2023 QCCQ 464, 2023 QCCQ 464

Elbaz c. Solomon 2023 QCCQ 464 COURT OF QUÉBEC Small Claims Court CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTRÉAL “Civil Division” No: 500-32-712707-209 DATE: February 16, 2023 ______________________________________________________________________ PRESIDED BY THE HONOURABLE MÉLANIE DUGRÉ, J.C.Q. ______________________________________________________________________ MARK ELBAZ Plaintiff v.

MORAN SOLOMON Defendant and BELAIR DIRECT Conservatory Intervenor __________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Mark Elbaz is claiming $15,000 from Moran Solomon on the basis that Mr. Solomon’s dog, Choco, caused him to fall and injured himself. As a result of this fall, Mr. Elbaz suffered from a hip fracture, had to undergo surgery, and is still suffering from permanent limitations as of today. [ 2 ] Mr. Solomon denies responsibility, alleges that Mr.

Elbaz’ version of the events is mistaken, and that the fall was caused by the reaction of Mr. Elbaz’s own dog, Tiara, when she saw his dog. QUESTIONS IN DISPUTE [ 3 ] In order to solve this dispute, the Court must answer the following questions:

a) Did Mr. Solomon’s dog, Choco, cause the fall and the resulting injuries suffered by Mr. Elbaz, and is Mr. Solomon liable as the owner of Choco?

b) If so, what is the amount of damages Mr. Elbaz is entitled to? ANALYSIS AND DECISION

a) Did Mr. Solomon’s dog, Choco, cause the fall and the resulting injuries suffered by Mr. Elbaz, and is Mr. Solomon liable as the owner of Choco ? [ 4 ]

Article 1466 of the Civil Code of Québec ( C.C.Q. ), [1] states the following: 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. [ 5 ] This

article sets out a legal structure called “responsibility without fault” [2] based on the premise that the sole presence of the animal creates an “overall risk for third parties”. [3] [ 6 ] This rule significantly reduces the defense arguments that the animal’s owner or user can raise to exclude their liability towards the victim. For example, they cannot successfully allege that they have taken all reasonable means to prevent the incident.

Only a superior force, the victim’s fault or a third party’s fault will discharge the owner or user. [ 7 ] Nonetheless, before applying this rule of “responsibility without fault”, the victim must still meet its burden of proof, which is to show that the animal caused the injury, as set out under

article 1466 C.C.Q. [ 8 ] In civil matters, the burden of proof is on Plaintiff’s shoulders, in accordance with the principle provided in

article 2803 C.C.Q.,

which states that “A person seeking to assert a right shall prove the facts on which his claim is based. […]” [ 9 ] The Court decides on the balance of probabilities, pursuant to

article 2804 C.C.Q., which states that “Evidence is sufficient if it renders the existence of a fact more probable than its non-existence, […].” In other words, the Court must determine what is more probable and plausible, rather than improbable and implausible. [ 10 ] In addition, when the evidence adduced is not sufficiently convincing, or if the evidence is contradictory and it is impossible for the judge to identify the truth, the party upon whom the burden of proof lies will lose. [4] [ 11 ] In the present case, before the Court can apply the rule of “responsibility without fault” of

article 1466 C.C.Q. against Mr. Solomon, Mr. Elbaz must convince the Court that Choco caused the fall that led to the injury. Mr. Elbaz’ version of the events [ 12 ] Mr. Elbaz testified that on November 4, 2019, at around 7:00 pm, he came out of his house, located on Chemin A, to walk his own dog, a 13-year-old black female Labrador named Tiara weighing approximately 60 pounds. [ 13 ] It was dark, but the weather was nice, and the ground was dry. [ 14 ] When he left his house, Mr. Elbaz had a full view of Mr. Solomon’s house on Eldridge Avenue, and he could see that there was no one outside. [ 15 ] Mr.

Elbaz came around the corner from Chemin A on to Eldridge Avenue, and about 4 meters before reaching Mr. Solomon’s house, which was on the other side of the street where Mr. Elbaz was walking, he saw Choco, a 4-month-old male Bichon weighing 3 to 4 pounds, [5] standing in the middle of the street. [6] [ 16 ] Approximately 3 to 4 meters separated Choco from Tiara. According to Mr. Elbaz, Mr. Solomon did not notice what was happening because he was talking on the phone while standing backwards to the street, with his face looking towards his house. [ 17 ] Mr.

Elbaz explained that when Tiara noticed Choco’s presence, she was startled and made a sudden move that led to Mr. Elbaz’ fall on his left side. [ 18 ] Mr. Solomon provided immediate assistance to Mr. Elbaz. He asked his daughter to take Choco inside, and he called a colleague at the hospital where he works, to advise that Mr. Elbaz would be coming in. [ 19 ] Mr. Elbaz’ wife, Ms. Judith Schwartzman, testified that Mr. Solomon knocked on her door on the evening of November 4, 2019, to bring Tiara back and inform her that her husband had fallen and needed to go to the hospital.

