Grace Staples - v. -, 2016 SKPC 179

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2016 SKPC 179 Date: December 22, 2016 File: SC#87 of 2016 Location: Saskatoon _____________________________________________________________________________ Between: Grace Staples - and - Naiying Xu Ms. Staples For the Plaintiff Ms. Xu For the Defendant ______________________________________________________________________________ JUDGMENT D.C. SCOTT, J ______________________________________________________________________________ Introduction [ 1 ] The plaintiff Grace Staples claims that her vehicle struck a dog belonging to the defendant Naiying Xu, while the

dog was running loose on a city street. She alleges the dog caused damage to the front passenger side of her vehicle in the amount of $1,384.98. SGI, her insurer, will cover the cost to repair the vehicle, except for the deductible in the amount of $700.00 which she claims from the defendant. [ 2 ] The defendant denies the dog was struck by or caused damage to Ms. Staples vehicle. Further, she brings a counterclaim against the plaintiff for damages equivalent to one day’s salary in the amount of $563.78, alleging that the plaintiff injured the defendant’s reputation by attending at her workplace.

She also claims $550.00 for lost rent, alleging the plaintiff’s repeated attendance at her home caused her tenant to move out. Background Grace Staples [ 3 ] Ms. Staples testified that she was driving northbound on Arlington Avenue in Saskatoon at approximately 6:00 p.m. on January 22, 2016 when she observed two large dogs running from the alley toward the street in front of her. One appeared to be a white German shepherd and the other a black and white Husky. Ms. Staples applied the brakes hard and sounded the horn, but heard three consecutive “thuds”, as she struck the white dog.

She stopped but both dogs ran off toward Hardy Crescent, appearing uninjured. [ 4 ] Ms. Staples was the sole occupant of the vehicle at the time of the accident. She said that one other driver, who had witnessed the accident, stopped briefly but Ms. Staples did not obtain her contact information. [ 5 ] She followed, hoping to ascertain the well-being of the dog. Ms. Staples located the dogs in the front yard of a residence on Hardy Crescent not far from the accident, according to her diagram (Exhibit P1). Three individuals were outside at the time and she spoke with one in particular, Mr. Zhu (Max) Zhang.

She informed the individuals that she had accidentally struck one of the dogs with her vehicle when they ran into the street. Mr. Zhang responded that “they do that all the time”. They checked over the dog and there were no apparent injuries. [ 6 ] It was not until she returned to her home that she noted the damage to her vehicle located on the front passenger side bumper. She immediately took a photograph of the damage. The photo (Exhibit P2) indicates it was taken on January 22, 2016 at 6:24 p.m. [ 7 ] Ms.

Staples returned to the Hardy Crescent residence the next day to check on the dog and to point out the damage to her vehicle. Once again, she spoke with Mr. Zhang. At that time, she asked for the dog owner’s name and contact information but Mr. Zhang declined to provide it to her. [ 8 ] Ms. Staples made several follow up attempts to ascertain the name of the dog owner and to contact her. Eventually, she was able to correspond with the dog owner by text, but the owner declined to provide her name. Ms. Staples sought the assistance of a police officer, who attended with her at the Hardy Crescent address.

She learned that the defendant Naiying Xu was the owner of the dog. Ms. Staples sent a registered letter to Ms. Xu which was unclaimed. The Canada Post record (Exhibit P11) shows attempted delivery on March 10 and 17; it was picked up by Ms. Xu on March 27. On March 17, 2016, she attended at Ms. Xu’s place of employment to serve her with a copy of the demand letter. John Salamon [ 9 ] Mr. Salamon, a close friend of Ms. Staples, testified they had met during the late afternoon on January 22 for a walk and left in separate vehicles. Later at her home, Ms.

Staples told him about the accident and showed him the damage to the vehicle. While Mr. Salamon did not make a habit of inspecting Ms. Staples’ vehicle, they saw each other regularly and often used her vehicle when going

out. He had not seen the damage on her vehicle until she pointed it out that evening. At that time, he observed loose pieces of body work which fell off easily to the touch. He agreed to accompany her when she decided to return to the Hardy Crescent residence the next day. They were concerned about the dog and asked if it had been to a veterinarian. He observed two dogs in wire crates in the house. Mr. Salamon and Ms. Staples were told that the owner of the dogs was away, but Mr. Zhang offered to contact the owner on their behalf. Zhu (Max) Zhang [ 10 ] Mr.

