Court File and Parties

Date: 2022-06-28 Superior Court of Justice - Ontario

Re: Linda Martin, Plaintiff And: Kathleen Desiree Hurst, Defendant

Before: J. Wilson J.

Counsel: Kate Barretto, for the Plaintiff

Heard: In Writing

Endorsement

The Motion for Default Judgment

[1] The Plaintiff, Linda Martin, seeks an order for default judgment in the amount of $204,818.62 for damages she alleges she sustained as a result of an incident at an off leash area in Thompson Park while she was walking her dog. She also seeks post judgment interest and costs on a substantial indemnity basis.

[2] The Plaintiff alleges that on the morning of June 24, 2017 the 60-pound German Shepherd mix dog owned by the defendant Kathleen Desiree Hurst attacked her, causing her to fall to the ground. The Plaintiff sustained injuries including a right tibial plateau fracture, which required surgery. She was off work for 21 weeks and was in a wheelchair for 6 months. Four years after the accident, she still continues to experience ongoing pain and issues restricting her mobility.

[3] The Plaintiff relies upon the Dog Owners’ Liability Act, R.S.O. 1990, c. D.16 to underpin a finding of liability and damages.

[4] The Plaintiff also relies on rule 19.05 allowing a motion for default judgment for unliquidated damages to be granted based on affidavit evidence.

Service of the Default Motion Materials

[5] The claim was originally brought against “Jane Doe” because the owner of the dog was unknown to the Plaintiff. Subsequently, the owner of the dog was established as Kathleen Desiree Hurst.

[6] The Defendant was served on March 23, 2018 with the order amending the Statement of Claim to include her name as well as the Statement of Claim itself. She did not defend.

[7] In accordance with Toronto best practice, I required that the Defendant be served personally with the materials for this default judgment motion: see for example Elekta Ltd. v. Rodkin, 2012 ONSC 2062, at para. 10.

[8] Personal service of the motion materials took place upon the Defendant on March 16, 2022. The Defendant was advised that she had 45 days from the date of service upon her to respond. She has failed to file any responding materials.

Liability

[9] The Plaintiff relies on section 2(1) of the Dog Owners’ Liability Act (the “Act”) which states:

2 (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.

[10] The relevant aspects of Rule 19 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, provides as follows with respect to this motion for default judgment:

19.01 (1) Where a defendant fails to deliver a statement of defence within the prescribed time, the plaintiff may, on filing proof of service of the statement of claim, or of deemed service under subrule 16.01 (2), require the registrar to note the defendant in default. […]

19.02 (1) A defendant who has been noted in default,

(a) is deemed to admit the truth of all allegations of fact made in the statement of claim; and [...]

19.05 (1) Where a defendant has been noted in default, the plaintiff may move before a judge for judgment against the defendant on the statement of claim in respect of any claim for which default judgment has not been signed.

(2) A motion for judgment under subrule (1) shall be supported by evidence given by affidavit if the claim is for unliquidated damages.

(3) On a motion for judgment under subrule (1), the judge may grant judgment, dismiss the action or order that the action proceed to trial and that oral evidence be presented.

(4) Where an action proceeds to trial, a motion for judgment on the statement of claim against a defendant noted in default may be made at the trial.

19.06 A plaintiff is not entitled to judgment on a motion for judgment or at trial merely because the facts alleged in the statement of claim are deemed to be admitted, unless the facts entitle the plaintiff to judgment.

[11] Where a defendant has been found in default, the facts and conclusions of law pleaded in the statement of claim are to be taken as true: see Rule 19.02(1)(a); Umlauf v. Umlauf (2001), 2001 24068 (ON CA), 53 O.R. (3d) 355 (C.A.), at para. 9; Zhou v. De Melo, 2019 ONSC 830, at para. 4.

[12] However, Rule 19.06 qualifies this principle as the judge hearing a motion for default judgment must not grant judgment unless the facts entitle the plaintiff to judgment: Salimijazi v. Pakjou, 2009 17354 (ON SC), [2009] O.J. No. 1538 (S.C.), at para. 17 (Strathy J., as he then was).

