Renee Marshall Plaintiff - v. -, 2016 SKPC 018

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2016 SKPC 018 Date: January 26, 2016 File: 2015-06 Location: Meadow Lake _____________________________________________________________________________ Between: Renee Marshall Plaintiff - and - Michael Rediron and Shelley Rediron Defendants Rene Marshall On her own behalf Gerald Perkins For the Defendants _____________________________________________________________________________ Reasons for Judgment M.

Martinez, J _____________________________________________________________________________ Introduction [ 1 ] The plaintiff, Renee Marshall, and her spouse, Dale Danilkewich, own a farm southeast of Meadow Lake, Saskatchewan. They raise horses and cattle, and grow hay. They own some of the horses jointly and others individually. One of them was a young mare named Dancier’s Chrome. [ 2 ] On February 26, 2015, Dancier’s Chrome suffered a terrible leg injury. It was after lunch. Ms. Marshall had just put her

children down for a nap. Through her garden door windows, she saw her horses running in the nearby pasture with two dogs chasing them. She called out for her spouse, Dale, and threw on her boots to go outside to chase the dogs away. By the time she got outside, two of the horses already had the dogs on the run. This is when she noticed that Dancier’s Chrome was not moving and appeared to be hurt. The mare was supporting herself on only three legs. [ 3 ] When Ms. Marshall checked Dancier’s Chrome she saw that the lower part of one of her mare’s hind legs, her cannon bone, was badly broken and hanging loosely. Ms.

Marshall had worked with animals all of her life and had been employed as veterinary assistant for more than six years. In her experience, the only thing to be done was to put her horse down, which Mr. Danilkewich attended to. [ 4 ] Ms. Marshall believes the defendants owned the two dogs that chased her horses. She alleges that the dogs caused her mare’s injury and that the defendants were negligent in not taking precautions to ensure their dogs did not stray from home when the defendants were away.

She seeks compensation for the damages she suffered as a result of their negligence. [ 5 ] The defendants, Mr. and Ms. Rediron, deny that they owned the dogs the plaintiff believes injured her horse. In addition, they submit that, if any of their dogs were involved in the incident, there is no evidence that the dogs caused the horse’s injury. Further, they submit that they met the standard of care expected of dog owners in rural Saskatchewan – in other words, they were not negligent. Alternatively, if they were negligent, they submit that Ms.

Marshall’s damages are far less than the $18,937.43 she claimed in this action. [ 6 ] I will deal with the issues in this case roughly in order of the defences described in the previous paragraph. Did the defendants own any of the dogs involved in the incident of February 26, 2015? [ 7 ] I heard testimony from several witnesses about the Redirons’ dogs, and about other dogs in the same rural neighbourhood. Below, I review the evidence that is relevant to my decision about whether the defendants owned either of the dogs that chased the plaintiffs’ horses on February 26, 2015.

The evidence [ 8 ] On the day of the incident, while Ms. Marshall checked her mare, Mr. Danilkewich went to their driveway and watched the two dogs run south along the driveway and then east along the road. Both Ms. Marshall and Mr. Danilkewich testified that the two dogs were medium to large adults. One was tan or light brown, and the other was black. [ 9 ] About 20 minutes after the incident, Ms. Marshall and Mr. Danilkewich followed the dogs’ tracks in the snow. They followed them from where the tracks came out of their field to about 200 metres from the Redirons’ acreage. There they lost the trail.

The tracks of the two dogs blended into the many dog tracks near the Redirons’ home and in their driveway. [ 10 ] As they drove by the Redirons’ house, they saw five dogs in the yard: three adults and two pups. Ms. Marshall and Mr. Danilkewich believed two of the adult dogs were the ones they had seen chasing their horses. No one appeared to be home and so they did not go into the yard. [ 11 ] The next evening, at about supper time, Ms. Marshall and Mr. Danilkewich returned to the Redirons’ residence but saw only three dogs in the yard. The two dogs they suspected of chasing their horses were not among them.

For this reason, they questioned whether those two dogs belonged to the Redirons. And so, the next day, they visited many of their neighbours to ask whether they had seen the dogs or knew who owned them. In the end, that day, Ms. Marshall and Mr. Danilkewich did not learn anything about the dogs they were looking for. [ 12 ] The next Saturday, Ms. Marshall went alone to the Redirons’ home. Once again, she saw five dogs in the yard. She was sure that two of the adult animals were the ones she had seen chasing her horses a few days earlier. This time, Ms. Marshall went to the house and spoke to Mr. Rediron.

