Kennel Contracts & Breaches

GENERAL INFORMATION

At Gartner and Associates, we are passionate about empowering pet guardians to be well-informed when boarding their companion animal at a kennel. In the event your companion animal is hurt or dies while in their care, common law has actively discussed the available damages for pet guardians. While the law still treats animals as “chattels”, there is a burgeoning legal recognition of the pain and suffering resulting from the loss or injury of one’s companion animal. The act of signing contracts or waivers does not mean a kennel is absolved of their liability should something happen to your companion animal while in their care.

When vetting a suitable kennel for your companion animal, we encourage you to research the best available facilities. This is especially important if your companion animal has pre-existing medical issues. You want to make sure they will be comfortable in this facility. It is best practice to inform the kennel of any special needs your companion animal requires. Further, many kennels offer copies of their contracts on their websites for your review before using their services.

CONSUMER PROTECTION AGAINST UNFAIR CONTRACTS

Ontario legislation offers protection to consumers when there are issues of ambiguity in a contract. This is referred to as contra proferentum. This is a general contractual interpretation rule which provides that where an agreement or term is ambiguous, the preferred meaning should be one that works against the interests of the party who provided the contract. The law aims to protect consumers from unclear or unfair contracts. The contra proferentum rule is explored in the Consumer Protection Act, 2002, which applies to business to consumer transactions. Section 11 states:

“Any ambiguity that allows for more than one reasonable interpretation of a consumer agreement provided by the supplier to the consumer or of any information that must be disclosed under this Act shall be interpreted to the benefit of the consumer” [1]

As a consumer, you ought to be provided with the service you contracted for. Our companion animals are valued parts of our life and deserve to be treated well while in the care of others. We bring this to your attention to understand that contractual liability is nuanced. It is both the written provisions of your contract and unique circumstance of your matter that affect the kennel’s overall liability.

BREACH OF CONTRACT AND STANDARD OF CARE

In Ferguson v Birchmount Boarding (a leading Ontario case), a dog escaped from a kennel through an unsecure fence. The court found that Birchmount did not take reasonable steps to ensure their fence was secure, to prevent the dog’s escape. A visual inspection of the fence was not adequate to mitigate Birchmount’s liability for the loss of the Plaintiff’s companion animal. The court found that Birchmount was negligent in its standard of care. The judge found this to be a fundamental breach of contract which meant that the Defendant could not rely on the waiver in the kennel contract. [2]

ARE ANIMALS SIMPLY CHATTEL UNDER THE LAW?

Judgements have not been consistent in their approach to compensation for loss of or injury to companion animals. There are several cases which strictly equate companion animals to chattels. If this is the approach taken by the judiciary, a judge can limit damages to the economic value of your animal and deny further damages to compensate for your pain and suffering from losing your companion animal.

In Ferguson, the presiding justice overtly critiqued the principle that animal companions must be viewed as chattels with a fixed value. Chapnik J states:

            “In my view, that characterization as a general proposition, is incorrect in law” [3]

A likening of animals as chattels under the common law does not necessarily reflect current societal value of animal welfare. While there are cases that do allow damages for the cause of pain and suffering to be compensated to pet guardians, they are not necessarily binding. Nonetheless, they are an encouraging indication that the judiciary is open to a new interpretation of the traditional value of companion animals.  

FINAL RECOMMENDATIONS

We highly recommend that you thoroughly research potential kennels for your companion animals. Many kennels have copies of their contracts posted on their website, which are available for your review. It may be worth sending your dog to a smaller facility so they have more attention and dedicated care. While you are evaluating a potential kennel, you ought to ask lots of questions to understand how they will be caring for your companion animal. If your companion animal has pre-existing medical issues, you should let them know. Kennels ought to be well-versed in dealing with more complex issues your companion animals may be facing. Kennels have a significant duty of care for your companion animal and could be liable for more than general damages in court. It is possible to claim further damages, although it does depend on the particular circumstances of your case. It is best to consult a lawyer well versed in animal boarding issues to evaluate the kennel’s duty of care.

If you are considering legal action or are evaluating your options in a potential case against a kennel, we urge you to consider contacting Gartner & Associates by phone at 416-836-9971or via email at reception@animallawyers.ca. We understand that disputes resulting from kennels are complex and we are happy to assist you. 

[1] Consumer Protection Act, 2002, SO 2002, C 30, Sched A at s. 11.

[2] Ferguson v Birchmount Boarding, 2006 CanLII 2049 (ON SCDC)

[3] Ibid at para 20.

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