Full Case Name:  Xu Hong Xu, Claimant and Hong Yun Chen & Joel Michael Yates, Defendants

Subject: Property; Civil Practice and Procedure

Personal property.

Remedies.

Cases considered by N.N. Phillips Prov. J.:

Janota-Bzowska v. Lewis (1997), 96 B.C.A.C. 70, 155 W.A.C. 70, 43 B.C.L.R. (3d) 352, 1997 CarswellBC 1957 (B.C. C.A.) -- considered

Kokolsky v. Caine Fur Farms Ltd. (1963), [1963] S.C.R. 315, 45 W.W.R. 86, 39 D.L.R. (2d) 134, 1963 CarswellAlta 81 (S.C.C.) -- considered

Martin v. Lowe (1980), 1980 CarswellBC 17, 19 B.C.L.R. 46, 109 D.L.R. (3d) 133 (B.C. S.C.) -- considered

Weld v. McMyn (1972), [1972] 5 W.W.R. 122, 1972 CarswellBC 146, 28 D.L.R. (3d) 253 (B.C. S.C.) -- considered

Statutes considered:

Negligence Act, R.S.B.C. 1996, c. 333

s. 1 -- considered

N.N. Phillips Prov. J.:

Overview

1       Late in the evening of September 2, 2006, the Claimant's six-month old sheltie puppy, "Diamond", went outside to the front yard of the family home. As the Claimant and some house guests stood inside near the front door of the home, they heard the young dog shriek and ran outside to find another dog with the puppy. After chasing the other dog away, the Claimant and her friends determined the sheltie had suffered a serious limb injury and took the dog for treatment. In this law suit, the Claimant seeks to recover the veterinarian costs she incurred to treat the dog's injury against Defendants, the owners of the other dog.

2      The Defendants dispute the claim and say their dog was not responsible for the injury. The Defendants say it is unknown how the injury was sustained and there is no proof their dog, a border collie, was acting aggressively. If the Court finds the Defendants liable, they say the evidence should result in a finding that the Claimant was negligent and ask for an apportioning of liability as a result. The Defendants also say the claim for veterinarian fees is excessive and the Claimant failed to properly mitigate the damages involved.

The Evidence

3      The Claimant, Xu Hong Xu (hereinafter "Xu"), told the Court she had recently immigrated to Canada from China with her two children. At the time this incident occurred, she was living with her children in a home on West 24th Avenue in Vancouver. Xu said the front yard of the home could be accessed from the back yard and that the front yard was separated from the street by a hedge.

4      Xu told the Court she went with her friend, Lily Chiang to a kennel in August 2006 and each of them bought a sheltie puppy from a breeder. Xu provided the Court with a receipt dated August 13, 2006 showing she paid $856 dollars for the dog, which was born on February 15, 2006. At the time the incident involved in this claim occurred, the Claimant's family had the dog for nineteen days.

5      Xu testified the sheltie, which they named Diamond, was a very shy dog who, although very active, would not leave the family yard by himself. Xu agreed the dog was allowed to run around the back yard and that he was able to move from the back to the front yard while he was out. She said she had not seen Diamond provoke another dog nor had she been made aware by others that he had done so. She said the dog would typically be put outside to urinate before the family retired for the evening. The dog would sleep inside the home.

6      On the 2nd of September 2006, Xu told the Court she had a party at her home and that she had many guests around. She said when some of the last guests were getting ready to leave, Diamond was outside alone in the front yard when they heard a shriek through the partially opened front door.

7      Xu testified she went outside and saw Diamond laying on the ground in her front yard and another dog on top of her dog barking viciously. She described the other dog as a black dog about 2.5 to 3 feet in height. She identified a photograph of the Defendants' dog "Angus" as the dog who she saw overtop of her dog that evening. Xu agreed in cross-examination that she had not seen any physical contact between her dog and the other dog, but noted the other dog was standing, staring and barking at Diamond. She said the other dog later quietened down after the owner told it to stop barking.

8      Xu said the other dog had a white plastic 'thing' around its' head and the dog was not on a leash. She said the owner was not present when she first saw the dog.

9      Xu said she and her friends called out and that a person she identified as the defendant, Ms. Chen, and a young man came over. Xu said they told Chen her dog had injured Diamond and that Diamond's leg was possibly broken. Xu's testimony as to who said what during this discussion was not very clear. Xu said Chen told her "Angus" was a nice dog and that he "should not" bite another dog and she did not believe he had bitten Diamond. Xu recollected Chen said she was a doctor from China and that she did not think the dog's forelimb was broken. Chen left her name along with her cell and home phone numbers with Xu.

10      Xu told the Court that after Diamond was taken to a veterinary clinic in the middle of the night she tried to call Chen to speak with her about what she had learned but was unable to reach her. Xu said Chen called her back around noon the following day and Xu told her the dog's injuries were very serious and the overnight veterinary bill was $1600. Xu said Chen asked her how the bill could be so high and offered the name of another veterinarian but Xu realized the doctor worked at the same emergency clinic which had treated Diamond. Xu said Chen told her she was a low income person and that she did not have that much money. Xu said Chen did not pay her for the veterinary care nor did she say she was sorry for what had happened at any time. Xu said afterward she had been unable to contact Chen as she continued to take Diamond for treatment.

