I was recently on a walk with my children when a woman came by with her dog. My young son immediately ran towards the dog with naïve joy to pet the animal. The woman tightened her hold on her leash and said “he’s not friendly – he will bite.” I was grateful for her warning, which possibly did two things: 1) saved my son from an unwanted bite, and 2) saved the owner from an unwanted lawsuit.
Dog bites are the subject of the Dog Owners Liability Act (DOL Act) which is an Act Sullivan Mahoney’s Personal Injury department relies on for all of our dog bite claims. The following is a brief overview of your potential liability as a dog owner under the Act and your rights as a victim of a dog bite.
Strict Liability
Section 2(1) of the DOL Act states:
The owner of a dog is liable for damages resulting from a bite or attack by the dog on another person or domestic animal.
The DOL Act goes on to state that liability does not depend on the propensity of the dog to bite or whether there is negligence on the part of the owner. This is an example of strict liability. If you own a dog and it bites without provocation, you are liable. Period.
“Owner – Harbourer”
The DOL Act defines “owner” as one who “possesses or harbours” a dog.
The meaning of the word “harbour” is not immediately clear. In the case Purcell v. Taylor, [1994] O.J. 2845, the court held that to harbour a dog means to exercise some degree of care or control over the dog. This would include assuming responsibilities for the dog that the dog’s owner would normally have, such as feeding it and exercising it, in addition to providing it shelter. This may mean that someone who is dog sitting a friend’s dog could be held liable if that dog bites. However, it also means that if a dog happens to be at your property with its owner you will likely not be held responsible if the dog bites. The simple act of allowing a dog to be at one’s home does not make one a “harbourer.”
Contributory Negligence
Liability against a dog owner is not always 100%. The DOL Act provides for a reduction in liability to the extent that the injured party is at fault for and therefore, contributed to, his or her own injuries.
Many cases have examined what types of behaviour on the part of the injured party would operate to reduce that person’s claim.
Ignored Warning
In Kent (litigation guardian of ) v. Laverdiere, [2011] O.J. No. 4185, an 11 year old girl was attacked by 9 dogs when she entered the dog pen in her grandmother’s yard. The court found her to be 25% at fault for her own injuries because she had been forewarned by her grandmother not to enter the pen and she admitted being aware of the potential dangers of getting near the dogs.
A child younger than 11 years old would likely not be found to be contributorily negligent as she would not be old enough to appreciate the risk she would be undertaking by approaching a dog, even with a warning. In such circumstances, the child’s parent can be brought in as a defendant for failing to supervise the child and prevent the child’s injury.
In Barry v. Nattress [2009] O.J. No. 6292, (ONCA) a man approached a woman in her yard as part of his election canvassing. Despite the woman’s warnings to him to stay back because of her dogs, he proceeded forward and put his hand out to give her his card, at which time his hand was bitten by one of the dogs. A jury found him to be 100% at fault for failing to heed the dog owner’s warnings. This finding was upheld on appeal.
Getting Close
In Michalik v. Khan, [1995] O.J. No. 1021, (On.Div.Ct.) an animal control officer was called to attend to a stray dog. When the officer bent down and attempted to ascertain the sex of the dog, the dog attacked. The small claims court judge initially held that the officer was at fault because he likely smelled of other animals, provoking the dog to bite. The appellant court found that smelling of other animals and bending down to ascertain a dog’s sex does not amount to provocation as contemplated by the DOL Act. The officer was found to not have contributed to his own injuries.
In Strom et al. v. White et al., [1994] O.J. No. 2604 a 6-year-old boy was playing on a church property. There was a leashed dog on the property that belonged to a person living on an adjoining property. When the child saw the dog he ran to it and hugged it. The dog attacked the child and bit his face. The court found no fault on the part of the child, holding that “the mere touching of the dog by a friendly hug did not constitute a contributing cause that would warrant a reduction of damages.”
The Role of Insurance
When a dog owner has been sued by an injured party, it is, in most cases, their home owner’s insurance that responds. If you own a dog and you do not have home owner’s or tenant’s insurance, you may be exposing yourself to personal financial loss if your dog bites. Because the injured party does not have to show negligence, these claims, from a liability stand point, are not difficult to prove.
At Sullivan Mahoney, our Personal Injury department represents individuals who have been attacked by dogs and who have suffered injuries as a result. These injuries can vary from small scars to disfigurement, muscle and nerve damage, fractures, and severe psychological trauma. Insurance not only provides financial protection to the dog owner in the event of a lawsuit, but also provides the injured party a source of compensation in worst case scenarios.
Disclaimer: Information made available in this article is provided for general information purposes only and is provided without representation for its accuracy or completeness. It is not legal advice and should not be relied upon. You should not take any action or fail to take any action based on the information set out in this article or on this website. Consult a lawyer at Sullivan Mahoney LLP and seek professional legal advice tailored to your unique situation.
