Date Issued: December 19, 2018
File: SC-2018-001578
Type: Small Claims
Civil Resolution Tribunal
Indexed as: Chan v. Loginov, 2018 BCCRT 885
Between:
Applicant
And:
Anton Loginov
Respondent
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REASONS FOR DECISION |
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Tribunal Member: |
Eric Regehr |
INTRODUCTION
1. This is a dispute about an alleged dog attack. The applicant, Sing-Yue Chan, is the owner of a cocker spaniel cross named Chaboo. The respondent is the owner of an Italian Mastiff named Zaria. The applicant claims that Zaria attacked Chaboo. The respondent denies that the attack happened.
2. The applicant claims $822.73 in veterinary bills for Chaboo. The applicant also claims $2,000 for stress, inconvenience and time.
3. The parties are each self-represented.
JURISDICTION AND PROCEDURE
4. These are the formal written reasons of the Civil Resolution Tribunal (tribunal). The tribunal has jurisdiction over small claims brought under section 3.1 of the Civil Resolution Tribunal Act (Act). The tribunal’s mandate is to provide dispute resolution services accessibly, quickly, economically, informally, and flexibly. In resolving disputes, the tribunal must apply principles of law and fairness, and recognize any relationships between parties to a dispute that will likely continue after the dispute resolution process has ended.
5. The tribunal has discretion to decide the format of the hearing, including by writing, telephone, videoconferencing, email, or a combination of these. In some respects, this dispute amounts to a “he said, she said” scenario with both sides calling into question the credibility of the other. Credibility of witnesses, particularly where there is conflict, cannot be determined solely by the test of whose personal demeanour in a courtroom or tribunal proceeding appears to be the most truthful. In the circumstances of this dispute, I find that I am properly able to assess and weigh the evidence and submissions before me. Further, bearing in mind the tribunal’s mandate that includes proportionality and a speedy resolution of disputes, I find that an oral hearing is not necessary. I also note the decision Yas v. Pope, 2018 BCSC 282 at paragraphs 32 to 38, in which the court recognized that oral hearings are not necessarily required where credibility is in issue. I therefore decided to hear this dispute through written submissions.
6. The tribunal may accept as evidence information that it considers relevant, necessary and appropriate, whether or not the information would be admissible in a court of law. The tribunal may also ask questions of the parties and witnesses and inform itself in any other way it considers appropriate.
7. Under tribunal rule 126, in resolving this dispute the tribunal may make one or more of the following orders:
a. order a party to do or stop doing something;
b. order a party to pay money;
c. order any other terms or conditions the tribunal considers appropriate.
ISSUES
8. The issues in this dispute are:
a. Did Zaria attack Chaboo?
b. If so, is the respondent liable for the attack?
c. If so, how much, if anything, does the respondent owe the applicant?
EVIDENCE AND ANALYSIS
9. In a civil claim such as this, the applicant must prove his case on a balance of probabilities. While I have read all of the parties’ evidence and submissions, I only refer to what is necessary to explain and give context to my decision.
10. The parties do not dispute that on August 23, 2017, the respondent was at a house in Coquitlam with Zaria. The respondent is a contractor and was bidding on a job at the house. The applicant was walking Chaboo down the sidewalk. From this point, the parties provide very different stories about what happened. I will set out the applicant’s version of events first.
11. At around 8:25pm, the applicant was walking Chaboo down the sidewalk. A grey truck was blocking the sidewalk so the applicant walked into the street to go around it. At that point, Zaria ran down a driveway and attacked Chaboo for 10-15 seconds before the respondent came to pull Zaria off. The respondent put Zaria into the cab of his truck and refused to give the applicant his name or contact information. The applicant wrote down the license plate number and eventually got the respondent’s name through the Insurance Corporation of British Columbia.
12. The homeowner came out of the house and the applicant asked him to phone the police. The police did not attend. The applicant eventually gave up trying to get the respondent to give his name and left. At this point, the applicant did not realize that Chaboo had been hurt because Chaboo has long hair and Chaboo was not visibly limping.
