2018 QCCQ 4737, 2018 QCCQ 4737

Corriveau c. Woloz 2018 QCCQ 4737 JV0516 COURT OF QUEBEC “Small Claims Division” CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL “Civil Division” No.: 500-32-700826-177 DATE: May 25, 2018 ______________________________________________________________________ PRESIDING: THE HONOURABLE SUZANNE VADBONCOEUR J.C.Q. ______________________________________________________________________ DINAH CORRIVEAU Plaintiff v.

LINDA WOLOZ Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The plaintiff claims $1,481.92 from the defendant in compensation for the damages caused to her dog by the defendant’s dog on October 1, 2016. [ 2 ] Her claim is broken down as follows: • Veterinary fees: $950.92 • Fee to obtain police report: $31.00 • Damages: $500.00 [ 3 ] The defendant denies owing this amount. She submits that her dog, a black Royal Poodle, is very gentle and would not have attacked a small dog. Ms.

Woloz added that it was instead the plaintiff’s two small dogs that provoked her dog. ISSUES [ 4 ] This Court must decide the following issues : • Was the injury suffered by the plaintiff’s dog caused by the defendant’s dog? Is there a fault on the part of the defendant, the dog’s custodian? • If these two questions are answered in the affirmative, how much is the plaintiff entitled to as compensation for the damages sustained? BACKGROUND [ 5 ] In the morning of October 1, 2016, the plaintiff Corriveau went to the park near her home to walk her two dogs, each weighing approximately 14 pounds.

These are small dogs. [ 6 ] She saw the defendant with her large Royal Poodle (weighing approximately sixty pounds according to the plaintiff), off leash. The defendant was throwing a ball for her dog to fetch. [ 7 ] The ball landed approximately one-and-a-half metres away from Ms. Corriveau’s dogs, who were on leashes.

[ 8 ] The poodle retrieved the ball, but when he saw Ms. Corriveau’s dogs, he grabbed one of them (Papillon) by the left hind leg and injured him. [ 9 ] The plaintiff’s screams caused the poodle to release little Papillon. The defendant stayed away. [ 10 ] Ms. Corriveau asked her to identify herself. She said her name was Mary and that she lived on Atwater. This information later turned out to be false. [ 11 ] The plaintiff called 911, but when the police arrived, Ms. Woloz had already left. [ 12 ] Ms. Corriveau went to a veterinary clinic in Outremont where the small dog’s hole-shaped wound was examined.

The wound was disinfected, and the dog received staple sutures. [ 13 ] Various searches conducted by the plaintiff resulted in her finding Ms. Woloz’ true identity, her address, and the identity of her dog. [ 14 ] The police officers to whom Ms. Corriveau gave this information went to Ms. Woloz’s home and issued her two statements of offence, one for walking her dog without a leash and the other for biting another dog. [ 15 ] She was convicted of both offences after a trial held at the Municipal Court during which Ms.

Corriveau testified and adduced evidence of the defendant’s guilt through photos (P-4) and a report from the veterinary clinic (P-2). ANALYSIS AND DECISION [ 16 ] In every legal action, the plaintiff must show the Court that the claim is well founded, on a balance of probabilities, in accordance with articles 2803 and 2804 of the Civil Code of Québec , which provide the following : 2803. A person seeking to assert a right shall prove the facts on which his claim is based. A person who claims that a right is null, has been modified or is extinguished shall prove the facts on which he bases his claim. 2804 .

Evidence is sufficient if it renders the existence of a fact more probable than its non-existence, unless the law requires more convincing proof. » [ 17 ] The Court finds that the plaintiff has met her burden of proof, despite the testimony of Ms. Woloz, who tried to establish how gentle her dog is. [ 18 ] The evidence, on a balance of probabilities, weighs in favour of the plaintiff, who filed several documents (photos, dog’s medical file, among other things) that leave no doubt as to the identity of the injured dog (his face is visible on one of the photos) – which Ms.

Woloz had challenged –, the existence of the bite and resulting injury or the care that was required to treat and heal the injury. [ 19 ] Moreover, the evidence also shows that the defendant was convicted in Municipal Court further to evidence adduced that she did not keep her dog on a leash, which she in fact admits, and that she let her dog bite another dog, i.e., one of the plaintiff’s dogs (Papillon). [ 20 ] Adding to this documentary and legal evidence, Ms. Corriveau also called her then next-door neighbour (Ms. Lavallé

e) to testify. This witness, who also has two dogs, knows the plaintiff well and saw little Papillon’s wound and the staples used to close it. [ 21 ] Ms. Woloz tried to undermine the credibility of this witness by saying that she had only seen her once, two months earlier. Yet, Ms. Lavallée left the neighbourhood in April 2017. Thus, the defendant’s statement does not hold up, and it is her own credibility that is affected. [ 22 ] The Court accepts the plaintiff’s version, which is supported by convincing, conclusive evidence, and allows her claim with respect to the defendant’s liability in this case.

Article 1466 of the Civil Code of Québec is applicable in this respect : 1466. The owner of an animal is bound to make reparation for injury it has caused, whether the animal was under his custody or that of a third person, or had strayed or escaped. A person making use of the animal is also, during that time, liable therefor together with the owner. [1] [ 23 ] Although the defendant’s liability is clear, the same is not true in regard to the amount of damages.

Damages [ 24 ] For the reasons that follow, the Court cannot award all the damages claimed. [ 25 ] With respect to veterinary fees, the amount of $344.92 for the December 19, 2016, visit must be refused because there is no evidence that this [ translation ] “behavioural consultation” was related to the October 1 incident. Report P-3 from the DMV Veterinary Center indicates a diagnosis of [ translation ] “anxiety and fear of thunderstorms” and makes no reference to the October 1 bite and the fear that it allegedly created in the plaintiff’s dog.

Therefore, the sole amount in this regard that is granted by the Court is $147.25 (P-1). [ 26 ] No document was filed into evidence in support of the $31 fee claimed to obtain the police report. This expense must therefore be refused. [ 27 ] As for the actual damages, the amount of $500 seems a bit excessive considering the amount paid in veterinary fees and the damages actually suffered. Taking into account the plaintiff’s worry further to this bite and the steps she had to take to find the

defendant’s identity and address and her dog’s information, the Court awards her an amount of $300. FOR THESE REASONS, THE COURT: ALLOWS the plaintiff's originating application in part; ORDERS the defendant to pay the plaintiff the amount of $447.25, with interest at the rate of 5% per year, the additional indemnity under art. 1619 of the Civil Code of Québec , and legal costs in the amount of $100. __________________________________ SUZANNE VADBONCOEUR J.C.Q. Date of hearing: April 24, 2018 [1] 1466.

Le propriétaire d’un animal est tenu de réparer le préjudice que l’animal a causé, soit qu’il fût sous sa garde ou sous celle d’un tiers, soit qu’il fût égaré ou échappé. La personne qui se sert de l’animal en est aussi, pendant ce temps, responsable avec le propriétaire.