2015 QCCQ 6509, 2015 QCCQ 6509

Unsal c. Murray 2015 QCCQ 6509 JP 2262 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL CIVIL DIVISION No: 500-32-140835-135 DATE: July 27, 2015 ______________________________________________________________________ IN THE PRESENCE OF: THE HONOURABLE VINCENZO PIAZZA, J.C.Q. ______________________________________________________________________ NARDANE UNSAL Plaintiff v. CANDICE MURRAY Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Mrs.

Unsal claims that she suffered the following damages as a result of being attacked by three dogs under Ms. Murray’s care: 1.1. Cost of eye exam and glasses: $482.71; 1.2. Cost of medical report: $160.00; 1.3. Replacement of clothes: $75.00; 1.4. Physical damages: $3,500.00; 1.5. Moral damages $3,000.00. [ 2 ] In order to proceed before the Small Claims Division of this Court, Mrs. Unsal reduces her claim against Ms. Murray to $7,000.00. CONTEXT [ 3 ] On June 14, 2013, Ms. Murray steps out of her condo with her mother’s dog and her own two dogs. All three animals are held on a leash. [ 4 ] Ms.

Murray trips and in order to break her fall, she lets go of the leashes. [ 5 ] At the same moment, Mrs. Unsal is walking by. Ms. Murray’s mother’s dog starts to run towards Mrs. Unsal, and Ms. Murray’s dogs run after it. [ 6 ] Seeing the three dogs running towards her, Mrs. Unsal starts to run away. Ms. Murray pursues the dogs while shouting at Mrs. Unsal to stay still. The first dog, which weighs approximately 10 pounds, reaches Mrs. Unsal with Ms. Murray’s two dogs, each weighing about 50 pounds, immediately following. [ 7 ] Ms.

Murray testifies that at this point, her two dogs are not in physical contact with Mrs. Unsal, only her mother’s is. Ms. Murray reaches the scene and interposes herself between Mrs. Unsal and the dogs. Ms. Murray says that Mrs. Unsal is panicking and that in an attempt to escape the dogs, she jumps on Ms. Murray’s back. It is only then, according to Ms. Murray, that her two dogs join in, barking at and jumping on Mrs. Unsal. [ 8 ] After a few seconds, Ms. Murray recovers control of the dogs. Mrs. Unsal is hurt, shaken and in tears. Her t-shirt and her bra are torn. [ 9 ] Ms.

Murray runs to her condo, leaves the dogs inside and runs back to Mrs. Unsal with a first-aid kit. She testifies that she cleans Mrs. Unsal’s bruises and asks her if she wants to go to the hospital for further treatment. Ms. Murray asks Mrs. Unsal if she was bitten and the latter responds that she has only been scratched. She says that Mrs. Unsal declines the offer to be taken to the hospital to be examined and receive a tetanus shot. She only wants to go home. Ms. Murray says that Mrs.

Unsal explains that she reacted this way because in Turkey, where she comes from, dogs are often let lose to roam around freely and that she thus developed a fear of dogs.

[ 10 ] Mrs. Unsal flat-out denies the story about lose dogs in Turkey or that she was offered to be taken to the hospital by Ms. Murray. She says that she was not at all afraid of dogs before the incident and that ever since, dogs terrorize her. [ 11 ] Ms. Murray walks Mrs. Unsal home, a few minutes away. There, they meet Mrs. Unsal’s husband. A friend of the Unsals is called on the phone to act as an interpreter from and to Turk and English. [ 12 ] Mrs. Unsal says that she then notices that she has lost her eyeglasses. Ms. Murray testifies that Mr.

Unsal immediately demanded that she pay for a new pair of glasses. This quick reaction appears strange to Ms. Murray, who has not noticed that Mrs. Unsal was wearing glasses. Still, she offers to go back where the incident took place with Mr. and Mrs. Unsal to search for the glasses. [ 13 ] This is what they do, but the glasses are not found. Viewing that dawn is approaching, Ms. Murray offers to come back the next morning to continue to search for the glasses. Ms. Murray testifies that Mr. Unsal promptly responded that it would be useless to search any longer, that the glasses were gone and that all Ms.

