While most dogs are safe and gentle, dog attacks on people sometimes occur and can result in injuries. If this, unfortunately, happens to you, after seeking medical attention and making a report with the local police division about the attack, you should consult with a personal injury lawyer to find out what steps to take next.
Under Ontario law, dog owners are liable for damages resulting from attacks by their dogs. This article looks at what constitutes an attack, triggering this liability. We review a recent decision of the Ontario Superior Court of Justice in which a woman sought compensation for injuries sustained after a dog ran into her, knocking her to the ground.
In Ontario, the owner of a dog is liable for damages resulting from a bite or attack by the dog on another person or domestic animal. According to the Dog Owners’ Liability Act, “owner” includes a person who possesses the dog. Where there is more than one owner, they are jointly liable.
This means that the owner of the attacking dog is responsible for the damages caused. It doesn’t matter if the dog is not usually aggressive. It also doesn’t matter if the owner was not at fault or negligent. However, the court will reduce damages if the fault or negligence of the plaintiff caused or contributed to the damage.
Under the Dog Owners’ Liability Act, dog owners may be liable where there has been a bite or attack by the dog. “Attack” is not defined in the statute.
In some cases, such as where the dog has bitten the victim or has engaged in overt aggression, it will be obvious that the threshold in the statute for establishing liability has been met. For example, we previously reported on a case in which a woman successfully claimed compensation after suffering a tear in her rotator cuff due to being bitten by a dog.
However, not every incident involving a dog will necessarily ground a claim for damages. For example, minor contact may not constitute an attack.
In Martin v Hurst, the plaintiff sought damages of approximately $200,000 after sustaining injuries in an incident at an off-leash area of a Toronto park.
The plaintiff claimed that a 60-pound German Shepherd mix dog owned by the defendant attacked her, causing her to fall to the ground. The plaintiff claimed in her evidence that:
I entered the off leash dog area. Suddenly, a large german sheppard (sic) mix dog weighing approximately 60 lbs ran into me. I was knocked to the ground.
The plaintiff sustained injuries including a fracture to her tibia, which required surgery. She was in a wheelchair for 6 months and missed 21 weeks of work.
The plaintiff sought default judgment after the defendant dog owner did not appear in the court proceedings
The plaintiff sued the defendant dog owner, who did not seek to defend the claim. As a result of this, the plaintiff sought default judgment.
Under the Rules of Civil Procedure, a plaintiff is allowed to seek default judgment if the defendant fails to deliver a statement of defence within the prescribed time. The plaintiff can then apply to the court registrar to note the defendant in default. The defendant will be deemed to admit the truth of all the allegations of fact made by the plaintiff in their claim and a court can then issue a judgment against the defendant.
However, the plaintiff is not automatically entitled to succeed in their case. The judge hearing a motion for default judgment needs to be satisfied that the facts entitle the plaintiff to judgment.
Justice Wilson explained that the cases in which dog owners had been found liable under the Dog Owners’ Liability Act had involved unprovoked biting and other clear acts of aggression within the meaning of an “attack”, rather than accidents.
Her Honour said that there did not appear to be any case law that clarified the definition of “attack” under the Act and no prior cases involving alleged attacks in dog parks where dogs are permitted to run off-leash.
As a result, her Honour turned to dictionary definitions of “attack”, such as “an act of using an act of violence to try to hurt or kill somebody”.
Court decides, based on the evidence provided, that the defendant’s dog did not attack the plaintiff
Justice Wilson made the following comment about liability in the context of off-leash dog parks:
The very feature of off leash dog parks is that dogs run free. It is reasonable to expect there may be rambunctious large dogs running free in a dog park that may accidentally run into someone. That would not in my view, without more, be an attack and would not engage the liability of the owner under the legislation. That would be a risk one assumes when taking his or her dog into the dog park.
While stating that an owner would still be liable if the dog bit or engaged in an act of aggression in the dog park, her Honour concluded that in the context of an off-leash dog park, the fact that a dog ran into the plaintiff, without more, did not support the finding of an “attack” within the meaning of the Act.
As a result, Justice Wilson dismissed the plaintiff’s application. However, her Honour allowed the plaintiff to later approach the court for an uncontested trial if she had further evidence to support a finding that the incident qualified as an attack.
At Tierney Stauffer LLP, we provide effective legal representation for dog bite and animal attack victims in Ontario, tailored to the individual needs of each client. Our personal injury lawyers help you to seek compensation by making a claim for your medical and other expenses endured as a result of the dog attack. Contact us at 1-888-799-8057 or reach out online to book a consultation.