In the January 2017 Ontario Court of Appeal decision of Wilk v. Arbour, the Court was asked to determine when a person is considered to be in possession of a dog for the purposes of the Dog Owners’ Liability Act, R.S.O. 1990, c. D. 16 (“the Act”). The facts of this case were as follows: on December 28, 2013, Donna Marie Wilk took her boyfriend’s nine year old dog, Zeus, for a walk, during which time Zeus suffered a seizure and became unconscious, while on a leash. Upon regaining consciousness, Zeus, a Great Dane, “backed up, came out of his collar, slipped on ice and fell down an embankment into a ditch. Ms. Wilk tried to retrieve Zeus, but also slipped into the ditch. She [then] collided with Zeus and Zeus bit her thumb, causing her to lose her thumb above the joint”. Ms. Wilk commenced a lawsuit as a result, and in doing so relied upon section 2 of the Act, the relevant provisions of which are as follows:
- (1) 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.
- (1) The owner of a dog is liable for damages resulting from a bite or attack by the dog on another person or domestic animal.
(2) Where there is more than one owner of a dog, they are jointly and severally liable under this section.
(3) The liability of the owner does not depend upon knowledge of the propensity of the dog or fault or negligence on the part of the owner, but the court shall reduce the damages awarded in proportion to the degree, if any, to which the fault or negligence of the plaintiff caused or contributed to the damages.
(4) An owner who is liable to pay damages under this section is entitled to recover contribution and indemnity from any other person in proportion to the degree to which the other person’s fault or negligence caused or contributed to the damages.
Mr. Arbour, Ms. Wilk’s boyfriend, in defending this case, brought a motion for summary judgment. In doing so, he alleged as follows: Ms. Wilk was an “owner” of Zeus when bitten, and as the Act provides for liability to “another person” (a non-owner), Ms. Wilk was not entitled to damages as a result, meaning that there was no genuine issue for trial.
The motion judge dismissed Mr. Arbour’s motion, described above, his reasoning being as follows:
Having considered the ordinary meaning of the word “owner”, the statutory context for the use of the word, including the objects of the Act, it is my view that a just and reasonable result is that the word “possesses” when used in relation to a dog means the exercise of dominion and control similar and in substitution for that which ordinarily would be exerted by its owner (namely the person to whom the dog belongs) over the dog.
Ms. Wilk was entitled to damages as a result, and her action was to proceed accordingly. Mr. Arbour, in response, appealed this decision, with the resulting issues having been identified as follows: (1) the motion judge’s interpretation of the word “possess”; and (2) whether the motion judge made a palpable and overriding error in finding that Ms. Wilk was not in possession of Zeus at the time that she was bitten.
Did the motion judge err in his interpretation of “a person who possesses a dog” under the Act?
The Ontario Court of Appeal determined that the motion judge erred in his interpretation of “a person who possesses a dog” under the Act on the basis that the legislature “wished to make those who were in a position to exercise a measure of control over a dog responsible for its behaviour. This makes sense as the person exercising actual control over a dog is generally in the best position to avoid damage being caused by the dog to another person or animal”.
Did the motion judge make a palpable and overriding error in finding that Ms. Wilk was not in possession of Zeus at that time that she was bitten?
The Ontario Court of Appeal determined that the motion judge made a palpable and overriding error in finding that Ms. Wilk was not in possession of Zeus and the time that she was bitten, its reasoning being that the critical time to determine possession is “the time just before the incident”. This considered, and as Ms. Wilk was the person exercising control over Zeus just prior to the time that she was bitten, “she was best placed to prevent the bite that occurred”.
As a result of the above, Mr. Arbour’s appeal was allowed, the motion judge’s order was set aside, and Ms. Wilk’s action was dismissed.
What lesson have we learned as a result of this case? To walk a dog is to possess a dog, and to be responsible for the dog’s behaviour. Strict liability will consequently attach to all those walking a dog that causes injury to others, at the time that the walk occurs, irrespective of whether or not the dog walker was negligent or in any way responsible for the injury.
Wilk v. Arbour, 2017 ONCA 21.