Courts must be convinced that pets are more than property

By Paul Russell, LegalMatters Staff • Canadian courts generally do not award damages for mental distress associated with the injury to or death of a pet, but Toronto personal injury lawyer Joshua Goldberg wants to change that.

“I believe pet owners can be entitled to pain and suffering damages for the loss of a pet,” he says. “If the animal dies due to the fault of others, the owners will go through real anguish, as most of us accept that pets are family members.”

Goldberg, principal of Joshua Goldberg Law, will soon be making that argument in a Small Claims Court. His client’s dog was attacked by a larger, aggressive dog in a park. The owner rushed her pet to a veterinarian who tried to save it, but the injuries were too severe and it died.

“The owner of the larger dog was willing to pay the medical costs incurred, but would not pay anything else,” Goldberg tells LegalMattersCanada.ca. “So we will be asking for compensation for pain and suffering, as my client lost her beloved pet, and is now without the companionship the dog provided.”

Award for mental distress after dog went missing

A 2006 Ontario Divisional Court judgment gives him hope. It involved a couple who boarded their dog at a kennel while they were on vacation in Hawaii. It 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 Divisional Court holding that the trial judge had not erred in awarding the plaintiffs damages for pain and suffering.

“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.”

Damages for loss of animal companionship

Goldberg also points to 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 negligence 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, Goldberg says that “Canadian jurisprudence contains many references to the status of animals as chattels.”

As an example, he points to a 2002 Supreme Court of Canada decision, where 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.

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Similarly, a 2005 judgment from the Supreme Court of British Columbia compared a family dog to household electronics. The case 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.”

Pets are ‘property’ in the Criminal Code

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.”

As he prepares to represent of the grieving dog owner, Goldberg says he knows he has his work cut out for him to convince the court to view family pets are more than possessions

“I hope to at least move the needle a little bit,” he says. “I think a large part of the general public agrees pets are more mere possessions, and I hope I can get the court to agree with me.”

He explains this legal issue is of personal interest to him.

“I have two dogs that I love and I can’t imagine what I would do if I lost them,” Goldberg says. “It is outdated thinking that allows the court to consider family pets as chattel. In today’s society, most people accept that dogs are much more than that.”