Victoria Shroff says small dogs don't get a pass, but non-court solution may be best for all
A bite caused by a Yorkshire Terrier that recently led to a $5,000 award against the dog’s owner may not have been the $30,000 to $35,000 the plaintiff had asked for, but it shows that even small pets can take a good chunk out of your wallet if not properly restrained.
BC animal law practitioner and advocate Victoria Shroff notes that the case also is a cautionary message that small dogs “don’t get a free pass” and all pet owners need to be responsible for their pet’s behaviour and having them properly socialized.
“There’s no hard and fast rule about which dogs can inflict damage when they bite,” she says. “It really depends on the dog, the owner and how the dog is socialized.”
She adds that in cases of minor dog bites with no lasting damage, coming to a non-court solution can be a benefit for all involved, especially if part of that solution involves socialization training and steps towards more responsible pet ownership.
Yorkie bites condo dweller in elevator
In Rae v. Gadalla, Justice Warren Milman of the Supreme Court of British Columbia concluded that the plaintiff, Robert Rae, did not accidentally provoke the Yorkie, Flex, by stepping on him in the elevator of his condo complex in Vancouver. “Rather, the more likely explanation for what occurred is that Flex was behaving aggressively and barking from the moment that Mr. Rae got on the elevator and that Flex then lunged and bit Mr. Rae without provocation.”
As well, the judge agreed with Rae that the defendants, Dr. Samir Hanna Gadalla and his wife, Rofah Boulis Abdel-Malik, both had “actual and constructive knowledge of Flex’s propensity to behave in that manner,” given evidence presented on his past behaviour from others living in the condo.
“I am satisfied that the defendants, knowing what they knew, are liable to Mr. Rae, in both negligence and under the doctrine of scienter, for failing to take the steps needed to keep Flex on a tighter leash, muzzled or otherwise physically separated from other residents like Mr. Rae while in the public areas of the building, particularly in small, confined spaces like the elevator.”
The doctrine of scienter presumes that domesticated animals, such as dogs, are harmless, and liability requires proof that a defendant knew, prior to the events underlying a claim, that the animal in question had the propensity to cause the type of damage that it did to the plaintiff.
The owner of a dog which bites another is not liable simply for being the owner. The plaintiff must establish that the defendant was the owner of the dog; that the dog had manifested a propensity to cause the type of harm occasioned, and that the owner knew of that propensity.
The incident at issue happened on Oct. 12, 2018. According to Rae, now 88, he was returning from his daily workout, and when he entered the elevator, Abdel-Malik and Flex were already there. Flex was on a leash and barking, and just as the doors opened on his floor, Rae alleges Flex bit him on the back of his left leg, below the knee, drawing blood. He denied that he stumbled or stepped on Flex before being bitten.
Rae remained on the elevator as the doors closed and demanded that Abdel-Malik accompany him to the concierge on the ground floor. He said he rode up with Abdel-Malik until she got out of the elevator on the 27th floor, following her to her suite, demanding that she accompany him to the concierge. She did not respond, but entered the suite and locked the door behind her. He pounded on the door, he said, but there was no response.
Rae testified he then gave up and went down to the concierge alone. The concierge called an ambulance, went to a nearby pharmacy to purchase some bandages, and later took a photograph of the wound.
Defendants say it was only a scratch
Soon after, Gadalla came down to the lobby and asked Rae what had happened. He testified that he learned that something had happened in the elevator, not from Ms. Abdel-Malik, but when he received a telephone call from the concierge.
When the ambulance arrived, the paramedics tended to the wound and asked Rae if he wanted to be taken to the hospital. He chose not to go, he said, because he had already spent too much time at the hospital for his knee and hip replacements.
According to Gadalla, the paramedics chastised Rae for calling an ambulance needlessly and recalled them telling him that they were unwilling to take him to the hospital because he did not need to go.
Moreover, Gadalla claimed the paramedics demanded that Rae sign a form acknowledging that he had called the ambulance needlessly and that his injury was not serious enough to justify a trip to the hospital.
Abdel-Malik also gave a different version of events. According to her, the elevator was crowded. Rae got on at the second floor while she and three or four other passengers were already there. She recalled Rae wearing only flip-flops and a wet bathing suit. He seemed to be shivering and unstable. She heard Flex bark when Rae stumbled backwards and accidentally stepped on the dog, but not before. She said she did not see Flex bite Rae but believes Flex may have scratched him after being stepped on.
