Date Issued: January 22, 2021

File: SC-2020-006607

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Mueller v. Devlin, 2021 BCCRT 79

Between:

CARA MUELLER

Applicant

And:

PHYLLIS DEVLIN

Respondent

INTRODUCTION

1.      This dispute is about a dog bite incident in Coquitlam, BC on January 3, 2020. The applicant, Cara Mueller, says her neighbour, the respondent Phyllis Devlin, is responsible for Ms. Devlin’s dog Brix’s biting Ms. Mueller’s dog Remy. Ms. Mueller claims $5,000, as reimbursement of the veterinary expenses she incurred.

2.      Ms. Devlin says Brix, her foster Mastiff cross dog, was leashed and that Remy, a Chihuahua mix, was unleashed and bit Brix first. Ms. Devlin says that Brix released Remy quickly and that given Remy’s provocation and being unleashed, she is not responsible for Remy’s injuries. Ms. Devlin also says Ms. Mueller has already recovered $2,297 towards Remy’s veterinary expenses, through a GoFundMe fundraising page. Ms. Mueller says Remy was leashed and that Remy did not bite first.

3.      The parties are each self-represented. For the reasons that follow, I dismiss Ms. Mueller’s claim.

JURISDICTION AND PROCEDURE

4.      These are the formal written reasons of the Civil Resolution Tribunal (CRT). The CRT has jurisdiction over small claims brought under section 118 of the Civil Resolution Tribunal Act (CRTA). Section 2 of the CRTA states that the CRT’s mandate is to provide dispute resolution services accessibly, quickly, economically, informally, and flexibly. In resolving disputes, the CRT must apply principles of law and fairness, and recognize any relationships between the dispute’s parties that will likely continue after the CRT process has ended.

5.      Section 39 of the CRTA says the CRT has discretion to decide the format of the hearing, including by writing, telephone, videoconferencing, email, or a combination of these. In some respects, the parties in this dispute call into question each other’s credibility. 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 Yas v. Pope, 2018 BCSC 282, the court recognized that oral hearings are not necessarily required where credibility is in issue. Here, I find that I am able to assess and weigh the documentary evidence and submissions before me. Further, bearing in mind the CRT’s mandate that includes proportionality and a speedy resolution of disputes, I find that an oral hearing is not necessary in the interests of justice.

6.      Section 42 of the CRTA says the CRT 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 CRT may also ask questions of the parties and witnesses and inform itself in any other way it considers appropriate.

7.      Where permitted by section 118 of the CRTA, in resolving this dispute the CRT may order a party to do or stop doing something, pay money or make an order that includes any terms or conditions the CRT considers appropriate.

ISSUE

8.      The issue in this dispute is whether Ms. Devlin is responsible for Remy’s injuries, and if so, what is the appropriate remedy.

EVIDENCE AND ANALYSIS

9.      In a civil proceeding like this one, as the applicant Ms. Mueller must prove her claims on a balance of probabilities. I have read all the evidence and submissions before me, but refer only to what I find relevant to provide context for my decision.

10.   It is undisputed that on January 3, 2020 Ms. Mueller exited her apartment building with her dog Remy, with the intention to have Remy relieve himself after going up a few steps to a flat grassy area beside the building. It is also undisputed that Remy and Ms. Devlin’s leashed dog Brix (which Ms. Devlin had been fostering for about 7 weeks), had an altercation.

11.   I find the veterinary records show Remy sustained significant injuries as a result of a dog bite, and in particular his abdomen was punctured. It is undisputed Brix had Remy in his mouth during the altercation, and I find Remy’s wounds were the result of that incident. I also find that Ms. Mueller also sustained wounds to her hand during the altercation when she put her hand in Brix’s mouth, but note there is no personal injury claim for Ms. Mueller before me in this dispute.

12.   Everything else is in dispute. In particular:

a.    Whether Remy was leashed, which Ms. Devlin denies.

b.    Whether Ms. Devlin and Brix were on the staircase near the exit door (as Ms. Devlin alleges), or, whether they were up on the grass further away, as Ms. Mueller alleges.

c.    Whether Brix pulled away from Ms. Devlin to lunge at Remy and she lost control of his leash, which Ms. Devlin denies.

d.    Whether Brix’s rear flank injury is a bite from Remy that provoked Brix (as Ms. Devlin says), or an unrelated rash (as Ms. Mueller says).

e.    Whether Brix had an aggressive history and that Ms. Devlin knew of it, which Ms. Devlin denies.