[13] In Plouffe v. Roy (2007), 50 C.C.L.T. (3d) 137 (S.C.), at paras. 51-53, Quinn J. held that Rule 19.02(1)(a) does not preclude a trial judge presiding over a motion for default judgment from scrutinizing the evidence to ensure that it is credible, that a prima facie case exists and that the facts entitle the plaintiff to judgment.

[14] The Court’s duty to the administration of justice includes not only dispensing expeditious and cost-effective justice to the plaintiff where the defendant has ignored the court process, but also ensuring that justice is done and that unsustainable claims are not mechanically processed: Salimijazi, at para. 34.

[15] In the Plaintiff’s affidavit sworn May 16, 2019, the Plaintiff states the following fact to substantiate her claim for liability:

I entered the off leash dog area. Suddenly, a large german sheppard (sic) mix dog weighing approximately 60 lbs ran into me. I was knocked to the ground.

[16] Without further facts in support, the Plaintiff then characterizes this incident as an attack. For example (emphasis added):

I was put through extreme pain and suffering, as well as a very prolonged recovery as a result of the dog attack.

The way the dog hit me and how I fell, I sustained a very serious fracture of my leg... I could not drive for nine months following the attack.

[…] Dr. Leslie Morrison followed me following the attack.

[…] Since the attack I suffer from fear of large dogs. This ordeal has caused me much anxiety in my life generally and towards situations with dogs.

[17] The caselaw under the legislation where owners have been held liable involves unprovoked biting and other clear acts of aggression within the meaning of an “attack” by dogs, rather than accidents.

[18] There does not appear to be any reported caselaw clarifying the definition of “attack” under the Act, as opposed to an accident.

[19] The case of Khurshid v. Richards and Lefcoe is similar to the one before me. In that case in a motion for summary judgment the plaintiff claimed that the defendant’s dogs had run towards her causing her to fall backwards and that this constituted an “attack” under the Act. Justice Sheard denied the plaintiff’s motion for summary judgment due to inconsistent evidence as to what had occurred before the plaintiff’s fall and whether the dogs had actually made contact with the plaintiff. The Court did not determine whether a dog running towards a plaintiff and knocking her over qualifies as an “attack”, as Justice Sheard held this remained a triable issue: Khurshid v. Richards and Lefcoe, 2021 ONSC 3830, at para. 50. This case confirms that if the facts for liability are unclear, the matter requires a trial of the issue.

[20] I have not found any case involving an alleged attack in a dog park where dogs are permitted to run off leash. Nor has counsel provided me with any caselaw pursuant to my request.

[21] The Oxford Learner’s Dictionary defines “attack” as “an act of using an act of violence to try to hurt or kill somebody”. Collins defines “to attack” as “to try to hurt or damage [someone or something] using physical violence”.

[22] In my view in the context of an off leash dog park, the fact that “a large german sheppard mix dog weighing approximately 60 pounds ran into me, causing me to fall on the ground”, without more, does not support the finding of an “attack” by a dog contemplated by the Act.

[23] The very feature of off leash dog parks is that dogs run free. It is reasonable to expect there may be rambunctious large dogs running free in a dog park that may accidentally run into someone. That would not in my view, without more, be an attack and would not engage the liability of the owner under the legislation. That would be a risk one assumes when taking his or her dog into the dog park.

[24] Was what happened to the Plaintiff an “attack” or was it bad luck and part of the risk when a person attends a dog park with his or her dog?

[25] If this case had involved the dog in question biting the Plaintiff in the dog park or other evidence of overt aggression, as opposed to a dog running into her accidentally and then running on, there would be a factual basis to the claim. Owners are responsible for their dogs, and must still control their dogs and prevent them from biting or attacking others, including in dog parks.