She told him about what had happened to her horse and that she believed two of his dogs were to blame. [ 13 ] Mr. Danilkewich testified that between February 26 th and March 26 th , he was working outside when he saw four dogs worrying his stud and gelding at the north end of their pasture. He described one of the dogs as tan in colour, one was black, another was brown, and the last one was grey. He was sure that the tan-coloured dog was one of the two dogs that had chased the horses when Dancier’s Chrome broke her leg. He fetched his rifle and shot the black and the brown dogs. Then, on March 26, 2015, Mr.

Danilkewich was working inside his house when he heard his dog barking. When he looked outside, he saw three dogs heading north toward the stallion and gelding’s pasture. The same tan dog, a black, and a grey. Once again, he shot at the dogs. This time he missed. He chased them with his truck until all three dogs ran into the Redirons’ yard. [ 14 ] A few weeks after her mare’s injury, from the road in front of the Redirons’ home, Ms. Marshall snapped some photographs of dogs she could see in their yard. She entered three photographs in evidence. There are two to three dogs visible in each photograph.

Some are obviously pups. In his testimony, Mr. Rediron confirmed that the photographs were of his yard and of some of their dogs. For her part, Ms. Rediron could only be sure that the dogs in the photograph marked as Exhibit P3 were theirs. [ 15 ] Mr. Rediron testified that at the relevant time, he and his wife owned five dogs. Two adults and three pups. He described the adult female as about three years old, tan in colour with a dark nose, and weighing about 50 pounds. The adult male was black with a white chest and white paws. Ms. Rediron said that the female actually was five years old.

She described their other dogs as pups; although two – a black one and a brown one – were 1 year olds, and the remaining two were younger. [ 16 ] Mr. Danilkewich testified that from the shape and size of their heads, the dogs he saw chasing horses at his farm, looked like pit bull crosses – the tan in particular. Mr. Rediron testified that none of their dogs were pit bull crosses. [ 17 ] One of the plaintiff’s witnesses, Rosalee (Heather) Heddon, resides about three miles east of the Rediron acreage. She said

that Ms. Marshall’s residence is one-half mile west and another half mile north of the Rediron acreage. She testified that she regularlydrives by the Rediron residence. In the mornings, in the period relevant to this case, she usually saw their dogs in the yard or in a fieldacross the road. However, at midday, she sometimes saw two of the dogs as much as one mile from home. She described those two dogsas a black dog and a brown one with a black “mask”. [18] Alana Lefort testified on the defendants’ behalf. She is a school bus driver and lives in the area.

She drives by the Redirons’acreage twice every weekday morning and again at about 4 p.m. when she drops off their school children. She testified that she neversaw the Redirons’ dogs anywhere but at their acreage. In her experience, the dogs came to the end of the driveway and then went back tothe Redirons’ residence. She confirmed that one of the dogs was light brown with a dark nose. Conclusion [19] In two of the photographs tendered in evidence, one adult dog stands out.

She appears to be fairly large, tan or light-brown incolour, with a large squarish head, dark muzzle, powerful front quarters, and an upturned tail.

No matter what her actual lineage may be,I can see why, from a distance, someone might think she has some pit bull in her. [20] For the following reasons I am satisfied, on a balance of probabilities, that the defendants owned at least one of the two dogsthat chased the horses when Dancier’s Chrome was injured – specifically, the adult, tan-coloured female: • that particular animal possesses a distinct and, in my opinion, unmistakable appearance, • on the day of the incident, and on other occasions, Ms. Marshall and Mr.

Danilkewich saw that dog in their pastures, chasing theirhorses, and also in the Redirons’ yard, • on one occasion, Mr. Danilkewich followed the tan-coloured dog until it entered the Redirons’ yard, • Ms. Heddon knows the dog and has seen it roaming up to one mile from its home, and • Mr. and Ms. Rediron admit that they own that dog.

Were the defendants negligent and did their negligence cause Dancier’s Chrome’s injury? [21] Two Saskatchewan statutes relieve the plaintiff from the burden of proving that the Redirons knew of their dog’s propensityto pursue and injury animals, or that they knew their dog was dangerous or mischievous. [22] Dancier’s Chrome was a protected animal as defined by subsection 19(

c) of The Animal Protection Act, 1999, SS 1999, c21.1. Subsection 22(2) of that Act provides that: “In an action for the recovery of damages for injury done to a protected animal by a dog: (

a) it is not necessary for the plaintiff to prove that the defendant knew of the dog’s propensity to pursue and injure animals; and (

b) the defendant’s liability does not depend on any previous knowledge of the dog’s propensity to pursue and injure animals.” [23]

