Date Issued: March 8, 2019

File: SC-2018-006621

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Hunter v. Nast, 2019 BCCRT 280

Between:

Ildko Hunter

Applicant

And:

Irina Nast

Respondent

INTRODUCTION

1.      This is a dispute about an alleged dog attack. The applicant, Ildko Hunter, owns a Boxer named Emma. The respondent, Irina Nast, owns a dog named Ajax. The applicant says that while the parties and their dogs were at an agility class Ajax attacked Emma without provocation, causing Emma to suffer injuries requiring veterinary care. The applicant wants the respondent to reimburse them $1,954.92 for their veterinary bills related to Emma’s injuries. The respondent says she is not responsible for Emma’s veterinary bills and that Ajax did not cause Emma’s injuries. 

2.      Both parties are self-represented.

JURISDICTION AND PROCEDURE

3.      These are the formal written reasons of the Civil Resolution Tribunal (tribunal). The tribunal has jurisdiction over small claims brought under section 118 of the Civil Resolution Tribunal 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.

4.      The tribunal has discretion to decide the format of the hearing, including by writing, telephone, videoconferencing, email, or a combination of these. I decided to hear this dispute through written submissions, because I find that there are no significant issues of credibility or other reasons that might require an oral hearing.

5.      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.

6.      Under tribunal rule 126, in resolving this dispute the tribunal may order a party to do or stop doing something, order a party to pay money, or order any other terms or conditions the tribunal considers appropriate.

ISSUES

7.      The issue in this dispute is whether the respondent is required to reimburse the applicant $1,954.92 for Emma’s veterinary bills.

EVIDENCE AND ANALYSIS

8.      In a civil claim like this one, the applicant must prove their claim on a balance of probabilities. This means I must find it is more likely than not that the applicant’s position is correct.

9.      I have only addressed the parties’ evidence and submissions to the extent necessary to explain and give context to my decision. For the following reasons, I dismiss the applicant’s claims.

10.   The applicant co-owns Emma with 2 other individuals who are not parties to this dispute, and who were not involved in the incident with Ajax.

11.   The applicant says that during an agility class on March 21, 2018, Ajax and the respondent were somewhere behind the applicant, and Emma was leashed next to the applicant. The applicant says Ajax suddenly ran towards Emma without provocation, slammed into her with his front legs, knocked her down onto her back, jumped on her chest and tried to “get at her throat.” The applicant says she quickly picked up Emma to separate her from Ajax. She does not know if Ajax was leashed at the time, but she says he was clearly not under the respondent’s control.

12.   The respondent says that before the incident Ajax was leashed and lying next to the respondent’s chair when he unexpectedly sprang up, which pulled the leash out of the respondent’s hand. The respondent says Ajax ran towards Emma and “after making contact, there was an entanglement involving growling and snapping.” The respondent says she immediately ran over and pulled Ajax away from Emma, and the incident was over within seconds.

13.   The applicant says Emma was initially unresponsive but quickly “came to” and stood up. It is undisputed that Emma had no visible injuries after the incident. At the trainer’s request the respondent took Ajax outside so that Emma could run the agility course without distractions. Emma ran a few obstacles, but the applicant says after a few minutes Emma stumbled, looked confused, and started to “shut down.” The applicant left the class and took Emma home. 

14.   The applicant submitted a statement from K.R., the trainer at the agility class, who was present at the time of the incident but did not witness it. She only witnessed Emma’s reaction after the incident, which accords with the applicant’s recollection of events.   

15.   The applicant says by the time she took Emma home she was clearly in distress. The applicant took Emma to an emergency veterinary clinic, and by the time she arrived Emma had vomited 4 times and could not stand up. The veterinarian determined that Emma had serious cardiac arrhythmia and put her on medication.  The veterinarian told the applicant that it was unlikely Emma would survive the night. Fortunately, Emma responded to the medication and survived.

16.   The veterinarian’s report suggests multiple potential causes for Emma’s symptoms, including blunt force trauma to the heart and arrhythmogenic right ventricular cardiomyopathy (ARVC), which is common in boxers. The veterinarian recommended the applicant take Emma to a veterinary cardiologist for further testing, which she did.   

17.   The veterinarian cardiologist’s report and emails suggest it is more likely Emma’s symptoms were caused by trauma, but did not entirely rule out the possibility that they were caused by ARVC.