[26] There is no independent witness to the incident that filed any affidavit evidence. The Plaintiff did say there were paramedics on the scene that helped her, and other people in the dog park may have seen what occurred. No paramedics or possible bystanders provided any evidence of the incident, to clarify whether the incident was an accident or an aggressive act constituting an attack. There is also no evidence on whether the Plaintiff’s dog was in any way involved in this incident.

[27] Based upon the evidence before me, I am not satisfied on a balance of probabilities that this incident as described by the Plaintiff was an “attack” within the meaning of the Act. If the Plaintiff has further evidence to add and if she wishes to pursue the matter further, she may do so in an uncontested trial on liability only.

Damages

[28] The Plaintiff states that the injury to her right leg required surgery and rendered her unable to walk for over three months or to drive for nine months. She also indicates that she has suffered from a fear of large dogs since the attack and that the ordeal caused her anxiety with respect to situations involving dogs as well as in her life generally.

[29] Counsel for the Plaintiff initially filed caselaw on damage awards for injuries sustained in motor vehicle accidents, suggesting that these cases applied by analogy. Counsel suggested that the damages sustained by the Plaintiff in this case were at the upper end for general damages for knee injuries in the context of a motor vehicle accident.

[30] I find the cases counsel relies upon in this respect are in a different context. This is not a motor vehicle regime, where parties have insurance to protect them when they are at fault and someone is injured.

[31] The Plaintiff relies upon the case of Cartner v. Burlington (City), 2008 37900 (S.C.), in advancing a claim for damages in the amount of $120,000.00. I note that this case is distinguishable from the facts in Cartner which involved far greater losses and consequences of the injury. The plaintiff in Cartner suffered a fractured femur following a slip and fall that significantly accelerated her arthritis to the point of permanent disability in both of her legs. The plaintiff ultimately required a double knee replacement and her injuries rendered her physically incapable of resuming her former employment, managing her household, and engaging in day-to-day activities.

[32] At my request counsel filed additional caselaw dealing with damages caused by an injury of a dog upon a person, rather than personal injury caselaw.

[33] In Moretto v. Nicolini-Femia, 2017 ONSC 3945, at para. 62, Shaughnessy J. opined that the assessment of general damages in a dog bite case is case specific.

[34] In Chatterton v. Cowan, 2010 ONSC 4314, at paras. 6-11, Lauwers J. (as he then was) surveyed a number of cases in which damages were awarded pursuant to the Act ranging from $2,500.00 to $35,000.00. These cases were primarily for lacerations and flesh wound injuries.

[35] Those cases confirm that there is a separate regime for assessing damages caused by a dog. Based on this caselaw, apart from one award of $100,000.00 in Constantinou v. Stannard, 2021 ONSC 5585, it appears that damage awards do not exceed $35,000.00.

[36] The Plaintiff submits that Constantinou is the most analogous case in the context of a dog bite injury. The plaintiff in the Constantinou case suffered an orthopaedic injury to her left shoulder — a partial tear of the supraspinatus tendon and partial tear of the long head of the bicep. The plaintiff underwent surgery to repair the injury. Following shoulder surgery, the healing process was slow, shoulder functionality remained limited, and pain continued.

[37] In Constantinou, the plaintiff was awarded general damages of $100,000.00 after being bitten by the defendant’s dog and suffering a rotator cuff injury. However, this significantly higher damages award came after seven days of trial on the question of liability and damages. Furthermore, the facts of this case are distinguishable. The plaintiff’s injury effectively rendered one of her arms unusable for a period of time and the court found that the long-term effects of her injury would permanently limit her ability to engage in certain activities. Her ability to work in her profession as a personal support worker was also compromised while she recovered from the injury.

[38] In Constantinou, in determining the quantum of general damages, Speyer J. considered the following factors:

a) the age of the plaintiff; b) the nature of her injury; c) the severity and duration of her pain; d) her ongoing disability; e) her emotional suffering; f) the impairment of her lifestyle; g) the impairment of family and social relationships; and, h) the impairment of her physical and mental abilities.