Zhang was the defendant’s tenant and one of the first people Ms. Staples encountered at the Hardy Crescent residence, shortly after the accident. He was at home on January 22 and was helping to look after the dogs. One of the roommates returned home with a friend, leaving the door open, thereby allowing the dogs to escape. They ran out to look for the dogs and saw the white dog return within one minute. Ms. Staples arrived at their home shortly thereafter and informed Mr. Zhang that her vehicle had struck the dog. She explained that she had seen two dogs running down the alley and Mr.

Zhang told her that they “do that all the time”. He testified that what he had meant is that they play in the alley when leashed, not that they run at large all of the time. [ 11 ] The defendant Ms. Xu had asked him to take care of the dogs, while she was in China, but he said he would not take full responsibility, so another roommate Ms. Wu also agreed to do so. He testified that the back yard at the Hardy Crescent residence was fenced and secure. [ 12 ] Mr. Zhang found no injuries on the dog, but she seemed sore. He took the dog to the veterinarian approximately one week after the incident happened. [ 13 ] Mr.

Zhang testified that he moved out of the defendant’s home at the end of February 2016 after giving 10 to 15 days’ notice to Ms. Xu. He testified there were a number of reasons for his leaving, including that he found a new job; he could not handle the noise from the dogs; he received texts from Ms. Staples regarding the incident; he had to deal with the police when they attended at the home with Ms. Staples; he would have to be a witness in relation to Ms. Staples’ claim. He said the whole incident caused him increased anxiety. Jeryl Olorenshaw [ 14 ] Mr.

Olorenshaw, a senior appraiser with SGI, testified on behalf of the plaintiff. He explained that the nature of the damage to Ms. Staples’ vehicle was consistent with the vehicle having struck an animal although he could not say this with certainty. There were no scratches, no horizontal lines and the damage was very low on the vehicle. He acknowledged that Ms. Staples could have struck something soft such as a snow bank.

The paint flaking on the right bumper led him to conclude the damage was recent. [ 15 ] He confirmed the SGI estimate Exhibit P4 disclosed the total cost to repair was $1,324.76, although he did not prepare the estimate nor did he do any independent investigation regarding the cause of the accident. Naiying (Candace) Xu [ 16 ] The defendant, Ms. Xu, acknowledged that she is the owner of two dogs, a white female German shepherd and a male Husky. She resides on Hardy Crescent with her dogs and at times up to four tenants. [ 17 ] Ms.

Xu testified that when she is at work, the dogs are kept in kennels in the house or under supervision in their fully fenced yard. Furthermore, she always puts her dogs on a leash when outside, in compliance with the city bylaw. [ 18 ] While she was in China in January 2016, she asked her tenant Ms. Wu to have primary responsibility for caring for her dogs on the understanding that all of the tenants would assist. [ 19 ] On January 23, 2016, Mr. Zhang messaged Ms. Xu that her dog had been hit by a car and that the driver was seeking

compensation for the damage to her vehicle. She was further informed that the dog had suffered no injuries, but she asked Mr. Zhang to take the dog to a veterinarian. He did so on January 27 and sent to Ms. Xu a copy of the doctor’s report, which stated that the dog appeared fine but was pregnant. On February 12, the dog ultimately delivered a litter of nine healthy puppies. [ 20 ] Ms. Xu returned to Saskatoon on January 31, 2016. She testified that on February 7 she was contacted by Ms. Staples about the incident. Because her first language is not English, she did not wish to deal directly with Ms.

Staples, but rather with someone in authority such as an insurer. [ 21 ] On March 17, 2016, Ms. Staples attended at Ms. Xu’s workplace to deliver the demand letter in relation to this matter. Ms. Staples waited for approximately one hour, while Ms. Xu dealt with customers after which the letter was provided to Ms. Xu. The defendant testified that a colleague asked about the situation and Ms. Xu felt forced to explain. She decided to cancel her appointments for the afternoon. Because she is paid by salary and commissions, she lost income. She believes her reputation was injured as a result of Ms.

Staples’ actions and has brought a counterclaim for damages. She admitted that she filed the counterclaim because she didn’t want the plaintiff to attend at her place of work again. [ 22 ] Ms. Xu testified that Mr. Zhang provided her with 10 days’ notice when he terminated his tenancy. She made attempts to find other tenants but was unable to do so until May. Issues 1. Did an accident occur between the plaintiff ’s vehicle and the defendant ’s dog, causing damage to the plaintiff ’s vehicle? 2. If so, did the plaintiff contribute to the cause of the accident? 3.

