Court of Queen’s Bench of Alberta Citation: Wetaskiwin Animal Clinic Ltd v Hartley, 2021 ABQB 144 Date: 20210223 Docket: 1712 00391 Registry: Wetaskiwin Between: Wetaskiwin Animal Clinic Ltd. Plaintiff - and - Christina Hartley Defendant _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice K.S. Feth _______________________________________________________ [ 1 ] Wetaskiwin Animal Clinic Ltd. (the “Animal Clinic”) applies for

summary judgment to collect $75,000 from Christina Hartley for veterinary services performed at her direction by the Animal Clinic over a period of several years. The amount owing was determined by a settlement agreement reached in May 2016. [ 2 ] The Animal Clinic also seeks the dismissal of Ms. Hartley’s Counterclaim, which alleges that the Clinic provided negligent veterinary services over an unspecified time period. [ 3 ] Ms. Hartley is a commercial dog breeder. She alleges that the settlement was procured through duress and is therefore void.

As for the Counterclaim, she makes numerous complaints about professional services rendered including: misdiagnosing her dogs’ medical conditions, negligently performing surgical procedures, prescribing medications that either harmed or failed to help her animals, and failing to properly preserve animal semen. She seeks damages of $50,000. [ 4 ] For the reasons which follow,

summary judgment is granted in favour of the Animal Clinic and the Counterclaim is dismissed. Background [ 5 ] From December 8, 2005 to February 16, 2016, the Animal Clinic supplied veterinary services to Ms. Hartley for her dog breeding business. She did not always pay as services were rendered, so arrears in excess of $75,000 accumulated over time. [ 6 ] Pursuant to a settlement agreement reached on May 12, 2016, Ms. Hartley agreed to pay $75,000 in full satisfaction of her outstanding account, which at that time exceeded $85,000. [ 7 ] Under the terms of the settlement agreement, Ms.

Hartley was to pay $5,000 per month for 15 consecutive months until the balance was paid in full. However, she paid only $1,000, leaving a balance owing of $74,000. [ 8 ] Ms. Hartley did not appear at the hearing of this application, but with the assistance of a law firm, she filed an affidavit in which she deposed: I signed the outstanding amount payment plan contract stating that the $75,000 would be repaid in monthly instalments, under extreme duress.

Wetaskiwin Animal Clinic Ltd. refused to give me the cremated remains of one of my dogs unless I signed the contract, and so I did. [ 9 ] Nothing more was explained about the dog or the circumstances giving rise to the duress. [ 10 ] John Scholten is a licensed veterinarian and a director and an officer of the Animal Clinic. He negotiated the settlement agreement with Ms. Hartley and provided some of the veterinary services for her dogs. [ 11 ] Mr. Scholten denies that a dead dog was discussed during these negotiations or that the body of a cremated dog was withheld until Ms. Hartley agreed to the payment plan.

According to Mr. Scholten, the only incident involving a dead dog, close in time to the compromise, was an emergency autopsy he performed on one of Ms. Hartley’s dogs in February 2016. Following the autopsy, he reported the results to Ms. Hartley at length by telephone. The body of the autopsied dog was placed in cold storage until October 2017 when Ms. Hartley informed Mr. Scholten that he could dispose of the remains as he wished. The Animal Clinic then arranged for the body to be cremated at its expense. [ 12 ] As for her Counterclaim, Ms.

Hartley’s Affidavit briefly mentions the following concerns with the professional services received: a. The Animal Clinic “incorrectly diagnosed” three puppies as having heart murmurs; b. The Animal Clinic prescribed the wrong dosage of a drug causing the deaths of some puppies; c. Following an examination and blood work of a dog named Sully, the Animal Clinic failed to detect that the dog’s spleen was unhealthy. The dog was diagnosed with a ruptured spleen two months later; d.

Semen samples imported from Belgium were stored with the Animal Clinic, but the Clinic “failed to preserve the sperm and the sperm were killed”; e. Multiple surgeries were performed on a dog named Brook, but the “procedures only made the condition worse, and they [the Animal Clinic] failed to correct this situation”; f. The Animal Clinic “continually prescribed the same expensive medications despite the medications having no tangible or positive effect” on her animals; g.

The Animal Clinic spayed one of her dogs, but left one of two ovaries inside the dog; due to the dog’s age, it could not be safely spayed again; and h. A “negligent” caesarian

section on a dog left a puppy in the dog’s birth canal, but the stillborn puppy exited the mother naturally. [ 13 ] Mr. Scholten responded to Ms. Hartley’s Affidavit by deposing generally that her allegations were “absolutely false.” In an earlier Affidavit, he stated the Counterclaim has “no merit.”