11      Two guests who were at Xu's party the night of the incident testified on behalf of Xu at this trial. Lily Chiang (hereinafter "Chiang") told the Court she and her husband were at the party and were getting ready to leave around 11:30 pm. Chiang said Xu had let Diamond out alone to urinate and that the adults were standing inside near the front door. She said they heard the dog screaming and that they rushed out, with Chiang in the lead.

12      Chiang said as she got outside she saw a big black and white dog, off leash, biting Diamond. She said Diamond was standing and the other dog was on top biting him. Chiang said she shouted out and the other dog went away. Chiang said the dog attacking Diamond was approximately double the size of Diamond. She said she could not see the owner of the attacking dog around at this point.

13      Chiang said she then noticed Diamond had the use of only three legs and she went to see what his condition was. When she examined the dog, she quickly concluded a limb appeared to be broken. She told the Court it was only after she found out the dog appeared to have a fracture that Xu's friend, Morimoto, tried to find out who owned the other dog.

14      Chiang said the owner of the other dog, Ms. Chen, came by about a minute later. Chiang thought she was holding Diamond as Chen came upon the scene. As they spoke, Chiang said Chen claimed her dog was a very nice dog and would never bite.

15      Chiang said the owner tried to reassure Xu and her friends there was no problem but left her name and phone number in case there was. Chiang said there was a young man with Chen and that he had the dog when Chen was speaking with Xu and the others.

16      When asked whether the dog she witnessed biting Diamond had a cone on its head, Chiang said it did not. However, when the Mandarin interpreter asked to clarify and repeat the question, Chiang said at the moment the dog was biting Diamond she did not notice a cone but did so when the dog came back a short time later and said it was quite obvious. She reiterated when she saw the biting she did not see anything like a cone.

17      Angus Morimoto (hereinafter "Morimoto") told the Court he too had been at Xu's party and was at the front door ready to leave around 11:30 pm when he heard Xu's dog scream. Morimoto said he had been interacting with Xu's dog while at the party. He said he went out immediately but thought Chiang went out first. Morimoto said he saw a big black dog on top of Diamond and that Diamond was screaming continuously. He said he made a sound and the other dog ran away.

18      Morimoto described the other dog as a big black dog and said that he was right on top of Diamond biting. He said the other dog was not wearing anything and said it was very big and it was black and that it looked scary to him. He said Diamond was about three meters from the front door of the house when he first saw him. Morimoto said he tried to chase the dog away and the dog ran out of the front yard, through an opening on the right side of the property. He said the dog was not on a leash and the dog looked at him and growled at him a bit as he chased it away.

19      Morimoto said as he chased the dog out of the yard he ran to someone who was calling the dog and identified this person in the courtroom as the Defendant Chen. He denied the suggestion that he had only gone to try to find the owner of the other dog after first checking on Diamond. He agreed in cross- examination that the other dog was all black or dark brown in colour. He said there was only one other dog out there that night in addition to Diamond and that was Chen's dog.

20      Morimoto said Diamond was a young dog and was very shy. He said although he did not know how long the dog had been in the front yard before he heard it scream, he thought it would been a very short period of time.

21      Morimoto said in addition to the woman who acknowledged owning the dog, she was with a young man who had control of the dog when he saw him. He conceded the dog with the young man had a cone over its' head but said he did not think the cone would stop the dog from attacking and he did not want to get close to the dog.

22      The Claimant called two City of Vancouver Animal Control Officers to testify at this hearing. Officer Figol told the Court she happened to be on patrol sometime after the incident in question when she heard a dog barking from within a home. She checked on the home and determined there was no dog license associated with the home. Figol knocked on the door and was allowed inside where she spoke to two women (one of whom was presumably the Claimant). She explained the requirement for a dog to be licensed and then sold a license for the dog in the home.

23      Figol testified that while at the home she noticed the dog was injured and made inquiries and learned from the women that the dog had been "attacked" and injured. The women told her they had been provided with the name and number of the owner of the other dog involved in this incident. It was not disputed at trial that the name and number information was that which the Defendant Chen provided to the Claimant at the home the night of the incident in question.

24      Figol said she returned to her office and made inquiries about the other dog. She learned the other dog had been adopted in October 2004 from their shelter and the file showed there had been a previous complaint of aggression relating to the dog on March 23, 2006. Figol testified she had in fact been involved investigating the previous matter and had been dispatched to attend to a complaint about a dog to 2271 West 21st Avenue in Vancouver. The dispatch information described the dog in question as a large dog which had run out of 2711 West 21st Avenue and lunged at the complainant's German shepherd.

25      Figol said she went to the address associated with the dog about two hours after the March 23, 2006 complaint was received but there was no answer at the door and no dog was around. Figol testified she left a notice of the complaint and a reminder to ensure there was compliance with the by-laws. A request for the home owner to call was not attended to. Figol later left a voice mail at the same number but again did not receive a response. Figol agreed she had no personal knowledge of the March 23rd incident and could not comment on the veracity of the complaint made.