If the collision occurred, is the defendant liable for any damage that may have been caused by her dog? 4. Is the plaintiff liable for the defendant ’ s lost rental income and injury to her reputation? Analysis [ 23 ] Each party in this action has the burden of proving their claim on a balance of probabilities. This means that after hearing all of the evidence, the Court must be satisfied that it is more likely than not an accident occurred between the plaintiff’s vehicle and the defendant’s dog thereby causing damage to the vehicle and for which the plaintiff was not at fault.

Further, the Court must be satisfied that the defendant, as the dog’s owner, is liable for any damage caused by her dog. [ 24 ] The Court must also be satisfied that it is more likely than not the plaintiff’s conduct injured the defendant’s reputation and that the defendant is entitled to damages for any such injury. Finally, the Court must be satisfied that the defendant’s tenant moved out as a result of the plaintiff’s actions and that the defendant was unable to mitigate her loss. 1.

Did an accident occur between the plaintiff ’s vehicle and the defendant ’s dog, causing damage to the plaintiff ’s vehicle? [ 25 ] The plaintiff testified the defendant’s dogs were running unleashed near the street on which she was driving, until one ran into the vehicle’s path and was struck. The defendant disputes that an accident involving her dogs actually occurred. [ 26 ] I am satisfied that the car and the dog collided, as described by the plaintiff. Ms. Staples was a credible witness and her

account of the accident was consistent throughout. The testimony of Mr. Zhang supports Ms. Staples’ version of events. He acknowledged that at the time of day in question, Ms. Xu’s dogs had escaped from the front door and had run away for a short time before returning. Their home is within a short distance of where Ms. Staples says the accident occurred. [ 27 ] The damage to the vehicle, as set out in the SGI estimate (Exhibit P4) supports Ms. Staples’ testimony that the dog was struck by the right front bumper.

The SGI appraiser testified that while he could not be completely certain that the damage arose from a collision with a dog, the nature and location of the damage to the bumper was consistent with a vehicle colliding or striking a dog. He acknowledged that he is not an accident reconstruction expert neither is he an adjuster, who is responsible for among other things, attempting to determine liability. Nonetheless, he has had considerable experience in appraising vehicular damage, including from accidents involving animals. His testimony provides some support for Ms. Staples’ claim. [ 28 ] Mr.

Salamon could not say with certainty that the damage was not present prior to the evening of January 22, 2016. However, he and Ms. Staples’ had regular contact and he took some responsibility for ensuring her vehicle was in good running order. They had been together earlier on the day in question and did not observe any damage to her vehicle at that time. Mr. Salamon’s testimony also provides some support for Ms. Staples’ claim. [ 29 ] The defendant argued her dog could not have been struck by Ms. Staples’ vehicle because the dog had not been injured.

She provided a calculation of force which would have been brought to bear on the dog, making certain assumptions regarding the weight of the dog, the weight and speed of the vehicle and the distance travelled. Based upon the assumptions set out in Exhibit D2, the defendant calculated the dog was struck with the force of 821.91 kilograms. The defendant argues that an animal struck with such force would have inevitably sustained injuries, but her dog appeared to have been unharmed and later gave birth to a healthy litter. [ 30 ] There is an insufficient evidentiary basis for the assumptions made by the defendant.

For example, the Court has no evidence of the actual weight of the plaintiff’s vehicle. Further, without expert testimony regarding the ultimate result of such an impact on an animal, the Court is unable to draw the same conclusion as the defendant. [ 31 ] The defendant also argued that the damage to the plaintiff’s vehicle was pre-existing. This would mean the damage occurred elsewhere but the plaintiff happened to see two dogs running loose and concocted a story to blame the defendant’s dogs. There is no evidence upon which I can conclude that to be the case. Ms.

Staples was concerned about the well-being of the dog. Had she intended to simply blame the dogs for pre-existing damage, it is more likely she would have raised the matter of the damage immediately after the accident, with Mr. Zhang and the others. Instead, the conversation was only about the dog. It wasn’t until later in the evening that she says she noticed the damage and took a photo immediately; the time noted on the photo bears this out.

She did not raise the matter of the damage to her vehicle until the next day. [ 32 ] Based upon all of the evidence, I conclude it is more likely than not that the plaintiff’s vehicle collided with the defendant’s dog causing damage to the vehicle’s bumper. 2. Did the plaintiff contribute to the cause of the accident? [ 33 ]

Section 206 of The Traffic Safety Act , SS 2004, c T-18.1 provides that a driver when approaching an animal visible on a roadway or close to the roadway so as to constitute a hazard shall reduce the vehicle’s speed and shall not pass the animal unless safe to do so, thereby establishing the duty of a driver. [ 34 ] According to Ms. Staples, just prior to the accident, she was accelerating from the three-way stop sign at Main Street onto Arlington Avenue. When she first observed two dogs “frolicking” near the alley approximately five to eight feet from the street, she took her foot off the gas.

