Dog bites can lead to severe injuries and complex legal battles, as demonstrated by the Walpole family’s lawsuit against their landlords, Julian and Marianette Crisol. This case, which was recently decided by the Court of Appeal of Ontario, provides insight into how liability is determined in dog bite incidents, particularly when the property owner is not the dog owner. (Walpole v. Crisol, 2024 ONCA 400)

The Incident and Initial Lawsuit

During a visit to the home of the defendants Tammy Brush and Larry Ostertag, the Walpole family’s six-year-old daughter, Emberlyn, was bitten on the face by the defendant’s dog, Chestnut. The dog owners rented their home from the Crisols, who were not present at the time of the incident. The Walpoles filed a lawsuit against both the dog owners and the property owners (landlords), seeking damages as a result of Emberlyn’s injuries.

The landlords sought to dismiss the action against them, arguing they were not liable under the Dog Owners’ Liability Act, R.S.O. 1990 c. D. 16 (“DOLA”). The motion judge agreed and dismissed the claim against the Crisols. The Walpoles then appealed this decision.

Key Legal Provisions and the Appeal

The appeal hinged on several provisions of the DOLA:

1. Definition of “Owner”: Under DOLA, an “owner” includes anyone who possesses or harbors the dog. The Crisols did not meet this definition as they did not possess or harbor Chestnut.
2. Liability for Dog Bites: Section 2(1) of the DOLA states that dog owners are liable for damages from dog bites, regardless of their knowledge or negligence. This provision applied to the dog owners but not to the Crisols.
3. Interpretation of Section 3(1): This section specifies that when a dog bite occurs on the premises of the dog owner, liability is determined under DOLA, not under the Occupiers’ Liability Act, R.S.O. 1990, c. O.2 (“OLA”). The motion judge interpreted this to mean that DOLA completely precluded any liability under the OLA for the Crisols.

The Court of Appeal’s Decision

The Court of Appeal disagreed with the motion judge’s interpretation. It clarified that Section 3(1) of the DOLA only ousts the OLA’s application to the dog owner, not to other parties like property owners. Therefore, the potential liability of the Crisols under the OLA was not precluded by DOLA.

However, the motion judge’s had also decided that in the event that her interpretation of the DOLA was incorrect, the Walpoles had not established a duty of care by the landlords to the Walpoles which had been breached.

Reviewing the Evidence

The evidence showed that the Crisols were absentee landlords unaware of Chestnut’s presence until after the incident. Under the Residential Tenancies Act, 2006, S.O. 2006, c. 17, landlords cannot prevent tenants from keeping pets, and the Crisols had no responsibility for the dog or control over their tenants’ visitors. The Court of Appeal noted that no case law supported holding absentee landlords liable for tenants’ dogs under similar circumstances.

Conclusion and Costs

The Court of Appeal found no errors in the motion judge’s conclusions and dismissed the appeal of the Walpoles. This case highlights the complexities of dog bite liability and the need for clear legal interpretations of relevant statutes.

Lessons Learned

1. Statutory Interpretation: Understanding how statutes like the Dog Owners’ Liability Act and Occupiers’ Liability Act interact is crucial in determining liability.
2. Landlord Responsibilities: Absentee landlords are generally not liable for tenants’ pets unless specific conditions are met.

If you have been injured as a result of a dog bite or dog attack, contact one of the injury and disability lawyers of Burn Tucker Lachaîne PC today by email at info@burntucker.com or by text at 613-777-0992.