The Litigator

THE LITIGATOR

Commentary on Law Affecting Business

The Litigator
AGM :: Affleck Greene McMurtry LLP

THE LITIGATOR

Affleck Greene McMurtry LLP
365 Bay Street, Suite 200  ·  Toronto, Canada
416 360 2800  ·  info@agmlawyers.com  ·  www.thelitigator.ca

A dog is not just another consumer product, appeal court finds

Last month, Ontario ’s Divisional Court released a decision[1] small in monetary terms but great in importance to dog owners and dog lovers everywhere.

Divisional Court Justice Chapnik upheld a $2,500.00 Small Claims Court judgment in favour of Mr. and Mrs. Ferguson after their dog, Harley, escaped from the defendant’s boarding kennel and was lost forever. In doing so, Chapnik J. agreed with the judge below that, as bailees accepting the Ferguson ’s dog for compensation, the defendants had not met their onus of proving that any failings on their part did not cause or contribute to Harley’s escape. More significantly, Chapnik J. upheld an award of $1,417.12 in over and above the dog’s replacement cost to compensate the plaintiffs for their in losing their beloved companion.

This additional $1,417.12 in damages is significant, given that traditionally dogs and other have been viewed as – pieces of personal for which the plaintiff is limited to recovering either the dog’s purchase price or its replacement cost. Citing a recent B.C. decision that compared a dog to a stereo and limited a dog owner to recovery of his dog’s replacement cost, Chapnik J. stated, “The court viewed the dog as just another consumer product. In my view, that characterization as a general proposition, is incorrect in law.” Chapnik J. found that the Deputy Judge below had correctly awarded damages to compensate the Fergusons for the emotional distress they had suffered in suddenly losing their faithful companion of 7 ½ years.

There appears to be a trend in Ontario toward recognising that family dogs are more than just pieces of property. Chapnik J. also cited the 1999 Ontario Superior Court decision in Somerville v. Malloy[2], in which a dog owner was awarded damages for, among other things, the emotional trauma he suffered in witnessing his Chihuahua being attacked and killed by a pit bull.

Published March 8, 2006

 

 

[1] Ferguson v. Birchmount Boarding Kennels Ltd. , 2006 CANLII 2049 (Div.Ct., January 27, 2006 )

[2] Somerville v. Malloy , [1999] O.J. No. 4208 (SCJ)

article keywords: commercial litigation, disputes over , tort actions, , damages, property, , chattels, pets, pain and suffering, , , ,

 

Kenneth A. Dekker
Affleck Greene McMurtry LLP

Kenneth A. Dekker

Kenneth Dekker, a partner of the firm, is a successful trial and appellate lawyer who is valued by his clients as a resourceful and practical litigation counsel.

Over more than two decades, Ken has litigated noteworthy cases in a range of fields that include class action defence, securities and broker-dealer litigation and regulatory defence, corporate and shareholder disputes (including oppression and winding up cases), defamation, civil fraud litigation, disputes over contracts, injunctions, professional liability litigation, employment litigation and cross-border litigation issues.

Ken has appeared before all levels of courts in Ontario, including the Ontario Court of Justice, the Superior Court of Justice, the Divisional Court and the Court of Appeal for Ontario, as well as before the Supreme Court of Canada. Ken also represents and advises clients in regulatory matters before the Investment Industry Organization of Canada (IIROC), the Mutual Fund Dealers Association of Canada (MFDA) and the Ontario Securities Commission (OSC).

Ken has been recognized for Corporate and Commercial Litigation by Best Lawyers of Canada and has been given the highest available rating of AV, or pre-eminent, by his peers on Martindale-Hubbell.

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