This article addresses many of the issues surrounding dogs and liability in the context of the law in Ontario as it exists in 2011 and will provide you with valuable information about dogs and liability, no matter which side of the leash you are on.
It is said that dogs are a person's best friend. They are always there for us, for protection, for care and love. However, in a single bite, the lives of countless people have forever been profoundly changed. Dogs can be extremely loyal, loving and caring pets. Despite the close relationship between dogs and humans, dogs can cause serious injury, permanent physical and emotional scaring and in some cases, dog bites or attacks can be fatal. Dogs of all sizes and breeds are capable of seriously harming or killing human beings. Even the most timid dogs can bite or attack.
There is considerable debate as to whether or not certain breeds of dogs are more dangerous than others and more likely to bite or attack. This has resulted in certain protective legislation targeting certain breeds. For instance, in Ontario, with few exceptions, pit bulls are banned pursuant to the Dog Owners' Liability Act and Public Safety Related to Dog Statute Amendment Act, 2005. Regardless of the size or breed of dog, owners have legal responsibilities to their pets as well as to any person, pet or property that may come into contact with their dog. Dog owners should be aware of their legal responsibilities and the risks involved in ownership.
Any person injured as a result of a dog in Ontario is entitled to seek compensation. This article addresses, in a general way, the legal rights and interests of victims of dog bites and dog attacks.
What happens when a dog bites and injures someone? In most cases, dog owners are financially and legally responsible for any injury or property damage their pets cause. In most, but not all, cases, the dog owner's home insurance policy will cover the damages. If your dog bites or attacks someone, you can, in some cases, lose your dog or your homeowner's or renter's insurance. If you lose your insurance coverage with your current insurer, you may not be able to obtain coverage from any other insurance company. If you own a dog and haven't looked at your policy, it's a good idea to get out your policy and review the fine print.
If your dog bites and injures someone, you could end up paying significant monetary damages. Even if your dog doesn't have a history of biting, attacks or vicious behavior, you can nevertheless be held liable. It is prudent to verify with your insurance agent or insurance company annually to ensure you have appropriate insurance coverage.
In the past, the law as it pertained to protecting victims of dog bites and attacks was limited. Victims of dog bites or attacks could only rely on the general principles of common law (judge made law as opposed to legislation) and an ancient doctrine of law called scienter (in English, meaning "foreknowledge"). In order to successfully obtain fair compensation, victims had to establish clear negligence on the part of the dog owner, using general principles of negligence law. Scienter required the victim to identify the dog, identify the dog owner and prove the dog owner knew their dog had a propensity to bite or attack.
Today, things are very different and the onus is now on dog owners to show why they should not be held responsible to pay compensation to dog bite injury victims.
Statutory Obligations and Liability - Strict Liability
Ontario law places strict liability on owners of dogs for any injuries causes by their pets.
If you have been bitten, attacked or otherwise injured by a dog in Ontario, you have certain rights and remedies available to you through the various legal principles that apply to dogs and their owners.
In terms of statutory provisions, the relevant provincial law is as follows:
The law in Ontario for dog bites is governed by the Dog Owners' Liability Act, R.S.O. 1990, Chapter D.16 ("DOLA").
The DOLA states that it is the owner of the dog who is liable and the liability is held to a strict standard. Pursuant to the cases (case law) that have interpreted and applied the provisions of the DOLA, dog owners are strictly liable for any damage or injury caused by their dogs.
Strict liability is the legal responsibility for damages, or injury, even if the person found strictly liable was not at fault or negligent. If you are injured by a dog, you generally do not need to prove the intent, negligence or fault of the dog owner. Liability will be found even if the dog owner acted completely reasonably.
What does this mean? In simple terms, if you are injured by a dog, you need to identify the dog owner, prove that their dog injured you and then, the dog owner is automatically responsible to pay you damages. The amount of damages is assessed by the Court. If the case settles prior to trial or prior to a Court action having been commenced, the amount is determined on the basis of legal research completed by your personal injury lawyer. A personal injury lawyer can provide a range of monetary damages within which a settlement would be reasonable.
In some cases, the amount of the damages an injured person is awarded can be reduced because of contributory negligence. This occurs when the Court believes that the injured person acted in such a way to make them partially responsible for the dog bite or attack injury. This only occurs in some cases and usually involves incidences where the victim for whatever reason unreasonably provoked the dog in some way to behave violently.
