SUPREME COURT OF BRITISH COLUMBIA VANCOUVER REGISTRY 151? 02c. No J7 Vancouver Registry THE SUPREME COURT OF BRITISH COLUMBIA 3 BETWEEN: JOHN DEVITA, LUCIANA v. DEVITA ANTONELLA MOSCONE and KELLY TOMPKINS PLAINTIFFS AND: THE CITY OF THE OWNERS STRATA PLAN 8082103; FANHAN RYAN and SHANNON FLEGAR DEFENDANTS NOTICE OF CIVIL CLAIM This action has been started by the Plaintiffs for the relief set out in Part 2 below. If you intend to respond to this action, you or your lawyer must file a response to civil claim in Form 2 in the above-named registry of this court within the time for response to civil claim described below, and serve a copy of the filed response to civil claim on the Plaintiffs. If you intend to make a counterclaim, you or your lawyer must file a response to civil claim in Form 2 and a counterclaim in Form 3 in the above-named registry of this court within the time for response to civil claim described below, and serve a copy of the filed response to civil claim and counterclaim on the Plaintiffs and on any new parties named in the counterclaim. JUDGMENT MAY BE PRONOUNCED AGAINST YOU IF YOU FAIL to file the response to civil claim within the time for response to civil claim described below. Time for response to civil claim A response to civil claim must be filed and served on the Plaintiffs, if you reside anywhere in Canada, within 21 days after the date on which a copy of the filed notice of civil claim was served on you, if you reside in the United States of America, within 35 days after the date on which a copy of the filed notice of civil claim was served on you, if you reside elsewhere, within 49 days after the date on which a copy of the filed notice of civil claim was served on you, or if the time for response to civil claim has been set by order of the court, within that time. IIDECIS 1528135 RIBS 260.?? 21$22 51513297 CLAIM OF THE PLAINTIFFS Part 1: STATEMENT OF FACTS A. 1. 10. The Parties: The Plaintiff, John Devita [the ?Plaintiff John"], is a buinessperson and resides at 4715 Northlawn Drive, Burnaby, British Columbia. The Plaintiff, Luciana V. Devita [the ?Plaintiff Lucy"], is an accounting department administrator and resides at 4715 Northlawn Drive, Burnaby, British Columbia. The Plaintiff, Antonella Moscone [the ?Plaintiff Antonella?], is a businesswoman and resides at 101-4888 Brentwood Drive, Burnaby, British Columbia. The Plaintiff, Kelly Tompkins [the ?Plaintiff Kelly?], is a Senior Marketing Salesperson and resides at 2304-1155 Homer Street, Vancouver, British Columbia. The Defendant, the City of Vancouver [the ?Defendant City"] is a municipality duly incorporated pursuant to the Vancouver Charter, 8.8.0. 1953, c. 55 and has an address for service located at 453 West 12th Avenue, Vancouver, British Columbia. The Defendant, The Owners Strata Plan 8082103 [the ?Defendant Strata?], is a strata corporation incorporated pursuant to the provisions of the Strata Property Act, 8.8.0. 1998, c. 43 with an address for service at 928 Homer Street, Vancouver British Columbia. The Defendant, Fanhan Zeng [the ?Defendant Zeng?], is a designer and is the registered owner of the strata lot bearing the civic description of #1409?928 Homer Street, Vancouver, British Columbia [the ?strata lot"]. The Defendant, Ryan Patrick [the ?Defendant Patrick"], who?s occupation is unknown to the Plaintiffs, was at all material times the occupant or tenant of #1409-928 Homer Street, Vancouver, British Columbia. The Defendant, Shannon Flegar [the ?Defendant Flegar?], who?s occupation is unkown to the Plaintiffs, was at all material times the companion of Ryan Patrick and to the knowledge of the Plaintiffs resided with him at #1409928 Homer Street, Vancouver, British Columbia. The Duties of and Relations Between the Parties: At all material times: the Plaintiffs John and Lucy, were the owners of a five month old cocker spaniel named Mila [?Mila"] who was being trained as a service (emotional) dog; 11. 12. 13. the Defendant City operated a pound and employed a poundkeeper or poundkeepers who were responsible to provide animal control services, including the enforcement of city bylaws, specifically: Vancouver Charter, 1953] C. 55, Part Bylaw 324.1 and Animal Control Bylaw No. 9150. The Defendant City is vicariously liable for the acts and omissions of its poundkeeper(s) and Animal Control department; (0) the Defendant City was the owner of the street, sidewalk and works located at southwest corner of Homer and Smithe Streets, Vancouver, British Columbia (the ?Premises"). The Premises are ?premises? within the meaning of the Occupiers Liability Act, R.S.B.C. 1996, c. 337; (cl) the Defendant Strata had strata bylaws which it was statutorily obligated to enforce as against its owners, tenants, and residents or, in the alternative, failed to enact appropriate strata bylaws to ensure that its statutory and common law obligations were fulfilled; the Defendant Zeng as owner and as landlord of the strata lot had certain responsibilities which are particularized below to ensure that the strata lot and/or the land uses associated with the strata lot and/or the tenants/occupants renting out the strata lot were not in breach of statute or regulation and moreover were not posing a safety hazard or nuisance to the public; and the Defendant Patrick was the sole owner or, in the alternative, a joint owner with the Defendant Flegar of an aggressive and dangerous dog known by the breed, Pitbull Mastiff [the ?Pitbull?]