2015 QCCQ 5366, 2015 QCCQ 5366

Wohl c. Frenette (Animobile, SV à domicile) 2015 QCCQ 5366 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Civil Division No: 500-32-139321-139 DATE: May 25, 2015 ______________________________________________________________________ BY THE HONOURABLE SCOTT HUGHES, J.C.Q. ______________________________________________________________________ AARON WOHL Plaintiff v. RACHEL FRENETTE, DOING BUSINESS UNDER THE NAME OF (ANIMOBILE, S.V.

A DOMICILE) Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Aaron Wohl claims the reimbursement of the veterinary fees he paid to Dr Rachel Frenette DMV in the amount of $531.21. He alleges that she misinformed him and misdiagnosed when treating his dog. [ 2 ] Dr Frenette contests. In her view, she acted according to the rules of her art considering that she practices as a veterinarian doing house calls rather than in a fully equipped clinic.

Moreover, she states that Mr Whol did not correctly inform her of his dog’s condition during the treatment. Because of this misinformation, Dr Frenette argues that Mr Wohl’s allegations of fault are groundless. FACTS [ 3 ] Mr Wohl’s dog was incontinent. This is a frequent ailment for an aging Doberman. He consulted Dr Frenette in early August 2012 by telephone, specifically because in her practice she did house calls.

He was aware that in this type of practice the veterinian does not have sophisticated equipment on hand. [ 4 ] Over the telephone, Dr Frenette instructed Mr Wohl to take a urine sample using a sterilised container (sterilised using a dish washer). [ 5 ] Dr Frenette examined the dog on August 9, 2012 and found no sign of cancer. She prescribed a typical medication to prevent incontinence as a temporary measure until receiving the laboratory results. These showed that there was no infection nor bacteria in the sample.

The kidneys and liver appeared to be functioning correctly. [ 6 ] The dog’s state improved over the two following weeks according to the information that Mr Wohl provided Dr Frenette over the telephone. This in fact turns out not to be true; Mr Wohl had embellished somewhat the situation. [ 7 ] When the dog deteriorated, Mr Wohl consulted the Department of Veterinary Medicine at the University of Montreal. When advised of this, Dr Frenette approved. It is there that an ultrasound examination showed that the dog had cancer in and about her liver. She was soon after put down.

ANALYSIS [ 8 ] Mr Wohl had the burden of proving that Dr Frenette did not act as should have a normally prudent veterinarian [1] . His evidence must be preponderant, this meaning that the facts and conclusions he proposes must be more convincing than those shown by Dr Frenette’s evidence [2] . [ 9 ] Dr Frenette’s obligations are of means not of results and certainly not of guaranty.

She also has an obligation of information toward Mr Wohl when undertaking the treatments. [ 10 ] The Court concludes that Dr Frenette has no liability in this case. [ 11 ] Firstly, the preponderant evidence is that Dr Frenette advised Mr Wohl how to correctly sterilise the container used for the urine sample. Also, the sample was not contaminated, thus corroborating that the instructions were both correct and followed. Secondly,

Mr Wohl was aware of the technical limitations of a home visit by veterinarian. It is unreasonable to expect Dr Frenette to be equipped as if she were in a university clinic. Thirdly, the preventative nature of the medication prescribed on August 9 th , was clearly stated thus respecting Dr Frenette’s obligation of information. [ 12 ] As for the examination per se, there is no preponderant evidence to show that at that time (August 9 th , 2012) there was any apparent symptom of cancer. Dr Frenette specifically stated in her testimony that she examined the dog and found no lumps whatsoever.

As well, over the two weeks that followed, Mr Wohl told Dr Frenette that his dog was improving. Therfore, there was no reason for Dr Frenette to suggest that Mr Wohl consult elsewhere. She had no reason to worry according to the information given her by Mr Wohl (although we now know this information was incorrect). When she was in fact told that the dog’s state was deteriorating, she agreed with Mr Wohl that he should consult at the University of Montreal.

The fact that the dog’s condition had worsened and that the University, with its sophisticated equipment, was able to diagnose differently does not prove, in any way, that Dr Frenette was negligent on August 9 th and during the subsequent days. [ 13 ] Mr Wohl has not convinced the Court, on preponderance of evidence, that Dr Frenette has committed a fault. FOR THESE REASONS, THE COURT: DISMISSES the claim; CONDEMNS Aaron Wohl to pay to Rachel Frenette Court fees in the amount of $62.00. __________________________________ SCOTT HUGHES, J.C.Q. Date of hearing: April 21, 2015