She took him to the hospital where a hip fracture was diagnosed, and Mr. Elbaz had to undergo surgery. [7] [ 20 ] Mr. Elbaz had to go through a 12-week rehabilitation period [8] and he alleges that he still suffers from limitations because of the accident. He however did not submit any medical report on his current permanent deficit. [ 21 ] Mr. Elbaz contends that Mr. Solomon is responsible for the damages he suffered because, as Choco’s owner, he failed to keep his dog on a leash, which is against municipal bylaw. [9] This allowed Choco to leave Mr.

Solomon’s property, go onto the street, and provoke Tiara’s sudden reaction that led to his fall. Mr. Solomon’s version of the events [ 22 ] Mr. Solomon’s version of the events differs substantially from Mr. Elbaz’. He nonetheless admits that Choco was not on a leash, but he maintains that both him and Choco were, at all relevant times, on the front lawn of his private property. [ 23 ] Mr. Solomon explained that Choco was a puppy who had been toilet-trained on pads, and Mr. Solomon was trying to teach him to do his business outside. [ 24 ] On the evening of November 4, 2019, Mr.

Solomon took Choco outside to train him. According to Mr. Solomon, Choco was not used to going outside and walking in the grass. He was quite hesitant in his movements and stood still on the grass close to Mr. Solomon. [ 25 ] Mr. Solomon also admitted that he was talking on the phone, but he denied having been looking away, and insisted that he always kept his eyes on Choco. [ 26 ] Mr. Solomon saw Mr. Elbaz walking Tiara across the street as they turned the corner on Eldridge Avenue.

He then picked up Choco and held him in his arms to prevent him from running away. [ 27 ] When Tiara saw Choco, she made a movement to circle around Mr. Elbaz with her leash. As Mr. Elbaz was yelling “No, Tiara!”, the dog seemed to pull on the leash, which made Mr. Elbaz loose his balance and caused him to fall. [ 28 ] Tiara continued her way and reached Mr. Solomon, who was initially anxious given her size, but he quickly realized that she was a nice and peaceful dog. He took her leash and brought her back to Mr. Elbaz as he was coming to help him. [ 29 ] As Mr. Solomon witnessed Mr.

Elbaz’ fall, he also called his daughter from his phone and asked her to come immediately. He gave her Choco, who had remained in his arms, in order for him to provide assistance to Mr. Elbaz. [ 30 ] Mr. Solomon acknowledged that he has surveillance cameras on his house, but footage is only kept for 20 days. As a result, there is no recording of the November 4, 2019 events.

[ 31 ] Intact Insurance ( Intact ) is Mr. Solomon’s liability insurer. [10] Chloé Thériault, its representative, explained to the Court that Intact did not indemnify Mr. Elbaz because it did not conclude that a fault was committed by its insured. [ 32 ] Ms. Thériault drew the Court’s attention to Mr. Elbaz’ medical record where the emergency note of November 4, 2019 [11] revealed that “Patient fell as the dog ran from him”. [ 33 ] Finally, Ms. Thériault mentioned that Mr.

Elbaz did not produce any medical or expert report that would describe his current limitations and the extent of the permanent prejudice he is alleging. [ 34 ] While the Court is faced with contradictory testimonies on Choco’s behaviour, the essence of the November 4, 2019 events is not challenged: It is Tiara who, after having noticed Choco, made the sudden move which provoked Mr. Elbaz’ fall. [ 35 ] Whether this move was triggered while Choco was in the middle of the street, standing on Mr. Solomon’s property, or held in his arms, is irrelevant because under the rule of

article 1466 C.C.Q., Mr. Solomon cannot be held liable for the action of a dog which is not under his care or responsibility. [ 36 ] In this context, the Court is of the opinion that Mr. Elbaz has not met his burden to prove that Choco is the one who caused the fall and the related damages.

b) If so, what is the amount of damages Mr. Elbaz is entitled to? [ 37 ] Given the Court’s answer to the first question, the value and extent of Mr. Elbaz’ damages is not relevant. [ 38 ] The Court however notes that no expert report describing Mr. Elbaz’ current limitations and the extent of his permanent prejudice has been submitted, nor has any evidence been presented regarding his alleged moral damages. FOR THESE REASONS, THE COURT: DISMISSES Mark Elbaz’ application; THE WHOLE with legal costs of $209 paid by Moran Solomon for the contestation. __________________________________ MÉLANIE DUGRÉ, J.C.Q. Date of hearing: January 20, 2023