18.   The respondent says there is insufficient proof that Ajax caused Emma’s injuries since the veterinary cardiologist did not rule out the possibility that Emma’s symptoms after the incident could have been caused by AVRC. The respondent says she is not responsible for Emma’s veterinary bills, however she paid the applicant $861.40, which is half of the initial emergency veterinary bill, which she referred to as a goodwill gesture.

19.   The applicant wants the respondent to reimburse her $1,954.92 for Emma’s veterinary expenses which include the emergency bill (less the $861.40 the respondent has already paid), 3 “holter” tests, medication, and an echocardiogram. 

20.   The applicant says she discussed with the trainer whether to report the incident to the City of Langley, but she decided not to report it because the trainer did not ask her to do so.   

21.   In British Columbia there are currently 3 ways a pet owner may be liable for their pet’s actions: occupier’s liability, the legal concept of ‘scienter,’ and negligence. I find that occupier’s liability does not apply to this dispute because the attack did not take place on land the respondent controls.

22.   For ‘scienter’ to apply, the applicant must prove that Ajax had a tendency to cause the type of harm that occurred, and that the respondent knew about that tendency. In a March 23, 2018 email to the trainer the respondent said Ajax had had issues with other intact males before, so she knew to be vigilant and keep Ajax far away from intact males. The applicant says this shows Ajax had attacked or tried to attack other dogs in the past. I disagree. The respondent’s uncontested evidence is that sometimes when Ajax encounters other intact male dogs he growls and postures for dominance, but that such behavior has never resulted in a fight or injury. The respondent also said in her March 23, 2018 email that Ajax had never been aggressive towards female dogs. The respondent says prior to the incident Ajax participated in multiple classes working off-leash with other dogs, and he was never removed from a class. On the evidence before me I am not satisfied that Ajax had a tendency to harm other dogs. I find the applicant has not proven liability in scienter.   

23.   I turn now to negligence. In Martin v. Lowe, 1980 CanLII 546 (BCSC) the court said a dog owner has a duty to ensure its dog is sufficiently under its control that it will not escape to injure someone or damage their property. In that case the dog was not leashed at the time it knocked over a pedestrian, and the court concluded its owner was negligent in letting the dog out of its control. There was a bylaw in place prohibiting dogs from being off leash or otherwise being outside the control of a competent person while on public property. The court said breach of the bylaw did not automatically determine liability, but it was strong evidence of the dog owner’s duty of care to control its dog.

24.   In this case the bylaws of both the City of Langley and the Township of Langley prohibit a dog owner from allowing a dog to run “at large” when anywhere other than the dog owner’s property, meaning a dog must be under the immediate charge and control of a responsible and competent person. The respondent says Ajax was on leash prior to the incident, and none of the evidence before me suggests otherwise. The applicant’s back was turned to the respondent and Ajax prior to the incident, and K.R. did not witness the incident. The rest of the respondents’ evidence about the incident generally corresponds with the applicant’s, and I see no reason to doubt the credibility of the respondent’s evidence on this point. I accept that Ajax was on leash prior to the incident.

25.   The respondent says that when Ajax sprang up unexpectedly the force pulled the leash out of her hand. I am not satisfied that this amounts to a breach of the respondent’s duty of care to control Ajax. The applicant says Ajax was clearly not under the respondent’s control at the time of the incident, but she does not point to any action the respondent could have taken to prevent Ajax’s leash from slipping out of her hand. Given Ajax’s history of attending off-leash dog classes with other dogs without incident, the respondent had no reason to believe she could not control Ajax with a leash. The respondent’s uncontested evidence is that she immediately ran over to Ajax and pulled him away from Emma. While the circumstances are unfortunate, I find there is insufficient evidence to establish the respondent was negligent. The law does not impose strict or absolute liability on the respondent simply because her dog caused injury to another dog. Given my conclusions above, I find there is no legal basis for the respondent to pay the applicant for Emma’s veterinary bills, and I dismiss the applicant’s claims.   

26.   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. Since the applicant was unsuccessful she is not entitled to reimbursement of tribunal fees. The applicant did not claim any dispute-related expenses.

ORDER

27.  I dismiss the applicant’s claims and this dispute.