. The Attack By the Pitbull: On June 14, 2015, at approximately 4:10 pm, the Plaintiffs Lucy, Antonella and Kelly were walking Mila through, onto and around the Premises when the Pitbull, which was unsupervised by the Defendants Patrick and Flegar and which, contrary to Animal Control Orders, was unleashed and un-muzzled, ran at the Plaintiffs Lucy, Antonella and Kelly and viciously attacked and mutilated Mila in full view of the Plaintiffs Lucy, Antonella and Kelly, each of whom suffered serious defensive wounds as they unsuccessfully attempted to fend off the Pitbull and protect Mila [all of which events are hereinafter referred to as the ?Attack"]. While the Plaintiffs Lucy, Antonella and Kelly attempted to fight off the Pitbull with the assistance of bystanders, the Defendants Patrick and Flegar arrived at the scene and attempted to restrain their frenzied Pitbull with initially no success, thus further prolonging the Attack until the Pitbull could finally be restrained. Upon controlling their Pitbull, the Defendants Patrick and Flegar immediately sought to escape from the scene with their animal rather than render aid to the victims and provide identification and contact information to the Plaintiffs Lucy, Antonella and Kelly. However, a bystander followed both defendants to 928 14. 15. 16. 17. Homer Street, Vancouver, British Columbia where it was later learned that the Defendants Patrick and Flegar resided as a tenant or occupant in suite 1409, the strata lot. Mila was rushed to two veterinary clinics but after emergency assistance and surgery, neither of these clinics could save her -- to the great distress of the Plaintiffs. Breach of Duty by the Defendant City: The Defendant City and its Control department owed a duty of care to the Plaintiffs and to all members of the public to ensure that its Animal Control Bylaw 9150 was enforced and that members of the public would be safe and free from the severe and imminent danger posed by dangerous animals like the Pitbull. the Defendant City, specifically its and was preventable had it The Attack was foreseeable by Control department, discharged its duty to the public. In particular, the Defendant City and its poundkeeper(s) were armed with the following knowledge and facts pertaining to the Pitbull and the severe danger which it posed to the public: the Pitbull had been previously seized by the Defendant City on May 1, 2015, only six weeks before the Attack, because of a similar vicious attack on another small dog in the same area of the Premises [the ?Previous Attack?]; as he/they did in the Attack, the Defendant Patrick either alone or with the Defendant Flegar ran away from the scene after pulling the Pitbull off of the small dog in the Previous Attack, only to be identified by witnesses who chased after him/them; the owner of the small dog involved in the Previous Attack expressly warned the Defendant City about the severe danger to the public posed by the Pitbull and that such danger was compounded to the extreme of lethality by virtue of the irresponsible, reckless and miscreant conduct of the Defendant(s) Patrick and Flegar as evidenced by their behaviour in the course and aftermath of the Previous Attack; the Pitbull by its specific behaviour and by the universally held reputation and vicious propensities of its breed, was clearly known to the Defendant City to be an aggressive, vicious and very dangerous animal and thus was a dangerous dog as defined by s. 324.1 of the Vancouver Charter and presented an imminent danger to the public a danger that unfortunately was all too shortly realized in the Attack on June 14, 2015, not six weeks after the Previous Attack; 18. 19. 20. 21. 22. the Pitbull was not altered or neutered and its aggressive and vicious disposition was further heightened; and the great and widely known peril to life, limb and security of members of the public and their animals caused by Pitbull Mastiffs in a long history and well documented series of attacks throughout the province, the country and all of North America rendered the risk of release of the Pitbull as extreme. Notwithstanding such warnings, knowledge and foreseeability and notwithstanding that the reprehensible conduct of the Defendants Patrick and Flegar in the Previous Attack was well known to it, the Defendant City and its Control department negligently released the Pitbull to the streets and into the possession of the Defendants Patrick and Flegar with orders merely to keep the Pitbull on a leash and muzzled while in public instead of preserving public safety by detaining and seeking an order for the destruction of a dangerous animal. Further particulars of the negligence and breach of duty by the Defendant City are: failing to act with reasonable care to enforce, in an effective and timely manner, the Defendant City?s bylaws regarding the management and control of dangerous dogs; failing to safeguard the public from those specific breeds known