26      Officer Nelson also testified for the Claimant. She said she was asked to go to the Defendants' home in the fall of 2006 and seize their dog Angus as a result of Officer Figol's investigation regarding "Diamond". Nelson agreed that when she seized the dog from the Defendants' home, Angus was friendly, even when a postal worker came along.

27      At the shelter, the City conducted an assessment of Angus in terms of his propensity for aggression and other things. Although Nelson was not the staff member who conducted the assessment, she was present at the time the assessment was carried out. Nelson agreed the kennel had found Angus easy to manage and friendly with a number of other dogs at the kennel. Angus was also said to have manners that would make him a good pet in the average home. She agreed that during the assessment she observed no behaviour by Angus of the sort to lead her to think Angus was an aggressive dog. Nelson also agreed that the assessment for Angus was conducted on the assumption he had been the one who had caused the injury to the Claimant's dog. Nelson testified that in her experience dogs who have killed and maimed sometimes will show no signs of aggression in testing. She said that with some dogs you can tell aggression by testing and with others you cannot.

28      Ms. Chen gave evidence in defence of the allegations brought against her by Xu. She testified she had no memory of getting the written notice from Officer Figol about her dog. In terms of mail posted to the home, she said the practice would be for whoever was home first to get the mail As for receiving a voice mail from Officer Figol, Chen said although her family had a voice mail system at home, she could not remember if she heard anything like "that". She said the voice mail could be checked by herself as well as her husband and children.

29      Chen told the Court she had no knowledge of Angus having been involved with other dogs in an aggressive way and said on the contrary she had only known Angus to be very smart and gentle. She said Angus had been around other dogs, including at "off leash" parks and she had never known him to be aggressive to them.

30      When questioned about Figol conducting a "bite canvass" of her neighbours following the complaint about Angus (and the comment made by a man who claimed Chen let her dog run across the street at someone and said Chen had no control), Chen said the man obviously hates Chinese and was racist. She said the incident in question involved Angus just walking a couple of steps toward the neighbour, that was all. She said the man demanded she keep Angus beside her at all times (when out) and said he obviously hates dogs, pointing out that they did not have problems with anyone else in the neighbourhood.

31      Chen also testified that after the family brought Angus into their home they hired a dog trainer to train him and said he obeys well and will not do something he is told not to do. She said when they got the dog from the SPCA, the staff told them Angus had never shown any violent behaviour.

32      On the night of the incident, Chen said Angus was wearing a protective cone around his head to prevent him from getting at sore spots on his hind quarters. She said she had been told by a vet about two or three weeks earlier to use the cone to stop the dog from licking the sore area. Chen said Angus could eat while wearing the cone, but that he would have to put his head straight down to do so. Chen agreed Angus could access a bone with the cone on. A photo of the dog eating while wearing the cone demonstrated this process clearly. Chen thought it would not be possible for Angus to have caused the injury to Diamond with the cone in place. Chen also suggested Diamond had been left alone out front of Xu's home for a long time and that he might have been injured by another dog (and that Angus had possibly chased the other dog away).

33      The photographs of Angus also show he is a large border collie with black and white markings. Chen told the Court Angus weighs about 70 pounds and that he is about a meter in length. She said Diamond was about half as long as Angus.

34      Chen told the Court the practice in her family was to walk Angus twice a day and that she and her home study student, Jonathan, were out around midnight on September 2, 2006 walking the dog. She said her home study student had just arrived from China and they were going on a walk so he could see his new high school in the area. The walk route was somewhat different than Chen's usual one.

35      Chen testified Angus was not on a leash the night in question and that she would often not leash her dog when he was walked late at night as it was quiet, without a lot of other dogs around, and Angus would always come when called anyway. She said Angus was out of her sight for about one minute when she heard a scream. She called Angus and he came right away and she moved toward the area of the scream. The evidence was clear the area in question was right in front of the Claimant's front yard.

36      When Angus came to Chen, she said he still had the large cone around his head and that it could be seen in the lighting in the area. She said there was no blood on Angus' mouth. Chen described seeing other people out front of Xu's home, including Xu herself. She also said she saw Diamond and he was limping. With her background in China as a medical doctor, Chen offered to examine Diamond. She said she did not see a wound or any blood on the leg he was favouring but she noticed a small amount of blood on his chin. She said she did not find any bite wounds on the lame paw. Chen agreed she had left her name and number with Xu before she walked home that night.

37      When questioned about whether she agreed the night of the incident with the accusation made by the people at the Xu home that her dog attacked Diamond, Chen said she might have agreed given it is not in her nature to question others. She said it was only after she got home later that night and spoke with her husband did she realize her dog might not have been the aggressor. She did not think Angus would do such a thing given his past behaviour. She also thought the cone would make it difficult for Angus to have done what he was accused of doing.