Summary Judgment [ 14 ] Rule 7.3(1) (

a) of the Alberta Rules of Court , Alta Reg 124/2010 (the “ Rules ”) allows a plaintiff to apply for

summary judgment if “there is no defence to a claim.” Similarly, under Rule 7.3(1) (b), a defendant by counterclaim may apply for

summary dismissal if “there is no merit to a claim or part of it.” [ 15 ] When considering an application for

summary judgment (including dismissal), the Court applies the principles from Hryniak v Mauldin , 2014 SCC 7 [ Hryniak ], including the “culture shift” promoting timely and affordable access to the justice system.

Summary

judgment is appropriate where the moving party establishes the facts in issue on a balance of probabilities and demonstrates that no genuine issue requires a trial: Weir-Jones Technical Services Incorporated v Purolator Courier Ltd , 2019 ABCA 49 at para 47 [ Weir- Jones ]; Hannam v Medicine Hat School District No 76 , 2020 ABCA 343 at para 5 [ Hannam ]. [ 16 ] While the facts must be proven on a balance of probabilities, merely establishing the facts to that standard is not a proxy for

summary adjudication: Weir-Jones at paras 33 and 47 (b). The evidence must be sufficient so that the judge is confident the dispute can be fairly resolved without a trial: Weir-Jones at para 36 ; Hannam at para 12 . [ 17 ] As explained in Weir-Jones , if the moving party meets the initial burden of showing “no merit” or “no defence” based on facts proven on a balance of probabilities, the resisting party must then put its best foot forward to demonstrate that a triable issue remains (para 35): The moving party has the burden of establishing that, considering the facts, the record, and the law, it is entitled to

summary judgment on the merits of the case, and that there is no genuine issue for trial. The resisting party then has an evidentiary burden of persuading the court that there is a genuine issue requiring a trial, or in other words that the moving party has not met that aspect of its burden. The ultimate burden remains on the moving party to establish that there is no genuine issue requiring a trial, and that a fair and just adjudication is possible on a

summary basis. ... A dispute on material facts, or one depending on issues of credibility, can leave genuine issues requiring a trial. [ 18 ] A

summary judgment application “does not contemplate

summary adjudication on difficult factual questions, requiring a tough call on contested facts”: Weir-Jones at para 30 . However,

summary judgment is “not limited to cases where the facts are not in dispute”: Weir-Jones at para 21 . [ 19 ] The Court can “make contested findings of material facts” and “should not be reluctant to make material fact findings”: Hannam at paras 147-148, 175 . Nonetheless, “before a

summary judgment court resolves a material factual dispute, it should ask if it constitutes a genuine issue requiring a trial”: Hannam at para 149 . [ 20 ] The proper approach “should follow the core principles relating to

summary dispositions, the standard of proof, the record, and fairness. The procedure and the outcome must be just, appropriate, and reasonable”: Weir-Jones at para 47 . [ 21 ] The record must allow the Court to make the necessary findings of fact and determine the law applicable to those facts. The Court must also reflect on whether the claim or part of it may be fairly and justly resolved at this stage of the litigation, including whether

summary disposition is a proportionate, more expeditious and less expensive means to achieve a just result: Hryniak at para 49 ; Weir-Jones at para 48 . The outcome need not be obvious for

summary determination: Hannam at para 12 . [ 22 ] The facts pleaded in the Statement of Claim and the Counterclaim are not assumed to be true. Evidence is required.

Summary Judgment on the Settlement Agreement [ 23 ] The obligation to pay the outstanding arrears was confirmed in the settlement agreement of May 12, 2016, which was signed by Ms. Hartley. [ 24 ] Two defences are raised in the Statement of Defence to the enforcement of the agreement:

a) the service accounts to which the agreement relates contained figures that were unreasonable, improperly calculated or inaccurate; and

b) the agreement was the result of duress.

a) The service account calculations [ 25 ] The agreement settled the quantum owing. The evidence does not show that the underlying calculations contained inaccurate information that materially misled Ms. Hartley during the negotiation of the agreement. Her Affidavit makes no such assertion. [ 26 ] I find no genuine issue requiring a trial for this defence.

b) Duress [ 27 ] A settlement agreement may be avoided if one party took advantage of the other by duress or undue influence: Tardif v Campbell , 2008 ABQB 776 at para 26 ; Dickieson v Dickieson , 2011 ABQB 202 at para 13 [ Dickieson ]. [ 28 ] Duress is the coercion of a person’s will through an illegitimate form of pressure, with one party dominating the will of another at the time that an agreement is executed: Attila Dogan Construction & Installation Co Inc v AMEC Americas Ltd , 2014 ABCA 74 at para 18 [ Attila Dogan ]; Ramdial v Davis (Litigation guardian of ) , 2015 ONCA 726 at para 42 [ Ramdial ] ; Hatton v Richards , 2021 ABQB 25 at para 30 . [ 29 ] The coercion vitiates consent: Pao On v Lau Yiu Long , [1979] 3 All ER 65 at 78 ; Attila Dogan at para 18 .