The finding and extent of contributory negligence is wholly dependent upon the circumstances of each individual case. The incident in question would be reviewed to determine if the dog attack victim provoked the dog in some way. In cases of children being injured, the analysis is based on whether or not the child's parent or guardian failed to properly supervise the child, and also if the child unreasonably provoked the dog. In most cases, there is no contributory negligence found.
There is a general overriding obligation on dog owners to ensure that their dogs behave safely and do not injure others. Section 5.1 of the DOLA provides that "each owner of a dog shall exercise reasonable precautions to prevent it from biting or attacking a person or domestic animal; or behaving in a manner that poses a menace to the safety of persons or domestic animals."
In terms of civil liability, section 2 of the DOLA provides that the owner of a dog is liable for damages resulting from a bite or attack by the dog on another person or domestic animal. Where there is more than one owner of a dog, they are jointly and severally liable under this section.
A person injured by a dog does not need to prove that the owner of the dog knew their animal was dangerous. Section 3 of the DOLA provides, in part, for the extent of the liability of dog owners. Section 3 states, in part, as follows: "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."
In some cases, the injured person's damages can be reduced if the dog owner can establish that the injured person acted unreasonably. Section 3 of the DOLA further states that "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." It is rare to see damages reduced under this provision.
Ottawa City By-Law Respecting Animal Care and Control - BY-LAW NO. 2003 - 77
Most municipalities have by-laws respecting animals, including dogs. For instance, the City of Ottawa has a general by-law respecting the obligations of dog owners. It is called "A by-law of the City of Ottawa respecting animal care and control." The by-law places a general onus on dog owners to ensure that their dogs do not bite or otherwise injure persons in Ottawa. It also imposes the obligation on all dog owners to maintain control of their dogs at all times and to keep them on leashes except for specified areas. All dogs must be registered with the municipality. The by-law provides for sanctions and penalties to anyone who breaches the provisions of the by-law.
Special legislation was enacted in 2005 to specifically deal with pit bulls in Ontario. In 2005, the Public Safety Related to Dogs Statute Law Amendment Act, 2005 was passed along with Ontario Regulation 157/05 which provides for the strict regulation and control of pit bull ownership and management in Ontario. With few exceptions for those who already owned pit bulls in 2005, the law now prohibits persons from owning, breeding, importing, abandoning or transferring pit bulls. Training pit bulls to fight or allowing them to stray is illegal. All owners of pit bulls must comply with the new regulation for pit bulls under the DOLA and the Regulation. For more detailed information visit http://www.attorneygeneral.jus.gov.on.ca.
Dog Owner's Liability Act versus Occupier's Liability Act
There may be situations where the Court finds that the injuries sustained by the victim are not caused by a "bite" or "attack". Section 2 of the DOLA makes it a pre-requisite that the dog must bite or attack someone in order for the DOLA to apply. In the unusual case of the Court finding that a victim was not injured as a result of a bite or attack, the Court may nevertheless apply general negligence principles to hold the dog owner liable. The Court, in particular, can apply the provisions of the Occupier's Liability Act, R.S.O., 1990, c.O.2 to hold the dog owner liable not as a dog owner per se but as a property owner; providing the incident occurred at the dog owner's real property, premises or home. Section 3(1) of the Occupier's Liability Act provides that: "An occupier of premises owes a duty to take such care as in all the circumstances of the case is reasonable to see that persons entering on the premises, and the property brought on the premises by those persons are reasonably safe while on the premises." Therefore, if someone is injured by a dog but it is not by a bite or an attack, liability can nevertheless be found either in general negligence, or under the provisions of the Occupier's Liability Act.
Can someone other than a dog owner also be held liable?
Yes. An owner of a dog can in certain circumstances, prove, that someone else contributed to the incident and seek that the other person partially or fully indemnifies them for the compensation /damages they are ordered to pay an injured person.
If the victim is able to prove that the property owner, aside from the dog owner, exercised control over and assumed responsibility over the property and/or the dog, the victim can pursue a claim for compensation against the property owner, in addition to the dog owner.