38      The Defendant, Joel Yates, Chen's husband, also testified at this trial. He told the Court that when the family adopted Angus from the SPCA they had been assured the dog was friendly. He testified Angus was walked a lot and that he would be taken to dog "off leash" parks frequently. Yates told the Court that at these parks Angus would have lots of opportunity to interact with other dogs and he had never seen Angus to be aggressive and said he was a "wimp". Yates testified he would be the first to approve putting a dog down if it attacked another dog or a person as he believes there is no place for aggressive dogs on the street.

39      When asked about the complaint of a neighbour relating to Angus, Yates said his wife had told him about this and said Angus was on a leash and under control, but that he had not been there at the time.

40      Yates said he would always walk Angus on a leash; however, when Chen made a gesture in the courtroom at his direction, he added: "unless I do not remember". Yates testified Angus was very well-trained although he said the family had only arranged for a one-day Frisbee training session for the dog since they had adopted him.

41      Yates described the cone around Angus' neck as being utilized to allow "hot spots" (likely from the use of detergent when he had been groomed in the two or three weeks before the incident) to heal. He described the cone as being really wide and as catching the light (at night). He said the white colouring around the dog's head and neck was enhanced by the translucent appearance of the cone.

42      When asked whether he recalled receiving any notification from the City about Angus in March of 2006, Yates testified he had received neither a mail or phone notice and that they had never received an Animal Control complaint about Angus. Yates said anyone in their home could access the mail but only he and his wife had the password to access their voice mail.

43      The student who had been out on the walk on the evening this incident happened also testified for the Defendants. Jonathan Chen said at the time the incident happened he had been living with the Defendants for almost a year and he knew Angus well. Chen said he had seen Angus around other dogs and said he was friendly and gave him no reason to believe he would attack another dog.

44      The student said on the night in question he had been out walking Angus with Ms. Chen and that Angus was out of their sight for about ten to twenty seconds. He said they called the dog and he came immediately from across the street. He said Ms. Chen asked him to leash the dog. He recalled Angus was wearing a plastic cone. He said he waited with Angus on a sidewalk in front of Xu's home and that Ms. Chen went to see a man who said something about a dog bite. The young man testified that the other dog walked around while he waited with Angus and no one cared about the young dog and Ms. Chen asked to look at it.

45      Finally, the Defendant called a church friend, Ms. Xhi, to testify at trial. She told the Court she had watched Angus while he was present at their church and said he was very gentle and well-trained. Xhi also said she knew Xu had a dog named Diamond and that he was a sheltie, the same breed she had owned herself in China. Ms. Xhi's evidence was that sometime after the incident in question she had occasion to be inside Xu's home and had seen a totally different dog than Diamond. She said one of the children who had let her into the home said they had a new dog now. She said the child told her they had sent the older dog away.

Veterinary Treatment (Damages)

46      On the night Diamond was injured, after he was examined by Xu and her houseguests, a decision was made by Xu that the dog's injuries required immediate treatment. After a friend located an emergency veterinary clinic opened during the night, Xu and some friends drove the dog for assessment and examination.

47      Xu told the Court the emergency clinic determined the dog's right forepaw was broken and the dog needed to stay at the clinic overnight. Xu was required to pay a $1600 deposit against the estimated cost of the treatment. The following day Xu had further dealings with the clinic and was told the dog would need surgery. Xu was subsequently billed $1599.70 for the emergency clinic (the deposited amount).

48      Xu testified she took Diamond for surgery in the days following the injury and that she dealt with Dr. Lau, a veterinarian. Xu told the Court she does not understand much English and was able to communicate with Dr. Lau in Mandarin. She said she asked Dr. Lau to be responsible for follow-up care because of the Mandarin speaking connection.

49      The dog was then taken for treatment to Pacific Spirit Veterinary Surgery Ltd. A Consultation/Surgery Report from Dr. Levitt at this facility was provided to the Court. The report sets out the following:

1. Diamond was bitten on the right forelimb by a larger dog three days ago, resulting in a fracture of the right radius/ulna. Radiographs reveal a transverse, midshaft radius/ulna fracture with mild displacement; referred for fracture repair.

2. ...small lateral puncture wound overlying palpable fracture;...

3. Right, midshaft, transverse, radius/ulna fracture - secondary to bite wound...

  . . .  

5. Post-op Recommendations:

  . . .  

• house confinement for 4 weeks, followed by exercise limited to leash walks only for an additional 8 weeks (i.e. no running, jumping, or off leash activity allowed for minimum 12 weeks post-surgery).

•   . . .  

• Recommend implant removal at time of radiographic evidence of clinical union (approximately 4 -6 months). Bone plates are removed to avoid lameness associated with cold weather, prevent stress protection and osteoporosis, and reduce the risk of developing implant-associated sarcomas.

50      A letter from Dr. Chartrand, undated, to Xu's counsel states: "The wounds described are consistent with a history of a dog bite."

51      In a report prepared by Dr. Brondwin from the Arbutus West Animal Clinic on March 7th, 2007, the following opinion was offered about Diamond's recovery:

The last time Diamond was examined in this office was November 8, 2006. It was concluded at that visit that his lameness was due to excessive use of the previously injured leg. The instructions were rest, confinement, and restriction of activity by walking Diamond on leash. Since I have not had any other exams after that date I cannot say that I know what needs to be done next.