A power imbalance or vulnerability does not necessarily lead to a finding of duress: Dickieson at para 23 ; Orcheski v Hynes , 2007 ABQB 194 at paras 23-24 ; Ramdial at para 42 . If duress is made out, the settlement agreement is voidable by the party who signed under duress: Dairy Queen Canada, Inc v MY Sundae Inc , 2017 BCCA 442 at para 48 . [ 30 ] The Alberta Court of Appeal in Attila Dogan acknowledged that the presence of duress is often tested by looking for certain indicia or “badges” of duress, and further that duress might be proven even in the absence of the usual badges (paras 20 and 21).

These indicia are:

a. Whether the party protested at the time the agreement was formed; b. Whether the party had a realistic alternative to entering into the agreement, such as another legal remedy; c. Whether the party had the opportunity to speak with independent legal counsel; d. Whether, after entering into the agreement, the party took steps to avoid it within a reasonable period of time; and e. If a party can show that points (

a) to (

d) are met, whether the pressure exerted was illegitimate. See also: Dickieson at paras 21-22; Roenisch v Bangs (1993), (AB KB), 138 AR 15, 8 Alta LR (3d) 148 (QB) atparas 53-63. [31] Ms. Hartley deposes that she signed the settlement agreement under duress because the Animal Clinic withheld the crematedremains of one of her dogs until she signed. No additional details are provided. [32] The dog is not identified. Ms. Hartley does not explain whether the dog was a commercially bred animal or a companionanimal.

She does not describe why the cremated remains were important to her nor clarify why withholding the remains placed pressureon her or how much pressure. She does not indicate whether she protested the withholding of the remains at the time. [33] Mr. Scholten conducted the negotiation of the settlement agreement in May 2016 with Ms. Hartley. He provides additionalcontext that has not been challenged by Ms. Hartley. [34] Mr. Scholten deposes that he recommended Ms. Hartley obtain legal advice before entering into the settlement agreement, butshe declined. [35] According to Mr. Scholten, Ms.

Hartley did not complain about the Animal Clinic’s veterinary services, the calculation of theamount owing, and the proposed settlement sum of $75,000. The autopsied dog and the remains were not discussed. The email exchangebetween the parties confirming the settlement is in evidence; nothing is mentioned about Ms. Hartley being reluctant to enter into theagreement or anyone pressuring her. [36] On October 16, 2017, Mr. Scholten informed Ms. Hartley that she was in breach of the settlement agreement and that he wasreferring the matter to legal counsel.

He told her the Animal Clinic could no longer afford to keep the autopsied dog in its freezer as thespace was needed for other clients. Ms. Harley responded that he could dispose of the autopsied dog as he wished, belying a strongemotional connection to the dog or the remains. [37] Based on the evidentiary record, a dog’s remains were being held by the Animal Clinic, but the evidence does not suggest theremains were withheld to create bargaining leverage. Ms. Hartley did not protest. After the settlement agreement was executed, nothingsuggests Ms. Hartley was denied possession of the remains.

Rather, months passed without Ms. Hartley collecting the remains andeventually she abandoned them. The circumstances do not suggest any emotional coercion or that any undue pressure of any kind wasexerted on Ms. Hartley. [38] The Alberta Veterinary Medical Association is the professional regulatory body for the veterinary profession in Alberta, butno evidence is provided that Ms. Hartley complained to the regulator about coercive conduct or the wrongful withholding of a dog’sremains, or that she pursued any other avenues to address any coercive conduct. [39] No evidence is offered that Ms.

Hartley pursued any recourse until the Counterclaim was filed, more than 17 months after thesettlement agreement was concluded. The delay speaks adversely to any contention that signing the settlement agreement was coercedthrough illegitimate pressure. [40] Mr. Scholten’s evidence shifts the burden to Ms. Hartley to explain the basis of her assertion that the settlement agreementwas the product of duress. [41] The Alberta Court of Appeal has confirmed, in both Weir-Jones and Hannam, that weighing evidence is possible whenassessing whether a genuine issue remains for trial.