Section 3 of the DOLA further states, in part, as follows: "An owner who is liable to pay damages 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." This provision does apply in certain circumstances. Examples of where this provision would apply include, cases where there is more than one dog involved in the incident (i.e. two dogs with two different owners attacked someone), where there is more than one owner of the dog that caused the injury (i.e. joint owners of dog) or there is a third party, such as a negligent property owner or landlord, who may have contributed to the dangerous circumstances. An example of this would be a landlord allowing dangerous dogs on their rented property or 'harbourers' of dogs such as puppy mills or kennel owners.
Who is considered a dog owner?
It is useful to understand that a dog owner is broadly defined in the DOLA. Section 1 of the DOLA defines dog owner as including any "person who possesses or harbours a dog and, where the owner is a minor, the person responsible for the custody of the minor." Therefore, if you are entrusted to care for a dog for anyone else (i.e. baby-sitting a dog), you will be considered as an owner (i.e. harboring a dog) and can be held liable for damages arising out of any injuries sustained by someone from the dog under your care.
The issue of how owners of real property, in particular, landlords, can become liable for damages in dog bite or attack cases, even though the injuries sustained by the victim were caused by someone else's dog, in particular, a tenants, is subject to considerable debate and the law in this area is likely to expand.
Criminal Acts and Dogs
There is an exception to the strict liability imposed on dog owners in cases where their dog attacks a person committing a crime on their property. Section 3 of the DOLA provides that "where a person is on premises with the intention of committing, or in the commission of, a criminal act on the premises and incurs damage caused by being bitten or attacked by a dog, the owner is not liable ... unless the keeping of the dog on the premises was unreasonable for the purpose of the protection of persons or property."
The law does also provide some special protection for certain governmental agencies and their employees (i.e., police officers, border patrol officers, etc...) who utilize dogs in the apprehension of criminal suspects or in the investigation of crimes. In such cases, it is much more difficult for the victim to claim compensation.
What to do if you have been bitten or attacked by a dog?
If you are bitten or attacked by a dog in Ontario, aside from firstly obtaining immediate medical attention, the second thing you should do is identify and obtain the name of the dog owner. The dog owner is the person at fault for the dog bite or attack incident and liable to pay damages.
In some cases, obtaining the identity of the dog owner is simple because you already know the owner (the incident occurred at a friend or family member's home). However, in some cases, identifying the dog owner can prove problematic; the incident may have occurred in a public place, occurred in the absence of a dog owner (loose dog), an escaped dog or by a dog you do not recognize. In some cases, the dog owner may attempt to evade the location of the incident in order to hide his or her identity. In every case, the local police department, local health department and local by-law enforcement should be immediately notified. These governmental agencies may be able to assist in locating the dog and its owner.
With respect to seeking medical attention, a person bitten by any animal can be exposed to serious risk. All animals potentially carry parvovirus or rabies virus. Always consult a physician immediately after being bitten. A bite victim may also suffer serious bacterial infections, including one of the bone called osteomyelitis which can become life threatening if untreated. This is possible whether or not the animal has parvovirus or rabies virus. Always advise the local health department of a dog bite or attack.
It is very important to, as best as possible, obtain the names and contact particulars of any witnesses. It is not uncommon for dog owners to deny the incident for fear of being liable to pay significant damages. Independent witnesses can be very useful in such cases.
Also, it is crucial to obtain photographs of the injuries as soon as possible after the time of attack. It is also important to take photographs over time to show the stages of healing and document the permanency of any injuries such as scarring.
It is very important that the medical treatment you receive is well documented and that the records reflect treatment as a result of a dog bite or attack. You should advise your health care providers that your injuries are a result of a dog bite or attack and that their notes will be requested by your personal injury lawyer.
Keeping a daily record of how the incident and injuries have affected you is also a good idea. You should address the diary to your lawyer so that solicitor and client privilege may be claimed to protect the contents of the diary from having to be disclosed to the dog owner and their lawyer or insurer.
It is always prudent to consult with a personal injury lawyer experienced in dealing with dog bite or attack liability cases. The earlier you do so the better. Your personal injury lawyer can provide assistance with any by-law offence issues arising from the incident. It is not uncommon for the dog owner to be charged under local by-laws and be prosecuted under local by-laws as well as the Provincial Offences Act. It is also common for plea deals to be negotiated and your personal injury lawyer can intervene, speak to the investigators and provincial or local prosecutor and seek that the charges proceed to a trial.
