Ontario courts award compensation for emotional distress associated with the loss of a pet

The recent pet illnesses and deaths associated with the consumption of contaminated food have raised the issue of compensation for these losses. Affected pet owners may have been required to pay for expensive veterinary treatment. Those less fortunate may have lost a pet. All will have experienced some degree of emotional distress resulting from the illness or death of an animal that may be considered a member of the family. Based on the presumption that manufacturer liability can be proven, what is the correct measure of compensation (or damages) — replacement of the contaminated food; reimbursement of the owner’s out of pocket expenses, including veterinary bills, lost wages, and travel expenses; the cost of a new pet? Or should the pet owner also be entitled to damages for the emotional pain and suffering sustained as a result of their pet’s sickness or death?

Canadian and US courts, in general, have not awarded damages for mental distress associated with the injury to or death of a pet. But, as will be discussed, a recent decision of the Ontario Divisional Court may signal that this is no longer the case. While the present assessment of the law was prompted by the recent pet food scare, it has significant financial implications for those who accept animals into their care, including veterinarians; owners and employees of veterinary clinics, boarding and grooming facilities, horse training facilities, and public stables; and their insurers.

Traditionally, damages awarded for the loss of an animal, including a pet, were limited to the value of the animal at the time of the loss, plus any associated costs, such as veterinary expenses. In 2006, the Ontario court case of Ferguson v. Birchmount Boarding Kennels Ltd. (1) was the first Canadian decision, upheld on appeal, to award damages for mental distress associated with the loss of an animal. In Ferguson, the plaintiffs boarded their dog at a kennel while they were on vacation. The dog escaped from the enclosed play area by squeezing between 2 boards in a fence, and was never found. Mrs. Ferguson was emotionally distraught when she heard the news. She suffered from insomnia and nightmares, which required her to take time off work. The Fergusons sued the kennel for damages. The court held that the kennel had not taken reasonable steps to ensure that the fence was secure. Its negligence amounted to a fundamental breach of the boarding contract, such that the kennel could not rely on a waiver of liability that the owners had signed. The Fergusons were awarded $2527, which included $1417 in general damages for pain and suffering associated with the loss of the dog. The kennel appealed. The Divisional Court held that the trial judge had not erred in awarding the plaintiffs damages for pain and suffering. Contrary to a long-standing legal principle, the court stated that a pet is not considered in law to be the owner’s property (or chattel), so as to preclude an award for pain and suffering upon its loss. Mental distress, if proven to exist, can be compensated for by an award of damages.

The judicial trend towards awarding damages for emotional distress associated with the loss of a pet was evident in 2 Ontario Small Claims Court decisions that shortly predated, but were not considered, in Ferguson. In the 2005 case of Crichton v. Noon (2), the plaintiff and his small dog were attacked and injured by 2 larger dogs owned by the defendants. The plaintiff was knocked to the ground and incurred minor injuries. The dog sustained trauma to its upper jaw and was treated by a veterinarian. The court considered whether the plaintiff was entitled to damages for the attack on his dog in his presence, the injuries to the dog, and the aftermath of both. The court recognized the adverse mental and emotional impact of the attack on his dog and awarded the plaintiff general damages in the amount of $900, which included $200 for his own injuries. The award was later reduced to $500, based on the amount claimed. The plaintiff was also awarded his veterinary costs.

In the 2005 case of Brown v. Edwards (3), the plaintiffs’ dog was boarding at the defendant’s veterinary clinic. The dog escaped while being walked, ran into traffic, and was killed. The plaintiffs were approximately 60 years of age and had owned the dog for 6 or 7 years. It was a member of the family. The court held that the veterinarian, as bailee, was negligent in the manner in which he walked the dog by failing to use an appropriate leash. The plaintiffs were awarded $3500 in general damages for the loss of canine companionship. The decision was reversed on appeal, as the court concluded that the defendant had not been negligent in his actions. Of significance is the fact that the court did not disapprove, or even comment, on the appropriateness of the lower court’s award of damages for loss of canine companionship.

The Ferguson decision was applied by the Ontario Small Claims Court in the 2006 case of Nevelson v. Murgaski (4). On 2 occasions, the defendant’s dog attacked a dog owned by an elderly woman and her daughter. On the 1st occasion, the elderly plaintiff was walking their dog when it was attacked by the defendant’s dog. The dog sustained a puncture wound. The plaintiff became dizzy and shaky, and was taken to the hospital where she was diagnosed with anxiety. On the 2nd occasion, 2 of the defendant’s dogs entered the plaintiffs’ yard and attacked their dog. The elderly plaintiff again attended hospital as a result of anxiety and for treatment of a hand abrasion. The dog had sustained a puncture wound. The court considered that the elderly plaintiff had suffered a hand injury and had attended the hospital emergency department twice in a state of semi-shock. There had been a significant disruption in the lives of the plaintiffs’ family as a result of the dog attacks. The court held that if pain and suffering resulting from the loss of a dog were compensable in the Ferguson case, they were compensable in this case. The court compared the factual situations. In this case, the impact on the family and the dog were episodic and acute, in comparison with the loss of a pet as occurred in Ferguson. As such, a smaller award was made in the amount of $1750 for damages for pain and suffering, and inconvenience. The veterinary and hospital parking expenses were also to be paid.