As a consequence, unless a party resisting

summary disposition of a claim orcounterclaim is merely relying on the inadequacy of the applicant’s proof, an obligation arises to put forward sufficient facts andevidence to demonstrate a genuine issue for trial. Bald conclusory statements or allegations, like a party being subjected to “duress”,should be substantiated by some material facts, even on a

summary judgment application. In the absence of a meaningful factualfoundation, the party making the assertion cannot meet their evidentiary burden. [42] The culture shift directed by Hryniak emphasizes the use of

summary judgment procedures where a fair and just adjudicationis possible. I am satisfied that the record allows me to find the facts on a balance of probabilities and to apply the law, and further thatsummary judgment is a proportionate, more expeditious and less expensive means to achieve a just result than going to trial. [43] I cannot find, on the facts presented, a genuine issue for trial about duress. Even accepting Ms.

Hartley’s contention that adog’s remains were being withheld until the settlement agreement was signed, her overall course of conduct, including the absence ofany material “badges” of duress, satisfies me on a balance of probabilities that her will was not subverted by illegitimate pressure.Moreover, the totality of the evidence fails to show any real merit to the claim that the Animal Clinic exerted an illegitimate pressuresufficient to overcome Ms. Hartley’s will and vitiate any consent or agreement, or that a trial is necessary to explore her bald conclusionin greater detail. The defence that Ms.

Hartley signed the settlement agreement under duress has insufficient merit to warrant a trial. [44] Accordingly, I find in favour of the Animal Clinic on its claim, being $74,000 after an adjustment for the one-time paymentmade by Ms. Hartley of $1,000.

Summary Dismissal of the Counterclaim [45] Ms. Hartley’s Counterclaim is grounded in professional negligence. The evidentiary burden on Ms. Hartley is to establish thestandard of care expected of a veterinarian in these circumstances, a breach of that standard of care, and injury or loss caused by thatbreach.

The content of the standard of care is important because practice standards address the medical risks of diagnosis and treatment.Medical assessments and outcomes are rarely, if ever, assured. [46] In general, where professional negligence is asserted, the standard of care is that of the “normal, prudent practitioner of thesame experience and standing”: Crits and Crits v Sylvester (1956), 1 DLR (2d) 502 at 508, (Ont CA), aff'd (SCC), [1956] SCR 991; ter Neuzen v Korn, (SCC), [1995] 3 SCR 674 at paras 33, 36 and 61; Zaiffdeen v Chua,2005 ABCA 290 at para 22; LR v Semenjuk, 2020 ABQB 350 at para 23 [LR]; Barbe v Evans, 2020 ABQB 599 at para 171; Waap vAlberta, 2008 ABQB 544 at para 33. [47] The Court determines the requirements of the standard, usually by relying on evidence from professionals havingqualifications, competence and standing comparable to the defendant: Gage v Hennessey, 2004 CarswellOnt 11440 (Ont SCJ) at para 20.That said, it is the Court and not the expert who determines the standard of care to be applied.

The Court must consider and balanceexpert evidence with all the other evidence in arriving at a determination: LR at para 27. [48] The CED Professions and Occupations III.3.(c).(i) (Western) (CED) states at §53 and 55: In determining whether a professional exercised reasonable skill and care, he or she will be judged by the standard of a reasonablycompetent practitioner of the same experience and standing. A court cannot simply take judicial notice of what the applicable standard ofcare is for a particular profession.

The obligation rests upon the party alleging the negligence to tender an expert in the same field totestify as to what the standard of care is in that field and to provide an opinion as to whether, in the particular case, that standard was orwas not met. … A professional does not guarantee success or perfect results but only that he or she will use a reasonable degree of skill and competencyand exercise reasonable care and his or her best judgment to achieve a good result. [49] In a medical negligence action, the claimant must ordinarily tender expert opinion evidence supporting their position unlessthe issues to be decided are within the ordinary knowledge and experience of a trier of fact or the negligence involves the “clearest ofcases”: Claus v Wolfman (1999), 52 OR (3d) 673, (SCJ) at paras 4, 12 and 23, affirmed (2000), 52 OR (3d) 680, (Ont CA) [Claus]; Grivicic v Alberta Health Services (Tom Baker Cancer Centre), 2017 ABCA 246 at paras 30-32;Stoddard v Montague, 2006 ABCA 109 at paras 18 and 20; Liu v Wong, 2016 ONCA 366 at para 14. [50] I find that the same principles apply to a negligence claim against a veterinarian.