She sounded the horn to alert the dogs and applied the brakes, but was unable to avoid striking one of them. Another car was approaching in the opposite lane, so she was unable to swerve into that lane. There was a snow bank on the side of the road along Arlington Avenue. Ms. Staples testified that she had very little time to react. [ 35 ] She estimated her speed to be 5 to 10 kilometres per hour at impact. The road conditions were good, but the events leading to the accident and the accident itself took only a few seconds.

[36] I find the accident was caused by the defendant’s dog running into the path of the plaintiff’s vehicle, and that it could nothave been avoided by the plaintiff. I accept that once Ms. Staples observed the dogs, she continued to pay attention to them, slowingdown, sounding the horn and applying the brakes. She did everything she could have done in the circumstances. The actions of the dogscould not have been predicted. Therefore, the plaintiff was not at fault and did not contribute to the cause of the accident. 3.

Is the defendant liable for the damage caused by her dog? [37] The plaintiff submits that the defendant is liable for damages caused by her dog, by virtue of being the dog’s owner. [38] There are two ways in which an individual might be held liable for damage caused by their dog—(1) the doctrine of scienter;or (2) the principles of negligence. Doctrine of Scienter [39] Under the doctrine of scienter, the keepers of dangerous animals are strictly liable for injuries and harm caused by them. Knowledge is the key element.

The plaintiff must prove that the animal was dangerous and that the keeper knew of the animal’sdangerous nature. A domesticated animal may have shown a propensity to cause damage. In those circumstances, the keeper will be strictly liable under the doctrine of scienter if they are aware of its propensity: Philip H.

Osborne, The Law of Torts, 4th ed (Toronto:Irwin Law, 2011). [40] Subsection 327(8) of The Cities Act, SS 2002, c C-11.1 provides that in an action brought to recover damages forinjuries to persons and property caused by an animal, it is not necessary to prove that the animal is, or that the owner of the animal knewthat the animal was of a dangerous or mischievous nature or accustomed to doing acts causing injury.

Section 380 of The MunicipalitiesAct, SS 2005, c M-36.1 provides the same. [41] As a result of these legislative provisions, in Saskatchewan it appears no longer necessary to prove knowledge of propensity:Donahue v Belitski, 2015 SKQB 47, 469 Sask R 156 [Donahue]; Kwok v Jennings, 2016 SKQB 170. [42] According to Donahue, “[l]iability [on the basis of scienter] has been made much stricter and basically will arise because ofthe fact that the animal has caused injury. There are a limited number of defences in such cases”: para 59.

I note in Porter v Joe, [1979]NSJ 648, (NSSC) [Porter] the Court concluded that in Nova Scotia the action of scienter has no application because of similarlegislation. [43] Often, the owner will be the person responsible and ultimately liable for the conduct of a dog. However, ownership is not thetest. Rather, it is the person or persons who exercise possession and control over the dog who will be liable: Bacon v Ryan (1995), (SK KB), 138 Sask R 297 (QB). [44] In the present case, it is not necessary for Ms. Staples to establish that Ms. Xu’s dogs had a propensity for running at largeonto the street.

It is sufficient merely to establish that they caused damage or injury, which Ms. Staples has done. However, it was notMs. Xu who was in charge of the dogs on January 22, 2016. Rather, she was out of the country and had left the dogs in the care andcharge of her tenants. They were the keepers of, and the individuals who exercised control over, the dogs at the time of the accident. The dogs escaped while under their control. Therefore, Ms. Xu cannot be held strictly liable for the dogs’ escape and the resultingdamage under the doctrine of scienter.

Negligence [45] The Court must also consider whether the defendant, as owner of the dog which caused damage to the plaintiff’s vehicle, isliable in negligence for that damage. The principles of negligence require proof that (1) the defendant owed a duty to the plaintiff; (2)the defendant breached a standard of care; and (3) the defendant caused foreseeable and proximate damage to the plaintiff.

[46] The City of Saskatoon, Animal Control Bylaw, 1999 [Bylaw No. 7860] provides for the control and regulation of inter alia,dogs. It prohibits owners from allowing dogs to run at large, except in off-leash areas. If a dog is at large, the owner is deemed to havepermitted the dog to be at large. The bylaw does not address civil liability; rather, it creates regulatory offences.

