2011 QCCQ 4231, 2011 QCCQ 4231

Vescio c. 9121-2308 Québec inc. (Safari Pet Center-Fairview) 2011 QCCQ 4231 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Civil Division No: 500-32-116048-093 DATE: April 11, 2011 ______________________________________________________________________ BY THE HONOURABLE SUZANNE HANDMAN, J.C.Q. ______________________________________________________________________ ROSIE VESCIO […] , Kirkland (Qc) […] Plaintiff v. 9121-2308 QUÉBEC INC., doing business under the name SAFARI PET CENTER-FAIRVIEW 6815 Trans-Canada, Office J-008A, Pointe-Claire (Qc) H9R 5J1 Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Rosie Vescio is suing 9121-2308 Québec inc., doing business under the name Safari Pet Center-Fairview, for $6,960 after the dog she bought died suddenly.

Defendant, although duly notified of the date of trial, failed to appear at the hearing. The evidence: [ 2 ] Plaintiff bought an eight-week-old Bixon Frise dog at Defendant's store for $499. After purchasing food, a collar, cage and toys, her total bill came to $850. Plaintiff was instructed to feed her dog twice a day, with dry food only. [ 3 ] During the first two weeks, Plaintiff received about fifteen telephone calls from Defendant to see if her dog, called Toto, was all right.

She was concerned that the dog may be ill but was told that was not the case. [ 4 ] Plaintiff noticed her dog was not eating very much but since it was a small dog, she thought it was normal. She was concerned about the amount of food intake and began to mix canned food with the dry food in order to get her dog to eat more. [ 5 ] One Saturday, a neighbour, who saw the dog, thought she was rather small and suggested that Plaintiff give her dog table food. Around 11:00, Plaintiff fed her dog spaghetti.

She finally ate and appeared to be fine all day. [ 6 ] The following evening, her dog began breathing rather quickly. Plaintiff called her vet but the office was closed. The next morning, she found her dog dead in her cage. Her family had the dog for only seven (7) weeks. Plaintiff testified that she and her children were devastated by the loss. [ 7 ] An autopsy showed, as the diagnosis, that the dog had “vascular de-compensation due to bloat” .

In addition, the vet noted that the dog “Died suddenly/ate a pasta meal just before.” [ 8 ] Plaintiff is seeking compensation for the cost of the dog, the cage, food and toys, the vaccination costs, autopsy, legal fees and moral damages. Analysis:

[ 9 ] According to Plaintiff's veterinarian, Dr. Robert J. Langill, D.V.M., Plaintiff's dog Toto had died suddenly and had eaten pasta shortly before her death. He found her stomach was extremely distended with air; soft food material was in the fundic area of the stomach and the pyloric region was full of air. However, the condition was not congenital. In his report, Dr. Langill states: “There were no congenital abnormalities found in the post mortem.

Death could have been attributed to the bloat of the stomach, which caused veno-constriction of the abdominal vessels, and cuts off the blood supply going to the heart. It is extremely rare for this breed to die in this manner, but no other cause of death was found during this post mortem.” [ 10 ] Plaintiff holds Defendant responsible for her dog's death, alleging that it sold her a sick animal.

Article 1457 of the Quebec civil Code foresees that every person is responsible for any injury he causes to another person by his fault and is liable to reparation for the injury whether it be bodily, moral or material in nature. [ 11 ] In order to succeed, Plaintiff must establish fault on the part of Defendant. [ 12 ] The post mortem report fails to establish that Plaintiff's dog was born with an abnormality. The cause of death is not certain.

The report indicates that it could be attributed to the bloat of the stomach. [ 13 ] Plaintiff claims Defendant had sold her a dog that was ill since Defendant called frequently to inquire about the dog. While the calls could be related to Defendant's concern about the dog's health, they could also simply be related to Defendant's follow-up. [ 14 ] Plaintiff also points to the small amount of food her dog was eating. However, the dog received vaccinations when it was 13 weeks old and there is no indication that the vet found the dog abnormally small for her age. [ 15 ] In sum, the death was sudden and unexpected.

The cause is not certain. The vet points out that it is unusual for the Brixon Frise breed to die in this manner. However, the evidence does not substantiate that Defendant sold Plaintiff a dog that was ill. [ 16 ] Clearly, Plaintiff and her children were very attached to their pet and were inconsolable when the dog died.

Despite all the sympathy that the undersigned feels towards Plaintiff and her family for the loss they suffered, for the reasons outlined above, the Court is unable to grant the remedy sought. [ 17 ] Given the circumstances of this case and Defendant's failure to attend the hearing, costs will not be awarded to Defendant. FOR THESE REASONS, THE COURT: DISMISSES Plaintiff's action, without costs. __________________________________ SUZANNE HANDMAN, J.C.Q. Date of hearing: March 22, 2011