MacNeil v. Black Rock Stables, 2021 NSSM 40

2020 SCC NO. 502209 IN THE SMALL CLAIMS COURT OF NOVA SCOTIA Citation: MacNeil v. Black Rock Stables , 2021 NSSM 40 BETWEEN: DARLENE MARIE MACNEIL CLAIMANT and BLACK ROCK STABLES/KIMBERLY ANN CAIRNS DEFENDANTS REASONS FOR DECISION BEFORE: A.

Robert Sampson, Q.C., Adjudicator DATE OF HEARING: Hearing held by conference call from Sydney, Nova Scotia Preliminary hearing readiness call, March 3, 2021 Claim hearing date (by phone) March 9, 2021 DECISION RENDERED: March 29, 2021 APPEARANCES: For the Claimant: Self-Represented – Darlene Marie MacNeil Witness: Erin MacNeil (daughter) For the Defendant: Self-Represented – Kimberly Ann Cairns Witness: none BY THE COURT: [ 1 ] This Claim was commenced by a Notice of Claim filed with the Court on November 27, 2020 and a Defence filed on December 14, 2020.

The matter was originally scheduled to be heard on March 3, 2021. As a result of Covid-19, hearings in the Nova Scotia Small Claims Court have and continue to be held by telephone unless there are extenuating circumstances which direct otherwise.

As a result, the practice adopted by most adjudicators, as was the case here, is to initially hold a preliminary/case-ready conference with the parties to determine whether the matter can be dealt with by phone, that any anticipated exhibits to be tendered have been exchanged and whether there is a need for any special technology in connection with the anticipated evidence. [ 2 ] On March 3, 2021 an initial case-ready conference was held and arrangements were finalized to ensure exhibits were exchanged.

The Court reviewed with the parties document exhibits that each submitted to the Court confirming their intention to tender at the hearing in connection with their evidence. The Claimant’s documents were identified as specific exhibits within a formal affidavit that was independently sworn by her. Each of those exhibits, for the purposes of this hearing, were identified as “Exhibit 1 “A”, “B”, ”C”, etc.

The Defendant’s documents included a three-page intro/summary together with an index referencing in excess of 23 pages of documents associated with the facts surrounding this matter and in connection with her Defence to be identified by page as exhibit 2-pg. 1, 2, 3.etc. The hearing date was confirmed to be March 9, 2021 and it proceeded at that time, lasting approximately 1.5 hours. [ 3 ] The basis for the Claim was principally set forth in the Claimant’s Affidavit referred to above which was referenced and attached to Form 1.

The Affidavit itself contained 32 paragraphs incorporating a number of exhibits/documents in support of the Claim and the damages sought. The actual amount of the Claim, as confirmed on Form 1, was $2064.36. In

summary, the foundation and nature of this claim arose as a result of the Claimant’s two dogs (Charlie and Desi), who were boarded for a two-night stay at the Defendant’s boarding kennel on or about July 16, 2020, somehow got free from the security of the kennel during their stay. The evidence confirmed that this occurred sometime during the evening of July 17 th . Both dogs were eventually located the following

morning. The evidence of the Claimant was that both dogs sustained injury, one (Desi) more than the other and as a result veterinary/medication expenses were required to be incurred. In addition, a portion of the Claim specifically relates to damages (loss of glasses and cell phone during search) alleged to have been sustained by the Claimant personally.

Her evidence was that sometime during her efforts to search for the dogs on Saturday morning, which included her personal efforts to rescue one of the dogs (Desi) from the shoreline where she alone had located the dog a few kilometers from the Defendant’s kennel, she believes she lost her eye glasses and personal cell phone. Her evidence could not confirm exactly where or when but only that she had these items in her possession when she started her search.

The kennel was located in a location known as Black Rock, Victoria County, NS which borders along the south- eastern coast of the entrance into the Bras d’Or Lake. The Claimant claims that all of the damages/loss she sustained was as a result of the negligence of the Defendants and therefore should be compensated. [ 4 ] The Defendant filed a Defence on December 14 th , 2020 as previously noted and in addition to the various documents attached, in the body of her Defence/Form 2 she states: “ I accept responsibility for the incident and tried my best to minimize the damage.

Both during the incident and by paying $1057.97 for Vet bills after.

I do not believe that all of the Claimant’s demands are reasonable, and I know that some of her statements are not accurate (see attached paperwork).” [ 5 ] At the outset the Court reviewed the general procedure to be employed in hearing the Claim, the role of each party and how evidence was to be received including the opportunity of both parties to provide their “side of the story”, that each would be afforded a chance to question the other and further, at the end of the evidence, each would be afforded a chance to sum up their positions based on all the evidence presented.

Each witness was affirmed over the phone by the Court prior to presenting their evidence. [ 6 ] This is a claim arising out of an alleged tort of negligence of care and/or breach of contract in that the Defendants had been contracted by the Claimant to board her two dogs. I find at the outset that “implied” in any contract of this nature would be the condition that the Defendant would keep the dogs in her possession and control at all times and keep them safe. [ 7 ] Both parties gave evidence along with the Claimant’s daughter, Erin.