Such bylaws, howevermay be evidence of a duty and standard of care: R v Saskatchewan Wheat Pool, (SCC), [1983] 1 SCR 205 at 227-8,(SCC). [47] In Donahue, the Court addressed the issue of negligence when damage is caused by an animal, and stated as follows: 69 D.H.L.

Fridman in The Law of Torts in Canada, 3rd ed (Toronto: Thomson Reuters, 2010) at page 247 made the followingobservation in regard to bringing an action in negligence for harm done by an animal: ...It is always open to a plaintiff to prove that he was owed a duty of care by the defendant and that such duty of care was broken byreason of the way in which the defendant controlled, or failed to control, his animal.

Whether such a duty was owed, whether it wasbroken by reason of the acts or omissions of the defendant, are questions which fall to be determined in accordance with the normalprinciples of the law of negligence...However, it should be noted that, where negligence is involved, the plaintiff must establish that theharm he suffered was a foreseeable consequence of the alleged negligence of the defendant.

The defendant does not have to guardagainst “fantastic possibilities”, only against a “real risk”. [48] Therefore, the plaintiff must prove that she was owed a duty of care by the defendant; that the duty was breached by themanner in which the defendant failed to control her dogs; and that the damage was foreseeable. [49] In Weld v McMyn, (BC SC), [1972] 5 WWR 122 (BCSC) [Weld], the dog owner allowed their seven yearold son to have their unleashed, untrained dog accompany him as he walked to a friend’s place.

The owner’s dog suddenly leapt out infront of a motorcyclist, who hit the dog, causing him injuries and damage to the machine. The Court found no negligence on the part ofthe motorcyclist. Rather, the Court held that the “duty is to prevent escape or letting an animal run at large, when that escape is liable tolead to damages to persons lawfully on the highway”: para 12.

Because the dog owner allowed their dog to be at large on the highway,they were negligent and therefore liable. [50] In Walia v Favia, 2006 BCPC 669, the plaintiff dog owner was walking on paths next to a road in a forested area with herchildren and dog. The dog ran out onto the road and was hit by the defendant. The defendant counterclaimed for the amount of theirdeductible and judgment was granted in their favour. The Court relying on Weld decided that the plaintiff breached their duty byallowing the dog to be at large contrary to a city bylaw.

The defendant was driving in a normal fashion, keeping a proper lookout andhad started to brake when she saw the children, but did not see the dog until she hit it. There was no negligence found on the driver’spart. [51] In Porter, when a defendant dog owner’s daughter let the dogs off their leashes, one of the dogs ran onto a nearby road,causing an accident with a motorcyclist.

The Court cited Weld and held the dog owner owed a duty to the motorcyclist to keep the dogsunder control and the duty was breached with a foreseeable consequence being the accident. [52] In Economical Insurance Group v Grandy, 2004 NSSM 33, (NS Sm Cl Ct) [Grandy], the dog owner’s son wanted to leave thehouse to play and when he opened the door, their dog ran out onto the street hitting a vehicle and causing it damage. The dog ownernormally kept the dog leashed and under control.

The Court held the burden would be too high for pet owners to require their child toinform them each time they wished to leave the house so that the adult could physically restrain the dog. No negligence was found onthe part of the dog owner as latching the door was sufficient to discharge their duty. [53] In Wolfe v Dayton (1974), (BC SC), 55 DLR (3d) 552 (BCSC) [Wolfe], while the owner of horses was outof town, his friends were to come and let the horses out and care for them. When the friends arrived, they noticed the lock on the gateconfining the horses was open.

A vehicle on a nearby highway collided with one of the horses. There was no evidence as to how thehorses got out or that the lock was known to be faulty. The horse owner was not found to be negligent. [54] As stated in Weld, the duty owed by a dog owner is “to prevent escape or letting an animal run at large, when that escape isliable to lead to damages to persons lawfully on the highway”: para 12.

[ 55 ] It appears a dog owner will be found negligent if the owner allows the dog to run at large causing damage. In Walia , the dog owner was present and allowed the dogs to run off-leash. Further, an owner will be liable if the person to whom control has been delegated is not a responsible individual. In Weld , the owners were found to have been negligent where they turned over to a minor the control and responsibility for their dog. In Porter , the owner who allowed his daughter and a younger friend to take the dog, knowing they would let it run at large, was found liable.

