Dog Walkers Beware! Important Dog Bite Decision from the Ontario Court of Appeal
This post was written by Andrea Girones:
February 8th, 2017 So this is not a headline I ever thought I would write! But a recent appeal court decision has dramatically changed the landscape for this kind of incident and created a whole new risk for dog walkers and kennel owners everywhere!
In Ontario the Dog Owners Liability Act (DOLA) makes an owner strictly liable for all damages caused by his or her dog. Strictly liable means there is NO DEFENCE. So pretty much you must pay for anything damage caused by your dog.
In the Court of Appeal decisions Wilk v. Arbour, 2017 ONCA 21, Ms. Wilk was the girlfriend of Mr. Arbour and offered to take his dog Zeus, a Great Dane out for a walk. While on the walk, Zeus had a seizure and fell down an embankment. The panicked dog bit off Mr. Wilk’s thumb as she tried to regain control of the dog. Ms. Wilk the commenced a lawsuit against Mr. Arbour under the DOLA.
Mr. Arbour in his defence said that Ms. Wilk was a co-owner of the dog, so she was not able to sue another co-owner for damages. Ms. Wilk said she was merely the “dog walker” and not the owner. Both side brought a motion before the Court to determine this legal issue.
The DOLA sets out liability for an “owner “ and defense’s the terms as follows:
- In this Act
“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.
As such the Appeals Court interpreted what it meant to “possess or harbour” the dog and found that these terms meant more than “legal ownership” particularly in the moments before the dog attack. The court held that:
…the word “possesses” in the definition of “owner” under the DOLA includes a person who is in physical possession and control over a dog just before it bites or attacks another person or animal… This is not an exhaustive definition. The meaning of the term “possesses” in the DOLA must be assessed in the context of the special circumstances of any given case. Given the variety of circumstances that may arise a rigid definition is to be avoided.
Wow! By encouraging a broad and flexible definition of “possess”, the Court of Appeal is opening the door for creative lawyers to find more opportunities to help victims of dog attacks. This will also help victims access insurance proceeds from potentially multiple sources.
If you have been the victim of a dog attack we offer free, no-obligation consultations. In most cases there are no fees until and unless we win. Call us today at 1866-701-5811 or email Andrea Girones at agirones@gironeslaw.com