Section 380 of The Municipalities Act, SS 2005, c M-36.1, provides that “In an action brought to recover damages for injuries to persons or property caused by an animal, it is not necessary for the personinjured to prove that the animal is, or that the owner knew that the animal was: (

a) of a dangerous or mischievous nature; or (

b) accustomed to doing acts causing injury.” [24] However, the plaintiff still must prove the defendants were negligent; see Young v Cumberland House Local CommunityAuthority No. 3, [1999] 186 Sask R 70, 1999 SKQB 112 , at para 32, per Maher, J. For this reason, the Redirons are liable forthe plaintiff’s damages only if: ➢ they owed a duty of care to her, ➢ they breached the standard of care, ➢ their dog caused or contributed to the injury suffered by Ms. Marshall’s mare, and ➢ the injury was a reasonably foreseeable consequence of their negligence. Duty of care

[25] The Redirons concede that they owe a duty of care to their neighbours. In this case, that duty is to take reasonable care to seethat their neighbour’s livestock would be reasonably safe from injury caused by the defendants’ dogs. Standard of care [26] In urban municipalities, the standard of care expected of dog owners often is informed by municipal bylaws prohibiting dogowners from allowing their pets to run at large. I heard no evidence that a similar bylaw exists in the rural municipality where theplaintiff and the defendants reside.

Indeed, I heard ample evidence that many dog owners in the same rural neighbourhood apparently lettheir dogs run free. [27] Both Ms. Rediron and her husband work away from home. Mr. Rediron leaves for work between 6 and 7 o’clock in themorning and returns between 5:30 in the afternoon and midnight. Ms. Rediron works in Meadow Lake. She leaves home later in themorning than her husband and usually returns around 4 p.m. Both of the defendants testified that their dogs always were home whenthey were there; whether in the morning before they left for work or hours later when they returned. In addition, Mr.

Rediron testifiedthat whenever neighbours rode horses by his acreage, his dogs would bark and run to the edge of the yard but never chased the horses.Consequently, they did not take any precautions to ensure that their dogs could not stray when no one was home. [28] Although it may be common for pet dogs to run free in rural neighbourhoods, the practice is a risky business. This isespecially so if, like the Redirons, the dog’s owners habitually are away from home for extended periods. [29] Dogs are descended from wolves.

As anyone who is familiar with them knows, dogs may wander off if not restrained in someway when they are left alone. Further, even with human supervision, if off leash, some dogs may follow their instincts and chase othercreatures. As Mr. Justice Danyliuk put it in R v Kwok, 2014 SKQB 397, at para. 1: “Dogs are said to be our faithful companions. Not always. Sometimes dogs revert to their inherent nature and act like dogs. They attack.They bite. They are, after all, dogs.

For some reason many humans are surprised by this.” [30] In my opinion, common sense dictates that a dog should be restrained, or be kept inside or in an enclosed compound, when itsowner is not home. This standard of care applies no matter the setting: urban or rural. The defendants did not meet the standard of careand, for this reason, were negligent. Causation [31] In order to succeed in this case, Ms. Marshall must prove a causal connection between the Redirons’ negligence and herhorse’s injury.

Their negligence need not be the only cause of the injury, or even a primary cause of the injury, but their negligence mustbe a necessary part of why her horse broke its leg. This is known as the “but for” test. The Supreme Court of Canada’s most recentarticulation of this test is found in Clements v. Clements, 2012 SCC 32, [2012] 2 SCR 181, per McLachlin, CJC: [8] The test for showing causation is the “but for” test. The plaintiff must show on a balance of probabilities that “but for” thedefendant’s negligent act, the injury would not have occurred.

Inherent in the phrase “but for” is the requirement that the defendant’snegligence was necessary to bring about the injury — in other words that the injury would not have occurred without the defendant’s negligence. This is a factual inquiry. If the plaintiff does not establish this on a balance of probabilities, having regard to all the evidence, her action against the defendant fails. [9] The “but for” causation test must be applied in a robust common sense fashion. There is no need for scientific evidence of the precise contribution the defendant’s negligence made to the injury.