Murray had to do was pay for a new pair. [ 14 ] Ms. Murray says that this further startled her. She began to sense that something was not right and that perhaps the Unsals were only trying to take advantage of her and the situation. [ 15 ] The next day, Ms. Murray does go back and she looks for the glasses again, to no avail. She buys some flowers and goes to the Unsals’ house. She says that Mr. and Mrs. Unsal are there. She says that she reiterates her offer to take Mrs. Unsal to the clinic. She asks Mrs. Unsal if she has taken pictures of her bruises.

The answer to the offer and the question is no. [ 16 ] She testifies that Mr. Unsal shows her two invoices dated June 15, 2013, for an eye exam and for the purchase of a new pair of eyeglasses, amounting to $482.71. Ms. Murray is growingly uncomfortable. She asks for a copy of the invoices and says that she will discuss this with her husband and get back to the Unsals. She also asks that original invoices be provided to her for the replacement of Mrs. Unsal’s t-shirt and bra. [ 17 ] She does not hear from the Unsals for another two weeks. Ms. Murray says that one night, she receives a phone call from Mr.

Unsal, as she is having a party at home with some friends for her birthday. She testifies that all Mr. Unsal wants is an answer, right there and then, as to whether she would pay for the glasses. She says that Mr. Unsal refuses that she call him back the next day in a more appropriate setting. The conversation ends abruptly. [ 18 ] On July 10, 2013, Mrs. Unsal sees a doctor. Although this doctor is not called to testify at trial, her notes are produced by Mrs. Unsal. In the

section entitled “ motifs de la consultation ” of this one-page report, the doctor writes “ unilingue turk. X2 sem, a eu attaque de 3 chiens ici à Mtrl. Besoin report avec marques de chiens et cicatrices Peur des chiens depuis ++ Ø surinfection Veut report pour rembourser lunettes et preuves des attaques ”. In the bottom

section of the report, the author indicates “ photos démontrent trace de égratignures ”. [ 19 ] Mrs. Unsal confirms that the incident left no scars or traces of bites or scratches on her body. ANALYSIS AND DISCUSSION [ 20 ] Mrs. Unsal’s action is predicated on the liability for the acts of an animal provided for by

article 1466 of the Civil Code of Quebec , which reads as follows: 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. [ 21 ] This

article establishes a presumption of liability. This presumption may only be rebutted by the proof of a superior force, of the fault of the victim or of the fault of another person [1] . [ 22 ] Here, Mrs. Unsal and Ms. Murray are the only witnesses of the incident of June 14, 2013. In this context, their testimonies are crucial. [ 23 ] The Court found Ms. Murray’s testimony very credible. In particular, her depiction of how Mrs. Unsal jumped on her back and talked about the wild dogs in Turkey was fraught with details which seem very hard to make up. [ 24 ] The Court considers that Ms.

Murray has demonstrated, on a balance of probabilities, that not only did Mrs. Unsal jump on her back because of her prior fear of dogs, but also that until she did, Mrs. Unsal was unharmed. [ 25 ] The Court considers that in acting this way, Mrs. Unsal provoked Ms. Murray’s dogs. Jumping on Ms. Murray’s back was not a normal or prudent behaviour, but rather an irrational and dangerous reaction triggered by Mrs. Unsal’s existing fear of dogs. It is clearly foreseeable that dogs seeing someone jump on their master’s back will react the way Ms. Murray’s did. [ 26 ] The Court finds that the damages which Mrs.

Unsal claims to have suffered were not caused by the dogs, but rather by her own fault. FOR THE FOREGOING REASONS, THE COURT: DISMISSES the action; CONDEMNS Nardane Unsal to pay the Court fees of $156.00 to Candice Murray.

__________________________________ VINCENZO PIAZZA, J.C.Q. Hearing date: July 15, 2015