13. When the applicant returned home, he noticed bleeding from a paw and knee. The applicant took Chaboo to an emergency veterinary clinic, where Chaboo got sutures. One of the puncture wounds later got infected, which required further treatment.
14. The respondent says that no dog attack occurred. He says that Zaria did not approach and did not touch Chaboo. The homeowner called the police because the applicant would not leave the property and kept demanding compensation. The respondent says that Chaboo showed no signs of injury and that if Chaboo was attacked, it was either before or after the applicant was at the house.
15. The only evidence that the respondent provided other than his own statement was a statement from the homeowner. That homeowner says that a person was walking by his house on the day in question. The homeowner does not deny that the attack took place. The homeowner only says that they did not see any dog being attacked.
16. The respondent says that several other people saw the incident, but did not provide any witness statements other than the homeowner’s.
17. The applicant reported the incident to Coquitlam’s animal control department. As part of that process, the respondent provided a statement. In that statement, the respondent said that he left Zaria in his car. He opened the door and Chaboo barked. Zaria then ran out of the car and “pushed the other dog down” before the respondent pulled Zaria off. He said that he refused to give his contact information because he thought that the applicant was trying to scam him.
18. As the applicant points out, the respondent’s evidence in this dispute is significantly different from the statement he gave to animal control department. I do not find the respondent’s denial that Zaria did not touch Chaboo credible. The prior statement made to the animal control department was close in time to the day of the incident. In addition, the respondent’s denial in this dispute is self-serving.
19. In addition, the respondent’s position is that either Chaboo was already hurt and the applicant was looking for someone else to blame, or Chaboo was hurt afterwards. Neither allegation makes any objective sense. The report from Chaboo’s veterinarian calls Chaboo’s injuries “bite wounds”. The respondent’s self-serving allegation also negatively impacts his credibility.
20. Finally, while I am not bound by the animal control department’s findings, I do place some weight on the fact that they issued 3 tickets to the respondent, including a ticket for failing to keep Zaria on leash and a ticket for a serious attack causing injury. The respondent paid the tickets.
21. I therefore accept the applicant’s evidence about the incident. I find that Zaria was unleashed on the homeowner’s property and attacked Chaboo. However, this finding does not necessarily mean that the respondent must compensate the applicant.
22. In British Columbia, there are currently 3 ways for a pet owner to be liable for the actions of their pets:
• occupier’s liability.
• the legal concept known as “scienter”.
• negligence.
23. I find that occupier’s liability does not apply to this dispute because the attack did not take place on land that the respondent controls. The attack happened on public land.
24. For scienter to apply, the applicant must prove that the dog had a propensity to cause the type of harm that happened and that the owner knew about that propensity. The applicant submits that the respondent must have known that Zaria’s breed is a dangerous breed and therefore knew that Zaria had a propensity to attack. The applicant points to certain websites that describe bull mastiffs as aggressive. I disagree that the fact that some people believe that bull mastiffs are aggressive is the same as the respondent having knowledge that Zaria herself was aggressive or dangerous. There is no evidence of Zaria previously attacking another dog. I find that the applicant has not proven liability in scienter.
25. Turning to negligence, in Martin v. Lowe, 1980 CanLII 546 (BC SC), the Court said that dog owners have a duty to ensure that their dogs are sufficiently under the owner’s control that they will not escape to injure anyone or damage property. In Martin, an off-leash dog in Victoria knocked over a pedestrian, causing injury. The Court relied on Victoria’s municipal bylaw requiring that a dog either be on a leash or under control as strong evidence that the owner was negligent. There was no evidence that the dog had injured a person in the past and no claim in scienter.
26. Therefore, breaching a municipal bylaw requiring dogs to be on leash does not automatically make an owner liable for an attack, but it is strong evidence of the standard of care the dog owner must follow in that municipality.
