled at Petopia on a weekly basis since she was a puppy (for seven years at the time of the incident). Campbell’s evidence is that Mali was not an aggressive dog and had no history of biting. That evidence is not contradicted by Petopia’s records.

[24] It was reasonable for Campbell to expect the staff at Petopia to take any appropriate precautions while Mali was in their care, and for Petopia to provide any relevant instructions or training to staff which were appropriate.

[25] Therefore, based on the evidence in the record, I find there is no genuine issue for trial involving Campbell’s negligence.

[26] Medeiros submits that Campbell’s motion should be denied even if well-founded, as it does not meet the narrow and exceptional circumstances where a partial summary judgment motion should be permitted. For example, relying on Baywood Homes Partnership v. Haditaghi, 2014 ONCA 450, and Mason v. Perras Mongenais, 2018 ONCA 978, at paras. 22, 44, Medeiros submits that where there is a risk of inconsistent findings or duplicative procedures – no matter how small – a partial summary judgment motion should be denied.

[27] The parties agree that the standard to be applied in determining whether a summary judgment motion can go forward in circumstances where it will not dispose of the entire action is that set out by Justice Karakatsanis in Hryniak v. Mauldin, 2014 SCC 7, at paras. 52, 60:

[52] The enhanced fact-finding powers granted to motion judges in Rule 20.04(2.1) may be employed on a motion for summary judgment unless it is in the “interest of justice” for them to be exercised only at trial. The “interest of justice” is not defined in the Rules.

[60] The “interest of justice” inquiry goes further, and also considers the consequences of the motion in the context of the litigation as a whole. For example, if some of the claims against some of the parties will proceed to trial in any event, it may not be in the interest of justice to use the new fact-finding powers to grant summary judgment against a single defendant. Such partial summary judgment may run the risk of duplicative proceedings or inconsistent findings of fact and therefore the use of the powers may not be in the interest of justice. On the other hand, the resolution of an important claim against a key party could significantly advance access to justice, and be the most proportionate, timely and cost effective approach. (Emphasis added.)

[28] This concern with respect to partial summary judgments was refined and applied by the Ontario Court of Appeal in Butera v. Chown, Cairns LLP, 2017 ONCA 783 (“Butera”), at paras. 29-34:

[29] The caution expressed pre-Hryniak in Corchis is equally applicable in the post-Hryniak world. In addition to the danger of duplicative or inconsistent findings considered in Baywood and CIBC, partial summary judgment raises further problems that are anathema to the stated objectives underlying Hryniak.

[30] First, such motions cause the resolution of the main action to be delayed. Typically, an action does not progress in the face of a motion for partial summary judgment. A delay tactic, dressed as a request for partial summary judgment, may be used, albeit improperly, to cause an opposing party to expend time and legal fees on a motion that will not finally determine the action and, at best, will only resolve one element of the action. At worst, the result is only increased fees and delay. There is also always the possibility of an appeal.

[31] Second, a motion for partial summary judgment may by very expensive. The provision for a presumptive cost award for an unsuccessful summary judgment motion that existed under the former summary judgment rule has been repealed, thereby removing a disincentive for bringing partial summary judgment motions.

[32] Third, judges, who already face a significant responsibility addressing the increase in summary judgment motions that have flowed since Hryniak, are required to spend time hearing partial summary judgment motions and writing comprehensive reasons on an issue that does not dispose of the action.

[33] Fourth, the record available at the hearing of a partial summary judgment motion will likely not be as expansive as the record at trial therefore increasing the danger of inconsistent findings.

[34] When bringing a motion for partial summary judgment, the moving party should consider these factors in assessing whether the motion is advisable in the context of the litigation as a whole. A motion for partial summary judgment should be considered to be a rare procedure that is reserved for an issue or issues that may be readily bifurcated from those in the main action and that may be dealt with expeditiously and in a cost effective manner. Such an approach is consistent with the objectives described by the Supreme Court in Hryniak and with the direction that the Rules be liberally construed to secure the just, most expeditious, and least expensive determination of every civil proceeding on its merits. (Emphasis added.)

[29] Campbell accepts that the test which must be met in advancing a partial summary judgment motion is the one set out in these authorities. He argues that this motion meets that test, relying on other cases where partial summary judgment has been granted to remove a particular party or claim from an ongoing action, such as Keuber v. Royal Victoria Regional Health Centre, 2018 ONCA 125; and Larizza v. Royal Bank of Canada, 2018 ONCA 632 (“Larizza”).

[30] In Larizza, Pepall J.A. addressed the partial summary judgment issue, resulting in the removal of one defendant from an ongoing action (at paras. 39-40):

[39] Thirdly, the appellant submits that this was not the clearest of cases in which partial summary judgment was appropriate, and that given the ongoing litigation against other defendants, there was a risk of duplicative or inconsistent findings. Moreover, she argues that partial summary judgment presented an access to justice issue because any adverse costs award could prejudice the appellant’s ability to continue her claims against the other defendants.

[40] I do not accept these submissions. The dangers outlined in Butera v. Chown, Cairns LLP, 2017 ONCA 783, 137 O.R. (3d) 561, do not present themselves in this case. The claims against Faskens are standalone and limited in nature. There is no real concern about duplicative or inconsistent findings arising with respect to the claims asserted against the remaining defendants. This was the clearest of cases where the issues raised in the appellant’s claims against Faskens were readily separable from the balance of the case.

[31] In this case, the issue of Campbell’s liability as Mali’s owner is “readily separable” from the question of Petopia’s potential liability as an employer. A determination of the potential liability of Petopia based on the duties of an employer to an employee will not turn on evidence for the liability of Campbell based on whether the incident involving Mali was foreseeable and Campbell’s conduct unreasonable. This separation is even more stark now that the cross-claims between Campbell and Petopia have been withdrawn.

[32] Medeiros submits that where one defendant blames another for conduct which could give rise to liability, the action should not be bifurcated. In this case, she relies on statements in Petopia’s statement of defence, for example, that plead Campbell is liable for the biting incident because he failed to train Mali properly (at para. 6).

[33] While Petopia has not amended its statement of defence, it has now withdrawn its crossclaim against Campbell, and does not oppose this motion by Campbell for summary judgment.

[34] Counsel for Petopia further confirmed in correspondence in advance of this motion, dated February 19, 2020, that Petopia will not be raising any issues of negligence or liability in relation to Campbell at trial.

[35] In these circumstances, I do not see the potential in this case for duplicative findings or for inconsistent decisions if Campbell’s motion for summary judgment is granted, and the issues in this case bifurcated.

[36] Campbell argues in his factum, “Finally, and with respect, keeping a defendant who has no liability in an action because a co-defendant may be liable does not align with the overriding principles of a summary judgment motion of achieving a fair process and just adjudication” (at para. 62).

[37] I agree. This case meets the exceptional category set out in Hryniak and Butera where granting summary judgment involving one defendant in an action is appropriate and in the interests of justice.

[38] For the reasons set out above, Campbell’s motion for summary judgment is granted, and the Medeiros’ action against Campbell is dismissed.

[39] Should the parties not reach an agreement with respect to costs, brief submissions (of no more than 3 pages) may be provided to me within 30 days of this judgment.

Sossin J. Released: 2020-03-12