Liability for dog bites and attacks: Who is the "owner"?
Who is liable for damages caused by a dog bite or attack when the dog is being walked?
Under the Dog Owner’s Liability Act[1] (the “Act” or the “DOLA”), the owner of a dog is liable for damages resulting from a bite or attack by the dog on another person or domestic animal. However, DOLA defines “owner” as including “a person who possesses or harbours the dog and, where the owner is a minor, the person responsible for the custody of the minor."
In Wilk v. Arbour[2], the Court of Appeal for Ontario was asked to determine when a person is in possession of a dog under the DOLA.
Facts of the Case
Donna Wilk offered to take Zeus, a Great Dane dog owned by Kevin Arbour, for a walk and Mr. Arbour accepted her offer. Ms. Wilk took Zeus on a walk and Mr. Arbour remained at home. Zeus was on a leash attached to his collar.
During the walk, Zeus suffered a seizure and became unconscious. When Zeus regained consciousness, he came out of his collar, slipped on ice, and fell down an embankment into a ditch. When Ms. Wilk attempted to retrieve Zeus, she slipped into the ditch, collided with Zeus, and Zeus bit her thumb. Ms. Wilk lost her thumb because of the bite and subsequently brought an action for damages under the DOLA.
Decision of the Court
At the lower court, Mr. Arbour argued that Ms. Wilk was in possession of Zeus at the time he bit her and, as “owner”, she was not entitled to compensation under the DOLA. His position was that the Act only provided for liability by an owner to “another person”, that is, a non-owner.
The lower court held that Ms. Wilk was not in possession of Zeus at the relevant time and was not an owner as defined by the DOLA. It held that a person possesses a dog within the meaning of the Act when that person exercises “dominion and control” over the dog or, in other words, when the person is sovereign or stands in the shoes of the owner. Under this interpretation, although Ms. Wilk was the one walking Zeus, Mr. Arbour was the “owner” under the DOLA and would be liable for damages caused by Zeus.
The Court of Appeal for Ontario rejected this holding. The Hon. Madam Justice Weiler, writing for the court, found that the legislature wished to make those who were in a position to exercise a measure of control over a dog responsible for its behaviour. It reasoned that this makes sense as the person exercising actual control over a dog is generally in the best position to avoid damage being caused by the dog to another person or animal.
Madam Justice Weiler held that, in determining who is in possessionof a dog under the Act, and therefore the "owner", the critical time is the time just before the incident. In this case, Ms. Wilk was the person exercising actual control of the dog prior to the incident and she was best placed to prevent the bite that occurred.
The Takeaway
Under the Dog Owner’s Liability Act, the “owner” includes a person who is in physical possession and control over a dog just before it bites or attacks another person or animal. Individuals who volunteer to walk another person’s dog need to be aware that they could be responsible for any damages caused by the dog if it bites or attacks another person or animal.
However, in her decision, Madam Justice Weiler cautioned that the term “possesses” must be assessed in the context of the specific circumstances of any given case and that a rigid definition is to be avoided. The specific circumstances of a dog bite or attack are a relevant consideration in determining possession and ownership under the Act.
Contact our lawyers for information and advice on your rights in civil litigation arising out of a dog bite or attack.
Disclaimer
Suliman Law Firm has prepared this document for information only; it is not intended to be legal advice. You should consult us about your unique circumstances before acting on this information. Suliman Law Firm excludes all liability for anything contained in this document and any use you make of it.
[1] Dog Owners’ Liability Act, R.S.O. 1990, c. D.16
[2] Wilk v. Arbour, 2017 ONCA 21