27. Bylaw 10.1 of the City of Coquitlam’s Animal Control Bylaw states that, other than in a designated off-leash area, an animal owner must ensure that is not at large. A dog is at large when it is on public property and is not leashed. Therefore, Zaria was at large at the time of the attack.
28. Based on Martin and Bylaw 10.1, I find that the respondent had a duty to have Zaria on leash, which the respondent breached. I also find that it was reasonably foreseeable that Zaria could injure another dog if unleased in an area where other dog owners would expect Zaria to be on leash.
29. In summary, I find that the respondent was negligent in failing to have Zaria on a leash and is responsible to compensate the applicant for the attack.
30. The applicant provided 2 veterinary receipts. The first was for emergency care on the night of the attack for $651.94. The second was to treat an infection of one of the wounds for $162.66. I find that the applicant is entitled to be reimbursed for both veterinary visits, a total of $814.60. The applicant does not explain why he claims $822.73.
31. The applicant also sought $2,000 for stress, inconvenience and time. It is not clear whether the applicant seeks compensation for emotional distress caused by the attack or for the effort to bring this dispute. Either way, I find that the applicant is not entitled for further compensation.
32. If the applicant is seeking compensation for emotional distress, the applicant would need to show evidence that he was harmed. The applicant has not provided any medical or other objective evidence to establish any mental consequences as a result of the attack.
33. If the applicant is seeking compensation for the time and effort to bring this dispute, the tribunal does not generally compensate parties for their time spent dealing with a dispute. This is consistent with tribunal rule 132, which provides that, except in extraordinary cases, the tribunal will not order one party to pay another for a representative.
34. I dismiss the applicant’s claim for $2,000 for stress, inconvenience and time.
35. Under section 49 of the Act, and tribunal rules, the tribunal will generally order an unsuccessful party to reimburse a successful party for tribunal fees and reasonable dispute-related expenses. I see no reason in this case not to follow that general rule. I find the applicant is entitled to reimbursement of $125 in tribunal fees.
36. The applicant also claimed $225.26 in dispute related expenses. The largest expense was $186.24 that the applicant paid for the City of Coquitlam’s file after the applicant got a tribunal order requiring the City of Coquitlam to produce it. The applicant also claimed $11.34 as the cost to provide the Dispute Notice to the respondent. I find that these are reasonable dispute-related expenses.
37. The other dispute-related expenses were to provide the dispute notice to another respondent, who is no longer a party to this dispute, and to commence an access to information request with the RCMP about the police phone call. I do not agree that the respondent should be required to compensate the applicant for actions taken against another respondent. I also do not award the cost for the access to information request. The RCMP file was not in evidence and, even if it was, it was unlikely to contain any information relevant for this dispute since the RCMP did not attend the incident. I decline to award these expenses.
38. Accordingly, the applicant is entitled to $197.58 in dispute-related expenses.
ORDERS
a. $814.60 for Chaboo’s veterinary bills,
b. $12.40 in pre-judgment interest under the Court Order Interest Act, and
c. $322.58 for $125 in tribunal fees and $197.58 for dispute-related expenses.
40. The applicant’s remaining claims are dismissed.
41. The applicant is entitled to post-judgment interest, as applicable.
42. Under section 48 of the Act, the tribunal will not provide the parties with the Order giving final effect to this decision until the time for making a notice of objection under section 56.1(2) has expired and no notice of objection has been made. The time for filing a notice of objection is 28 days after the party receives notice of the tribunal’s final decision.
43. Under section 58.1 of the Act, a validated copy of the tribunal’s order can be enforced through the Provincial Court of British Columbia. A tribunal order can only be enforced if it is an approved consent resolution order, or, if no objection has been made and the time for filing a notice of objection has passed. Once filed, a tribunal order has the same force and effect as an order of the Provincial Court of British Columbia.
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Eric Regehr, Tribunal Member |