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It’s time the law recognized pets are more than chattel | Joshua Goldberg

Wednesday, September 15, 2021 @ 2:53 PM | By Joshua Goldberg

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Joshua Goldberg %>
Joshua Goldberg
Canadian courts generally do not award damages for mental distress associated with the injury to or death of a pet. Even when they have done so, though, the amounts ordered are typically what we would call nuisance.

Before I go on, I should make clear that I’m extremely biased in this regard. I am a huge dog lover, a fact that does not go unnoticed with virtually anyone who knows me. I have two dogs that I refer to as my “kids:” Petunia, an 8-year-old Shih Tzu, and Gus, a 3-year-old Dachshund. Don’t get me wrong, parents of human children: I know caring for a person is much more difficult than caring for a dog, but for me this is likely going to be it and while dogs may be far different from children, I absolutely love my dogs and would do almost anything for them.

Now back to damages. My hope is to push the legal system to change how it views pets as far as compensation goes. Pet owners can and should be entitled to pain and suffering damages for the loss of a beloved pet. If an animal dies due to the fault of others, the owners will absolutely go through real anguish, as most of us accept that pets are family members.

I think the old mentality of pets being a fun toy for the family to have has changed dramatically in the last several years as raising children has become increasingly expensive. More and more people are adopting pets, especially dogs, and treating them like family. Even parents of human children feel that way about their pets.

I will be making that argument in the small claims court in the near future. I was retained by a client whose dog was attacked by a larger, aggressive dog in a park. The owner rushed the animal to a veterinarian who tried to save it, but the injuries were too severe and the smaller dog died.

The owner of the larger dog was willing to pay some of the medical costs incurred, but would not pay much. So we will be asking for the full cost of the treatment expenses incurred as well as compensation for pain and suffering for the loss of her beloved dog.

The courts in Ontario are making some progress: a 2006 Ontario Divisional Court judgment was a step in the right direction. The case, Ferguson v. Birchmount Boarding Kennels Ltd. [2006] O.J. No. 300, involved a couple who boarded their dog at a kennel while they were on vacation in Hawaii. The dog escaped by squeezing between two boards in a fence and was never found.

“The female plaintiff was emotionally distraught when she heard the news,” the judgment reads. “She suffered from insomnia and nightmares and had to take time off work.”

The dog owners sued the kennel for damages, alleging it did not take reasonable steps to ensure that the fence was secure. After a trial in small claims court, they were awarded $2,527, including $1,417 in general damages for pain and suffering associated with the loss of the dog, court documents note.

The kennel appealed but that was denied, with the Divisional Court holding that the trial judge had not erred in awarding the plaintiffs damages for pain and suffering, state court documents.

“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,” Justice Sandra Chapnik wrote in her decision. “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.”

There was also a 2005 small claims court case where a dog was being boarded at a veterinary clinic. The animal escaped while being walked, ran into traffic and was killed. The clinic was found to be negligent and the owners were awarded $3,500 in general damages for the loss of canine companionship. On appeal, that decision was overturned, though the higher court did not comment on the appropriateness of the lower court’s award of damages for loss of canine companionship.

Those cases aside, Canadian jurisprudence contains many references to the status of animals as chattels. As an example, in a 2002 Supreme Court of Canada decision, the court ruled that a genetically modified mouse was not a patentable invention under the Patent Act, “Animals have been and will continue to be used in laboratories for scientific research. Pets are property,” the judgment reads in part

Similarly, a 2005 judgment from the Supreme Court of British Columbia compared a family dog to household electronics. The case of Pezzente v. McClain [2005] B.C.J. No. 1800 involved a woman who sued a dog breeder after the dog she bought from him, named Bear, developed numerous health issues, resulting in more than $10,000 in vet bills.

In denying her claim, the judge wrote, “We’re not dealing with the usual ‘chattel,’ but with an animal who … is a well-loved member of her family. But the law is coldly unemotional and I really must view Bear as just another consumer product … If Bear were a stereo, the most [she] could recover in damages is the $350 she paid. I must find the situation is the same for a beloved dog.”

Even the Criminal Code contains wording that seems to regard pets as possessions. The law forbidding cruelty to animals, s. 445.1(1), is found under the heading “Wilful and Forbidden Acts in Respect of Certain Property.”

While I know I have my work cut out for me, I am hopeful that we can move the needle a little bit. If you ask me, I think a large portion of the general public would agree that pets, especially dogs, are more than mere possessions, and I hope I can get the court to agree with me.

As I mentioned above, I have two dogs that I love and I can’t imagine what I would do if I lost them. It is seriously outdated thinking that allows the court to consider family pets as chattels.

Joshua Goldberg, of Joshua Goldberg Law, has practised litigation, primarily in the area of personal injury, disability and insurance law. He mostly handles motor vehicle accidents, occupiers’ liability and disability insurance claims but has a small practice of general litigation files. Goldberg had previously spent several years in China, where he learned to speak Mandarin Chinese.

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