2017 QCCQ 11485, 2017 QCCQ 11485

Esposito c. 9177-3184 Québec inc. 2017 QCCQ 11485 JG2338 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF BEAUHARNOIS LOCALITY OF VAUDREUIL-DORION Civil Division No: 760-32-017632-169 DATE: October 5, 2017 ______________________________________________________________________ IN THE PRESENCE OF THE HONOURABLE CÉLINE GERVAIS, J.Q.C. ______________________________________________________________________ ARMANDO A. ESPOSITO Plaintiff v. 9177-3184 QUÉBEC INC.

Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Mr. Armando Esposito claims from 9177-3184 Québec inc. (Chez Sandra) an amount of $ 4629, representing the costs he incurred for a surgery to his dog Roxy, which was under the care of Chez Sandra during Mr. Esposito’s vacation. [ 2 ] A revocation of judgment was granted, after Mr. Esposito’s Demand was dismissed due to his absence on the hearing date of February 10, 2017. Mr.

Esposito proved that he had not received the notice of hearing and consequently, the revocation was granted on the second date of hearing, on June 8, 2017. [ 3 ] At that hearing, an amendment was also granted, as Mr. Esposito had sued Chez Sandra Chalet et Spa , while this is only the business name of 9177-3184 Québec inc. [ 4 ] Defendant filed a cross-demand claiming $ 630.98, for trouble and inconvenience and the time spent in preparing the contestation. THE FACTS: [ 5 ] On February 14, 2016, Mr. Esposito brings his dog Roxy, a five years old mixed Labrador/Retriever at Chez Sandra. Mr.

Esposito is departing for his vacation in Mexico, and leaves with Mrs. Sandra Gray the exhibit D-5, which is a note he wrote about Roxy. This note specifies that Roxy had suffered more or less six seizures on the previous week-end and asks that her nails be clipped and that she be bathed. He adds that she is a little disoriented and that she cuddles a lot. He also put some indications about her meals. Mr. Esposito left a sleeping bag and a big green blanket for Roxy. He also wrote his daughter Alyssa’s phone number.

He also asks that Roxy be brought back at his home in Lachine on Thursday February 25, in the afternoon. [ 6 ] In the morning of February 16, Mrs. Gray notices that Roxy has eaten a piece of her green blanket. In the afternoon, she throw up one piece of the blanket, which seemed to be a good sign to Mrs. Gray. [ 7 ] The next day, Roxy ate a little and seemed O.K. She called Mr. Esposito’s daughter to report what happened, but realized that the phone number that was left to her was incorrect. [ 8 ] During the next days, Roxy ate more. [ 9 ] On Sunday February 21, Mrs. Gray receives a phone call from Ms.

Esposito asking for news about Roxy, and Mrs. Gray explains to her what had happened. She gave her email address to Ms. Esposito, so her father might contact Mrs. Gray for an update. [ 10 ] On that date of February 21, 2016, Ms. Esposito sends an email to her father saying the following:

“ Just spoke with Sandra. Don’t worry about Roxy, she seems to be in great hands. She had a great first five days then ate a peace of her green blanket which she threw up. Sandra is watching her closely because since then she hadn’t wanted to eat her food so Sandra has been cooking hamburger meat which she likes and seems to be regaining her normal appetite. Sandra says she is very affectionate and sweet. You can email her at (…)” [ 11 ] On the same day, Mr. Esposito sends the following email to Mrs. Gray: “My daughter Alyssa told me Roxy is doing fine. She always eats paper, etc.

Thank you for taking good care of my baby. I will advise you of my return, if airline is not delayed. All is well for her to be home at Thursday evening after 8:00 p.m. February 25.” [ 12 ] Mrs. Gray replies to this email on February 23, by the following: “I talked to your daughter on Sunday so I imagine that she gave you an update. When you dropped her off, she had a good appetite with her food. Then Tuesday I think she threw up in the morning so she was not hungry, and I noticed that she had chewed up a piece of her green blanket. That evening, she threw up again but threw up the piece of blanket.

So I was happy that it was not stuck in her stomach. For two days, I gave her Sulcrate, which is like Pepto Bismol in a liquid form to help her stomach but she was not eating much. So since Saturday, I’ve been cooking for her hamburger steak mostly (patties from Costco), yesterday and today, I added some chicken. I’ve tried chicken fried rice but she would only eat the chicken. She is doing good and is very affectionate. I adds her pills in cheese which she likes. I am just hoping I am not spoiling her too much because of all of this human food. See you on Thursday.” [ 13 ] Mr.

