Bench press.

• Author: Mitchell, Teresa
• Position: Ferguson v. Birchmount Boarding Kennels Ltd., Childs v. Desormeaux, Montague (Township

Pain and Pets

An Ontario couple sued a boarding kennel, asking for damages for pain and suffering that they experienced when Harley, their dog, escaped from the kennel while they were on a Hawaiian vacation. A Small Claims Court judge awarded them about $1,400. The kennel appealed the award arguing that at law, animals are considered chattels and therefore an award for pain and suffering should not be made. However, Justice Sandra Chapnik of the Ontario Superior Court of Justice upheld the award, agreeing with the trial judge that the plaintiffs experienced pain and suffering upon learning of Harley's escape from the defendant kennel company. She wrote "Mental distress is a proper head of damages when the appropriate underlying circumstances are proven to exist."

Ferguson v. Birchmount Boarding Kennels Ltd., 2006 CanLII 2049 (ON S.C.D.C.)

Host Liability

The Supreme Court of Canada issued a long awaited judgment recently dealing with the question of host liability. The plaintiff was a young woman who was left a paraplegic when the car in which she was a passenger was hit by a drunk driver on New Year's Eve 1999. Chief Justice Beverley McLachlin succinctly wrote "A person hosts a party. Guests drink alcohol. An inebriated guest drives away and causes an accident in which another person is injured. Is the host liable to the person injured? I conclude that as a general rule, a social host does not owe a duty of care to a person injured by a guest who has consumed alcohol ..." The Court drew a distinction between the duties of a social host and a commercial establishment such as a bar or restaurant. It said "While, in the commercial context, it is reasonable to expect that the provider will act to protect the public interest, the same cannot be said of the social host, who neither undertakes nor is expected to monitor the conduct of guests on behalf of the public." The top Court may have left the door slightly open in this area, however. Justice McLachlin noted that a social host does not owe a duty of care to the public "... unless the host's conduct implicates him or her in the creation or exacerbation of the risk."

Childs v. Desormeaux, 2006 SCC 18

Citizens Can Criticize

The Montague Township in Ontario sued a resident for defamation after he criticized the local fire department for its handling of a fatal fire. Justice Pedlar of the Ontario Superior Court of Justice stated that there appeared to be no binding Ontario decision on whether...