Written By: Chris MacDonald and Kate Hunter, Summer Student
In Martin v Hurst, 2023 ONSC 2606, the Divisional Court touched on many important issues including the meaning of the word “attack” in the context of liability under the Dog Owner’s Liability Act, R.S.O. 1990, c. D.16 (“the Act”), Rule 19 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”) relating to default proceedings , pain and suffering damages in the context of dog attacks, and the application of the private insurance exception in claims involving income replacement.
In June 2017, in the City of Toronto, the appellant took her dog to the dog park. Soon after arriving, she was knocked to the ground by a large German Shepherd mixed-breed dog. As a result of this incident, the appellant lost consciousness and sustained a tibial plateau fracture of her right knee. This fracture required surgery in which she had metal hardware fastened into her leg.
The appellant was confined to a wheelchair for several weeks as a result of the incident and was unable to work for 21 weeks. Fortunately, the appellant was insured through her employer, under a policy which facilitated both short-term and long-term income replacement benefits. She also received some health care benefits. After making a recovery, the appellant continued to experience some pain in her right leg in addition to a few other complications.
Seeking compensation for her injuries, the appellant commenced an action for damages against the owner of the large German Shepherd. The respondent never served a defence, and pursuant to rule 19, the appellant moved for default judgement.
Rule 19 of the Rules of Civil Procedure deals with default proceedings. Under rule 19, if a defendant fails to deliver a defence within a prescribed time, they will be noted in default. The consequences of this under rule 19.02 is that the person in default is deemed to admit the truth of the allegations made in the statement of claim. However, simply because the allegations are deemed true, does not mean that there will be an automatic finding in the plaintiff’s favour. A judge must still determine whether the facts pleaded and deemed to be true are sufficient to establish liability.
The appellant sought non-pecuniary damages for pain and suffering in the amount of $120,000. She also claimed for loss of income and medical treatment costs not covered by her insurance. In addition, she sought to recover OHIP’s subrogated costs of treatment.
The motion judge awarded none of it and dismissed the plaintiff’s claim entirely. The plaintiff successfully appealed.
Misinterpreting the Meaning of the Word “Attack”
The motion judge found that the dog had merely run into the plaintiff. The motion judge felt this was insufficient to attract the strict liability imposed on dog owners under the Act. Under section 2(1) of the Act:
The owner of a dog is liable for damages resulting from a bite or attack by the dog on another person or domestic animal.
The Court of Appeal found that the first error the motion judge made was in interpreting the word “attack” used in section 2(1) of the Act. While the motion judge held that the word “attack” required “unprovoked biting and other clear acts of aggression”, she did not support this conclusion with any applicable case law. The only case she cited made no finding about what constitutes an “attack” under this provision of the Act. Moreover, the motion judge’s interpretation was actually counter to previous jurisprudence.
The Court cited Miller v Devenz, 2001 Carswell Ont 3690, where similarly on a motion for default judgement, the court accepted that the plaintiff had been “attacked” by a dog where she was pushed to the ground by a large dog running free. The Court also referred to, Rai v Flowers, 2014 ONSC 3792, where a plaintiff was injured when a dog jumped on her from behind. While it was unclear whether the dog had bitten the plaintiff on the back or used its paws or claws, the court awarded the plaintiff damages, nonetheless.
The Court found the motion judge to be in error when she concluded that “attack” required proof of aggression. The court also commented that the intention of the dog is irrelevant. Dog owners are liable for the injuries caused by an attack even if the dog never sought to injure anyone.
Improperly applying Rule 19 and Failing to Consider all the Evidence
Under rule 19, a plaintiff will not be entitled to a judgement merely because the facts alleged in the statement of claim are deemed to be admitted unless the facts entitled the plaintiff to a judgement. Where the pleadings are not sufficient to establish liability, the court may consider all other evidence before the court to supplement the pleadings. This includes evidence by way of affidavit. Where the evidence given by affidavit actually conflicts with the pleadings regarding liability, the court may make findings of credibility and weigh the evidence to determine whether the sworn evidence disentitles the plaintiff to a judgement.
In this case, the appellant’s motion was support by affidavits. She provided her own affidavit, one sworn by the individual who identified the dog owner, and another one from a member of the law firm representing her.
The issue arose based on how the appellant characterize the encounter with the dog. The appellant swore two affidavits in support of her motion. In one of her affidavits, she deposed that the large dog ‘ran into’ her. This contrasted the statement of claim that set out that she was ‘attacked’ by a dog. In the second affidavit, the appellant deposed the dog ‘charged’ at her. The motion judge made no reference to the second affidavit’s evidence in her judgement.
The Court held that while it was open to the motion judge to weigh the evidence, what she was not entitled to do however, was to ignore the pleadings altogether. The Court held that the motion judge was in error when she failed to consider both the affidavit evidence and the deemed admissions from the statement of claim.
Pain and Suffering
The motion judge, when assessing non-pecuniary damages for pain and suffering, determined that there was a separate regime for assessing damages caused by a dog attack. She rejected the case law filed by the plaintiff’s counsel on damage awards for injuries sustained in motor vehicle accidents, finding that cases decided in the motor vehicle context were not applicable to cases involving attacks by dogs. On this premise, she awarded the appellant $35,000 in pain and suffering.
The Court rejected this premise and found there was no separate regime for assessing injuries inflicted by a dog and that there was no unique cap on those damages. The cases the motion judge had relied on, all were all cases involving dog bites. None of the cases referenced dealt with similar injuries like those sustained by the plaintiff. For this reason, there was no separate regime for all injuries inflicted by a dog. The Court acknowledged that there was separate regime for cases involving dog bites, although this was inapplicable to this case.
The Subrogated Right to be Reimbursed
The motion judge denied the claim for loss of income on the basis that neither the insurer nor the employer was a party to the proceeding, and that the appellant received the income replacement benefits tax free.
As a result of her injuries, the appellant was off work for 21 weeks. Had she been working, the appellant would have earned $32,310.60. During this time, however, as she was insured, she received short term and subsequently long-term disability benefits. Nevertheless, she sought to recover the full value she would have earned but for the attack.
As a general rule, injured parties are precluded from recovering more than the amount lost. As such, it follows that where a plaintiff sustains loss of income as a result of a tort because his or her employer has continued to pay his salary while he was unable to work, he or she should not be entitled to recover damages on that account. However, this does not apply in the case where an injured party has been compensated for by a policy of insurance paid for by the injured party. This principle is known as the “private insurance exception” and it was reaffirmed by the Supreme Court in Cunningham v Wheeler, 1994 CanLII 120 (SCC).
In this case, the evidence the appellant put forth indicated that she would receive income replacement benefits tax-free because she had paid 100% of the premiums for LTD coverage. This evidence, that the appellant had directly contributed to the income replacement policy premiums, demonstrated that the insurer had a right of subrogation with respect to the entire loss. The Court thereby held that the motion judge was in error when she denied the appellant the right to recover her lost income.
While moving for summary judgment under rule 19, is often thought of as an ‘easy win’, as the action is undefended and the pleadings are deemed admitted, this case is a formidable example of how plaintiffs can run into trouble without the appropriate evidence, and how areas of uncertainty in the law can create substantial hurdles for plaintiffs in establishing liability.