Much of each of their testimony was supported by or referenced to a document tendered.

Having regard to both the Defendant’s written Defence, wherein she openly acknowledges and accepts responsibility for what had occurred and the resulting injuries to the dogs, as well as her testimony, the Court finds that the actions or inactions of the Defendant or those under her control, while unintentional, were negligent, in that the Defendant owed a duty of care to all persons who engaged her kennel to board their dogs, and that the Defendant’s actions or inactions fell below the standard of care expected of a dog boarder, and led to the dogs going missing and suffering injuries.

As a result of this admission there is little need for me to provide a detailed review of all of the evidence associated with the events that led to the entering into this boarding arrangement all of which occurred throughout the evening of July 17 th and into the morning of July 18 th when the two dogs were located. It was clear from all parties’ testimony that everyone was/is emotionally attached to animals in general and these dogs. [ 8 ] The remaining issues before me squarely relate to the particular damages alleged by the Claimant.

First, whether there is some connection or link between the main cause of negligence, that of the dogs getting loose from the kennel, and the Claimant’s damages, as alleged. If I am satisfied that the Defendant’s conduct caused the losses as claimed, I must go on to consider whether the Defendant’s conduct is the proximate cause of each of the Claimant’s losses, or in other words, whether the Defendant’s conduct is sufficiently related to the damages caused, so as to justify imposing liability upon the Defendant.

As referenced above the Defendant’s position is that not all of the Claimant’s demands for damages are reasonable. [ 9 ] The evidence from the parties confirmed that veterinary expenses were required to be incurred through the summer/fall of 2020, principally for injuries the dog Desi had sustained. She was the dog the Claimant rescued from the shoreline. A number of exhibits tendered by both parties confirmed an ongoing email exchange between the parties from the time of the event in July through to late September which essentially revealed each of the respective parties’ position.

The Claimant, in caring for the dogs’ recovery, was incurring veterinary expenses at Animal Medical Centre in Sydney. The only invoices tendered by the Claimant were exhibited under 1-“F” ($370.23 - dated 21/Sept 2020) and 1-“G” ($110.46 20/Oct 2020 and $95.44 30/Oct 2020) which represented the invoices “not” refunded by the Defendant to the Claimant as of date of hearing. There was no dispute of the fact that in addition to the ones forming part of this Claim, the Defendant had already reimbursed $1057.97 to the Claimant for several previous veterinary bills associated with the care of the dogs.

These invoices included in

part certain medications which Erin MacNeil testified were prescribed by the vet for the continued healing of the injuries sustained. [ 10 ] Both the testimony and exhibits (email exchange) confirmed all appeared good between the parties until late September when the Defendant had responded to receiving the September 21 st invoice from the Claimant. The evidence confirms that this appeared to catch the Defendant by surprise as she referenced that she had not been expecting further bills.

Her testimony confirmed that there did not appear to be “any end in sight” and felt sufficient time had passed for the dog to have mended. That particular September invoice referenced further blood testing, radiology tests, medication, all of which she questioned the continued need for. Again, Erin MacNeil

testified along with the Claimant that everything was directly related to the initial injuries the dog Desi sustained as a result of it being able to escape the kennel and the continuing need for the doctor to follow-up. Similar testimony was given in relation to the subsequent invoice tendered under the Claimant Exhibit 1-“G” referred to above. The actual injuries the dogs sustained were described in the Claimant’s Affidavit and exhibits which included a

summary report from the Vet, as well as through her testimony and was not challenged or at issue. Based on all the evidence, including review of the invoices contained in Exhibits “F” and “G” the Court is satisfied that these were necessary expenses required to be incurred as a direct result of the injuries sustained by the dogs, mainly Desi, and further in turn were reasonably foreseeable and proximately caused as a result of the negligence of the Defendant.

These amounts are to be ordered to be paid to the Claimant as part of this Claim. [ 11 ] The final piece of this Claim relates to the Claimant’s request for damages relating to her personal loss of her reading/eye glasses and cell phone which she believed were lost at some point during her search for the dog, Desi. In her testimony she described having initially set out to search for Desi on the Saturday morning after their dog, Charlie, had unexpectedly showed up at the place where they were staying. At this point in time the Claimant realized something was wrong.

Shortly thereafter they learned from the Defendant that the dogs had gone missing the evening before. They (including Defendant, and others) “spread out” so to speak and her personal search efforts took her to the shore near where the kennel was located in Black Rock. She estimates that she walked along the shore approximately two kilometers at which point she located the dog, Desi. The dog was essentially frozen in its location and unresponsive to her. Some of the injuries were readily noticeable and pictures were exhibited to the Court which readily showed certain injuries on the dog.

She estimated the dog to be approximately 70-75 pounds. She testified that she had fallen several times while attempting to carry the dog back along the shore. She also testified that she had attempted to pull or lead the dog through the water along the shore in an effort to reduce the weight load.

