Date: Mon, 14 Aug 2006 12:55:27 -0400

From: Jason Neyers

Subject: Interesting little case

Ferguson v. Birchmount Boarding Kennels Ltd 79 O.R. (3d) 681 (Div Ct)

From the Headnote:

The plaintiffs boarded their dog with the defendant kennel while they went on vacation. The dog escaped from the kennel's enclosed play area by squeezing between two boards on the six-foot high fence. The female plaintiff was emotionally distraught when she heard the news. She suffered from insomnia and nightmares and had to take time off work. The plaintiffs sued the defendant for damages. The trial judge found that the defendant did not take reasonable steps to ensure that the entire fence was secure so as to prevent the dog's escape and that the defendant's negligence amounted to a fundamental breach of contract so that the defendant could not rely on a waiver in the kennel contract. The plaintiffs were awarded $1,417.12 for pain and suffering. The defendant appealed.

Held, the appeal should be dismissed.

There was no error in the standard of care applied by the trial judge. While the defendant submitted that the proper standard was one based on the law of bailment, the issue of bailment was not argued in the statement of defence or at trial. ... The trial judge specifically found that the defendant did not take reasonable steps to ensure that the entire fence was secure so as to prevent the dog's escape. ...

A pet is not considered in law to be the owner's chattel, so as to preclude an award for pain and suffering upon its loss. Mental distress is a proper head of damages when the appropriate underlying circumstances are proven to exist. The trial judge did not err in allowing the plaintiffs' claim for pain and suffering.

Seems a little iffy to me.

--
Jason Neyers
January Term Director
Associate Professor of Law
Faculty of Law
University of Western Ontario
N6A 3K7
(519) 661-2111 x. 88435

<<<< Previous Message  ~  Index  ~  Next Message >>>>>