2011 QCCQ 12992, 2011 QCCQ 12992

Mathias c. Polson 2011 QCCQ 12992 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF TEMISCAMINGUE TOWN OF VILLE-MARIE Civil Division No: 610-32-001029-114 DATE: July 8, 2011 ______________________________________________________________________ IN THE PRESENCE OF THE HONOURABLE JOSÉE BÉLANGER, J.Q.C. ______________________________________________________________________ NELLY MATHIAS Plaintiff v.

NELSON POLSON Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The Plaintiff claims the sum of $1 000 because she was bitten by the dog owned by the Defendant. Facts [ 2 ] The Plaintiff has been bitten by the dog owned by the Defendant while she was passing memos at the Defendant’s residence. [ 3 ] The incident occurred on January 21 st , 2011 at approximately 7:30 pm, in Winneway.

The Plaintiff’s daughter was supposed to pass memos for the community’s elections but couldn’t do it. [ 4 ] The Plaintiff volunteered to do the job. At 7:30 pm, she started by going house to house. [ 5 ] First she went to 199B, then she followed the trail to 199A, where lived the Defendant. [ 6 ] Both houses are located on the same yard.

There’s no fence between them. [ 7 ] The Plaintiff’s husband was waiting in his car on the side of the road while his spouse was passing the memos. [ 8 ] A dog jumped on the Plaintiff while she was between the two houses. [ 9 ] The dog growled and bit her on her upper thigh. [ 10 ] The dog was unleashed and charged her for no apparent reason. She pushed him away. [ 11 ] The Defendant is the owner of the dog. [ 12 ] The Plaintiff said that usually the dog is tied at the back of the porch, which was not the case on January 21 st . [ 13 ] The Defendant who was inside his house came on the porch.

He grabbed his dog by the collar. He asked the Plaintiff if she was bitten. She couldn’t tell. [ 14 ] She went to her husband’s truck to check her thigh. Then she and her husband saw the injury. It was bleeding. [ 15 ] She went back to the Defendant’s place and told him that she had been bitten. His spouse who was there also told her that the dog had all his shots. [ 16 ] The Plaintiff referred the incident to the police. [ 17 ] A picture of the injury shows teeth’s marks (P-4). There is a permanent scar.

The Plaintiff has also suffered pain and discomfort (She couldn’t wear normal clothes for days and was walking with difficulty). She had to go to the clinic and had shots (P-3). She’s now fearful of dogs and has recurrent nightmares. She couldn’t go to work for two days (She’s a police officer).

[ 18 ] The Plaintiff’s husband also testifies. He corroborates his spouse’s version and the damages that she has sustained. [ 19 ] The Defendant testifies. He says that he was at home when he heard his dog barking. [ 20 ] He says that his dog was tied outside at the corner of the house. The dog was tied with a chain around the collar. [ 21 ] There was a big snow bank between 199A and 199B. According to him, the Plaintiff had to jump over the snow bank to reach his house. [ 22 ] She was wearing a grey hood and a black neck warmer.

According to him, his dog must have thought that the Plaintiff was a burglar. [ 23 ] He admits that the Plaintiff told him that she was bitten by his dog. [ 24 ] He insists that his dog is always tied. [ 25 ] The Defendant’s sister testifies. She corroborates some parts of the Defendant’s testimony. [ 26 ] She says that the dog was tied with a long chain. She also adds that the Plaintiff was wearing a black neck warmer. Analysis [ 27 ] The law is clear as to the responsibility of the owner of an animal. Articles 1466 and 1607 of the Civil code of Quebec state : 1466.

The owner of an animal is liable to 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, together with the owner, also liable during that time. 1607.

The creditor is entitled to damages for bodily, moral or material injury which is an immediate and direct consequence of the debtor's default. [ 28 ] The presumption applies as soon as the damage is done by the animal. [ 29 ] The presumption can be rebutted totally or partially in case of force majeure or by the victim’s or a third party’s fault. [ 30 ] “Unlike the usual case of general civil liability, where responsibility depends upon fault, in the case of damages caused by an animal, the responsibility is strict i.e., it does not depend upon proof of fault of the owner”. [1] [ 31 ] « Contrairement à l’

article 1465 , Code civil du Québec , l’

article 1466 Code civil du Québec , ne permet pas au propriétéire ou à l’usager de l’animal de se dégager de sa responsabilité en prouvant absence de faute, c’est-à-dire en établissant avoir pris les moyens raisonnablement prudents et diligents pour prévenir la survenance du dommage causé par l’animal ». [2] [ 32 ]

Article 2803 Civil Code of Quebec states that the Plaintiff bears the burden to prove her claim by preponderance of proof. 2803. A person wishing to assert a right shall prove the facts on which his claim is based. A person who alleges the nullity, modification or extinction of a right shall prove the facts on which he bases his allegation. [ 33 ]

Article 2804 Civil Code of Quebec adds : 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. [ 34 ] According to the law, the Court can conclude that the existence of a fact is more probable than its non-existence. [ 35 ] In the present case, the damages complained of were clearly caused by the dog. The Plaintiff didn’t commit any fault. [ 36 ] The Defendant is therefore liable for the damages caused. [ 37 ] This is not a finding of fault on the part of the Defendant. It is an application of the strict-liability principle of

article 1466 Civil Code of Quebec . [ 38 ] The Court accepts the testimonies of the Plaintiff and her husband. Both testimonies were clear and detailed. [ 39 ] The damages suffered by the Plaintiff must be compensated. The amount claimed constitutes adequate compensation. [3] [ 40 ] FOR THESE REASONS, THE COURT: [ 41 ] GRANTS , the Plaintiff's action; [ 42 ] CONDEMNS the Defendant to pay to the Plaintiff the sum of $1 000 together with interest at the annual rate of 5% and the

additional indemnity provided at

section 1619 of the Civil Code of Quebec calculated from January 25th, 2011; [ 43 ] CONDEMNS the Defendant to pay to the Plaintiff the judicial costs in the amount of $100. __________________________________ JOSEE BELANGER, J.Q.C. Date of hearing: June 20, 2011