Fridays with Rogers Partners
At our weekly meeting, Pip Swartz discussed the recent decision of the Ontario Superior Court in Dhillon v. City of Cambridge, 2021 ONSC 7385.
Overview
On August 15th, 2016, Mohammad Hadi’s dog, identified as named “Chewy”, bit Interpal Dhillon at Mohammad’s residence. Among other parties, Interpal sued Animal Services Cambridge (“Animal Services”), an organization that enforces Cambridge’s dog by-laws. Animal Services brought a motion for summary judgment seeking dismissal of the claim.
Facts
The plaintiff, Interpal, claimed against the defendant, Animal Services, in negligence. Interpal claimed that Animal Services breached their duty of care to protect the citizens of Cambridge from dangerous dogs. Interpal claimed that his injury might have been prevented if Animal Services had fully investigated prior dog attacks perpetrated by Mohammad’s dog(s).
Prior Attacks
There had been two prior dog bite incidents involving Mohammad. On September 21st, 2015, Mohammad’s dog, Asia, attacked a customer at Mohammad’s auto shop. Following the attack, Animal Services designated Asia as a ‘dangerous dog’. A ‘dangerous dog’ designation compels dog owners to take specific precautions, such as: muzzling their dog, displaying warning signs, spaying or neutering their dog, vaccinating their dog, and registering their dog. Animal Services did not follow up with Mohammad to confirm he was complying with the restrictions.
On March 18th, 2016, a dog attacked a customer at Mohammad’s auto shop. At the time of the attack, one Richard Ramirez was supervising the dog. Animal Services investigated the attack but were unable to determine the dog’s identity or owner.
Analysis
To decide whether summary judgment would be appropriate, the judge applied Rule 20.04(2)(a) of the Ontario Rules of Civil Procedure, which provides that “the Court shall grant summary judgment if it is satisfied that there is no issue requiring a trial”[1].
To determine whether the plaintiff’s claim against the defendant required a trial, the judge asked the following 3 questions: 1) Did the defendant owe the plaintiff a duty of care?; 2) If yes, did the defendant breach their duty of care?; and 3) Did the defendant’s negligence cause the plaintiff’s injury?
The court found that Animal Services owed the plaintiff a duty of care, and focussed the bulk of its analysis on the 2nd and 3rd issues.
Did the Defendant Breach its Duty of Care?
The judge held that the Animal Services did not breach its duty of care.
The judge considered the following questions:
- Did the defendant breach its duty of care by failing to check whether Mohammad complied with the dangerous dog requirements that were imposed on Asia after the first attack?
- Did the defendant breach its duty of care by failing to do a full investigation following the second attack and/or to issue a ticket after the second attack?
The judge found that the first question was irrelevant, because the plaintiff was not attacked by the same dog from the first attack.
As to the second question, the judge found that Animal Service’s failure to fully investigate the second attack was at worst an “error in judgment”[2], but did not breach the requisite standard of care. In reaching this conclusion, the judge cited the case of Hill v. Hamilton-Westworth[3] for the proposition that municipal officers do not need to act optimally, and that ‘mere errors in judgment’ do not breach their standard of care[4].
Despite finding that the defendant did not breach the standard of care, the judge continued the analysis and assessed whether the defendant caused the plaintiff’s injury.
Did the Defendant’s Negligence Cause the Plaintiff’s Injury?
The judge found that Animal Services’ conduct did not cause the plaintiff’s injury. To assess causation, the judge applied the ‘but for’ test, which asks the following: but for the defendant’s negligence, would the incident have happened?
The plaintiff argued that the dog in the second attack might have been the same dog that attacked him, and that Animal Services could have prevented his attack by fully investigating the second attack. The judge disagreed. The judge found that even if Animal Services had conducted a proper investigation after the second attack, the plaintiff would have likely still been attacked.
The judge found that the plaintiff had presented insufficient evidence to show that the same dog had been involved in both the second attack, and the third attack involving the plaintiff. Further, the judge stated that even if the same dog was responsible for both the second and third attacks, the third attack would still have occurred.
The judge noted that if the same dog was responsible for both the second and third attacks, and if Animal Services had fully investigated the second attack, the most Animal Services could have done following the second attack would have been to designate the offending dog as ‘dangerous’. The judge stated that the dangerous dog designation would not have prevented the plaintiff’s attack; only impoundment would have prevented the attack (and impoundment was not an available option to Animal Services after the second attack).
As the court found that Animal Services had not breached the applicable standard of care, and that Animal Services’ failure to better investigate the earlier attack had not caused the attack involving the plaintiff, the court concluded that there was no genuine issue regarding Animal Services’ liability to the plaintiff requiring a trial, and granted summary judgment dismissing the action as against Animal Services.
[1] Dhillon v. City of Cambridge, 2021 ONSC 7385 at para 13.
[2] Ibid at para 54.
[3] Hill v. Hamilton-Westworth (Regional Municipality) Police Services Board, 2007 SCC 41.
[4] Ibid at para 73.