Concerning the plate in his leg there are 2 options either the plate stays there permanently or it is removed. An x-ray would show if screws have loosened. If it is not clear an orthopedic surgeon can be consulted to decide what the best course of action is.

52      Xu testified she decided to have the plate removed from Diamond's forelimb to avoid the possibility of the dog becoming lame. She agreed the option existed to simply leave the plate in place but said she valued the protection of the family pet and felt the $3000 cost for the plate removal was appropriate for the pet.

53      Xu said it took a total of about seven months for the dog to recover from the injuries sustained on September 2, 2006. The total costs the Claimant sought for the treatment of Diamond was $13,897.77. Xu told the Court the dog still has problems walking and needs to go back to the veterinarian for rehabilitation.

54      Xu said she followed the rehabilitation advice of the veterinarians including purchasing food from the veterinarian clinics due to concerns about Diamond having difficulty eating and taking medication with his regular food following the injury. When asked about the dog's recovery being negatively impacted by allowing him to be more active than the veterinarian recommended, Xu stated it was difficult to keep the young dog under constant control while he was recuperating.

55      The veterinary costs can be summarized as follows:

1. September 3, 2006 -- overnight emergency care at Vancouver Animal Emergency Clinic on West Fourth A venue = $1599.40.

2. Animal Emergency Clinic (surgery) -- Langley. September 6-7, 2006 = $2605.48.

3. All About Pet Clinic (post-op care) - Langley, September 10, 2006 ($1004.33 + $84.80) = $1089.13. [The Claimant sought to recover an invoice for $3609.81 and the invoice for $84.80. However, the evidence shows the $2605.48 amount in item 2 above was included in the $3609.81 total. If successful at trial, only the difference of $1089.13 can be allowed.]

4. Arbutus West Animal Clinic -West 16th Avenue in Vancouver. (September 25, 27, & 29, October 2, November 7 & 8, 2006.) Total rehabilitation cost = $497.91.

5. Animal Emergency Clinic -- Langley. April 16, 2007 -- surgery to remove plate = $1473.00.

Total Cost = $7264.92.

56      Xu also claimed $5500 for the future medical care costs of Diamond. Xu told the Court that as of February 2008 she still had the dog. In her rebuttal evidence, Xu testified that as of November 2007, Diamond was living with her boyfriend's mother but said she was still paying for the dog's care.

The Law

57      The British Columbia Court of Appeal considered the law in this Province relating to dog bites in Janota-Bzowska v. Lewis, [1997] B.C.J. No. 2053 (B.C. C.A.)(@ paragraphs 17-20):

Cases decided after the repeal of the Animals Act confirm that the onus of establishing propensity once again rests with the plaintiff. For example, in Halliday v. Mahony, [1991] B.C.J. No. 2356 (B.C.S.C.), Mr. Justice Owen-Flood concluded that:

I find that the onus to establish what is termed scienter is, at common law, on the plaintiff and not on the defendants at any event. The decision of the British Columbia Court of Appeal in Kirk v. Trerise, has been cited ... McFarlane J.A. was giving judgment under the Animals Act and specifically s. 20 of that Act was in force. Section 20 of that Act which created the reverse onus, putting the onus on the defendants to prove that they did not know or have the means of knowledge that the animal was or is of a vicious or mischievous nature, or is accustomed to do acts causing injury.... The Animals Act was repealed with effect from 20th of February, 1981, and replaced by the Livestock Act. Dogs do not come under the definition of livestock in that Act.

Mr. Justice Owen-Flood then concluded that the common law as it stood prior to the Animals Act was again applicable and the onus was again on the plaintiff to demonstrate propensity. (See also Kerby v. Visco, [1994] B.C.J. No. 933.)

In another more recent British Columbia decision, Woods v. Standish (1991), 58 B.C.L.R. (2d) 307 (B.C.S.C.), the Court summed up the essence of the doctrine of scienter at p.306:

In short the adage that "every dog is entitled to one bite" seems to sum up the law reasonably accurately.

While the adage quoted in the Woods decision may be a reasonably accurate statement of the law it should be pointed out that a dog need not have caused the specific type of harm on a prior occasion for the doctrine to apply. It would be enough if the owner knew that the dog had a propensity or manifested a trait to do that kind of harm even if it had not actually caused that particular harm. This point is clearly made in Sparvier v. MacMillan, [1990] S.J. No. 124 (Sask. Q.B.) where the Saskatchewan court, in discussing the common law doctrine of scienter, concluded that:

In proving scienter, it is not necessary that the animal had actually done the particular kind of harm on a previous occasion; it is sufficient if, to the defendant's knowledge, it had manifested a trait to do that type of harm.

See also Taller v. Goldenshtien (1992) 87 B.C.L.R. (2d) 249.

