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Case Summary: Rae v. Gadalla, 2023 BCSC 1398

The British Columbia Supreme Court recently provided its decision in the case of Rae v. Gadalla, 2023 BCSC 1398. In this dog bite case, our client and the Defendant provided different accounts of what occurred. Ultimately, the Court needed to decide who was telling the truth.

This case provides a good summary of the law of scienter and negligence in dog bite cases. For an injured person bitten by a dog to win at Trial, either the owner must have been negligent, or they ought to have known of their dog’s propensity to be aggressive. In this case, Justice Milman found that the defendants were liable under negligence and the doctrine of scienter.

Justice Milman provides the following in terms of the law:

[34] The legal test to be applied in determining liability in a case such as this, seeking damages in negligence and under the doctrine of scienter for injuries sustained from a dog bite, was conveniently summarised by Marzari J. in Garside v. Dougan, 2022 BCSC 799, as follows:

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[53] As was set out in Janota-Bzowska v. Lewis (1997), 1997 CanLII 3258 (BC CA), 43 B.C.L.R. (3d) 352 (C.A.), scienter and negligence are legally distinct causes of action, although both involve a consideration of a dog’s propensity to do harm.

[54]  In Janota-Bzowska, our Court of Appeal reviewed the history of both torts and concluded:

9) The result of this classification is that the owner of a dog can be held liable for an attack in two ways. First, the owner may be held liable under the doctrine of scienter and second, the owner may be held liable for negligence. It is important to keep the two separate as they often become intertwined. They are, however, not the same. In Draper v. Hodder, [1972] 2 All E.R. 210 (C.A.), Lord Justice Edmund Davies makes this very point at p. 217:

The defendant’s liability for the terrible injuries sustained by the infant plaintiff was originally sought to be based on the grounds of (1) scienter and (2) negligence. These differ in several important respects. The former is considerably older and, ‘though meant to give a rough expression to the idea of negligence’, as Professor Glanville Williams put it in his classic work on Liability for Animals [1939, p. v], gives rise to strict liability. …

17) Cases decided after the repeal of the Animals Act confirm that the onus of establishing propensity once again rests with the plaintiff…

Like many other cases, the Plaintiff and the Defendants had different accounts of what actually transpired. The Defendants argued that the Plaintiff had stepped on their dog in the elevator, thereby provoking the attack. The Plaintiff argued that no such thing happened, rather that  the dog lunged and bit his calf without provocation. Justice Milman ultimately found that the Defendants’ evidence was problematic and accepted the Plaintiff’s version of events. Justice Milman explained:

[42] The defendants did not suggest that Mr. Rae was being deliberately untruthful, but only that he was confused and his memory unreliable. The same cannot be said for the defendants. Mr. Rae argued forcibly that their account of the incident was deliberately concocted. I agree with Mr. Rae that the defendants’ testimony was more deeply problematic in many respects.

[43] Ms. Abdel-Malik insisted that there were several other passengers in the elevator that day. This is highly unlikely, given how many times the incident has been investigated. Had there been other witnesses present, then surely some effort would have been made to find them. I have little difficulty in concluding that Ms. Abdel-Malik must have been mistaken about that detail.

[44] In addition, Dr. Gadalla’s account of the conversation he says he overheard between Mr. Rae and the ambulance paramedics is highly problematic. I find it unlikely that the paramedics would have behaved as he described. The suggestion that Mr. Rae was fined for having called an ambulance unnecessarily, on that occasion and others, or that he had wanted to go the hospital but was not permitted to do so, was never put to him.

[45] More troubling still is the defendants’ insistence that Flex had only scratched Mr. Rae and not bitten him. First, the contemporaneous photographs of the wound do not depict a scratch, but rather a sizable patch of displaced skin. I am also satisfied that the defendants told Mr. Hanna later that day that Flex had bitten Mr. Rae, as Mr. Hanna himself testified. 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.

[46] There are other aspects to the defendants’ subsequent conduct that is inconsistent with the account they gave at trial. I accept their submission that the delivery of flowers with the attendant apology or expression of contrition is inadmissible to establish liability, pursuant to the Apology Act, S.B.C. 2006, c. 19. However, the defendants did more than just apologize and send flowers. In addition, 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.

[47] Most troubling of all is the defendants’ late-breaking allegation that Mr. Rae tripped over Flex and seriously injured him in doing so. The defendants amended their pleading on the eve of the trial in order to advance that allegation. There had been no mention of it on any of the previous occasions when, if there had been any truth to it, one would have expected them to raise it, such as in Dr. Gadalla’s letter of January 26, 2019, their original response to the claim or on their respective examinations for discovery. In addition, I agree with Mr. Rae that if Flex had truly been showing the signs of injury that the defendants and Mr. Hanna described in their testimony, they would likely have taken him to a vet that same day or shortly thereafter.

[48] In summary, I have concluded that Mr. Rae did not accidentally provoke Flex by stepping on him. 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 Mr. Rae was about to exit the elevator. Such behaviour would be consistent with that attributed to Flex by Mr. Tian and Mr. Rabey.

[49] Further, I agree with Mr. Rae that the defendants had both actual and constructive knowledge of Flex’s propensity to behave in that manner. Such knowledge came to them through the events described by Mr. Tian and Mr. Rabey, which the defendants, I am satisfied, must have discussed with one another around the time they occurred.

[50] In summary, 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.

Despite the small amount of money involved in the claim, this litigation was hard fought. The defendants have even appealed the decision to the Court of Appeal.

If you have been bitten by a dog, Preszler Injury Lawyers may be able to help you get compensation. Our firm is not afraid to take dog bite cases to trial if the Defence refuses to make a fair offer, even when the amounts in issue are not large. All clients deserve strong representation and a fair day in Court.

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