Wilk v Arbour, 2017 ONCA 21

The Court of Appeal held that the term “owner” in the Dog Owners’ Liability Act is more expansive than the colloquial meaning and refers to a person who has some measure of control and physical possession of the dog immediately prior to the injury. The Court furthered clarified the application of negligence to cases of injury by animals, holding that there must be “special circumstances” in which the owner could reasonably foresee that a specific animal was dangerous in specific circumstances.

Released January 13, 2017 | Full Decision [CanLII]

At the time of the subject incident, the plaintiff, Donna Marie Wilk, was in a romantic relationship with the defendant, Kevin Arbour. The plaintiff offered to take the defendant’s dog, a nine-year-old Great Dane, for a walk, and the defendant accepted the offer. During the walk, the dog had a seizure, slipped out of its collar and slipped down an embankment. The plaintiff went down the embankment to try to retrieve the dog, but slipped and collided with the dog. The dog bit the plaintiff’s thumb, causing her to lose part of her thumb.

The plaintiff commenced an action under the Dog Owners’ Liability Act, RSO 1990, c D.16 (the “Act”) alleging that the defendant failed to ensure that the dog was fed and medicated before his walk and that his collar was secure. The plaintiff also sued the defendant in negligence, alleging that the defendant was aware that the dog was more likely to suffer a seizure after missing a meal and his medication.

The defendant brought a summary judgment motion on two grounds. First, the defendant argued that the plaintiff came within the definition of a dog’s “owner” under the Act and was therefore not entitled to compensation under s. 2(1). Second, the defendant argued that the plaintiff’s injury was not a reasonably foreseeable consequence of the defendant’s actions and therefore not proximate enough to establish a case in negligence.

The motions judge held that an “owner” under the Act is someone who exercises “dominion and control” over the dog, which the motions judge equivocated to the owner or someone “standing in the shoes” of the owner. There motions judge found that the plaintiff did not exert dominion and control over the dog and was not the owner. However, the motions judge dismissed the action based on the second ground, holding that the plaintiff’s injury was not reasonably foreseeable. The motions judge noted that the plaintiff was not required to go down the embankment to retrieve the dog, and could have waited for assistance.  The defendant appealed, and the plaintiff cross-appealed.

In overturning the motions judge’s decision, the Court of Appeal emphasized the legislative intent behind the Act. The Court stated that the intent of the legislature was to expand the definition of “owner” so that those who were in a position to exercise some measure of control over a dog would be held responsible for its actions. The Court held that the word “possessed” in the definition of “owner” under the Act includes a person who is in physical possession and control of a dog immediately prior to the injury, which included the plaintiff. The motions judge made a palpable and overriding error in finding that the plaintiff was not in possession of the dog at the time of the incident.

The Court of Appeal upheld the motions judge’s finding that the plaintiff’s injury was not reasonably foreseeable:

[T]o establish liability for animals in negligence, special circumstances must exist. The owner of an animal cannot be negligent if the animal acts in an unexpected way and injures someone. For a person to be held negligent, there must be foreseeability of harm and unreasonable conduct, or put another way, it must be found that “the owner of the particular animal, with it particular characteristics, in the particular circumstances [could] have reasonable foreseen the danger that could result in damage”. (para 40)

This case therefore stands for a broader and more expansive definition of “owner” under the Act, which extends to dog walkers and could extend to kennel owners and dog-sitters. The Court of Appeal has also clarified the analysis for establishing liability for animals in negligence, holding that there must be special circumstances relating to a specific animal with known, dangerous characteristics.

Read the full decision on CanLII
Written by

Gillian attained an Honours Bachelor of Arts degree in English Literature from Queen’s University in 2011, receiving the Roscoe R. Miller Award and the Arts 1915 Price for academic excellence. She received her Juris Doctor from Western University in 2014 and was placed on the Dean’s Honour List.

Prior to joining Bogoroch & Associates LLP, Gillian articled at a full-service firm in London, and was called to the Bar in 2015. She has been published in The Advocates’ Journal and participated in the Gale Cup Moot, and is a member of the Canadian Bar Association, The Advocates’ Society, and the Ontario Trial Lawyers Association.