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This is an extract of the Reasons for Judgment in Robitaille v Moore (Ont Superior Ct, 2004) Court File # 97-CU-119459:The plaintiff rented a basement area in the defendant's house. The plaintiff had a black poodle dog named Ebony. On November 29, 1996, the plaintiff and defendant were sharing drinks in the plaintiff's living area for a number of hours. The defendant consumed about three or four pitchers of beer during this time.
At some point an argument erupted over whether the defendant's pets were the source of the plaintiff's dog's flea problem. The defendant became very agitated and belligerent. Yelling and shouting ensured. After some time the defendant stormed up the stairs. As he did so, the plaintiff's friend, James Miller, who came to visit the plaintiff, encountered the defendant. Miller testified that the defendant said to the plaintiff words to the effect that he "would kill his damn dog". About two hours later, the defendant descended the stairs and told the plaintiff he would have to move by the end of the month.
Early the next morning, on November 30, the plaintiff went to work. He left his dog in the bedroom area. Upon returning around 5pm, he was met with the gruesome sight of his dog Ebony dead on his bed with a rock nearby. Her head appeared to be bashed in. There was extensive blood and bodily fluid in her fur and on the bed.
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The defendant Moore was charged under the Criminal Code with willfully and without lawful excuse killing a dog. He pleaded guilty and was placed on probation for one year and ordered to do fifty hours community service and to pay restitution of $250 for OSPCA costs.
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The act of brutally killing the dog and leaving its body on the plaintiff's bed for the plaintiff's discovery was meant to shock the plaintiff and to convey to him a message in no uncertain terms that he was no longer welcome as a tenant. The defendant's conduct was calculated to shock and frighten the plaintiff, and it had that desired effect. The defendant knew of the deep affection that the plaintiff had for his dog Ebony.
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[The Justice reviews case law on damages] ... I find that the sum of $15,000 is appropriate compensatory damages. I have included an element of $5,000 for aggravated damages in that amount
The plaintiff also seeks punitive damages. Even though there has been criminal punishment, plaintiff's counsel submits that it was not adequate in the circumstances. I agree. The evidence in the civil case shows a culpability of a greater degree than emerged before the criminal court. There was premeditation on the defendant's part.
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Taking into account the factors outlined in Whitten v Pilor Insurance Company (2002) 1 SCR 595, this is an appropriate case for punitive damages, and I award $15,000 for this head of damage.
Accordingly, the plaintiff is entitled to damages of $740 special damages, $15,000 general and aggravated damages, $15,000 punitive damages, for a total of $30,740, plus prejudgment interest in accordance with the Courts of Justice Act.
[costs were fixed at $12,000 plus disbursements of $2,588]
Lederman J |