However, if the owner takes sufficient steps to control the animal, they will not be held negligent. In Grandy , the steps taken by the dog owner to latch the door were sufficient to discharge his duty; he was not liable for the actions of his young child, who left the door open allowing the dog to scape.

In Wolfe , the owner who left friends in charge of his horses was not found to be negligent, because there was nothing to suggest the owner had not taken appropriate steps to secure the horses. [ 56 ] In the present case, the dogs were not in the care of the defendant and she did not have control over them at the time of the accident. The question, then, is whether the defendant was negligent by leaving the dogs with her adult tenants for an extended period of time while she was out of the country. There were four tenants living in the home during the defendant’s absence.

She arranged for the tenants to care for the dogs, with Ms. Wu having primary responsibility. The tenants would have been familiar with the dogs’ needs and propensities. The dogs remained in their home, where kennels and fencing were present. There appeared to be nothing about the arrangements which would have fallen below an acceptable standard for an absent dog owner.

The dogs escaped the home through the door when one of the tenants arrived with a friend. [ 57 ] By making the arrangements that she did, I find that the defendant took all reasonable steps to ensure that her dogs were properly controlled in her absence. She could not have done anything further to ensure the dogs would not run at large in the streets. She understood her obligation as a dog owner, as demonstrated by her having a fully fenced yard and two kennels within the premises. She testified when the dogs were walked, it was only on a leash. [ 58 ] Ms.

Xu delegated the responsibility for the dogs to four adults who resided in the home. They would have known the dogs and been aware of what was necessary to maintain control over them. [ 59 ] I find in all of the circumstances that while unfortunate, the chain of events that led to the accident could not have been prevented by the defendant. She did not knowingly allow the dogs to be at large on the streets nor did she fail to take reasonable steps to prevent this. As such, the defendant did not breach the duty owed to drivers on the streets.

She could not have done more to ensure the dogs would remain controlled while she was away. [ 60 ] I find the defendant was not negligent and therefore not liable for the actions of her dog that caused the accident with Ms. Staples’ vehicle. 4. Is the plaintiff liable for the defendant ’s lost rental income and injury to her reputation? [ 61 ] Ms. Xu testified that her tenant, Mr. Zhang, terminated his tenancy with only ten days ’ notice. He told her he “ couldn ’ t handle it anymore ” . He paid $500.00 per month in rent and moved out at the end of February 2016. Ms.

Xu attempted to find another tenant but it was difficult to find someone to take his place until May, 2016. [ 62 ] It is clear from Mr. Zhang’s testimony that there were many reasons for terminating his tenancy early. Further, Ms. Xu provided no evidence as to mitigation of her loss. I find the defendant has failed to prove this portion of her counterclaim. [ 63 ] Ms. Xu also testified that she suffered injury to her reputation at work because Ms. Staples attended at her workplace on one occasion to serve her with documents. Ms. Staples acknowledged that on March 17, 2016, she attended at Ms.

Xu’s workplace, after several failed attempts to serve Ms. Xu by registered mail. According to Ms. Staples, she was discreet, polite and apologized for bothering her. She testified Ms. Xu was also polite and friendly at the time. Ms. Xu’s testimony did not suggest otherwise. [ 64 ] The civil cause of action for a claim of “loss of reputation” in verbal form is the tort of slander.

Section 3 of The Small Claims Act , SS 1997, c S-50.11 expressly states that “this Act does not apply to a claim of...slander.”

[ 65 ] If Ms. Xu is contending that she suffered damages because she decided she could not work that afternoon, due to embarrassment caused by the plaintiff’s visit, this would not give rise to an action in slander, per se. This is a tenuous argument, however, in any event, no evidence was presented that her reputation at work suffered. She testified that she had to cancel her appointments following Ms. Staples’ appearance at her workplace, and because she is paid partially by commission, she lost income. No evidence was presented to support her contention.

She testified candidly that she only filed a counterclaim to discourage Ms. Staples from returning to her workplace in the future. I find the defendant has failed to establish this portion of her counterclaim. Conclusion [ 66 ] I have found that an accident occurred between the plaintiff’s vehicle and the defendant’s German shepherd dog, thereby causing damage. However, I have concluded that the defendant, in leaving her dogs with responsible adults while she was away, is not liable for the damage sustained by the plaintiff.

Therefore, I dismiss the plaintiff’s claim. [ 67 ] The defendant has failed to establish her counterclaim against the plaintiff for damages related to loss of reputation and loss of rent. I therefore dismiss her counterclaim. [ 68 ] There will be no order as to costs. _______________________ D.C. Scott, J