Liability of Landlords for Dog Bites Occurring on Their Premises
The Court of Appeal for Ontario recently considered the liability of landlords for dog bites occurring on premises they own, in the case of Walpole v. Crisol, 2024 ONCA 400.
The appellants, the Walpole family, were visiting the home of the defendants, Tammy Brush and Larry Ostertag, when their six-year-old daughter was bitten by the defendant’s dog, Chestnut, on the face, badly injuring her.
The appellants sued Ms. Brush and Mr. Ostertag, the owners of Chestnut, as well as the owners of Ms. Brush and Mr. Ostertag’s rental home, Julian and Marianette Crisol (“the Crisols”).
The Crisols brought a motion for partial summary judgement to dismiss the claims as against them. The Motion’s Judge granted summary judgement, and the plaintiffs’ appealed from the judgement.
The appellant appealed on the basis that the Motion’s Judge erred in dismissing the claim based on s. 3(1) of the Dog Owners’ Liability Act, R.S.O. 1990 c. D.16. (“the DOLA”), which reads:
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. D.16, s. 3 (1).
Importantly, DOLA defines owner to include “a person who possesses or harbours the dog and, where the owner is a minor, the person responsible for the custody of the minor.” There was no dispute that the Crisols were not Chestnut’s owners.
The Motion’s Judge concluded, based on s. 3(1) of DOLA, and one 1991 superior court decision, that where an attack occur on the premises of a dog owner, the Occupiers’ Liability Act does not apply.
The Court of Appeal found that this was an error and that s. 3(1) of DOLA did not preclude a common law negligence claim or a claim under the Occupiers’ Liability Act as against the owner of a property. Rather, the Court of Appeal held, s.3(1) operates such that the liability of the owner of the dog is determined under DOLA exclusively, which legislates a strict lability standard, rather than the negligence standard under the Occupiers’ Liability Act. Accordingly, owners such as the Crisols could still be found liable under the Occupiers’ Liability Act when dog attacks occur on their premises.
However, the Motions Judge also held that if she was wrong in her interpretation of DOLA, she would have granted summary judgement in favour of the Crisols on the basis of the evidence before her. She found on this issue as follows:
[…]I find that it is not necessary to have a trial to determine whether the Crisol Defendants had a duty of care to Emberlynn [sic] and whether they breached the duty of care.I find that there is no basis by which to place liability on the Crisol Defendants. Even if the failures alleged are made out, they do not establish a duty of care to the Plaintiffs which has been breached and the failures are not causally connected to the Plaintiff’s injuries.
The appellants sought to have this aspect of the Motion’s Judge’s decision set aside on the basis that her reasons were inadequate. They sought to have the case remitted to the trial court.
The Court of Appeal fund that, while the Motion’s Judge’s reasons were brief, the record as a whole clarified and explained why she concluded that the claim against the Crisols did not present a genuine issue for trial. The Court of Appeal noted that it was significant that the Motion’s Judge made her decision on a paper records and was not asked to resolve conflicting evidence or make any findings as to credibility.
The evidence established the following:
- The Crisols were absentee landlords of the property where the dog owners resided.
- The dog was acquired only after the dog owners became tenants.
- The Crisols never assumed responsibility for the dog.
- The Crisols did not know of the existence of the dog until served with the statement of claim.
There was not a single case put forward where an owner of property similarly situated to the Crisols were found liable for a dog bite. Moreover, the Court of Appeal agreed with the Motion’s Judge’s rejection of the appellants arguments that a landlord’s responsibility to maintain the premises “free of hazards”, under the Residential Tenancies Act, did not extend to ensuring that any pets brought onto the premises were not hazardous. The Motion’s Judge also noted that the Residential Tenancies Act specifically prohibits landlords from preventing their tenants to have pets.
The Court of Appeal found that in the context of the evidence, the Motion’s Judge’s reasons were adequate.
The Appeal was dismissed and costs awarded to the respondents.
The takeaways from this decision are 1) that the Dog Owners’ Liability Act only precludes claims under the Occupiers’ Liability Act with respect to the liability of the dog owner, and 2) an appellate court will consider the context of the evidence and the arguments when assessing whether a judge’s reasons are sufficient.