Also see: Resurfice Corp. v Hanke, 2007 SCC 7, [2007] SCR 333, at p 343, per McLachlin, CJC: “The “but for” test recognizes that compensation for negligent conduct should only be made “where a substantial connection between the injury and the defendant’s conduct” is present. It ensures that a defendant will not be held liable forthe plaintiff’s injuries where they “may very well be due to factors unconnected to the defendant and not the fault of anyone”: Snell v. Farrell, at p. 327, per Sopinka J.” Athey v. Leonati, [1996] 3 SCR 458, (SCC), per Major, J:

13 Causation is established where the plaintiff proves to the civil standard on a balance of probabilities that the defendant caused orcontributed to the injury: Snell v. Farrell, (SCC), [1990] 2 S.C.R. 311; McGhee v. National Coal Board, [1972] 3 AllE.R. 1008 (H.L.). 14 The general, but not conclusive, test for causation is the “but for” test, which requires the plaintiff to show that the injury would nothave occurred but for the negligence of the defendant: Horsley v. MacLaren, (SCC), [1972] S.C.R. 441. Relevant Facts [32] On February 26, 2015, the Redirons’ adult female dog roamed into Ms.

Marshall’s horse corral because her owners didnothing to guard against such an eventuality. She and another dog chased the horses because that’s what dogs will do. [33] Two or three hours earlier, when Ms. Marshall had fed the horses, all of them were fine. After being chased by the dogs, heryoung prized mare was horribly injured. Ms. Marshall believes her horse broke its leg when it panicked and crashed into the barbed wirefence encircling the pasture. Ms. Marshall reached this conclusion because:

a) wires on the fence near where she found Dancier’s Chrome were loose, with the staples in a post partially pulled out,

b) there were hoof prints outside the fence line,

c) Dancier’s Chrome’s hide was a very distinctive colour and some of her hair was caught on the loose barbed wire, and

d) about 10 feet from the damaged fence is where a blood trail began and it ended where her mare stood. [34] In cross-examination, Ms. Marshall admitted that the ground in the pasture is uneven, and at the time of the incident therewere icy patches and the ground was covered in six to eight inches of snow. However, she stated that the horses know the fences arethere. She’d never seen any of them run into the barbed wire. Further, none of the horses ever suffered serious injuries because of snow,ice, or the unevenness of the ground beneath their hooves.

Conclusion [35] The exact mechanism of Dancier’s Chrome’s injury is unknown. However, on the evidence before me it is clear that herinteraction with the Redirons’ dog lead to her broken leg. That interaction would not have happened “but for” the defendants’ negligence.In addition, her injury and ultimate demise were reasonably foreseeable consequences of that negligence. What damages did the plaintiff suffer? [36] Ms. Marshall claimed damages in the amount of $18,937.43 for losing Dancier’s Chrome.

She prepared a detailed breakdownof her claim that includes the expenses associated with breeding and training another horse with the same parental lineage as Dancier’sChrome, plus what she believes was her horse’s value. She cannot have both as this would amount to double recovery for her loss. Compensation for negligent destruction of personal property is the fair market value of the property at the time it was destroyed. [37] Ms. Marshall conceded that most horse-owners treasure their animals, but she insisted that Dancier’s Chrome truly wasspecial. In about 2012, Ms.

Marshall purchased, from Germany, the sperm of a Hanovarian stallion, with which she artificiallyinseminated one of her Lusitano mares. Ms. Marshall hoped that the result of this combination would be a horse suitable for showjumping or dressage, or for producing offspring destined for that world. She believed she’d achieved her goal with Dancier’s Chrome. [38] Ms. Marshall testified that the value of her horse was between $5,000.00 and $10,000.00. In cross-examination, she admittedthat she probably could buy a horse of similar lineage for about $5,000.00, but that it would not be Dancier’s Chrome.

I take this to meanthat Ms. Marshall believes that Dancier’s Chrome was more valuable because of her unique bloodlines and appearance. [39] The defendants did not challenge Ms. Marshall’s assertion about her horse’s value. They simply submitted that I should assessher damages at the lowest end of the range she suggested. [40] I am satisfied that, based on Ms. Marshall’s testimony, and her years of experience with horses, the probable value ofDancier’s Chrome was greater than $5,000.00. In my opinion, a fair approximation of her mare’s value can be found in Ms.

Marshall’scost estimate to “replace” Dancier’s Chrome. Her calculation includes the expense of re-breeding her Lusitano mare with sperm from thesame German stallion, and of raising and training the resulting offspring to the age at which Dancier’s Chrome died. The expenses forcare, feeding, and farrier services for the dam exist whether or not she is in foal. After deducting those expenses, I find that the resulting“replacement” cost of $7,800.00 represents the fair value of Dancier’s Chrome at the time of her demise.

Judgment [41] For these reasons, I find in favour of the plaintiff and grant her judgment against the defendants, both jointly and severally, inthe amount of $7,800.00, plus interest from February 26, 2015, until the date of judgment, calculated in accordance with The Pre-Judgment Interest Act, SS 1984-85-86, c P 22.2. The plaintiff also shall have her costs in the amount of $100.00. __________________________

M. Martinez, J.