Esposito answers by confirming that he will be back home the next Thursday evening. [ 14 ] On Wednesday February 24, and Thursday February 25, Mrs. Gray notices that Roxy is not eating much. She had her groomed, as asked by Mr. Esposito, which took an hour and a half during which she stood up and was cooperative. [ 15 ] When she brought back Roxy at Mr. Esposito’s, she told him that she was being worried as Roxy had not eaten well for the last two days, and she suggested that he takes her to the veterinary. The parties’ versions are different as to what Roxy looked like on that evening. [ 16 ] The next day, Mr.

Esposito took Roxy to his veterinary, who referred him to the veterinary hospital, as he was not available to do a surgery before Monday. [ 17 ] It appears from Roxy’s file at DMV Hospital that a piece of blanket was still stuck in her stomach, which led to a surgery. [ 18 ] Some discussions were held between Mr. Esposito and Mrs. Gray and her husband afterwards, but they could not agree on a settlement. [ 19 ] Mr. Esposito’s claim represents the cost of Roxy’s surgery.

ANALYSIS AND DECISION: [ 20 ] To establish what Chez Sandra’s duties toward Roxy are, it will be useful to look at the recent Animal welfare and safety Act [1] . [ 21 ] The Quebec civil Code, at

Section 898.1, specifies: 898.1 Animals are not things. They are sentient beings and have biological needs. In addition to the provisions of special Acts which protect animals, the provisions of this Code and of any other Act concerning property nonetheless apply to animals. [ 22 ] The above-mentioned law defines the obligations of care and prohibited acts for the owner or custodian of an animal, at

Section 5: 5. The owner or custodian of an animal must ensure that the animal’s welfare and safety are not compromised. An animal’s welfare or safety is presumed to be compromised if the animal does not receive care that is consistent with its biological needs.

Such care includes but is not limited to ensuring that the animal (1) has access to drinking water and food of acceptable quality in sufficient quantity; (2) is kept in a suitable place that is sanitary and clean with sufficient space and lighting and the layout or use of whose facilities are not likely to affect the animal’s welfare or safety; (3) is allowed an opportunity for adequate exercise; (4) is provided with the necessary protection from excessive heat or cold and from bad weather; (5) is transported in a suitable manner in an appropriate vehicle; (6) is provided with the necessary care when injured, ill or suffering; and

(7) is not subjected to abuse or mistreatment that may affect its health. For the purposes of subparagraph 1 of the first paragraph, snow and ice are not water. [ 23 ] The proof has demonstrated that Roxy was provided with drinking water, good food, kept in a suitable place, was allowed opportunity for adequate exercise, was protected from bad weather, and was not abused in any way. [ 24 ] Was Roxy provided with the necessary care when injured, ill or suffering? [ 25 ] Mrs.

Gray has testified about her long experience with animals, and the monitoring of Roxy’s situation that was done after she ate a piece of blanket. Mrs. Gray never tried to hide the incident, and informed both Mr. Esposito and his daughter. [ 26 ] When asked by the Court what Mr. Esposito reproached to Chez Sandra, he answered that his dog suffered and was not taken care of. [ 27 ] Mr.

Esposito, except for the medical file, did not bring any proof that a reasonably prudent and careful keeper would have brought Roxy to the veterinary earlier. [ 28 ] Before the above-mentioned law entered into force, the Court had explained in Pelletier c. 9100-0497 Québec inc ., that there is no automatic responsibility of the keeper of an animal for any situation that can happen. The keeper is responsible of any negligence or bad treatment that causes damage to the animal. [2] Roxy did not swallow an object that was provided by Chez Sandra. She ate a piece of the blanket that Mr.

Esposito brought himself, which seems to be a usual behavior of the animal, according to Mr. Esposito’s email. [ 29 ] It cannot be denied that Roxy’s situation was unfortunate; in the opinion of the Court, such a situation was not the result of any negligence by Chez Sandra, and before the dog was brought back to Mr. Esposito, nothing in her condition should have decided Chez Sandra to take her to the veterinary in an urgent manner. [ 30 ] In consequence, Mr. Esposito’s action must fail. [ 31 ] During the first hearing, Chez Sandra’s Cross-demand was granted for 500 $, considering the fact that Mr.

Esposito was not present for his own trial. As the revocation of judgment was granted because Mr. Esposito had sufficient reasons, the Cross-demand shall not be granted, as, usually, companies are not likely to suffer trouble and inconvenience. [ 32 ] The Cross-demand is then dismissed. FOR ALL THESE REASONS, THE COURT: DISMISSES the action; DISMISSES cross-demand; THE WHOLE without costs. __________________________________ CÉLINE GERVAIS, J.Q.C.