Bowles v. Wilton, 2018 NSSM 55

Claim No: SCCH - 476994 IN THE SMALL CLAIMS COURT OF NOVA SCOTIA Citation: Bowles v. Wilton , 2018 NSSM 55 BETWEEN: SABRINA BOWLES Claimant - and - LISA WILTON Defendant REASONS FOR DECISION BEFORE Eric K. Slone, Adjudicator Hearing held at Halifax, Nova Scotia on August 7, 2018 Decision rendered on August 20, 2018 APPEARANCES For the Claimant self-represented For the Defendant self-represented

BY THE COURT : [ 1 ] This case involves a fairly common but unhappy scenario. Two dogs met in an unfriendly encounter. The larger dog bit the other (smaller) dog, causing significant injury.

The owner of the smaller dog (a 6-year old Shihtzu named Max) seeks damages in the amount of $1,500.00, made up mostly of $1,338.69 for veterinary bills together with some credit card interest and incidental costs. [ 2 ] The owner of the larger dog, a Pit Bull/Labrador mix named Blazer, pleads that her dog was provoked, and that it had no known previous propensity for biting. [ 3 ] On the day in question, April 6, 2018, the Claimant had just returned home from grocery shopping and allowed her dog Max to exit her home, without a leash, to greet her as she unloaded the groceries from her car.

This something that she does from time to time. The Claimant says that Max typically stays on their property when allowed out unleashed. On the day in question, at that same moment, the Defendant (who lives nearby but not on the same street) was walking Blazer on the sidewalk. Blazer was on a leash. It appears that Max approached Blazer aggressively, at which point Blazer bit Max quite severely. There was a significant gash on his underbelly near the anus. The injury required surgery, stitches and antibiotics.

Max would likely have died without emergency vet care. [ 4 ] The Defendant claims that Max bit Blazer first, on one of his paws. The Defendant produced a photo purporting to show the paw injury, which is barely visible. I am not convinced that Max bit Blazer first, as the few seconds of an encounter between two raging dogs can be quite chaotic. It is just as probable that Max bit Blazer in response to being bitten by Blazer. In any event, the injury to Blazer was near-trivial in comparison to that endured by Max. Blazer did not need veterinary care. [ 5 ] The history of Blazer is relevant.

He was a rescue dog that the Defendant had only owned for a couple of months. According to the Defendant, Blazer had never shown any signs of aggression toward other dogs or people. She believes that there would have been no problem if Max had been on a leash and the dogs had been properly introduced. As a precaution, she now muzzles Blazer when he is walked in situations where he might meet unfamiliar dogs. [ 6 ] The central question for the court is whether the Defendant is responsible, in whole or in part, for the damage to Max. [ 7 ] Halifax Animal Services was called and did an investigation.

The end result was that the Defendant received a ticket for owning a dog that attacks another person or animal, under s.13 of the HRM Bylaw A-700, which reads: 13.

(1) The owner of: (

a) any animal, or (

b) a dangerous dog which attacks any person or other animal is guilty of an offence. [ 8 ] Clearly this creates a strict liability quasi-criminal offence, but it does not speak to the owner’s civil liability. That subject is raised by s.197 of the Halifax Regional Municipality Charter , a provincial statute, which provides: 197. Upon the trial of an action brought against the owner or harbourer of a dog for any injury caused, or damage occasioned by, such dog, it is not

necessary to prove knowledge by, or notice to, the owner or harbourer of any mischievous propensity of the dog. [9] What is the effect of this section? [10] One

interpretation is that this imposes strict liability on owners for damage caused by their dog, whether or not they wereaware of any propensity to violent behaviour. In the early development of the law in this area, the courts required “scienter” which isbasically knowledge on the part of the owner that the dog had the potential for violence. Often this was hard to prove. The law ofnegligence generally requires some behaviour on the part of the owner that falls below a reasonable standard, before saddling that ownerwith financial responsibility.

Once someone knows of their dog’s propensity, they are negligent in failing to take precautions such asleashing or muzzling. Prior to that, the owner had an excuse. [11] I have looked at the case law on the subject, and turned up a case in this court decided in 2017 by Adjudicator Richardson,Nickerson v Norden, 2017 NSSM 47 . I do not entirely agree with the result, but because it is this court’s most recentpronouncement, and also because it provides a good

summary of the underlying law, I will quote it in full: [1] Is a dog in Halifax entitled to one free bite? If not, is the owner of a dog not known to be vicious liable for any injury caused whenhis or her dog attacks another dog? Those are the questions posed by the facts of this case. [2] At all materials times the claimant and the defendants lived in the same apartment building in Halifax. The claimant owned aYorkshire Terrier called “Twig.” The defendants owned a German Shepard called “Bella.” [3] On July 4, 2017 the claimant’s daughter took Twig out for a walk.

They exited their apartment, and proceeded along the hall wayto a door that led to the outside. At that moment Ms Van Norden was returning from being outside with Bella. The door opened. The twodogs saw each other. Ms Van Norden’s evidence was that the dogs were startled and lunged at each other. What is clear is that Bellatook hold of Twig, biting down hard. The claimant’s daughter and then the claimant’s husband tried to pull the two dogs apart, as did thedefendants.

In the course of the fracas both Ms Van Norden and the claimant’s daughter suffered some scratches or bites from the dogsas they (the dogs) struggled with each other. [4] Twig got the worst of it, not surprisingly, given the discrepancy in size between the two dogs. The claimant took her to the vet.The cost of treating Twig was too much for her to take on. She signed over Twig to someone at the vet who offered to adopt her.

