Dog Bites and an Owners’ Liability

Author: drew-pearson posted in: Personal Injury

Dogs are man’s best friends, but their loyalty and protectiveness can sometimes cause more harm than good. Misunderstanding a kind gesture for hostility can cause any dog to attack, and even the smallest of breeds can cause severe damage to a person. But if a dog bites and injures another person, to what extent is the owner responsible for the actions of their pet?

Dog Bites and the Occupier’s Liability Act

In some provinces, like Ontario, provincial legislation automatically holds owners liable for the actions of their dog, including if the dog bites.[1] In Alberta, owner liability may be established by proving the owner was negligent or via the Occupier’s Liability Act.

In McKinlay v. Zachow, the Court established that to succeed in an action based on negligence; it must be proven on a balance of probabilities that:

• The dog owner knew or ought to have known that the dog was likely to create a risk of injury to third persons; and
• The dog owner failed to take reasonable care to prevent such an injury.[2]

In Mckinlay, the first criteria was satisfied because the Pitbull in question was required, by an Edmonton City Bylaw, to be muzzled and leashed while in public areas. Therefore, the Court held that the defendant ought to have known that the dog posed a danger to the public.  The second criteria of failure to take reasonable care was fulfilled by the owner failing to muzzle and leash (his/her) dog. Mckinlay demonstrates that the breed of dog may be used to establish the “risk of injury to third persons.” Past aggressive behaviour may also establish that the owner ought to have known that the dog was likely to create a risk of injury.

To succeed in an action under the Occupiers Liability Act,[3] it must first be established that the defendant dog owner is the occupier of the property where the incident occurred. The occupier does not necessarily have to be the owner of the property, as the Act describes an occupier as either:

• a person who is in physical possession of premises, or
• a person who has responsibility for, and control over, the condition of premises, the activities conducted on those premises and the persons allowed to enter those premises.

Plaintiffs as a Visitor of the Property

Next, the court must determine if the plaintiff was a visitor of the property at the time of the incident. A visitor under the Act includes a person who is lawfully present on the premises by virtue of an express or implied term of a contract. Establishing the dog owner as the occupier and the injured person as a visitor creates a duty of care between occupier and visitor.

Finally, it must be determined whether the duty of care was breached by the occupier. The commonly seen “Beware of Dog” sign alone is not enough to relieve the occupier of their duty of care.[4] The dog owner’s actions will be compared to that of a reasonable person to determine if the duty of care was breached. The Court will also consider whether the dog attack was reasonably foreseeable.[5] What exactly is “reasonably foreseeable” is at the discretion of the Court: each incident may have different factors that leads the Court to believe that the event was reasonably foreseeable. The occurrence of an event alone does not prove that it was reasonably foreseeable.

Regardless of the circumstances that surround your injury, it is important to consult with an injury lawyer to better determine the merits of your case. A consultation with a member of the Injury Law Team at KMSC Law LLP is free and carries no risks nor obligations to you.

[1] Dog Owners’ Liability Act R.S.O. 1990, CHAPTER D.16 Section 2(1)

[2] McKinlay v. Zachow, [2018] A.J. No. 565

[3] Occupiers’ Liability Act, RSA 2000, c O-4

[4] Malig v. Kaur, [2018] A.J. No. 941

[5] Hare v. Onofrychuk, [1999] A.J. No. 1169