The law with respect to the doctrine of scienter is relatively clear. The owner of a dog which bites another will not be liable simply for being the owner. Liability will only attach under the doctrine if the three conditions set forth in the Neville decision have been satisfied. In other words, the plaintiff (not the defendant) must establish:

i) that the defendant was the owner of the dog;

ii) that the dog had manifested a propensity to cause the type of harm occasioned; and

iii) that the owner knew of that propensity. Some provinces now have legislation which modifies the common law doctrine of scienter but, since the repeal of the Animals Act in 1981, British Columbia does not and the common law applies untrammelled by statutory enactment.

58      The Court of Appeal (in Janota-Bxowska supra) went on to consider negligence as a ground for recovery (@ paragraph 23):

To succeed in an action based on negligence against Holtzman, the plaintiff must prove, on a balance of probabilities, that:

(a) Holtzman knew, or ought to have known, that Boomer was likely to create a risk of injury to third persons, including the plaintiff; and

(b) Holtzman failed to take reasonable care to prevent such injury. See: Draper v. Hodder, supra, at 217-219, and Shelvey v. Bicknell, [1994] B.C.J. No. 1170, (27 May 1994), Vancouver Registry, No. C923654 (B.C.S.C.), (1 May 1996), Vancouver Registry, No. CA019006 (B.C.C.A.), [1996] B.C.J. No. 1179, at 9.

59      In Weld v. McMyn, [1972] 5 W.W.R. 122 (B.C. S.C.), Ruttan, J. considered the impact of the existence of a by-law in a case relating to a dog causing an injury to a cyclist when the dog darted onto a highway. In the Weld case, the Plaintiff did "not rely upon the bylaw as creating statutory negligence but as further evidence of the special duty of care which exists". Ruttan, J. considered the Supreme Court of Canada's decision in Kokolsky v. Caine Fur Farms Ltd. (1963), 45 W.W.R. 86 (S.C.C.) wherein Martland, J. stated (@ pages 88-89):

In the first place, it should be noted that the appellants did not have the right to let their dog run at large. This was expressly forbidden by the provisions of the bylaw previously quoted...

I do not find it necessary to determine whether or not an absolute statutory liability was imposed upon the appellants by either or both of these provisions, so as to entitle the respondent, on establishing a breach thereof and damage to himself, to succeed in a claim for damages. Put at their lowest, however, these provisions are of significance in establishing that the appellants did not have any legal right to permit their dog to un at large.

60      In Martin v. Lowe (1980), 19 B.C.L.R. 46 (B.C. S.C.) , Ruttan, J. had opportunity to review the law in the context of a St. Bernard who knocked down an elderly woman. In that case, there was no suggestion the dog was behaving in an unruly or vicious manner. The Court observed (@ paragraphs 13 and 14):

Liability in this case falls to be decided by the common law principles of negligence. The duty on the defendant was to take care that his property, be it animate or inanimate, was so under his control that it would not escape to do injury to persons properly and lawfully on the public way. Here the defendant's dog was not under leash and, as I find, was so out of control that he did not avoid the pedestrians on the sidewalk but ran right over one of them.

Liability is not created per se by the by-law, but the by-law is significant as further evidence of the duty of care which exists.

61      The City of Vancouver has enacted by-laws relating to animal control, a number of which are relevant to this dispute. By-law #9150 Sec. 4.1 provides:

Dogs Can Not Run At Large

A person who keeps a dog must not permit, suffer or allow the dog to run at large.

62      By-law #9150 Sec. 4.2 states:

Dogs Must Be On A Leash

A person who keeps a dog must not permit, suffer or allow the dog to be on any street or other public place unless the dog is under the immediate charge or control of a person by means of a leash that is not more than 2.5 meters long.

63      By-law #9150 Sec. 1.2 deals with "aggressive dogs" and provides the following definition:

"Aggressive Dog" means:

a) any dog with a known propensity, tendency or disposition to attack without provocation any domestic animal or human, or

b) a dog which has bitten another domestic animal or human without provocation.

64      By-law #9150 Sec. 4.3 states:

In addition to complying to section 4.2, a person who keeps an aggressive dog must at all times have the dog muzzled while off its property to prevent it from biting another animal or person.

65      Finally, the Defendants argued in this case that if the Court found Angus caused the injuries to Diamond, there should be a finding that the Claimant contributed to the event and should be held liable in part. Section 1 of the Negligence Act, RSBC 1996, ch. 333, states the following:

(1) If by the fault of 2 or more persons damage or loss is caused to one or more of them, the liability to make good the damage or loss is in proportion to the degree to which each person was at fault.

(2) Despite subsection (1), if, having regard to all the circumstances of the case, it is not possible to establish different degrees of fault, the liability must be apportioned equally.

(3) Nothing in this section operates to make a person liable for damage or loss to which the person's fault has not contributed.

Analysis

Credibility and Reliability

66      For the most part, I found Xu to have been a fairly careful and candid witness as she testified about the events of the evening of September 2, 2006. On some collateral matters, I found Xu to have been somewhat unclear in her evidence and noted at times she tried to portray herself in a positive light. For example, Xu told the Court Diamond was unlicensed when this incident occurred but said she was in the process of obtaining a license and said it took a few months to get one. Officer Figol sold Xu a license when she dropped by the home while the dog was recuperating. It was clear from the Officer's testimony that the process of obtaining a license does not take any time at all, it is a simple and rapid process.

