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DOG GONE...dawgon!

On an August day in 2002, Susan Ferguson took her dog Harley to the Birchmount Boarding Kennels. She and her spouse, Ross Hagans, were on their way to a vacation in Hawaii.

Susan and Ross had boarded Harley at the kennel on numerous occasions in the past. Upon their arrival in Hawaii, Susan called the kennel to arrange for Harley to be groomed. The head veterinarian at the kennel informed Susan that Harley had escaped from the kennels play area of the yard, only a few minutes before her call.

As you can imagine Susan and Ross were beside themselves knowing that Harley was on the loose. Harley had been a rescue dog who lived with Susan and Ross for some 8 years before going AWOL.

At the trial, Susan testified that she was "a wreck", "screaming" and "hysterical" upon hearing of Harley's escape from the kennel. Susan further testified that she knew Harley would be quite frightened and running. She said she was in "shock" and felt very "helpless", and that she spent her entire vacation crying about Harley's escape.

The search for Harley was extensive. The kennel all but shut down its veterinarian business to search for the dog. Dr. Barrett, a veterinarian and one of the owners of the kennel, spent $2500 out of his own pocket to pay staff for "man hours on the road" in search of Harley.

Susan and Ross advertised for their missing dog in the Toronto Star, and in the Scarborough Mirror, for a total cost of $2280.68.

They also claimed that their Hawaiian vacation had been ruined, and set the cost of their ruined holiday at $7,472.58 which included airfare, car rental, meals and activities.

At the trial, Susan and Ross explained that they were a childless couple, and Harley had filled that role. They described Harley as having adapted extremely well to his new home; and with a quick intelligence and lively disposition. Susan was experiencing nightmares about the loss of their "dear" and "close" family member, Harley. In her words, there was now a "real void" in their life with their "sole companion" gone.

The kennel, which was part of the veterinary clinic, claimed that they had done everything they could to keep Harley safely in the kennel. A witness confirmed that the dog had escaped through a loose board in the fencing which had not been detected by the kennel in its weekly visual check of the fence.

After hearing all the evidence, the trial judge found that in fact the kennel was negligent for not conducting physical inspections and/or closer examinations of the fence. Further, that it was as a result of that negligence that the dog had gotten loose and had disappeared. Harley was never found.

The kennel then pointed to a waiver clause in the contract which the kennel had Susan sign the first time she boarded Harley at their business. The clause read:

"Birchmount Boarding Kennels Ltd. shall not be liable for injury to, loss of or the death of the animal due to illness, accident or escape or any other clause".

Was that enough to get the kennel off the hook for liability?

The judge found that notwithstanding the so-called "waiver" clause in the document signed by Susan, the kennel was still liable because it was fundamental to the contract that they provide safe care for the pet. Since the express purpose of the contract was to keep the pet safe, and since the kennel had been negligent in keeping Harley safe, Birchmount Boarding Kennels could not rely on the "waiver' to avoid liability.

Susan and Ross's total claim was for $10,000 including pain and suffering.

The Judge was not so generous.

He allowed $848.32 for a replacement dog. He also allowed $261.98 for long-distance and cell phone calls from Hawaii, and $1,417.12 for pain and suffering for Susan and Ross.

The total award therefore was $2,527.42.

Lessons to be learned:

1. When you place your loved one in the care of another party, they have a Duty and Standard of Care they must adhere to...a signed Waiver doesn't necessarily waive that responsibility.

2. Representing yourself in a court of law is difficult at the best of times, and even more so when you are grieving or emotionally invested...you may be severely limiting the outcome of your case.

3. There are always two sides to every story and you need a good lawyer to tell your side.

At The Ross Firm, we have lawyers whose practice focus is civil Torts, and Contractual matters.

Give us a call.

Talk to us.

We can help.

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