13.   I pause to note Ms. Mueller argues that each of Ms. Devlin’s witness statements should be rejected, on the grounds Ms. Devlin allegedly bribed the witnesses or they were all fearful of Ms. Devlin given her role as assistant manager in the parties’ residential building. I find it unlikely that every witness provided false evidence as Ms. Mueller suggests. I say the same about Ms. Mueller’s inability to find witnesses in her favour due to Ms. Devlin’s alleged control over the building’s residents. I find Ms. Mueller’s allegations in these respects speculative and wholly unproven and I do not accept them. I will assess the relevant evidence about the dog incident below.

14.   First, was Remy leashed? Ms. Devlin uploaded in evidence a Facebook group message thread from right after the incident, in which posters repeatedly asked Ms. Mueller if Remy had been leashed at the time, and she repeatedly failed to answer the question, though at one point responding, “Well I’m telling you my dog wasn’t in the senior dogs face. He was on the grass peeing” (reproduced as written). Yet, in this dispute Ms. Mueller says she was at the top of the stairs with Remy. Ms. Mueller also did not say Remy was leashed in her application to the CRT, and only said so in response to Ms. Devlin’s allegation Remy was unleashed. Further, video shows Remy was unleashed in the building at 4:32 p.m. before the incident, and the post-incident video of Ms. Mueller with Remy in the building, again off leash, is only 18 minutes later at 4:50 p.m. Other evidence pre-dating the incident, including a video, witness statements of other building residents, and letters to Ms. Mueller from the building’s manager, show Ms. Mueller allowed Remy off-leash, contrary to Ms. Mueller’s submission she keeps Remy leashed. I also note the City of Coquitlam’s “Folder History Report” of its investigation (not binding on me), was completed closer in time to the incident and concluded that Remy was not leashed after interviewing witnesses. I find the weight of the evidence supports a conclusion Remy was not leashed or under Ms. Mueller’s control when Brix bit him. I find Ms. Mueller’s false assertion that Remy was leashed hurts her credibility overall.

15.   Next, how did the incident occur? This issue relates to whether Remy first bit Brix on the stairs, or whether Brix attacked after pulling away from Ms. Devlin’s leash and running across the grass. On balance, I find it likely Remy nipped Brix’s flank on the stairs, which prompted Brix to quickly turn and grab Remy in his mouth, causing Remy’s abdomen puncture. I do not accept Ms. Mueller’s unsupported assertion that Ms. Devlin lost control of Brix’s leash, because Brix is a large dog. My further reasons follow.

16.   First, Brix’s later veterinary records show he had a wound on his right flank, not an unrelated rash as Ms. Mueller submits. Next, the foster DT who took Brix within a week after the incident described the wound as “abrasions”. I agree with Ms. Mueller that Remy would not likely be able to reach Brix’s right flank on the grass, given the photos in evidence of their relative heights. However, I find he would have been able to reach it if the two dogs were climbing stairs at different levels. Also, as noted, Ms. Mueller bears the burden of proof and I prefer Ms. Devlin’s account as I find her more credible overall.

17.   Finally, what about Brix’s alleged propensity to be aggressive and Ms. Devlin’s knowledge of it? It is undisputed Ms. Devlin fostered Brix through the Dogwood Rescue Society (Society). Ms. Devlin submitted a template version of the foster agreement, which among other things says the foster (Ms. Devlin) is fully aware that any dog may bite if provoked. However, the agreement does not say Brix has a known propensity to attack.

18.   Ms. Mueller relies on an undated screenshot of a message from the Society, which other evidence suggests pre-dated the incident by around 1.5 years. In it, the Society posted it did not think any effort had been put into “socializing him, though his previous owner said he has had an incident with a small dog and that he doesn’t like to meet other dogs.” And, that “due to his breed and history, we are playing it …”, with the end of the message cut-off. Brix is not mentioned by name. Even if this message was about Brix, I am not prepared to accept the double hearsay in this message, that an unnamed prior owner of Brix in fact had an incident with a small dog, which description I note did not refer to biting. Further, for this dispute Ms. Devlin submitted a statement from a Society director who said they had no knowledge of Brix attacking a small dog, and multiple statements from past caregivers who said Brix was not an aggressive dog.

