Damages - Companion Animals. Ferguson v. Birchmount Boarding Kennels Ltd.
In Ferguson v. Birchmount Boarding Kennels Ltd. (Div Ct, 2006) the Divisional Court held that an award for mental distress was suitable in an action where the plaintiff's dog escaped from the defendant's boarding kennel and was lost:
 The court below awarded the plaintiffs $1,417.12 for pain and suffering. The appellants argue that the learned trial judge failed to recognize that a pet is considered in law to be the owner's chattel, precluding an award for pain and suffering upon its loss. They say that the law is conflicting on this point.
 I disagree. The cases cited to me by the appellants are easily distinguishable on their facts. Rogers v. Rogers,  O.J. No. 2229 (Dist. Ct.) dealt with an application by a wife under the Family Law Reform Act for access to a dog owned by and in the [page686] possession of her husband. The issue was whether the dog could be viewed as a family asset. The case of Pezzente v. McClain,  B.C.J. No. 1800, 2005 BCPC 352 (Prov. Ct.) involved the purchase of a dog that had a myriad of health problems. The issue in the lawsuit was whether the breeder should reimburse the purchaser for veterinary fees incurred as a result of those medical problems.
 The court in that case awarded the plaintiff damages in the amount of the purchase or in the alternative, replacement of the dog by the defendant. It denied the plaintiff's claim for the additional medical costs. In doing so, the court likened the dog to a chattel, stating, "If Bear [the dog] were a stereo, the most Ms. Pezzante could recover in damages is the $350 she paid" (at para. 16). The court viewed the dog as just another consumer product. In my view, that characterization as a general proposition is incorrect in law. Moreover, not only was the decision fact-driven, but it was based on the law of warranty under the Sale of Goods Act.
 The case of Stevens v. Sharpe,  B.C.J. No. 3007 (S.C.), also relied on by the appellant, deals with an action for damages arising from a motor vehicle accident in which the plaintiff's dog was killed. In applying the principle of restitutio in integrum, the court assessed the value of the dog immediately before its destruction. There is no indication in that case of a claim for general damages, or for pain and suffering resulting from the loss.
 Both parties relied on the decision of Sheppard J. in Somerville v. Malloy,  O.J. No. 4208, 106 O.T.C. 389 (S.C.J.). In that case, the plaintiff and his chihuahua were attacked by a pit bull. The plaintiff experienced emotional trauma stemming from the attack on him personally and the savage killing of his own pet dog before his eyes.
 The court based its decision to award the plaintiff damages for the effect the dog attack had on him and particularly the emotional trauma sustained by him, on two legal principles: first, a tortfeasor must take his victim as he finds him; and, second, the recognized head of damage in tort actions based on mental distress. In that regard, the court stated: "... as for recovering damages for emotional trauma or mental distress, our courts regularly compensate victims in this respect without the victim having to establish that he or she experienced nervous shock. One needs only look to the many decisions in the field of damages for wrongful dismissal to see that mental distress is a proper head of damage when the circumstances are proven to exist" (at para. 15).
 In the circumstances of this case, Deputy Judge Yee detailed the effects the loss of the dog had on the plaintiff Susan Ferguson: her emotionally distraught and hysterical state; the [page687] fact that she and her husband were unable to return home from their trip due to the unavailability of flights and times; the search efforts to locate Harley; the relationship Ms. Ferguson and her husband had with the dog for 7[cents] years; her inability to work; and the insomnia and nightmares she experienced upon his loss. In summarizing this, the learned judge concluded:
Based on the evidence of the plaintiffs' relationship with Harley and Harley's unique abilities and nature, I accept the plaintiffs' evidence that they experienced pain and suffering upon learning of Harley's escape from the defendant kennel company.She, therefore, allowed the plaintiffs' claim for pain and suffering in the amount of $1,417.12.
 I am satisfied that the trial judge did not err in law or in fact in making findings and in awarding general damages in this case. Mental distress is a proper head of damages when the appropriate underlying circumstances are proven to exist. The court made no palpable or overriding error in that regard; that is, the findings of the trial judge were well supported by the evidence.