She confirmed that after an exhaustive journey with the dog she finally, at or near the “lighthouse”, met up with her daughter, Leah, where together they immediately took the dogs to the veterinary hospital in Sydney. [ 12 ] In the Claimant’s testimony, while she was certain that she had her reading glasses and cell phone with her at the beginning of search, she could not say with certainty how or where she lost her glasses and cell phone. She testified that sometime later she did re- trace her steps along the shoreline and was not able to locate either item.

It was her position that she lost these items as direct result of having to conduct this search and/or efforts to rescue the dog along the shoreline. In effect the Claimant’s position was that this part of her claim/loss was sufficiently connected to the Defendant’s negligence and therefore she should be compensated. Further, the evidence confirmed that the Claimant first raised the issue of this part of the loss with the Defendant several days after the dog was found.

This was also confirmed in an email exchange several days after the incident occurred. [ 13 ] The Claimant tendered Exhibit 1-“H” representing an invoice from Island Eyecare Ltd. for $119.70 which she testified represented the cost of replacing the reading glasses she lost. As for the damage claim surrounding the cell phone, the Claimant tendered under Exhibit 1-“I”, a one page document which she testified she had drawn down on-line which suggested the replacement cost of her cell phone was or could be $599.00. She testified that she had an older model I-Phone (I-Phone 6) which were not sold (new) anymore.

The Defendant’s submission, first and foremost was that she should not be responsible for the loss of glasses and cell phone as that was the responsibility of the Claimant alone and not as result of anything she had done.

She further testified that she has seen I-phone 6’s for sale on-line for at or near $100. [ 14 ] While the facts before the Court associated with this Claim are relatively straightforward and few in dispute, certain components of the damage claim, notably the Claim associated with the replacement of the Claimant’s eye glasses and cell phone, call upon the Court to closely review whether there can be found from the evidence a “nexus” between the admitted negligent actions of the Defendant and these specific losses claimed, and further whether such damages were reasonably foreseeable.

Further, I find that it also requires this Court, if there is a sufficient connection established between the initial negligent event and the resulting loss, to then determine whether the Claimant contributed to her own loss, through her own negligence. [ 15 ] As stated in HTO-51, Halsbury’s Laws of Canada –Torts (2020-reissue) “the defendant’s conduct must cause the plaintiff’s loss or else there is no liability. There must be some connection or link between the wrongful act and the damage, in this case the loss of personal items.

The loss of the glasses and cell phone, must be found to have resulted from or be attributed to the act of the wrongdoer. If that connection cannot be made, then the Defendant cannot be held liable. Clearly on its face the Claimant argues in this case that the only reason for the loss she sustained was as a result of looking for the lost dog and having been required to rescue it from the shore. The facts presented do not allow the Court to determine that the negligent act caused the loss of cell phone and glasses.

While the Court appreciates the frankness of the Claimant, the Court notes that the only evidence the Claimant was able to provide on this point was that she had the glasses and cell phone on her person when she began her search, it was not until she arrived at the veterinary hospital with the dogs, that she realized the items were missing. While she believes the items were lost at some point during her search for the dogs, she does not know how or when. There are countless possibilities as to how and when the glasses and cellphone were lost.

While it is unfortunate that the glasses and cellphone were lost, by way of example, if the items were not securely stored, it is entirely possible that they would have been lost no matter what activities the Claimant had engaged in that day.

Given that there is no evidence as to how or at what point the glasses or cell phone were lost, it is impossible for the Court to determine the items were lost as a result of the Claimant’s involvement in the search for her dogs. [ 16 ] While appreciating that the Claimant would have been anxious during her search, there was no evidence of any emergency situation or circumstances that would have prevented the Claimant from keeping safe her personal property. Again as noted, while this

loss was unfortunate, there is absolutely no evidence before me to suggest there was any reason preventing the Claimant to make safe her personal property, regardless of the task before her, in this case working hard to rescue her dog. Therefore, the Court denies the Claimant’s claim for the replacement of the glasses or cell phone. Based on this finding the Court finds no need to address issues surrounding foreseeability or contributory negligence relative to the loss of the glasses and cell phone. AWARD [ 17 ] In

summary the Court awards and directs the Defendant to pay to the Claimant the following: a. Medical bill (21 Sep 2020) $370.56 b. Medical bill (20 Oct 2020) $110.46 c. Medical bill (30 Oct 2020) $95.44 d. Court filing fee $99.70 e. General damages $100.00 Total $ 776.16 Note: upon review of exhibits and court file material there is no record of any invoice confirming any fee for the initial “service” of the Claim on the Defendant. The affidavit itself was found in the Court file.

I note this because the Claimant did represent in her closing submission and list of damages that she had incurred a fee of $100.00 but any such claim must be verified by an invoice. DATED at Sydney, Nova Scotia this 29 th day of March, 2021. A. ROBERT SAMPSON, Q.C. Adjudicator