Date Issued: December 12, 2019

File: SC-2019-006221

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Farrelly v. Beaudry, 2019 BCCRT 1401

Between:

SINEAD FARRELLY

Applicant

And:

PATRICK BEAUDRY

Respondent

INTRODUCTION

1.      This is a dispute about a dog bite. The applicant, Sinead Farrelly, says that her dog, Odin, was injured when she was bitten by Stella, a dog owned the respondent, Patrick Beaudry. The applicant says that Odin needed veterinary care, and asks for an order that the respondent reimburse her for the $1,020.20 she spent at 2 veterinary clinics. The respondent denies that he is responsible for the cost of Odin’s care.

2.      The 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 (CRTA). 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 9.3(2), in resolving this dispute the tribunal may make one or more of the following orders, where permitted under section 118 of the CRTA:

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.

ISSUE

7.      The issue in this dispute is whether the respondent is liable for the dog bite injury and therefore responsible for the $1,020.20 cost of Odin’s veterinary care.

EVIDENCE AND ANALYSIS

8.      In a civil dispute like this one, an applicant bears the burden of proof on a balance of probabilities. Both parties provided evidence and submissions in support of their positions. While I have considered all of this information, I will only refer to what is necessary to provide context to my decision.

9.      The applicant and respondent live in different units in the same building. On July 19, 2019, Odin and Stella encountered each other on a staircase and there was an altercation between them. Stella was not injured, but Odin suffered a bite injury on her neck.

10.   The applicant took Odin to a veterinary clinic for treatment at a cost of $143.85. The veterinarian found that the bites had ruptured a pre-existing cyst on Odin’s neck and recommended that the cyst be removed surgically. A veterinarian at another clinic removed the cyst at a cost of $876.35.

11.   The parties disagree about who is responsible for the $1,020.20 cost of Odin’s care at the 2 clinics. The applicant says that Stella caused Odin’s injury and that the respondent, as her owner, is responsible for the cost. The respondent’s position is that he is not responsible Odin’s veterinary bills.

12.   The ownership of a pet does not, by itself, determine the owner’s responsibility for the pet’s actions. In British Columbia, there are 3 ways for an owner be liable for a pet’s actions: the legal concept of scienter, occupier’s liability under the Occupiers Liability Act (OLA), and negligence.

13.   For scienter to apply, the applicant must prove that at the time of the attack: the respondent was the dog’s owner, the dog had developed a propensity or tendency to cause the type of harm that happened, and the dog’s owner knew of that propensity (see Xu v. Chen & Yates, 2008 BCPC 0234, citing Janota-Bzowska v. Lewis [1997] B.C.J. No. 2053 (BCCA)).

14.   There is no dispute that the respondent is Stella’s owner. He denies that Stella has a history of aggressive behaviour. The applicant says she does not know whether Stella has a propensity to bite, but says that she barks a lot and jumps on visitors to the property. In my view, jumping and barking do not establish aggression or a propensity to bite. I find that the applicant has not proven that Stella has a propensity to bite other dogs or that the respondent knew of such a propensity. Accordingly, I find that the respondent is not responsible for the costs of Odin’s care on the basis of scienter.

15.   Both occupier’s liability and negligence impose a duty of care on a pet owner to ensure that their pets do not attack any people or animals. Under section 3(1) of the OLA, an occupier of premises owes a duty to ensure that a person will be reasonably safe in using the premises. I am satisfied that, for the purposes of this decision, both the applicant and the respondent met the definition of occupiers under the OLA. To establish negligence, the applicant must prove that the respondent failed to take reasonable care to prevent the incident from occurring.

16.   The evidence shows that Stella and Odin had met and had some degree of interaction on the property before the incident. There is no indication that they had any previous altercations. As noted above, the respondent denies that Stella has a history of aggressive behaviour. I acknowledge the applicant’s report that Stella barks and jumps on visitors to the property but, as noted above, I do not find that this amounts to aggressive behaviour. In my view, the applicant has not shown that the respondent ought to have been aware of a safety risk associated with Stella’s behaviour, either generally or towards Odin specifically, such that he needed to take steps to prevent an injury.

17.   Based on the evidence before me, I find that the respondent did not fail to take reasonable care to ensure the safety of people and dogs around Stella. I find that the applicant has not established that the respondent is liable for Odin’s injuries under either occupier’s liability or negligence. As the respondent is not liable for Odin’s injuries, he is not responsible for the veterinary costs claimed by the applicant.

18.   Under section 49 of the CRTA and tribunal rules, the tribunal will generally order an unsuccessful party to reimburse a successful party for tribunal fees and reasonable dispute-related expenses. As the applicant was not successful, I dismiss her claim for reimbursement of tribunal fees.

ORDER

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