As B.C. Supreme Court judge has set aside a 2023 earlier ruling that a man bitten on his lower leg by Flex the Yorkshire terrier was entitled to $5,000.
Now, Judge Warren Milman said in an Oct. 2 decision, Robert Rae must repay that money as well as reimburse the dog’s owners $2,500 in special costs.
“The plaintiff had no entitlement to the $5,000 he recovered pursuant to the order because he had already been more than fully compensated with the $8,500 he received from the [other defendants] prior to the commencement of the trial,” Milman said.
“The injury he sustained was not a divisible one.”
Robert Rae had sought between $30,000 and $35,000 in damages against Flex’s owners Dr. Samir Hanna Gadalla, 83, and wife Rofah Boulis Abdel-Malik, 78.
They claimed Rae was not bitten but merely scratched, that Rae had provoked Flex by accidentally stepping on one of his paws on Oct. 12, 2018 at the Yaletown complex in which all of them live.
But, they said, if they were found liable, Rae should get no more than $2,500.
“I have concluded that Mr. Rae did not accidentally provoke Flex by stepping on him,” Milman said.
“Rather, the more likely explanation for what occurred is that Flex was behaving aggressively and barking from the moment that Mr. Rae got on the elevator, and that Flex then lunged and bit Mr. Rae without provocation.”
'Below the knee, drawing blood'
When the bite happened, Rae had just finished his morning workout and got on the elevator with Abdel-Malik and Flex.
“Flex was on a leash and barking. Just as the doors opened at his floor, Flex bit him on the back of his left leg, below the knee, drawing blood,” Milman said. “Mr. Rae denied that he stumbled or stepped on Flex before being bitten.”
Rae went to the concierge who called an ambulance. Paramedics came and treated the wound.
Abdel-Malik described the situation differently.
She said she heard Flex bark when Rae stumbled backwards and accidentally stepped on him.
Milman wrote, “Once in the suite, she noticed that Flex was whining and in pain and unable to put weight on one of his paws.”
The judge said the couple’s son arrived and noticed Flex appeared to be injured and limping.
The new decision
In his Oct. 2 reconsideration decision, Milman said Gadalla and Abdel-Malik applied to have the decision set aside. A mistrial request had already been denied.
Milman said Rae had originally named four parties as defendants in this action. In addition to the Gadalla and Abdel-Malik, he also sued the strata corporation and the property management company.
However, the strata and management company settled with Rae in June 19, 2023 for $8,500, less than a month before the trial began.
After the trial ended, Gadalla and Abdel-Malik’s lawyer emailed Rae’s counsel asking him to disclose the amount Rae had received so that it could be deducted from the award of damages before the trial order was entered.
“[Rae’s] counsel initially refused to disclose the amount received in the settlement, asserting that it remained subject to settlement privilege,” Milman said.
On Jan. 26, Gadalla and Abdel-Malik filed an application to have the settlement agreement produced. That was done 25 days later."
With that new information in hand, Milman ruled Rae was not entitled to the previously awarded funds.
“The amount received in the settlement was no longer privileged once the prospect of double recovery arose,” Milman said.
“Before the order was entered, that amount [the $8,500] should have been deducted from the award so as to reduce the damages payable by [Gadalla and Abdel-Malik] to zero,” the judge said.