to be uniquely and inherently dangerous if not ferae naturae by subjecting these to greater vigilance in the event of aggressive behaviour or attack; and failing to take reasonable care to prevent injury or damage to the Plaintiffs from danger which the Defendant City knew or ought to have known was imminent and completely within the control of the Defendant City. The Plaintiffs issued written notice to the Defendant City of their claims against it pursuant to s. 294(2) of the Vancouver Charter on August 10, 2015. Breach of Duty by the Defendant Strata: The Defendant Strata was statutorily bound to enforce its bylaws and ensure that its owners, tenants and visitors not make use of a strata lot, the common property or common assets which causes a nuisance or hazard to another person. Further, the Defendant Strata owed a duty at common law to the public and especially to users of neighbouring streets to ensure that its strata complex was not harbouring animals known to be dangerous as particularized above and to warn the City and its animal protection and police departments of the threat of 23. 24. 25. 26. 27. 28. 29. physical loss or injury created by the Pitbull and the refusal and/or neglect of the Pitbull's owner(s), the Defendants Patrick and Flegar, to control the Pitbull. The Defendant Strata was aware at all material times of the dangerous and vicious nature of the Pitbull and its breed and in particular was aware some weeks before the Attack that the Pitbull was sheltered in unit 1409 at the Defendant Strata?s complex and had shown its vicious nature in the Previous Attack and thus constituted a nuisance or hazard to other owners, tenants, and visitors as well as to the public and users of neighbouring streets. The Defendant Strata breached its duty to the public and users of neighbouring streets by failing to warn the City and its animal protection and police departments of the threat of physical loss or injury created by the Pitbull, by failing to remove the Pitbull or demanding the removal of the Pitbull or seeking City or Court sanction to remove and detain the Pitbull or taking other steps to enforce the bylaw by way of fine or remedying of the contravention in accordance with its powers under the Strata Property Act. Breach of Duty by the Defendant Zeng: The Defendant Zeng as owner and landlord of the strata lot, owed a duty to the public and users of neighbouring streets to ensure that the use of his strata lot by occupiers and/or tenants was compliant with all bylaws and with all laws and that the occupants/tenants of his strata lot did not harbour within his suite an animal known to be dangerous or that, at the very least, the Strata Corporation, the City and its animal protection and police departments were warned of the threat of physical loss or injury created by the Pitbull. The Defendant Zeng was specifically aware at all material times that his strata lot harboured the Pitbull which he knew to be a dangerous and vicious animal which had been involved in a Previous Attack aware some weeks before the Attack that the Pitbull was sheltered in unit 1409 at the Defendant Strata?s complex and constituted a nuisance or hazard to other owners, tenants, and visitors. In breach of his duties, the Defendant Zeng failed to ensure that the use of his strata lot was compliant with the bylaws and all laws and that his strata lot did not harbour a dangerous animal which threatened public safety. In further breach of his duties, the Defendant Zeng failed to warn the Strata Corporation, the City and its animal protection and police departments of the threat of physical loss or injury posed by the Pitbull and posed by the refusal and/or neglect of the Pitbull's owner(s), the Defendants Patrick and Flegar, to control the Pitbull. Breach of Duty by the Defendants Ryan Patrick and Shannon Flegar: The Defendants Patrick and Flegar, either alone or jointly, knowingly possessed and harboured the Pitbull which they knew to be extremely vicious and 30. 31. 32. 33. 34. 35. dangerous, irrespective of whether the breed is characterized as ferae naturae or mansuetae naturae. The Defendants Patrick and Flegar, either alone or jointly, were at all material times irresponsible animal owners and either deliberately, recklessly or negligently fostered the Pitbull?s vicious and lethal nature, ostensibly for use as a weapon. Before the Attack, the Defendants Patrick and Flegar were aware or should have been aware that the Pitbull was ferae naturae or that the animal had a irrepressible tendency to cause physical loss and injury such that scienter is conclusively presumed. in the alternative, even if the Pitbull is deemed mansuetae naturae, which is not admitted and is expressly denied, the Defendants Patrick and Flegar were aware before the Attack that the Pitbull had previously committed the very same vicious and dangerous acts evident in the Attack such that scienter is engaged. Further, the Defendants Patrick and Flegar owed a duty to the public and to the Plaintiffs in particular to abide by the Defendant City?s orders to keep the Pitbull leashed and muzzled and their refusal or neglect to do so constitutes negligence and a flagrant disregard for the