Can the owners of a property where a dog bite occurs, be liable, notwithstanding that the dog in question, belongs to someone else?
This is an interesting determination, especially with rental properties. Section 14 of the Residential Tenancies Act does not allow the preclusion of tenants from keeping animals on rented property. However, if the renter’s dog caused injuries, is the owner of the property also liable?
The Court of Appeal recently heard the decision in Walpole v. Crisol, https://coadecisions.ontariocourts.ca/coa/coa/en/item/22390/index.do, which dealt with this very issue.
The dog in question was owned by the renters of the property, but the owners of the property were also named as defendants in the action. The owners of the property brought a motion for partial summary judgment to have the action dismissed as against them. The motion judge granted the relief and this was the basis of the appeal.
The case discussed who was deemed an owner of a pet pursuant to the Dog Owners’ Liability Act (DOLA). There is strict liability under DOLA, which provides that when a dog causes injury to a person or another pet, the dog’s owner is liable for any resulting damages.
The contentious issue in this case was the interpretation of s. 3(1) of DOLA which states:
3 (1) Where damage is caused by being bitten or attacked by a dog on the premises of the owner, the liability of the owner is determined under this Act and not under the Occupiers’ Liability Act [R.S.O. 1990, c. O.2 (“the OLA”)
The motion judge concluded that “[w]here the bite or attack occurs on the premises of the owner of the dog, liability is determined under DOLA, not OLA.”
The Court of Appeal disagreed with this interpretation and held:
The section provides only that when a dog bite or attack occurs “on the premises of the owner,” the liability of the owner is determined under the DOLA, rather than under the OLA. It does not address the potential liability, under either the OLA or common law, of persons other than the owners of the dog.
Therefore, it was held that even if the defendant property owner is not the owner of the dog, there is no preclusion to bring a negligence claim under the OLA.
The Court of Appeal concurred that the owner, as defined by DOLA, must be the owner of the dog and not the owner of the property where the attack took place. However, even though the Court of Appeal found the interpretation of the Acts and the caselaw by the motions judge to have issues, the reasoning regarding the lack of liability of the owners of the property was found to be sound on the facts of the case.
In this instance, the property owners were absentee landlords and the dog was acquired after the tenancy began. There was no evidence to demonstrate that the owners had assumed responsibility of the dog, which is an important distinction. There are instances, where the property owner, will assist with the pet and in that instance, there may be a different determination on responsibility, as it could be interpreted the property owner “owned,” “possessed” or “harboured” the dog.
Furthermore, the property owner only became aware of the dog when they were served with the Statement of Claim. There is no existing case law to support liability in this instance, on the property owner.
The appellant asked for an interpretation of section 8(1) of OLA, which states:
8 (1) Where premises are occupied or used by virtue of a tenancy under which the landlord is responsible for the maintenance or repair of the premises, it is the duty of the landlord to show towards any person or the property brought on the premises by those persons, the same duty of care in respect of dangers arising from any failure on the landlord’s part in carrying out the landlord’s responsibility as is required by this Act to be shown by an occupier of the premises.
However, there is no evidence in this case, to demonstrate that the dog bite in question, occurred because of lack of maintenance or repairs by the property owner. It was also found that a dog could not be considered a hazard, which would bring into consideration s. 20 of the Residential Tenancies Act requiring the rented premises to be kept in a good state of repair and free of hazard.
Therefore, in this instance, the appeal was dismissed, and the dismissal of the action as against the property owners was upheld.
Although DOLA and OLA, may not be at odds, this case demonstrates that liability and negligence of a property owner, who is not the owner of the dog in question, may still be an issue especially if there is evidence to support more involvement with the dog by the property owner i.e. taking care of the dog and property in the absence of the renter, assisting in the care of the dog, so as to raise an expectation of a standard of care.