67      Nonetheless, if I had concerns regarding the testimony of Xu, it was primarily in relation to her reliability and not with her credibility. It was clear from her testimony that often what she relayed to the Court was based on what she had pieced together from speaking with others after the event. She also frequently answered a question that required a pointed answer as to what had happened by saying "it should have happened like X". This might simply be an unusual turn of phrase, but it left the Court with a fair degree of uncertainty as to what exactly she saw and was thus capable of reliably conveying to the Court.

68      However, I found the witnesses Chiang and Morimoto, called in support of the Claimant's case, to be credible and reliable. Although they were clearly friend's of the Claimant, the testimony they gave appeared to be based on their own independent recall of the events. It did not appear as if either witness collaborated with each other or with Xu. They carefully described the attack of Angus on Diamond and were unshaken in cross-examination as to what they observed. I accept their testimony.

69      Turning to the Defence witnesses, I did not find Ms. Chen particularly credible. It appeared she had rehearsed her evidence ahead of time and came across as having an agenda to cover in relaying her version of the event. The contradictory evidence she offered in comparison with that of her husband on straight-forward matters (such as what training Angus had received and who could access their voice mail) was problematic. I find that Chen told the Court everyone in her home could access the voice mail (when her husband said only the two of them could) so to try to convince the Court it was unlikely she had received the message of the Animal Control Officer.

70      Despite repeated admonishing by the Court, Chen made frequent gestures to her own witnesses to try to get them to give answers in a certain way. The testimony of witnesses Jonathan Chen and Ms. Xhi must be treated cautiously. There were troubling inconsistencies with the evidence of Chen and that of her home study student. The young man told the Court he had already lived with the Defendant family for about a year when the incident occurred (and thus knew the dog Angus well). But the Defendant Ms. Chen said Jonathan had only just arrived and that was why they were going to walk past his new school the night this attack occurred.

71      There were significant problems with Ms. Chen's testimony itself. Chen told the Court she had medical training in China and yet she was the only one at the home the night in question who took the position Diamond's leg was not broken. All of the lay people at the Xu home quickly and accurately assessed the dog as having sustained a broken limb. Chen was obviously trying to minimize the extent of Diamond's injuries when it was apparent to everyone who saw the dog what the scope of the injury was.

72      The evidence was clear that while at the Claimant's home immediately following the incident, Chen was prepared to acknowledge the involvement of Angus. She told the Court she later realized Angus could not have been the aggressor but I found her explanation for changing her opinion self-serving and unpersuasive.

Was Angus the dog seen with Diamond that night?

73      The first question to be resolved in reaching a determination on liability is whether Angus was the dog Xu and her friends saw around Diamond when they heard the puppy shriek outside of the home. The Claimant and her witnesses had different vantage points to observe what was happening to Diamond immediately upon exiting Xu's home. The second dog in the area was described as a large black or black and white dog.

74      Xu testified she came outside and saw a large dog with a cone around its head standing overtop of Diamond. Chiang said she was the first out Xu's front door and saw a large dog biting Diamond. Morimoto said he saw the dogs near Xu's front door and also saw the large dog biting Diamond. He followed the large dog, who growled at him as he did so, away from the yard and directly to the Defendant Chen. When Chen came into Xu's yard she did not suggest any other dog was involved and offered up her name and phone number.

75      None of the witnesses at trial gave any evidence to suggest there was another dog around Diamond at the time of the injury. It would be speculative to conclude that another dog might have been involved. I find the evidence establishes Angus was the dog present when Diamond was injured.

Did Angus Attack Diamond?

76      Having found Angus was in the immediate vicinity of Diamond, the question that must be answered next is whether Angus caused the injury to the puppy. Chiang and Morimoto both testified they actually saw Angus in the midst of biting Diamond. I must be cautious with Chiang's evidence as she said she did not see a cone around the head of the dog she saw biting Diamond. The evidence was clear that Angus had a prominent plastic cone around his head. The Claimant saw Angus standing overtop of Diamond, immediately after the young dog shrieked.

77      The eye-witness testimony combined with the medical evidence establishing that the injury was consistent with having been caused by a bite (and the presence of a puncture wound) leads me to conclude sufficient evidence has been presented to find Angus bit Diamond thereby causing the injury complained of.

Scienter

78      Having found that Angus bit Diamond and thereby caused the injuries in question, the Court must then determine whether the evidence establishes the Defendants were aware Angus had acted aggressively with other dogs before, or that he had the propensity to do so.

79      The evidence of the Animal Control Officers suggested a complaint had been received in March 2006 involving Angus lunging at a passing dog. The Claimant did not call the person who made the complaint to describe the incident itself or to offer any details as to where the lunging occurred and why it was thought Angus was the dog involved. Consequently, I need to be cautious regarding the complaint of lunging.

