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WHAT"S YOUR PET WORTH UNDER THE LAW?
It is important to always seek legal advice before thinking of commencing any litigation and the information on this website should not be construed as legal advice and should not be relied on as such.
It may surprise many pet owners that legally their animals are currently considered as of no more value than a piece of furniture or a favourite watch under Canadian Law. If your watch was worth $1000 and you can prove to a judge that your local watch repair man was negligent when he either lost or damaged it, then you may be awarded your $1000. When it comes to your precious pet therefore, almost the first question Defence counsel, representing a veterinarian accused in court of negligence, will ask of you is, "How much did you spend when buying Fido?" The answer typically will be around $250-350, which represents the usual adoption fee for a dog or cat at a local SPCA or animal rescue society. It matters little that veterinarians are happy to acknowledge, outside a court room, that the animal human bond is precious and that their livelihoods are in many cases dependent on it. Inside a court at trial, as far as the veterinarian is concerned, your pet is worth peanuts. Even the veterinary organizations that regulate their profession do not want the status of animals as chattel to change. It is also irrelevant to a judge that you may have spent thousands of dollars on your pet over the course of their life, between dog food, vet bills etc and that they have become an important part of your family. As far as the law is concerned, your pet is worth, at most, what you paid for him or her. It doesn't matter that there is a special bond between the two of you. It doesn't matter that the loss of your pet may have meant more to you than the loss of a close friend or even a family member. The courts in Canada do not generally award pet owners monetary damages for emotional suffering, arising out of the negligent care their pet may have received at the hands of a veterinarian. The same rules apply across most of the developed world. If our dogs and cats were considered as more than chattel and were recognized as being the sentient beings they truly are, then things might be different. It might also be different for all the cattle, pigs and chickens, who I suggest are also sentient beings and who are killed daily in our industrialized food processing plants. However, our society is not ready to shut those industries down and our courts are also not willing to change their stance, that companion animals are legally, no more than chattel, even though one occasionally sees the odd glimmer of hope.
If an owner, despite these obstacles, decides to proceed with litigation against a veterinarian and it goes to trial, they better be ready to bring along their cheque book. Allegations of negligence against a professional, such as a veterinarian, entail the complainant obtaining expert witnesses. Those witnesses can be hard to find, as few are willing to testify against members within their own field. If one is successful however, in finding one, then the costs for your litigation really start to add up. Firstly, you need to get your expert to review your pet's medical files. Then, following that review, you need to have them write an expert opinion report on the care that was provided. Then they will have to appear in court in person to give testimony on their report. This whole process can take 12-24 months or more. In many situations one may need more than one expert witness. Many experts will also live outside your Province and may need to travel from other jurisdictions, including the USA. Expert opinion fees for one expert may range from $10,000-20,000 from start to finish. Double that amount if two experts are needed. Then there is the question of legal fees, presuming you are successful in finding a firm willing to take you on as a client, especially if you are determined to take your case to trial. This is because 95% of civil litigation cases end in settlement agreements rather than in a trial and those agreements are where a litigant potentially can make money, suing a veterinarian. In my opinion, those agreements are nothing more than Hush Money to keep a complainant quiet but they are how civil litigation usually gets resolved in Canada. If a case does proceed to trial however, it is not unusual for the Plaintiff's legal and expert opinion fees combined, to run from $70,000- 100,000, considering the length of time involved and the amount of legal and medical research involved in a veterinary malpractice case. It is not surprising therefore that a claimant may chose to be a self represented litigant (SRL), considering the financial barriers to litigation, even though SRLs only have a 25% chance of winning at trial in Canada.
How much will you win, if you are successful at trial? Even if you claim for re-imbursement of the fees charged by the veterinarian for your pet's care during the final illness, that figure, in addition to your pet's intrinsic monetary value, is dwarfed by the costs you will incur in obtaining your own expert opinions and any legal fees. In Small Claims Court, if you win, the vast majority of what you have spent on expert opinions and legal fees will not be recoverable. In the Higher Courts across Canada, such as the Supreme Court in British Columbia, cost rules are different. However, there is a risk reward issue here, because if you lose, the costs against you are correspondingly higher. It should also be noted that in the human sphere, winning a negligence claim against a professional is extremely difficult with only 2% of all claims that are initiated being ultimately successful.
When it comes to losing, the amount of the costs you may have to pay depends, in part, on what level of court you have brought your case to. In a Small Claims or Provincial Court situation, the cost awards are meant to be limited, to allow a claimant a reasonable access to justice. However, costs in this court are still at the discretion of the judge and they can occasionally be substantial, especially considering that the defendant veterinarian usually has had to retain expensive legal representation. The amounts awarded against you, as a result, can far exceed the amount you are claiming in your Pleadings.
If you lose at trial and want to appeal, another set of problems arise. If you had been an SRL in Small Claims Court, your appeal has to go to a higher court level. It is strongly advised that appeals be made by lawyers, as they usually involve points of law and they are not about rehashing the evidence presented at the original trial. This means you usually will need to retain a lawyer, explain the whole case to them, get transcripts of the trial and provide them to the other side and to the appeals court. You will need to do all of this within the usual allowed 30 day period, following the judgement in your case. The transcripts can cost between $1000-1500 for each day of trial, depending on how quickly they are needed. The likelihood of success for a litigant at appeal in civil cases in Canada is around 25%. If you are one of the 75% of people who lose at appeal, your costs go through the roof and so appeals are almost unheard of in litigation against a veterinarian. Any judge hearing your case will usually be well aware of this background information when they make their decisions.
One must therefore consider, before proceeding with litigation, all the factors mentioned above. In addition, it is worth realizing that the veterinarian's legal team will usually come from one of Canada's top civil litigating firms and that the judge assigned to your trial may not be particularly sympathetic to having his or her courtroom used for what he or she may consider a trivial matter and a waste of precious court resources. It is probably because of all these factors that so few medical negligence claims against veterinarians have gone to trial in Canada or elsewhere over the last twenty to thirty years. It is perhaps because of this reality that many veterinarians in the past have not bothered to maintain malpractice insurance, because at the end of the day, the chances of them ever needing it have been so small. Contrast this however, with human medicine, where the claims for negligence, resulting in harm, can reach into the millions of dollars. In those cases involving humans, experts and lawyers battle it out frequently because the financial amounts at stake are so much greater.