IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20151130

Docket: 14-2015

Registry:
Victoria

Between:

Rose Marie Burton

Plaintiff

And:

Ronald Guthrie and
Joan Guthrie

Defendants

Before:
Master Bouck

Reasons for Judgment

Introduction

[1]            
This is a personal injury action arising from an alleged encounter
between two dogs: Max, a morkie and Sam, a golden retriever. The encounter is
said to have occurred on November 14, 2013, when Ms. Burton was walking Max, on
leash, in a residential neighbourhood in Parksville, B.C. The plaintiff alleges
that she was charged at and pushed down to the ground by off-leash Sam. As a
result of the fall, Ms. Burton suffered some serious injuries. Max is also
said to have been injured by Sam in the melee. The defendants are Sam’s owners
and deny virtually all of the plaintiff’s allegations of fact.

[2]            
The defendants now seek leave to bring a third party claim against Max’s
owner, the plaintiff’s son.

[3]            
The plaintiff takes no position on the application. The proposed third
party opposes the application suggesting that, among other things, the claim
against him is without merit and borders on the ridiculous.

Facts

[4]            
The plaintiff filed her notice of civil claim (the “NOCC”) in this
action on May 28, 2014. The defendants’ response was recently filed on
October 1, 2015.

[5]            
According to the NOCC, Ms. Burton was walking Max on a raised sidewalk. Sam
was off-leash, having just exited the defendants’ vehicle which was parked in
the driveway to the Guthries’ home. Sam purportedly rushed up the driveway and towards
the plaintiff and Max in an aggressive manner. In response to this aggression,
the plaintiff fell off the sidewalk and onto the roadway, causing Max to be
trapped between her legs. Sam is said to have attacked and bitten Max.

[6]            
The plaintiff’s injuries include a fractured tibia, fractured fibula and
psychological injury. The plaintiff also makes an in trust claim on behalf of
her son with respect to veterinarian charges related to Max’s injuries.

[7]            
The plaintiff pleads that the defendants knew or ought to have known
that Sam was a hazard to individuals and other dogs.

[8]            
In their response, the defendants deny that the alleged incident
occurred but, if proven, say that they are not liable for any of the plaintiff’s
injuries or losses. The Guthries say that if the plaintiff fell, that fall was
a result of Max’s long leash becoming wrapped around Ms. Burton’s legs. The
Guthries say that Ms. Burton is at fault for this circumstance and plead the
following, non-exhaustive, particulars of negligence:

(a)            
failing to take reasonable care for her own safety having regard
to all the circumstances;

(b)            
trespassing on the Defendants’ premises;

(c)            
failing to any or all reasonable steps to restrain Max in a safe
manner, and/or in allowing Max to act inappropriately including wrapping her in
his leash, and/or in allowing Max to act in an aggressive manner so as to cause
the Incident;

(d)            
failing to keep any, or in the alternative, an adequate lookout;

(e)            
failing to take any sufficient and/or evasive action to avoid the
Incident when she knew or ought to have known that an Incident was imminent or
likely to occur;

(f)              
failing to take reasonable and proper or any precaution to avoid
the said Incident; and

(g)            
such further and other particulars of negligence as they shall
become known.

[9]            
The Guthries further deny that Sam is an aggressive dog.

[10]        
The proposed third party notice denies and disputes the plaintiff’s
claims but also allege particulars of negligence on the part of Max’s owner,
namely:

(a)            
Failure to take all reasonable steps to maintain, secure, train,
and control Max;

(b)            
Failure to warn the Plaintiff that Max exhibited a prior history
or propensity to act aggressively;

(c)            
Failing to take reasonable and proper or any precaution to avoid
the Fall;

(d)            
Failure to warn the Plaintiff that Max was not trained to behave
in a safe manner while on a long leash; and

(e)            
Such further particulars of negligence as they shall become
known.

[11]        
The defendants claim indemnity and contribution from the proposed third
party.

[12]        
Both Joan Guthrie and Tom Burton have filed affidavits in response to
this application. The affidavits attempt to address the factual basis of the
pleadings.

[13]        
No examinations for discovery have taken place, nor has a trial date
been secured.

Discussion

[14]        
The legal principles to be applied on this application are nicely
summarized by the court in Steveston Seafood Auction Inc. v. Bahi, 2013
BCSC 1072, at para. 19:

[19]        

(a) The test on this application is
the same as under Rule 9 – 5. The proposed third party must establish
beyond doubt that the pleadings discloses no cause of action. The court is
permitted to reject proposed claims only if the action is “bound to lose” or
there is no bona fide triable issue.

Drummond v. Moore, 2012 BCSC
496 at para. 25.

(b) In exercising its discretion as
to whether leave ought to be granted, the court can consider factors such as
prejudice to the parties, the expiration of a limitation period, the merits of
the proposed claim, any delay in the proceedings and the timeliness of the
application.

Clayton Systems 2001 Ltd. v.
Quizno’s Canada Corporation, 2003 BCSC 1573 at para. 9.

(c) The court is required to assume
that all pleaded facts are true.