80      Although Officer Figol attempted to speak with the Defendants about the March 2006 complaint, that did not occur. I have carefully examined the testimony of Chen on this issue. She testified she could not recall receiving a written notice from the Officer about Angus but she did not deny such a notice might have been left for the family. She said she could not remember if she had heard anything like that over her voice mail. Chen wanted the Court to believe anyone in her home could have accessed the voice mail. However, the evidence of her husband was clear that only he and his wife could access the voice mail. I find it improbable that Ms. Chen both failed to get the written notice left at her home and the Officer's voice mail.

81      I find that she likely received the voice mail message or the written notice and I do not believe her denial. That Chen spoke with her husband about a neighbour's complaint makes clear she was alive to a concern about her dog, even if she disagreed with it.

82      Accordingly, I find the evidence established Chen had been made aware of problematic behaviour by Angus prior to the September 2, 2006 incident with Diamond. She had received notification, either in writing or by phone, from the Animal Control Officer for the City as well as having received a complaint from a neighbour who was troubled by the dog's behaviour. Although Chen might have disagreed with her neighbour, she could not simply disregard the by-law officer's notification and carry on without taking appropriate precautions when out with her dog. At the very least, Chen should have made inquiries with the officer and clarified and addressed the concerns about her dog. Having failed to attend to these complaints, she cannot now simply say she had never been warned about the problematic behaviour of her dog.

83      On the basis of this finding, I conclude the Defendants had been made aware their dog had manifested a trait to do the type of harm it caused on September 2, 2006 when it went after the Claimant's young dog. The Claimant has established, on a balance of probabilities, that Angus had manifested a propensity to cause the type of harm occasioned that night. They are liable on the basis of the doctrine of scienter.

Negligence

84       Alternatively, I need to consider whether, on the evidence herein, Chen or Yates acted negligently. In that regard, Chen knew her dog had apparently acted in a way so to cause the Animal Control Officers to contact her in March 2006. Additionally, a neighbour of hers had apparently spoken to her about the behaviour of Angus. Her husband and her study student both felt it necessary to walk Angus on a leash; only Chen was prepared to take a chance and walk the dog off leash.

85      Chen knew or ought to have known that her dog might act aggressively to other dogs when he was outside and there was a risk of injury to other dogs if he did so. Chen was walking the dog the night in question having been made aware that there was a problem with the aggressive behaviour of her dog relative to other dogs. By walking the dog off leash, Chen failed to take reasonable care to prevent against the risk of which she had been warned.

86      Given what Chen knew about Angus, I find that the dog's conduct the night in question, when she walked him off leash, was neither unexpected nor out of character. Angus had a known propensity which Chen failed to take reasonable precautions against. The simple common place use of a leash, something required under City By-laws, was not followed by her. I find her negligent for this conduct and hold the Defendant owners liable for the injuries their dog caused to the Claimant's dog.

Contributory Negligence

87      I find that by leaving a young dog alone in her unfenced yard in the dark, Ms. Xu failed to properly attend to her dog. Had she or some other adult been out with the puppy, Angus might not have approached or acted aggressively. The unfenced yard made it possible for other animals to easily make contact with Diamond. Accordingly, I find Xu to be 25% liable for the incident.

Damages

88      Xu had just taken Diamond into her care nineteen days before this incident. She spent a large amount of money on veterinary costs for the injured dog perhaps assuming the Defendants would simply have to pay for the expenses. Xu testified the dog was an important member of her family and helped to protect the family in the absence of a husband/father. In relation to the treatment of the dog, Xu's testimony was that the dog was so important that the best veterinary care would have to be utilized ("because if it is your child, you will use your best option").

89      The veterinary evidence raises the concern that Xu did not effectively restrain Diamond during his period of recuperation and the dog's injuries took longer to heal as a result. Additionally, the veterinary evidence suggested that a significant cost incurred at the end of the long treatment process involved the removal of pins in the injured paw which might not have been required had the post-injury care of the dog been better. Although it might have been difficult for Xu to restrain the young dog during his recuperation, her difficulty in doing so is not something for which any financial burden should be born by the Defendants. As well, the removal of the pins was not required for Diamond, although it was preferred. The claim for $1473.00 to remove the plate and pins is disallowed.

90      Otherwise, I find the costs incurred to treat Diamond in the Fall of 2006 have been proven, on a balance of probabilities, to have been required to deal with the injuries caused by Angus. The invoices for this time period total $5791.92. The Claim is allowed in this amount less 25% ($1448.00) for the Claimant's own negligence.

91      Xu also claimed future medical costs ($5500) for the care for Diamond. I do not find the evidence to have established with any clarity what additional costs will be required for Diamond as a result of the injuries received. Additionally, I am not convinced that Xu herself will pay any future costs given that the dog is now living with another family, albeit people Xu is close with. This part of the Claim is thus disallowed.

92      In the result, I allow the claim for monetary damages in the amount of $4344.00 by the Claimant against the Defendants. The Defendants are also ordered to pay the reasonable expenses of Xu in bringing this claim. If the counsel are unable to agree on the amount as to costs, I refer the matter to the Registrar for resolution. The amount of the judgment will be due by the end of October 2008 unless prior to that date the Defendants set a date for a Payment Hearing.