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There are three basic categories of property-real property, personal property, and intellectual property.  These categories fall under the general classification of property law.  There are three distinct categories because each has unique characteristics.  Real property is fixed in place, visible for all to see and is immoveable; buildings, land.  Intellectual property is a product of the human mind; a book, a song.  Personal property is physical and moveable; a sock, a clock, a cat.  Yes, animals are included in the category of personal property.  Specific laws are assigned to each category for purposes of accommodating that category’s specific characteristics.

As a result  of their property status, animals have very limited legal rights and animals used for farming purposes only have trivial courtesies.

Whether you support the position that all or some animals should be classified as non-humans rather than property, or you believe that greater protections should be afforded to ensure that the welfare of all animals is upheld, it is apparent that the law needs to move away from the archaic perception of animals as items of property.birds for sale

Many people attach an emotional, personal value to their pets.  A strong union based in love and loyalty develops between the pet and the owner.  If your pet is killed or permanently wounded by a negligent veterinarian, dog walker or other custodian, your damages cannot exceed the fair market value of your pet at the time of the loss plus reasonable expenses (i.e. veterinary costs) – same as a boat or a basketball.  The reason for this is that personal property laws apply to your pet.  The veterinarian or other custodian is a bailee.  A bailee is a person with whom some article is left, usually pursuant to a contract (called a “contract of bailment”), who is responsible for the safe return of the article to the owner when the contract is fulfilled.  Whatever sentimental value your dog had is basically irrelevant.

Canadian courts have started to recognize that companion animals are not just things, but that they occupy a special place somewhere between a human and a desk.  Recognizing emotional distress as a ground for damages in relation to an animal affirms the relational rather than economic value of the animal.

In the 2005 case of Crichton v. Noon,[1]  the plaintiff and his small dog were attacked and injured by two larger dogs owned by the defendants.  The plaintiff was knocked to the ground and incurred minor injuries.  The dog sustained trauma to its upper jaw and had to be treated by a veterinarian.  The court awarded the plaintiff general damages in the amount of $900 for mental and emotional distress resulting from the attack on his dog which included $200 for his own injuries.  The plaintiff was also awarded his veterinary costs.  The award was later reduced to $500.

In the 2005 case of Brown v. Edwards,[2] the plaintiffs’ Dalmatian, Tina was boarding at the defendant’s veterinary clinic.  The dog escaped while being walked, ran into traffic, and was killed.  The plaintiffs were approximately 60 years of age.  The dog had been a member of the family for approximately 7 years.  The court held that the veterinarian, as bailee, had been negligent in the manner in which he walked the dog by failing to use an appropriate leash.  The plaintiffs were  awarded $3500 in damages for pain and suffering after carefully detailing the relationship that the plaintiff Brown family had with their dog.  The court emphasized that Tina slept in the Browns’ bed, went everywhere with the family, and was in fact an “important and rewarding member of the family.”

The decision was reversed on appeal, as the court concluded that the defendant had not been negligent in his actions; not on the appropriateness of the lower court’s award of damages for loss of the dog.

jury of my peers logoThe 2006 case of Ferguson v. Birchmount Boarding Kennels Ltd.[3] was the first Canadian decision, upheld on appeal, to award damages, in the amount of $1,417, for pain and suffering associated with the loss of a pet.  The plaintiffs boarded their dog at a kennel while they were on vacation.  The dog escaped from the enclosed play area by squeezing through pieces of the enclosure, and was never found.  At trial, the court took into account the owners’ distraught and hysterical state; the search efforts to locate the dog; the 7 ½ year relationship with the dog; Mrs. Ferguson’s inability to work; and the insomnia and nightmares she experienced as a direct result of the loss.  The court held that the kennel had not taken reasonable steps to ensure that the fence was secure.  Its negligence amounted to a fundamental breach of the boarding contract.  Therefore,  the kennel could not rely on the liability waiver that the owners had signed.  The Fergusons were awarded $2527, which included $1417 in general damages for pain and suffering associated with the loss of the dog.  On appeal by the kennel, the appellate court upheld the trial decision and stated that matters involving pets can serve as a justifiable reason for awarding general damages for mental distress, pain and suffering.  The trial judge had not erred in awarding the plaintiffs damages for pain and suffering.

In the 2006 case of Nevelson v. Murgaski,[4] 2 dogs attacked plaintiff’s dog.  Her dog had been attacked once before by a dog belonging to the defendant.    The elderly plaintiff was hospitalized for anxiety, shock, and for treatment of her hand injury.  Her dog had sustained a puncture wound resulting in veterinary bills.  The court considered the plaintiff’s hand injury, her hospital emergency treatments, and state of shock.  There had been a significant disruption in the plaintiff’s family as a result of the dog attacks.  An award in the amount of $1750 was made for damages for pain and suffering and inconvenience.  The court also awarded veterinary and hospital expenses.

In MD v Dumont,[5] the Court awarded plaintiff $3,000 for emotional distress resulting from the death of her horse.

In Arnold v Bekkers Pet Care Inc.,[6] the court held that an exclusion clause in the contract limited the defendant’s liability, and that in the absence of the clause, the plaintiff could have recovered for mental distress caused by the death of her dog.

                                  Can I Sue Someone for Killing or Hurting My Dog?boy and dog 2                                                        Click picture to find out

The courts are moving away from the traditional legal view that animals are merely chattel, to realizing that they play a significant role in the lives of their owners.  As more research is shown, reinforcing the human-animal bond, the courts will find that waivers and exclusionary clauses in various animal-related contracts will not apply to the case before them.  Additionally, monetary awards for pain and suffering will likely increase.

[1] Crichton v. Noon, [2005] O.J. No. 4230 (QL) (Sm. Claims)

[2] Brown v. Edwards, [2005] O.J. No. 1800 (QL) (Sm. Claims)

[3] Ferguson v. Birchmount Boarding Kennels Ltd. (2006), 79 O.R. (3d) 681 (Div. Ct.)

[4] Nevelson v. Murgaski, [2006] O.J. No. 3132 (QL) (Sm. Claims)

[5] MD v Dumont, 2009 QCCQ 2519, [2009] JQ No 2492 (QL) (CQ Civ)

[6] Arnold v Bekkers Pet Care Inc, [2010] OJ No 2153 (QL) (Sup Ct (Sm Cl Div))