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Tort Law - Negligence - Causation - Foreseeability and remoteness - Intervening causes - Strict liability (rule in Rylands v. Fletcher) - Liability of owners of animals

Thursday, February 09, 2017 @ 7:00 PM  

Appeal by the defendant, Arbour, from a finding of liability under the Dog Owners’ Liability Act (DOLA) in favour of the plaintiff, Wilk. The defendant owned a Great Dane, age nine. The plaintiff’s girlfriend offered to take the dog for a walk. During the walk, the dog suffered a seizure and lost consciousness. Upon regaining consciousness, the dog backed out of his collar, slipped on ice, and fell down an embankment. The plaintiff also slipped down the embankment while trying to retrieve the dog. The plaintiff collided with the dog and the dog bit half of her thumb off. The plaintiff brought an action for damages pursuant to the DOLA, and based on common-law negligence for the defendant’s failure to administer anti-seizure medication prior to the walk. The defendant moved for summary judgment dismissing the action. The plaintiff brought a cross-motion for summary judgment. The motion judge concluded that the plaintiff did not possess the dog at the relevant time and therefore was not within the definition of an owner under the DOLA. The plaintiff was therefore entitled to compensation by the defendant as the dog’s owner. The claim in negligence was dismissed on the basis the plaintiff’s injuries were not reasonably foreseeable. The defendant appealed and the plaintiff cross-appealed.

HELD: Appeal allowed and cross-appeal dismissed. The motion judge erred in interpreting the concept of possession under the DOLA as an exercise of dominion and control similar and in substitution for that ordinarily exerted by the dog’s owner. In defining an owner as a person who possessed or harboured a dog, the legislative intent underlying the DOLA indicated liability would be imposed on individuals exercising a measure of control over a dog short of full ownership rights. Requiring dominion as well as control invoked a higher standard for liability than the unambiguous plain meaning of the Act. In addition, the motion judge erred in finding the plaintiff was not in possession of the dog. The plaintiff exercised actual control of the dog just prior to the incident and was best placed to prevent the bite that occurred. The motion judge’s order was set aside and the plaintiff’s action under the DOLA was dismissed. The motion judge did not err in dismissing the plaintiff’s negligence action based on an absence of reasonable foreseeability. The plaintiff’s decision to leave the safety of the path down the icy slope was a voluntary intervening act that interrupted the alleged chain of causation.