She also testified about Rae saying something to her after, but she could not understand what it was. She agreed that Rae did not exit the elevator on his floor but instead followed her up to hers. However, she denied that Rae followed her from the elevator to her suite. Once in the suite, she said she noticed that Flex was whining and unable to put weight on one of his paws.
Rae’s wound did not heal right away. Rather, it became swollen and infected. On October 25, 2018, he decided to go to the emergency department at St. Paul’s Hospital. After that, he had to attend every third day at a clinic nearby. In all, the injury prevented him from resuming his exercise routine.
He acknowledged in his testimony that the wound had largely healed after four months, but it remained bandaged for another two months because it was still weeping, which prevented him from swimming during that time.
Breach of animal control bylaw trial leads to successful no-evidence motion
Rae complained about the incident to the City of Vancouver. He submitted a complaint form on November 8, 2018, and the city responded by initiating a prosecution against Abdel-Malik for breach of the city’s animal control bylaw, culminating with a trial in the provincial court.
At the trial, which took place on Sept. 21, 2020, Rae and an animal control officer testified for the prosecution. The trial ended with a successful no-evidence motion by the defence based on the lack of sufficient evidence to identify Abdel-Malik as the person who was with Flex at the time.
Gadalla testified at the civil trial that Flex had been wearing a muzzle since the day after the incident when in public places. This also follows a directive from the building’s property manager fining their condo unit $200 for violating pet bylaws and ordering the muzzle to be worn on common property. They also apologized and sent flowers to Rae.
Judge finds defendants liable
In determining liability, Justice Milman had to determine which version of events he considered reliable. While Rae gave inconsistent accounts as to what happened, the judge agreed with Rae that the defendant’s testimony was “more deeply problematic.” This included evidence that there were others in the elevator, that Rae had stepped on Flex, and whether the ambulance attendants chastised Rae.
“I find it unlikely that the paramedics would have behaved as he described,” he wrote. “More troubling still is the defendants’ insistence that Flex had only scratched Mr. Rae and not bitten him,” he added, noting that photographs show a “sizeable patch of displaced skin.”
Moreover, “if the defendants truly believed that Flex had merely scratched Mr. Rae after being provoked, then they would have had no reason to put Flex in a muzzle the next day, as Dr. Gadalla says they did. That reaction suggests an awareness on their part that Flex had bitten someone and posed a risk of doing so again.”
The defendants also did more than just apologize and send flowers, Justice Milman noted. “They opted to muzzle Flex, to pay the associated fine without contesting the main substance of the Strata Council’s adverse findings, and to reimburse Mr. Rae for his medical expenses, all of which supports Mr. Rae’s version of events, rather than theirs.”
As for damages, Rae testified that the wound, about 1 centimetre by 3 centimetres, became infected and required antibiotics. He also cancelled a trip to the US to visit relatives, could not work out in the gym for three months, and not swim in the pool for six months.
He also said he is more anxious around dogs because of this incident, despite having had dogs of his own earlier in life.
While the plaintiff presented case law to justify an award of $30,000 to $35,000, Justice Milman said even the one he found to be most like this case dealt with injuries and consequences were significantly more serious and set the award at $5,000.
With both pet ownership and condo living on the rise, Shroff says it’s inevitable that there will be potential for incidents such as this case, and it’s important that both the dog owner and the person bitten “take a step back” to decide on what happens in cases of minor injury.
“It’s not always best to go to court,” she says, noting that it can take a lot of energy, time and expense that may leave the person bitten with a relatively small award.
Shroff says she has been injured or bit by a dog, once in a lineup at a pet store, and her reaction has been to ask that the owner have their dog take socialization classes rather than go down the road of reporting it to authorities as a dangerous dog. She also thinks it’s more critical to inquire about the pet’s health history and prior behaviour.
“Most cases do not require a lawsuit. They require calm reasoning and the ability to see what's in the best interest of everybody. It's not difficult. The person whose dog did the injury should pay for the vet expenses and other costs associated with the encounter.”
And for those who have bitten, it’s also important that they get along with neighbours and people in your community,” she says.
“But sometimes people are very litigious and want to go to court come hell or high water.”