Dog Walkers – Beware!

In the January 2017 Ontario Court of Appeal decision of Wilk v. Arbour, the Court was asked to determine when a person is considered to be in possession of a dog for the purposes of the Dog Owners' Liability Act, R.S.O. 1990, c. D. 16 ("the Act"). The facts of this case were as follows: on December 28, 2013, Donna Marie Wilk took her boyfriend's nine year old dog, Zeus, for a walk, during which time Zeus suffered a seizure and became unconscious, while on a leash. Upon regaining consciousness, Zeus, a Great Dane, "backed up, came out of his collar, slipped on ice and fell down an embankment into a ditch. Ms. Wilk tried to retrieve Zeus, but also slipped into the ditch. She [then] collided with Zeus and Zeus bit her thumb, causing her to lose her thumb above the joint". Ms. Wilk commenced a lawsuit as a result, and in doing so relied upon section 2 of the Act, the relevant provisions of which are as follows:

(1) In this Act, "owner" when used in relation to a dog, includes a person who possesses or harbours the dog and, where the owner is a minor, the person responsible for the custody of the minor.

(1) The owner of a dog is liable for damages resulting from a bite or attack by the dog on another person or domestic animal. (2) Where there is more than one owner of a dog, they are jointly and severally liable under this section.

(3) 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, but 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.

(4) An owner who is liable to pay damages under this section 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.

Mr. Arbour, Ms. Wilk's boyfriend, in defending this case, brought a motion for summary judgment. In doing so, he alleged as follows: Ms. Wilk was an "owner" of Zeus when bitten, and as the Act provides for liability to "another person" (a non-owner), Ms. Wilk was not entitled to damages as a result, meaning that there was no genuine issue for trial.

The motion judge dismissed Mr. Arbour's motion, described above, his reasoning being as follows:

Having considered the ordinary meaning of the word "owner", the statutory context for the use of the word, including the...