Bailment. Ferguson v. Birchmount Boarding Kennels Ltd.
In Ferguson v. Birchmount Boarding Kennels Ltd. (Div Ct, 2006) the Divisional Court considered the issue of bailment in relation to a dog in a boarding kennel (when it had not been considered in the Small Claims Court below):
 There are several problems with the position taken by the appellant on the appeal. Firstly, the issue of bailment was not argued by the appellants (the defendants) in the statement of defence or at trial. They relied upon and pleaded waiver based on the contract and the provisions of the Negligence Act, R.S.O. 1990, c. N.1. An appellate court will permit a new argument to be raised on appeal where the record in the court below is as complete as if the issue had been raised squarely at trial, and provided there is no prejudice to the other party (Braber Equipment Ltd. v. Fraser Surrey Docks Ltd., 1999 BCCA 579 (CanLII),  B.C.J. No. 2360, 130 B.C.A.C. 307 (C.A.), at para. 3). In this case, the prejudice to the respondents in their not having done so, is manifest.
 In any event, in my view, the appellants have in their arguments misconstrued the law of bailment. The question to be determined is what care a prudent owner would have exercised for the [page685] safety of the article entrusted to him, under similar circumstances. But the law of bailment also imposes on the bailee an onus to prove that he took the appropriate care or that his failure to do so did not contribute to the loss; that is, the burden is on the bailee to show that the damage occurred without any neglect, default or misconduct on the part of himself or his servants. See, for example, Punch v. Savoy's Jewellers Ltd. (1986), 1986 CanLII 2759 (ON CA), 54 O.R. (2d) 383, 26 D.L.R. (4th) 546 (C.A.). Moreover, in cases where bailment is at issue, the courts have recognized that the precautions required of a bailee for reward "may be more exacting than those required of a gratuitous depository" (Painter v. Waddington, McLean & Co. Ltd.,  O.J. No. 5458,  O.T.C. 1152 (S.C.J.), at para. 34, citing Halsbury's Laws of England, 4th ed., vol. 2, p. 856, para. 1839).
 In this case, the court specifically found that the defendant did not take reasonable steps to ensure the entire fence was secure so as to prevent Harley's escape. Moreover, if the gardener struck the fence board with his "ride on" lawn mower and Dr. Barrett could foresee that happening, the court found it would have been prudent for the defendant to inspect the fence board. Because of his failure to do so, the court found it was reasonably foreseeable that Harley would be able to escape through the fence.
 In all the circumstances, the court found the defendant negligent in its standard of care and boarding of Harley. In a bailment situation, it is clear that the defendant failed to show that the damage would have occurred or the dog would have escaped, without neglect; or in other words, Birchmount failed to discharge the onus to prove it took appropriate care of the dog.  The decision of the learned judge was well supported by the evidence. Despite her failure to use "bailment language", the evidence and the law would likely have led to the same conclusion. I can find no error of law in the standard of care the court applied or in its application of the facts to the relevant legal principles, as alleged.