safety of other persons so as to attract an award of punitive damages. Further, the Defendants Patrick and Flegar owed a duty to the Plaintiffs to render aid and to provide information to the victims. By fleeing the scene of the Attack with their Pitbull, the Defendants acted reprehensibly and in flagrant disregard of their duties to the Plaintiffs and the public so as to attract an award of punitive damages and the Plaintiffs make claim therefor. Damages to the Plaintiffs: As a result of the Attack and the breaches of the Defendants as particularized above, all Plaintiffs have suffered loss and damage and such loss and damage was foreseeable by each of the Defendants. The particulars of the loss and damage are as follows: the Plaintiffs Lucy, Antonella and Kelly suffered bites and bruising from the Pitbull to theirfingers, hands, arms, knees, legs and ankles; all Plaintiffs including the Plaintiff John have suffered mental/emotional anguish, distress and trauma, including post-traumatic stress disorder, for which they are all receiving ongoing medical and treatment; the Plaintiffs Lucy, Antonella and Kelly have suffered substantial loss of income; 36. the Plaintiffs John and Lucy incurred special damages for out of pocket expenses pertaining to the veterinarian bills in the amount of $6,505.28; and all Plaintiffs have incurred other special damages for out of pocket expenses and cost of care, the particulars of which will be provided as and when these are incurred and/or ascertained. The Plaintiffs claim punitive damages against the Defendants Patrick and Felgar as stipulated in paragraphs 33 and 34 above. Part 2: RELIEF SOUGHT 37. The Plaintiffs claim judgment against the Defendants and each of them for: general damages for pain and suffering; special damages for out of pocket expenses; special damages for loss of income both past and prospective; loss of earning capacity both past and prospective; health care services costs; cost of future care; (9) punitive damages; interest pursuant to the Court Order InterestAct, RSBC 1996, 0.79; costs; and, such further and other relief as this Honourable Court deems just. Part 3: LEGAL BASIS 38. 39. 40. 41. As against all Defendants, Negligence Act, R.S.B.C. 1996, c. 333; As against the Defendant City, negligence and breach of statutory duty including breach of Vancouver Charter, 1953] C. 55, Part XIV, Bylaw 324.1 and the Animal Control Bylaw No. 9150 and the Occupiers? Liability Act, R.S.B.C. 1996, c. 337; As against the Defendant Strata, negligence, nuisance and breach of statutory duty under the Strata Property Act, 8.8.0. 1998, c. 43 and the Bylaws of the Defendant Strata; As against the Defendant Zeng, negligence, nuisance and breach of statutory duty. 42. As against the Defendants Patrick and Felgar: Scienter, Negligence; Breach of statutory duty; Breach of regulatory orders; Reprehensible conduct attracting punitive damages pursuant to the case authority Whiten v. Pilot Insurance Co., 2002 SCC 18; Plaintiffs' address for service: DuMoulin Boskovich LLP #1800 - 1095 West Pender Street Vancouver, BC V6E 2M6 Fax number for service: 604-688-8491 E-mail address for service: Place of trial: Vancouver, British Columbia The address of the Registry is: 800 Smithe Street Vancouver, BC Sign of Lawyer for Plaintiffs Mic 9. Ta ell Rule 7-1 (1) of the Supreme Court Civil Rules states: (1) Unless all parties of record consent or the court otherwise orders, each party of record to an action must, within 35 days after the end of the pleading period, prepare a list of documents in Form 22 that lists all documents that are or have been in the party's possession or control and that could, if available, be used by any party at trial to prove or disprove a material fact, and (ii) all other documents to which the party intends to refer at trial, and serve the list on all parties of record. Date: 11/Dec/2015 10 APPENDIX Part 1: CONCISE SUMMARY OF NATURE OF CLAIM: The Plaintiffs claim against each of the Defendants for damages and loss sustained by the Plaintiffs on account of a vicious and lethal dog attack on June 14, 2015 caused by a Pitbull known to be dangerous and resulting in the mutilation of the dog owned by the Plaintiffs John and Luciana DeVita and the loss and damage and injury to all of the Plaintiffs. The Pitbull attack was caused or contributed to by common law and statutory breaches committed by each of the Defendants. Part 2: THIS CLAIM ARISES FROM THE FOLLOWING: a motor vehicle accident medical malpractice El another cause El contaminated sites El construction defects El real property (real estate) El personal property El the provision of goods or services or other general commercial matters investment losses the lending of money El an employment relationship a will or other issues concerning the probate of an estate El a matter not listed here Part 3: THIS CLAIM INVOLVES: El a class action maritime law El aboriginal law El constitutional law El conflict of laws none of the above El do not know 11 Part 4: Vancouver Charter, [880 1953] C. 55, Part XIV Animal Control Bylaw No. 9150 Bylaw 324.1 [City of Vancouver] Occupiers Liability Act, R.S.B.C. 1996, c. 337; Strata Property Act, 8.8.0. 1998, c. 43 .