Hunt v. Carey Canada Inc.,
[1990] 2 S.C.R. 959 at 980.

Dhillon v. Coape and Hockaday,
2004 BCSC 1208 at paras. 17-18.

(d) An important consideration is
whether it is “just and convenient” in all the circumstances of the case to
grant leave to file the third party notice.

Symes v. Knooihuizen, 1998
B.C.J. No. 611 at paras. 38-39.

Clayton Systems 2001 Ltd. at
para. 9.

(e) A third party claim will not
lie against another person with respect to an obligation belonging to the
plaintiff which the defendant can raise directly against the plaintiff by way
of defense.

Adams v. Thompson et al.
(1987), 15 B.C.L.R. (2d) 51 at para. 20.

Laidar Holdings Ltd. v. Lindt & Sprungli (Canada)
Inc., 2012 BCCA 22 at para. 1.

[15]        
The defendants submit that there is no prejudice to either the plaintiff
or the third party in granting the order. The application is brought in a
timely manner and the litigation is in its infancy. Further, there is no issue
with respect to a limitation period. In terms of the merits, the defendants rely
on s. 4 of the Negligence Act, R.S.B.C. 1996, c. 333, which
provides that:

Liability and right of contribution

4  (1) If damage or loss has been caused by the
fault of 2 or more persons, the court must determine the degree to which each
person was at fault.

(2) Except as provided in section 5 if 2 or more persons are
found at fault

(a) they are jointly and severally
liable to the person suffering the damage or loss, and

(b) as between themselves, in the absence of a contract
express or implied, they are liable to contribute to and indemnify each other
in the degree to which they are respectively found to have been at fault.

[16]        
The defendants submit that they will be seriously prejudiced if the
order is not granted in that they will be forced to initiate a separate
proceeding against Mr. Burton or face a judgment without contribution or
indemnity. The defendants also submit there is a possibility of inconsistent
judicial findings in the two separate proceedings.

[17]        
Mr. Burton argues that the court ought to consider the evidence behind
the pleadings and decide that there is no merit whatsoever to the factual basis
of the third party claim. Further, or perhaps in the alternative, Mr. Burton
submits that the allegations of negligence in the third party notice are really
defences to the plaintiff’s claim and a third party proceeding is unnecessary: Adams.
Mr. Burton also argues that he is prejudiced by the delay in bringing
this application as the event happened two years ago and he has taken no steps
to investigate his part, if any, in the incident. Further, Mr. Burton says the
defendants will not suffer prejudice if this application fails as the
plaintiff’s claim might well be dismissed in its entirety or, if not, the
commencement of a claim for contribution and indemnity will be a mere
inconvenience to the defendants.

[18]        
I do not accept that the court should consider, let alone weigh, the
evidentiary basis for the pleadings in deciding this application. As stated
above, the onus is on Mr. Burton to establish beyond a doubt that the
third party notice discloses no causes of action. Mr. Burton does not deny that
he has the duty at law to warn others of Max’s aggressive tendencies. Nor does
Mr. Burton deny that he had some duty to train Max so as that the incident as
described by the defendants could have been avoided. Instead the third party
asks the court to accept his evidence and find that Max is well trained and
without any aggressive tendencies and thus the defendants will be unable to
prove their case.

[19]        
The trial judge must determine which of the two canine companions, or
perhaps neither, caused the plaintiff’s alleged fall and what responsibility
each of the dogs’ owners has for the incident. The fact that Mr. Burton is able
to provide some evidence of Max’s behaviour around the time of this incident
demonstrates that he is not prejudiced in the investigation of the third party’s
claim.

[20]        
Nevertheless, there are certain portions of the third party notice that
are simply bound to fail and should not be allowed to stand as part of the
pleading. Mr. Burton was not at the scene of the alleged incident so could
not possibly have a duty of care to maintain, secure or control Max at that
scene. Furthermore, the allegation raised in paragraph 6(c) seems to be no more
than a cut and paste from the NOCC as Mr. Burton himself could not have taken
any “precaution to avoid the Fall.”

[21]        
The acts of negligence pled in paragraph 6 (b) and (d) can be the
foundation of a cause of action against the third party. The Adams case
does not assist Mr. Burton on this issue as the plaintiff could not warn
herself about Max’s propensities or history of aggression.

[22]        
Perhaps most importantly, there is the possibility of inconsistent
judicial findings of fact should leave not be granted. The question of Max’s
alleged aggressive behaviour is an issue common to both the defence of the
plaintiff’s claim and the claim for contribution and indemnity in the third
party notice. For example, even if the same evidence is led, it is possible
that the judge in the main action will find Max to have a known history of that
behaviour while the judge in the later third party action may conclude
otherwise.

[23]        
For all of these reasons, leave is granted to the defendants to file a
third party notice in the form attached to the notice of application, but
excluding both the words, “maintain, secure … and control” from paragraph 6(a),
as well 6(c) in its entirety.

[24]        
Costs will be in the cause as between the defendants and third party.

                   “C.P.
Bouck”                 

Master C.P. Bouck