Your personal injury lawyer can also take immediate steps to protect your interests such as notifying the dog owner and anyone else at fault of your intention to seek compensation. Your personal injury lawyer can also secure photographs and witness statements. In the event the dog owner is not identified, your personal injury lawyer can also assist in locating the dog owner through the use of investigative techniques.
It is important to note that it is prudent to consult a personal injury lawyer at any point following the dog bite or attack incident, even months later. You can claim compensation even months later. However, there is a statutory time limit by which you can forever be barred from advancing a claim.
Limitation Period - Can I lose my right to sue?
At the time of writing this article (2011), the limitation period by which a right to seek compensation through a Court action, expires 2 years from the date of the dog bite incident.
If you do not commence a legal proceeding within the time period prescribed by law, your right to make that claim is forever lost. Even the very best claim disappears simply because of the expiry of that period of time. This time period is called a limitation period. It is also often called a prescription period.
Can someone receive compensation if the dog attack did not result in a bite or where there was no physical contact with the dog - emotional trauma?
The Courts have clearly stated that in order for the provisions of the DOLA to apply or for damages to be awarded, there need not be an actual bite or physical contact with a dog. If a dog causes injury, be it physically, psychologically or emotionally, the victim can nevertheless receive compensation regardless of whether or not the dog actually bit or attacked the victim. Also, the Court has awarded damages in cases where a dog has caused physical injuries to another dog. Damages have been awarded for pain and suffering, emotional trauma, emotional suffering, emotional distress, nervous shock, injury to health, loss of amenities of life, loss of enjoyment, personal inconvenience, medical expenses, loss of income, loss of competitive advantage, loss of business opportunity and other special and general losses.
Who is financially responsible to pay damages arising from a dog bite injury claim ?
All dog owners should understand their potential liability in the event their dog bites, mauls or, heaven forbid, kills someone. Even a single bite or dog attack can cost a dog owner tens of thousands of dollars. Litigation alone (aside from any award of compensation) can cost tens of thousands of dollars, sometimes as much as one hundred thousand dollars. Insurance coverage might not apply in every case. In some jurisdictions, if the dog bite or attack is especially serious, the dog owner may be incarcerated and spend time in jail. Criminal charges, although relatively rare, can be advanced in cases where the dog attack was particularly severe and the owner is judged to have been unreasonably careless or grossly negligent (see section 18 of the DOLA which provides for incarceration of up to 6 months).
The dog owner and anyone else found responsible for the injuries sustained by the victim will be held liable to pay the damages. However, in many circumstances, the damages (compensation) are a covered loss under many home owners insurance policies. This is true in many cases regardless of whether the incident occurred at home or elsewhere. Care should be made to review the policy however as each policy is different. Accordingly, the compensation will be paid by the insurance company in most cases.
If you are a dog owner and have been notified of a claim, the notice should be immediately provided to your insurer. Failure to provide prompt notice or steps taken without the consultation with the insurer which prejudices the insurer may result in coverage being denied, in which case, the compensation will need to be paid personally.
In many cases, even bankruptcy will not absolve a dog owner from paying compensation as there are provisions in the Federal Bankruptcy and Insolvency Act which makes these types of awards exempt from being excused in discharge from bankruptcy.
In Ontario, there are generally two types of damages, damages that can be calculated (pecuniary damages) and damages that cannot be calculated (non-pecuniary damages). The type of damages an injured person is entitled to receive depends on the circumstances of each case. However, the damages can include general damages for pain and suffering (non pecuniary damages), various types of special damages such as out of pocket expenses (pecuniary damages), loss of income, loss of business opportunity, loss of competitive advantage, medical expenses, rehabilitation expenses and home care expenses, loss of care, guidance and companionship.
Quasi-Criminal Sanctions and Non-Monetary Remedies
The DOLA and the single regulation enacted pursuant to the DOLA (Ontario Regulation 157/05 - Pit Bulls Regulation) deal almost exclusively with the regulation of dangerous dogs at the provincial level. For the most part, the DOLA addresses non civil issues relating to dogs and concentrates in quasi-criminal issues and the prosecution of dog owners under the Ontario Provincial Offences Act.
Under the DOLA and local by-laws, a Court can order a dog owner to take certain specified precautionary steps to better control their dog (such as a muzzle order) or even order the destruction of the dog. The specific order or orders will depend on the circumstances of the case such as what the dog has done and the consequences thereof and on the dog owner's conduct or lack thereof. The Court will be concerned with the safety and protection of the victim and also of the public at large.
