Why We Should Keep the Doggie-Door Closed on Emotional Damages

Household pets are a cherished part of many families. Yet, in the words of Auxier J. in Pezzente v. McClain, 2005 BCPC 352 (CanLII), the law remains “coldly unemotional” towards companion animals, which continue to be considered “just another consumer product.” Nonetheless, there is good reason for continuing to restrict the compensation available in pet death or injury cases. A line of cases out of Ontario has begun to award more than just replacement value and incurred costs to owners of wrongfully injured or killed pets – and it may be setting a precarious precedent.

In Ferguson v. Birchmount Boarding Kennels Ltd., 2006 CanLII 2049 (ON SCDC), Chapnik J. took exception to Auxier J.’s likening of a dog to a mere consumer product, stating that such a “characterization as a general proposition is incorrect in law.” In upholding the trial judge’s award of pain and suffering damages, Chapnik J. stated that mental distress damages are available for loss of an animal “when the appropriate underlying circumstances… exist.”

Similarly, in Arnold v. Bekkers Pet Care Inc., [2010] O.J. No. 2153, the court confirmed that “while dogs may be chattels, the profound relationship that a dog can have with a human means that damages for the loss of a dog may well exceed what in commercial terms would be characterized as replacement cost. In particular, damages for mental distress may arise.”

Importantly, both Ferguson and Arnold involved peace-of-mind contracts for the boarding of the plaintiffs’ animals. As noted in Arnold, compensation for mental distress arising from breach of this type of contract is “consistent with a long line of cases, beginning with the famous judgment of Lord Denning in Jarvis v. Swan Tours Ltd. (1972), [1973] 1 All E.R. 71.” However, these cases may signal a worrisome loosening of the leash on emotional damages. At least one Ontario decision (Nevelson v. Murgaski, [2006] O.J. No. 3132) has followed Ferguson in awarding the plaintiff pain and suffering damages for injuries to the plaintiff’s dog despite the absence of a contract with the defendant.

In the United States, the courts have been highly reluctant to award emotional damages for death or injury of a pet. According to Phil Goldberg in his 2013 article for the Stanford Journal of Animal Law and Policy, “claims seeking emotion-based damages have been brought in some thirty-five states… The courts hearing the claims have [with few exceptions] dismissed them.”

U.S. courts have been clear that it would be bad policy to compensate pet owners for relational attachment to their pets. In Strickland v. Medlen, No. 12-0047, the Supreme Court of Texas declined to award damages for loss of companionship following the wrongful death of the plaintiff’s dog. In explaining its reasoning, the court stated

Pets are property in the eyes of the law… True, a beloved companion dog is not a fungible, inanimate object like, say, a toaster. The term “property” is not a pejorative but a legal descriptor, and its use should not be misconstrued as discounting the emotional attachment that pet owners undeniably feel. Nevertheless, under established legal doctrine, recovery in pet-death cases is, barring legislative reclassification, limited to loss of value, not loss of relationship.

The problem is this: at common law a family member has no cause of action for the death of a loved one. It is only through legislation, such as the BC Family Compensation Act, RSBC 1996 c.126, that a 3^rd party may bring a fatal injury claim. However, these pieces of legislation are highly restrictive as to potential claimants. In BC, only parents, spouses, or children may bring a claim – excluding relationships such as siblings or friends.

If emotional damages are to be allowed for loss of pet, it is the role of the legislature, not the courts, to effect this change. As the court in Strickland stated, it would be highly odd if the law “permitted damages for loss of a Saint Bernard but not for a brother Bernard.” There must be consistency across the common law. While the Ontario courts may be well-intentioned, recognizing the unique status of companion animals by awarding emotional damages is not the correct approach.