19.   Most significantly, there is no evidence that Ms. Devlin had knowledge of any alleged past incident with a dog.

20.   In another undated screenshot message from the Society, it said Brix had growled around children. I find this is not evidence of Brix having a propensity to attack another dog. In a third screenshot of a posting by the Society, it says Brix is looking for a mature home, with no young kids, dogs or other pets. Again, I find this is not evidence that Brix was aggressive to other dogs, and certainly not evidence that Ms. Devlin knew of.

21.   I turn to the applicable law. In British Columbia there are 3 ways a dog owner may be liable for their dog’s actions: occupier’s liability, the legal concept of ‘scienter’, and negligence. There is no suggestion that the incident occurred on property owned or controlled by Ms. Devlin, and I do not find the limited evidence of her assistant manager role rises to the level of her personally being an occupier within the meaning of the Occupier’s Liability Act. So, I will not consider occupier’s liability, although I note the principles discussed below under negligence are for these purposes similar.

22.   To prove scienter, Ms. Mueller must show that at the time of the attack:

a.    Brix was Ms. Devlin’s dog,

b.    Brix had shown an inclination or tendency to cause the type of harm that happened, and

c.    Ms. Devlin knew of that tendency (see Janota-Bzowska v. Lewis [1997] B.C.J. No. 2053 (BCCA)).

23.   As Brix was undisputedly Ms. Devlin’s foster dog, I find he was her dog for the purposes of this analysis. However, I have found above there is insufficient evidence that Brix had an aggressive history toward dogs and no evidence that Ms. Devlin knew of such a history. Ms. Mueller says because Brix was identified as a “sporting breed” Ms. Devlin must have known Brix would see a small dog like Remy as prey. Even if Brix were a “sporting breed”, I find this is insufficient evidence to prove Brix specifically had an inclination or tendency to cause the type of harm that Remy sustained. Again, I find it also does not show that Ms. Devlin knew of such a tendency. I find scienter is not proven here.

24.   Turning to negligence, I find Ms. Devlin had a duty of care to neighbours and their pets. I find the relevant standard of care was to reasonably control her pet and prevent attacks on other animals. The standard is not perfection. It is undisputed Brix was leashed and I have found above that Brix did not break free from Ms. Devlin and lunge at Remy from across the grass, as Ms. Mueller alleges. Rather, I find that Remy nipped at Brix while both dogs were close on the stairs, which caused Brix to quickly take hold of Remy in its mouth. I do not accept Ms. Mueller’s unsupported assertion that Ms. Devlin unreasonably allowed the attack to continue, although I do accept Ms. Mueller chose to put her hand in Brix’s mouth to release Remy, which wounded Ms. Mueller’s hand. I find Ms. Devlin was not negligent in handling Brix.

25.   In summary, I find Ms. Devlin acted reasonably by having Brix leashed and that she had no time to prevent Brix’s biting Remy in the circumstances. I find Ms. Mueller is responsible for the attack because she had Remy unleashed, which allowed Remy to nip Brix and in turn cause Brix to react (see Walia v. Favia, 2006 BCPC 669). I find by letting Remy out of the building without a leash, Ms. Mueller fell below the standard expected of a dog owner. Ms. Devlin was not negligent.

26.   Even if I had found Ms. Devlin partially or wholly liable, I would not have allowed the $5,000 damages claimed. First, the veterinary bills show Ms. Mueller was charged only $3,752.52. Second, Ms. Mueller did not address a February 27, 2020 screenshot of a GoFundMe page in evidence, which notes a fundraising campaign to pay for Brix’s veterinary bills, which by that point had raised $2,297.

27.   Under section 49 of the CRTA and the CRT’s rules, as Ms. Mueller was unsuccessful in this dispute I find she is not entitled to reimbursement of paid CRT fees. Ms. Devlin did not pay fees. No dispute-related expenses were claimed.

ORDER

28.   I dismiss Ms. Mueller’s claims and this dispute.