Liability for Dog Bites in Ontario

Under the Ontario Dog Owner’s Liability Act the owner of a dog is liable for damages resulting from a bite or attack on another person or domestic animal.

The Dog Owners’ Liability Act creates strict liability. It is not necessary for a claimant to prove in court that the owner of the dog was negligent, committed any fault, or was unreasonable to obtain damages. In other words, it is sufficient to prove the bite or attack happened and the resulting damages.  It is not required to show for example that the owner failed to keep the dog under control, on a leash or fenced in.  Liability does not depend on the owner’s knowledge of the dog’s propensity to bite.

Dog Bite Law: What Has Changed?

Before the Dog Owner’s Liability Act, the Plaintiff would need to demonstrate that the owner knew, or ought to have known, of the dog’s propensity to bite or be aggressive, vicious, or mischievous under the Doctrine of Scienter.  There was a common expression “that every dog is entitled to their first bite” but even before the Act came into effect, that was not technically the case, as an owner could be liable whether or not it was the dog’s first bite. 

Knowledge that the dog had a propensity to act a certain way was sufficient.  For example, if the owner knew the dog would chase passing bicycles, that may be sufficient, whether or not the dog had ever caught a cyclist or had ever bitten one.

An owner includes a person who possesses or harbours a dog, and if that person is a minor, the person responsible for the custody of a minor.  For example, if a child is caring for someone else’s dog, the child’s parents are considered the owner, even though they might not consider themselves as such.

Possessing or harbouring requires that you “exercise some degree of care or control” over the dog. An owner of a property would not have liability for dog on the property, if he or she does not exercise control over the dog.  If the dog is on the property of it’s owner, liability is determined by the Dog Owner’s Liability Act and not the Occupiers’ Liability Act.

If there is more than one owner, they are jointly and severally liable.  They will both be responsible for paying damages and if one cannot or will not the other must make up the difference.

The act speaks to a “bite or attack”.  It is not necessary therefore that the plaintiff be bitten.  Often there are cases where an attack causes other injuries, for example where a dog knocks someone to the ground, or off a bicycle. For more detail regarding your specific situation, we recommend contacting a personal injury lawyer in your area.  

Dog Attack Definitions

What is an “attack” is not defined and in some cases, this will be an issue as people sometimes interpret a dog’s enthusiastic approach or jumping up as an “attack”.  An example of such a case is Khurshid v. Richards in which Justice Sheard refused the Plaintiff’s motion for summary judgment.  The case involved a woman who fell when she encountered two dogs when she approached the Defendant’s front door.  The Plaintiff had a phobia of dogs and was frightened by their approach.  She walked backwards to get away and fell over a curb.  The Plaintiffs description of the events was that the dogs were charging or lunging, whereas an independent witness provided evidence that at no time did the dogs touch, bite or attack the plaintiff.  Justice Sheard held that the interests of justice required a trial to determine what had happened and whether the event constituted an attack under the Dog Owner’s Liability Act.

In Martin v. Hurst, a case in which the Plaintiff moved for default judgment, Justice J. Wilson cited Khurshid and noted there “does not appear to be any reported caselaw clarifying the definition of attack under the Act as opposed to an accident”.  In Martin, the plaintiff put in affidavit evidence that a large German Sheppard “ran into her” and knocked her down causing a broken leg. Elsewhere in her affidavit she characterized the incident as an “attack”.  Justice Wilson noted that other caselaw where owners have been found liable involves “unprovoked biting and other clear acts of aggression within the meaning of an “attack” be dogs, rather than accidents. 

Of note, even where the attack was provoked or partially the fault of the person injured,  there may be liability under the Act.  The court may however reduce damages in proportion to the degree that the person bitten or attacked was at fault or negligent.  If a person provokes a dog, teases it or puts their hand through a fence for example, their damages may be reduced.  The touching of a dog by a child or a “friendly hug” has been held not to constitute a contributing factor to warrant the reduction of damages. Similarly the mere touching of a dog by way of a friendly pat does not constitute contributory negligence.

If you need consultation regarding a dog bite or attack in Niagara Falls, Hamilton, Burlington, Brampton, Guelph or another city in Southern Ontario, please contact Cook Reynolds for a free consultation.