Until these recent decisions, the courts had held that the law has prevented an award of damages for emotional distress associated with the loss of a pet. For example, in the 1997 case of Hayward v. Martin Feed Mills Ltd. (5), the plaintiff’s 2 dogs died as a result of eating contaminated dog food produced by the defendant. The plaintiff had owned and cared for the dogs from the time of their birth. The dogs died when they were several months old. Mr. Hayward claimed that he suffered tremendous grief, stopped working, and became a recluse after their deaths. A psychologist testified that the plaintiff had experienced a post traumatic stress disorder as a result of these events. The court compensated Mr. Hayward for his out of pocket expenses for veterinary services and travel, but he was not compensated for his emotional distress resulting from the loss of his dogs. The court held that witnessing his dogs suffer over a period of time and then die was not a violent act that could result in a post traumatic stress disorder and for which damages may be awarded.

Courts in the USA, with few exceptions, have clearly stated that damages for sentimental value, mental suffering, or emotional distress associated with the injury, illness, or death of an animal are not recoverable. As animals are considered to be personal property, the owner may recover only the market value, or some special or pecuniary value to the owner that may be referenced by the usefulness and services of the animal.

The Texas Court of Appeals considered the type of damages that an individual may recover for the loss of a dog in the 2004 case of Petco Animal Supplies, Inc. v. Schuster (6). The plaintiff’s dog slipped out of its leash while an employee of the defendant grooming shop was walking the dog outdoors. The dog was killed in traffic. The plaintiff claimed for the replacement value of the dog, the costs of training school and microchip implantation, lost wages while searching for the dog, $160 for counseling fees, $645 000 for mental anguish while searching for the dog and after learning of the dog’s death, $280 000 for loss of companionship of the dog, and $1 million in exemplary damages, plus costs. The District Court awarded the full amount of the damages under the 1st 5 headings, and $10 000 for each of the 3 claims for compensation for mental anguish and emotional distress, intrinsic value for loss of companionship, and exemplary damages, as well as costs.

The Court of Appeals held that under Texas law, damages for mental anguish, counseling, loss of companionship, or lost wages pertaining to the loss of a dog were not recoverable. According to the court, dogs are classified as personal property for damages purposes, not persons, extensions of their owners, or any other legal entity whose loss would give rise to personal injury damages. According to the court, it was well settled that the award for the loss of a dog is its market value, or some special or pecuniary value to the owner that may be referenced by the usefulness and services of the dog. “Special or pecuniary value” of a dog to its owner refers solely to economic value derived from the dog’s usefulness and services, not the value attributed to its companionship or other sentimental considerations.

In the 2001 decision in Harabes v. The Barkery, Inc. (7), the Superior Court of New Jersey refused to award damages for emotional distress and loss of companionship to the owners of a dog that died as a result of being negligently subjected to extreme heat while being groomed. While the court recognized that classification of dogs as property fails to recognize the special companionship that they provide, the court stated that there was no authority in New Jersey (or in many other states) for allowing plaintiffs to recover these types of damages. The court identified certain practical or public policy reasons against awarding damages for loss of companionship, including the difficulty in identifying which types of animals would qualify as companions, as well as the need to ensure fairness of the financial burden placed upon a negligent defendant. If a pet is considered to be a member of the family, its value is whatever the owner thinks it is. A negligent individual in such a case would be exposed to unrealistic damage claims. The court also expressed a concern that allowing such claims to go forward would open the floodgates to future litigation.

The Appellate Court of Illinois in Jankoski v. Preiser Animal Hospital, Ltd. (1987) (8) considered the issue of whether a claim for loss of companionship can be recovered as a result of a negligently caused death of a dog. In this case, the plaintiffs alleged that their dog died as a result of the negligent administration of anaesthesia at a veterinary clinic. The court stated that the plaintiffs were not entitled to damages under a claim for loss of companionship or emotional distress, as dogs are classified as personal property. With respect to damages for loss of particular types of personal property for which market value cannot be established, the plaintiff was entitled to prove (and recover) the value of the property that he or she attached to it. The court acknowledged that actual value to the owner obviously includes some element of sentiment, provided that it is not an “unusual sentimental value” or “fanciful price.”

However, this legal principle may be changing in the USA as well. In Carbasho v. Musulin (2005) (9), the plaintiff and her dog were struck by a car. The dog later died. The plaintiff maintained that the market value of the dog was not an adequate measure of damages and should include the loss of its companionship. The Supreme Court of Appeals of West Virginia upheld the general rule that damages for sentimental value, mental suffering, or emotional distress relating to the loss of a pet are not recoverable. As in other US jurisdictions, this court held that in order to recover damages, the market value, pecuniary value, or some special value of the dog must be proven. The “special value” to the property is in reference to a particular trait, pedigree, or special qualities of the animal; for example, its function as a guide dog.

This case is significant for the strong dissenting opinion provided by 1 of the judges: This opinion is simply medieval. The majority blithely says that “our law categorizes dogs as personal property” — that “damages for sentimental value, mental suffering, and emotional distress are not recoverable” when one’s pet is injured or killed by the negligence of another person. In coming to this conclusion, the majority overlooks the fact that the “law” in question is common law, which is controlled by this Court. There was nothing stopping the majority from changing that common law other than their lack of concern for pet owners and the emotional bonds that exist between owners and their pets.

The judge noted that the legislature in West Virginia had enacted legislation in 1984 that permitted a cause of action for wrongful or unlawful killing or injury of a pet, and that in 2003, a limitation on recovery to the “assessed value of such a dog” was removed, thereby potentially allowing recovery for sentimental value.

In conclusion, recent court decisions in Ontario and at least 1 judicial opinion in the USA indicate that a swing has occurred from the traditional legal view that animals are merely chattels, to a recognition that they play an important role in the lives of their owners. Loss of a pet has a significant emotional impact on its owner, and those responsible for its loss may now be required to provide compensation for the distress that they have caused. While courts until now have sought to limit the amounts of these monetary awards to avoid excessive penalization of the responsible party, it remains to be seen whether these awards will increase in the future.