Twigwas then euthanised. [5] There was no evidence at the hearing that the defendants knew or ought to have known that Bella was vicious, or that their doghad or might have any propensity to attack a person or another dog, let alone Twig. Nor was there any evidence that Bella was runningfree. [6] The claimant searched for a replacement for Twig. A Yorkshire Terrier puppy would have cost somewhere in the range of$1,800.00. That was too much for the claimant.

So she found a “re-homed” dog on the internet. [7] The claimant seeks damages of $1,800.00 for the replacement of a Yorkshire Terrier, $100.00 in pain and suffering, and $200.00in costs. She relies upon s.197 of the Halifax Regional Municipality Charter, SNS 2008, c.39, which provides as follows: Proof at trial

197 Upon the trial of an action brought against the owner or harbourer of a dog for any injury caused, or damage occasioned by, suchdog, it is not necessary to prove knowledge by, or notice to, the owner or harbourer of any mischievous propensity of the dog. 2008, c.39, s. 197. [8] The question then becomes this: does s.197 of the Halifax Charter do away with what would otherwise be necessary in a claimbased on negligence—proof that the owner knew, or ought to have known, that the dog might cause injury to a person or property, andfailure to take steps to guard others against such injury? [9] The law on this point is maddeningly complex and obtuse.

But as I understand it, the common law divided animals into two types:those which as a class were considered to be dangerous in their own right (such as lions, elephants and the like), and those which as aclass were not so considered (such as cats and dogs and other domestic animals). An owner of an animal falling in the first class wouldbe strictly liable for any damage caused by the animal. It was not necessary, in other words, to establish that the owner knew the animalhad a propensity to cause harm: it was assumed. [10] The owner of an animal (such as a dog) in the second class was in a different position.

The law was not prepared to assume—ordeem—that an owner of a particular animal within that class knew it was or could be dangerous. A plaintiff injured by such an animalthus had to prove that the owner actually knew that his or her particular animal had a propensity to cause harm. That in the common lawwas referred to as scienter. This principle, as has been observed, is the origin of the old saying that a dog “is entitled to one free bite.”But it was difficult to prove such knowledge in the case of owners of domestic animals.

Hence legislation like s.197 was enacted invarious jurisdictions to do away with the requirement that a plaintiff prove that the defendant owner knew that his or her dog had aviolent predisposition: see the discussion in Brewer v. Saunders (NS SC), (NSCA) at paras. 9-13;and see Lupu v. Rabinovitch (MB QB); Wilk v Arbour 2017 ONCA 21 at para.31; Purcell v Taylor (ON SC) at paras.8-10. [11] As I read those same authorities, enactments like s.197 did away with the need to prove scienter, but they did not create strictliability. The plaintiff is still required to prove negligence on the part of the defendant owner.

So, for example, a dog that was constantlybarking at people might give rise to a duty on the owner to keep the dog under close control, even though the dog had never gone beyondbarking. Failure to maintain control over such a dog might give rise to liability in negligence in the event the dog moved beyond barkingto attack a person or another animal. [12] In the case before me the claimant proceeded on the basis that liability was strict. She read s.197 as requiring no more than proofthat the defendants’ dog attacked and injured hers.

She did not introduce any evidence to establish negligence on the part of thedefendants. There was nothing to show that what happened was anything other than sudden and unexpected on the part of both owners. There was nothing to show that the defendants failed to keep reasonable control of Bella. [13] In the absence of such evidence I have no option but to dismiss the claim. [12] Where I

part company with Adjudicator Richardson is his conclusion that notwithstanding s.197, a Claimant still has to provenegligence. As I read the cases, the doctrine of scienter was a way of looking at the blameworthiness of the animal owner. Clearly, if theowner knew that his dog was dangerous, that would be negligence.

On the other hand, an owner who was innocent of any suchknowledge would not be negligent, because how was he or she to know that something like this would happen? [13] Doing away with scienter must mean that an owner is liable for his dog’s behaviour, regardless of his lack of knowledge ofthe dog’s propensity, so long as that behaviour is per se mischievous. What else could it mean? Such legislation would be meaningless ifthe Claimant still had to prove negligence. This is admittedly a form of strict liability, though not absolute liability. Strict liability allowsfor defences such as due diligence.

Absolute liability would not allow for any escape. Apart from the Nickerson case, I am not aware ofany Nova Scotia authority that would hold otherwise. I believe this finding is consistent with older Nova Scotia authority such as Brewerv. Saunders, (NS SC - AD).

[14] This is also consistent with the law in some other jurisdictions which have legislated an end to scienter, such as Manitoba: seeLofstrom v. Hydamaka, 2013 MBQB 220 . [15] Of course, the law of negligence still applies, and a Claimant may prove negligence, based on the evidence, and a Defendantmay plead contributory negligence based on anything that the Defendant may have done that falls below a standard of reasonableness.The necessary element of negligence, if one is needed, is the fact that Blazer’s behaviour was vicious and dangerous.

The effect of thestatute is that the Claimant does not have to prove that the Defendant knew that Blazer had the potential to behave as he did. [16] I accordingly find that the Defendant is liable for the damage that Blazer caused. [17] That does not conclude the inquiry, as there is still the question of contributory negligence. [18] I believe the Claimant must bear some responsibility by not having her dog leashed, or otherwise within her control. Iapportion her liability at 50%.

I note that the Defendant’s stated position was that she was prepared to share the cost equally, and in theend, this was a reasonable position to take. [19] In the result, the Defendant will pay to the Claimant one-half of her proved cost of veterinary case, namely $1,338.69/2 =$669.35. [20] The Claimant has also claimed the cost of credit card interest, travel to and from the emergency vet, photocopies as well asthe cost of filing this claim. I am awarding the Claimant an additional sum ($80.65) that will bring the award up to $750.00, one half ofthe $1,500.00 she claimed. Eric K. Slone, Adjudicator