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Bitten by a Dog? Bite Back!

We all have been in situations where we are confronted by an aggressive dog that the owner reassures us that does not bite. When suddenly and out of nowhere, the dog viciously attacks you. What do you do? Who is responsible for the attack of the dog? The owner or the person having control of the dog at the time of the attack? Answers to these questions are paramount in receiving just and fair compensation.

Ontario provincial law concerning civil liability in cases of dog bite or attack is found in the Dog Owner’s Liability Act, RSO 1990, c D-16 (“Act”). In instances where damages resulting from the dog bite or attack occur on the property of the owner, liability is established solely by the Act and not the Occupiers’ Liability Act, RSO 1990, c D.16.1.Thus, it does not matter where the dog bite occurs, the Dog Owner’s Liability Act, RSO 1990, c D-16 always governs such situations.

The Act relays a strict liability on the owner of the dog. In section 2(1) and (3) of the Act, it notes that:

2 (1). The owner of a dog is liable for damages resulting from a bite or attack by the dog on another person or domestic animal.

2 (3). The liability of the owner does not depend upon knowledge of the propensity of the dog or fault or negligence on the part of the owner, but the court shall reduce the damages awarded in proportion to the degree, if any, to which the fault or negligence of the plaintiff caused or contributed to the damages. R.S.O. 1990, c. D.16, s. 2 (3).

In other words, the liability on the owner of the dog does not depend on the breed of the dog, whether the dog in question was known to have bitten people in previously occasions or any other factor. Liability is strict. If a dog bites you, then the owner of the dog is liable for the injuries caused.

The courts however will reduce the damages in the degree that the victim contributed to the attack. For example, if the victim was found to have thrown rocks to the dog or contributed in some way to making the dog aggressive, the court might reduce the damages in proportion to that contribution by the victim.

But who is the owner of the dog? Is the person walking the dog for a friend the owner or is it the person who legally owns the dog in question? The Act defines owner as:

1(1). “owner”, when used in relation to a dog, includes a person who possesses or harbours the dog and, where the owner is a minor, the person responsible for the custody of the minor. [emphasis added]

Fundamental to this definition of “owner” are the necessary conditions of either possessing or harbouring the dog. Unfortunately, these terms are not defined by the Act, so we must seek out the relevant case law to elucidate the complete meaning of “owner”.

In the Ontario Court of Justice case Purcell v Taylor [1994] OJ No. 2845, the definition of owner as described in s. 1(1) was determined based on interpretation of the term “harbouring”. In this case Justice Borins concluded that “a person does not harbour a dog, within the ordinary meaning of “harbour”, unless he or she exercises some degree of care or control over the dog” (para. 30).

In the Court of Appeal case Wilk v. Arbour [2017] OJ No. 164, the court again looked at the issue of ownership, control, and liability. The Court found that the words owner, possesses, and harbours have one thing in common: the ability to exercise control over the dog. The court went on to hold that the weight of Canadian jurisprudence respecting harbouring requires “some degree of control”. Moreover, the Court held that the critical time to determine the principle of possession as required by the Act, is the time just before the incident. The word “possesses” in the definition of “owner” under the Act includes a person who is in physical possession and control over a dog just before it bites or attacks another person or animal.

In other words, the courts have found that the person who had “some degree of control” over the dog at the time just before the incident, is considered the owner under the Act.

A dog attack can be a very traumatic and violent experience. Knowing who to sue and how to go about receiving fair and just compensation is very important. The process can be confusing. We are here to help. If you or a loved one has been involved in a dog attack, please contact our experienced team at Reybroek Law for a free consultation.

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