The DOLA contains a very vaguely-worded statutory provision which provides the Court with significant discretion when dealing with serious dog attack or bite cases. Section 4(3)(b) of the DOLA states that the Court may order a dog owner to "take the measures specified in the order for the more effective control of the dog or for purposes of public safety." This is very vague wording and hence means that the Court can make any order it deems necessary in the name of "public safety". The Court, arguable, can even make a declaration that a person be ineligible to own a dog permanently or for a specified period of time.
The dog bite and dog attack laws in Ontario are now fairly clear. Owners of dogs who injure other persons will, in most cases, be held strictly liable to the victim for damages and will need to pay fair and reasonable financial compensation.
There are many factors which can play a role in dogs attacking or biting someone. They include learned behavior, sickness, pain, fear, fear aggression, dominance behavior, territoriality, reactive aggression, breed, provocation and poor socialization. Whether or not a dog will bite or attack is unpredictable. Even the best owners can have dogs that bite or attack unpredictably.
In every case, the best tool is prevention. In this regard, some good advice for dog owners when it comes to liability for dog attacks and/or bites is to take all steps possible to prevent your dog from injuring others. Properly train and socialize your dog, train and socialize early and consistently. Do not let your dog run at large - run around loose. Recognize triggers and signs of aggressive behavior. Take care when your dog is around strangers, especially children. Post signs on your property warning others that there is a dog on the property. Ensure your dog is in good health with no medical reasons for him to react aggressively because of pain.
For dog owners, the best advice is to become educated on how to be safe in the presence of dogs and to take appropriate precautions. Teach children how to behave around dogs and recognize indicators of dangerous dogs or dangerous situations. For instance, teach children skills such as never pet a dog until it has had a chance to smell you, never disturb a dog who is eating, caring for its puppies or sleeping, never run from a dog and try to avoid eye contact with dogs. Most dog bites or attacks occur between people and dogs that are familiar with one another.
To find out more about your rights and interests in dog bite cases, please contact a personal injury lawyer specializing in dog bite and attacks. At the Ottawa Personal Injury Law Firm of Quinn Thiele Mineault Grodzki LLP, we specialize in dog bite injury cases and have obtained millions of dollars in compensation for our personal injury clients.
If you or someone you love has been involved in a dog bite injury, you have every right to seek damages. If you have suffered injuries because of a dog bite incident occurring on private or commercial property, contact our law office today for a free consultation with an Ontario personal injury lawyer about your legal options. We offer free consultations. We only get paid if we settle your case. Call us at 613-315-4878 or 613-563-1131 (ask for Marc-Nicholas Quinn).
There is no guarantee that your dog will not bite or attacks someone. Even the most responsible owners are at risk of their dog attacking. If your dog bites or attacks someone, we can answer your questions and offer legal advice. We can advise you of your rights, interests and obligations under the law. If you do not have insurance covering the loss, we can defend any claims, court action or prosecution. Call us at 613-315-4878 or 613-563-1131 (ask for Marc-Nicholas Quinn). Visit us at www.pqtlaw.com or www.ottawapersonalinjurylawyernetwork.com.
ABOUT THE AUTHOR:
Marc Nicholas Quinn has practiced personal injury law in Ottawa, Ontario since 1997 and is a founding partner of the Ottawa Law Firm, Quinn Thiele Mineault Grodzki LLP, Ottawa Personal Injury Lawyers. His practice is focused on personal injury, insurance and disability law. He is a trained general mediator, court connected mediator and teaches law at various post-secondary institutions in Ottawa. He is recognized as an experienced and respected lawyer in personal injury law and has extensive experience dealing with dog owner liability issues, both on behalf of dog owners and victims of dog bites and attacks. He has obtained millions of dollars in compensation for his personal injury clients.
The views expressed and information provided in this article is not intended to be legal advice in any way and should not be relied on as such. This article is intended to offer general comments and views and is not intended to provide legal opinions. Readers should seek legal advice on the particular issues that concern them. All cases are different and the application of the law to even the slightest set of different facts can result in different legal outcomes. Before any decision is made in relation to your case, you should consult a lawyer. © All Rights Reserved 2011-2012 - Marc Nicholas Quinn, Ottawa Personal Injury Lawyer.