The complexity of diagnosing and treatinganimals, and prescribing medication, requires technical insight and training that is usually outside the ordinary knowledge andexperience of the Court, save for exceptional circumstances. [51] No expert evidence was put before me by Ms. Hartley about the standard of care required of a veterinarian or that the AnimalClinic failed to meet that standard. [52] The tendered evidence does not demonstrate the standard of care and the requisite standard is neither within the ordinaryknowledge and experience of the Court nor so obvious that evidence is unnecessary.

Since the standard of care is not defined, Ms.Hartley cannot establish that the standard of care has been breached. [53] Ms. Hartley advances various complaints without explaining the factual foundation for her beliefs, including whether she hasany medical expertise to ground her opinions. She appears to rely on hearsay at times without identifying the source of the hearsay orwhy the hearsay is reliable. [54] She deposes, for example, that three puppies were incorrectly diagnosed as having heart murmurs, but does not explain howshe knows that to be true.

She does not elaborate on when or how the puppies were subsequently examined to determine themisdiagnosis or by whom. She does not indicate whether another veterinarian examined the puppies and shared an opinion with her. Shedoes not address whether the allegation is simply her own opinion based on conjecture or the opinion of someone with or withoutveterinary training. [55] She states that the wrong dosage of medication was prescribed for some of her dogs, causing their deaths, but does not explainhow she knows the dosage was wrong or that the amount of medication was lethal.

The medical risks of the medication are not identifiedand the evidence does not rule out the possibility that the proper dosage included some risk of fatality. [56] Ms. Hartley asserts that Sully was examined but not found to have spleen issues and then suffered a ruptured spleen twomonths later. However, that statement does not explain whether the underlying cause of the ruptured spleen should have been detected bya veterinarian exercising the requisite standard of care when the initial examination was conducted.

The limits of the examinationperformed at that time or the constraints on veterinary science might have prevented early detection.

Even if detected, the evidence doesnot explain whether the ruptured spleen could have been avoided. [57] Multiple surgeries on Brook apparently failed to correct his medical condition, but the underlying condition is not identified.Nothing is said about what the Animal Clinic represented the surgeries would achieve or whether one of the medical risks was that thesurgeries would not improve the dog’s condition or might even worsen his condition. [58] Even the allegation about the loss of the semen samples suffers from inadequate evidence. Nothing is offered to explain how

the Animal Clinic was negligent in storing the samples. Ms. Hartley does not address any specifics about the Clinic failing to properly preserve the samples or how the Clinic’s alleged failings caused the samples to be killed. No evidence is provided to explain what the professional or industry standard is for the preservation of animal semen.

She does not address how she knew the samples were intact when they arrived at the Clinic, after being transported from overseas, or how she knew the damage to the samples occurred while in the care of the Clinic. [ 59 ] The absence of specifics is repeated in each allegation, even where the facts lie particularly within Ms. Hartley’s knowledge. [ 60 ] The Animal Clinic did not provide an expert report denying Ms. Hartley’s allegations constituted professional negligence. However, such a report is not an essential ingredient to a motion to summarily dismiss a professional negligence claim: Claus at paras 11-12 .

Moreover, Mr. Scholten’s comments, while not independent, provide some evidence that the Clinic’s services were competently delivered. [ 61 ] Ms. Hartley must also show that a breach of the standard of care caused injury or loss to her. Even if her allegations are accepted about a negligent spaying of a dog or a failed caesarian section, those allegations do not identify any loss to Ms. Hartley. The spayed dog is not alleged to have become pregnant and the pregnant dog passed the stillborn puppy without evidence of harm. [ 62 ] In a

summary judgment motion, each party is required to put their best foot forward. Vague allegations and opinions, unsupported by proper evidence, are not persuasive in demonstrating a genuine issue for trial. [ 63 ] I am satisfied that Mr. Scholten’s evidence is sufficient to shift the evidentiary burden to Ms. Hartley to establish there is a genuine issue for trial. She has not met this burden.

Summary dismissal of the Counterclaim is a proportionate, expeditious and less expensive means to achieve a just result. Conclusion [ 64 ] The Animal Clinic is granted

summary judgment on the initial claim for $74,000. The Counterclaim is dismissed. [ 65 ] The Animal Clinic is awarded costs, disbursements and GST of the action calculated under Column 1 of

Schedule C of the Rules . Heard on the 19 th day of January, 2021. Dated at the City of Wetaskiwin, Alberta this 23 rd day of February, 2021. K.S. Feth J.C.Q.B.A. Appearances: Michael D. Klause, Q.C. for the Plaintiff Christina Hartley Self-Represented (not appearing)