[39] Overall, I support the range of recovery for injuries pursuant to the Act outlined in Chatterton, with the high end of the range being $35,000 in the authorities cited therein.

[40] I am prepared to assess the damages in this case at the amount of $35,000.00 if there was an attack within the meaning of the Act.

Claim for Damages for Lost Income

[41] The Plaintiff was also off work for 21 weeks. At the time her annual income was $72,099.02. Her lost income during the 21-week period is therefore $29,116.91. She seeks full recovery of this amount although she received both short-term and long-term disability payments from her employer. She seeks to exclude these payments, suggesting that the employer has a claim for compensation and can recover this loss from the Defendant.

[42] I disagree.

[43] Neither the employer nor the group benefits program with Manulife Financial is a party to this proceeding. The Plaintiff received short-term disability benefits of $1,000 per week for 17 weeks and thereafter received long-term disability payments in the amount of $2,250 per week for a further four weeks. Credit should be given for actual payments received to see if the Plaintiff ultimately sustained a loss. In these circumstances, particularly taking into account the tax situation, I conclude that there was no actual loss of income to the Plaintiff during the 21-week period when she was off work.

[44] The employer contributed a monthly sum towards an RRSP matching program in the amount of $76.93. The Plaintiff suffered damages for this contribution for the 21 weeks she was off work for a loss of $1,615.43.

Out-of-Pocket Expenses and Future Housekeeping

[45] I accept the out-of-pocket expenses for treatment, housekeeping, medication and parking for medical appointments in the total amount of $2,891.95 ($1,010 treatment, $1,490 housekeeping, $199.95 medication, and $192 parking).

[46] I do not accept the amount of $2,300.00 plus HST for painting due to damage to the apartment allegedly caused by the wheelchair. This damage is too remote and I find this expense is unreasonable.

[47] I accept the claim for future medical rehabilitation of $1,000 and future housekeeping of $6,000. The Plaintiff’s affidavit of May 16, 2019 indicates that the injury has limited her ability to perform certain housekeeping tasks, meaning she will continue to incur additional housekeeping and home maintenance costs as she ages. In a supplementary affidavit sworn October 4, 2021 the Plaintiff states she continues to suffer from chronic pain and reduced mobility and to require assistance with housekeeping.

OHIP Subrogated Claim

[48] It is not appropriate to advance an OHIP subrogated claim by analogy to motor vehicle cases. OHIP is not a party to this proceeding.

Conclusions on Liability

[49] Section 2(1) of the Dog Owners’ Liability Act provides:

2 (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.

[50] I conclude for the reasons outlined above that the affidavit evidence does not on a balance of probabilities support a finding that the incident described was an “attack” to engage liability under the Act. The Plaintiff bears the onus of proof that the Defendant’s dog attacked her. A dog running into a person in a dog park, accidentally knocking them over, and continuing to run, without more, does not constitute an attack.

[51] I dismiss this application, but with the right of the Plaintiff, if she wishes within 30 days to set this matter down as a brief undefended trial based upon affidavit evidence on liability only. There may be further evidence available that has not been included in the Plaintiff’s affidavit, such as affidavits from witnesses that would support a finding that the facts of this case qualify as an attack within the meaning of the Act.

Conclusions on Damages

[52] I conclude that the range of damages for motor vehicle cases, although a helpful reference point, is not applicable to cases involving injury by biting or attacks by dogs owned by private citizens.

[53] This factual context is quite different from automobile accidents, where parties have insurance to pay for damages for injuries sustained where a person is at fault.

[54] In the context of this case therefore I fix damages as follows:

a. General damages: $35,000.00 b. Out-of-pocket expenses: $2,891.95 c. Loss of matching program for RRSP during period off work: $1,615.43 d. Future medical rehabilitation and housekeeping: $7,000.00

[55] I also fix costs in the amount of $6,000.00 plus HST inclusive of any disbursements for this motion for default judgment. There is no merit to the claim that the Plaintiff is entitled to full indemnity costs.

J. Wilson J.

Date: June 28, 2022