The Ontario Superior Court of Justice recently released its decision on a summary judgement motion in Walpole v. Brush, 2023 ONSC 4869. The decision addresses the liability of a landlord for a dog bite on its premises, when the premises has been rented out to tenants.
The plaintiffs were visiting the defendants, Tammy Brush and Larry Osterag (the “Tenants”) at the home the two rented. The home was owned by the defendants Julian Crisol and Marianette Crisol (the “Landlords”). The Landlords knew that the tenants were keeping a dog on the property. While the plaintiffs were visiting the tenants, one of the plaintiffs was attacked by the tenants’ dog, Chestnut. The Landlords were not present on the property at the time of the attack. The plaintiffs sued both tenants and the Landlords for damages to compensate for the injuries caused.
The Landlords brought a motion for summary judgement, seeking dismissal of the action as against them. They argued that the Dog Owners’ Liability Act places the entirety of the liability for the dog bite at the feet of the Tenants (who owned the dog), and that the Occupiers’ Liability Act does not apply in the circumstances.
The plaintiff argued that the dog involved constituted a hazard on the property, and therefore the landlords could be held liable pursuant to the Residential Tenancies Act.
As with any motion for summary judgement, the Landlords were required to prove that there was no genuine issue for trial. This case required Justice S. E. Fraser to examine the intersection of the Dog Owners’ Liability Act, the Occupiers’ Liability Act, and the Residential Tenancies Act, to determine if any liability could be found against the Landlords due to the behaviour of the tenants’ dog.
The Dog Owners’ Liability Act imposes strict liability on owners of dogs involved in bites or attacks on another person or animal. Section 2 of the Act states:
(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.
(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.
Section 3 of the Dog Owners’ Liability Act addresses the issue of the applicability of the Occupiers Liability Act. Section 3(1) states:
Where damage is caused by being bitten or attacked by a dog on the premises of the owner, the liability of the owner is determined under this Act and not under the Occupiers’ Liability Act.
A final statute to consider in this case is the Residential Tenancies Act, 2006. Section 20 of the Residential Tenancies Act creates a statutory duty on a landlord to keep a property in good repair. Section 20(1) states:
A landlord is responsible for providing and maintaining a residential complex, including the rental units in it, in a good state of repair and fit for habitation and for complying with health, safety, housing and maintenance standards.
Section 22 of the Residential Tenancies Act creates an obligation on the landlord to ensure that maintenance standard are complied with. Finally, the claimants argued that Section 44 of the Residential Tenancies Act also creates a duty that any interior common areas, including corridors, vestibules and lobbies, are kept clean and free of hazards. It was the argument of the plaintiffs in this action, that the dog Chestnut constituted a hazard on the property that the Landlords had a responsibility to rectify.
The first matter to be addressed was whether the Occupiers’ Liability Act could apply against the Landlords as the owners of the property. In this case, the incident happened within the home of the Tenants and clearly on their property. Because the incident happened on the property that was leased to the owners of Chestnut, section 3(1) of the Dog Owners’ Liability Act was applied, and it was determined that the Landlords could not be held responsible under the Occupiers’ Liability Act as it did not apply in these circumstances.
Interestingly, the Court noted that if the attack had occurred on property that is not the property of the owner of the dogs, section 3(1) of the Dog Owners’ Liability Act would not apply, and therefore it is possible that liability in cases where dog bites occur on the property of others or in public, may be transferred to occupiers of the premises in accordance to the Occupiers’ Liability Act. One can imagine a situation where owners of a dog boarding facility, for example, may be liable under the Occupiers Liability Act for a dog attack on their property if they failed to properly secure the dogs.
The second matter to be addressed was the applicability of the various sections of the Residential Tenancies Act. Justice Fraser determined that the intent of the provisions of the Act was not to create liability for landlords whose tenants had pets. In fact, it was noted that the Residential Tenancies Act specifically prevents landlords from excluding pets from their lease.
It was further noted by the Court that sections 20 and 22 of the Residential Tenancies Act relate to the maintenance standards of the property. Finally, the Court determined that section 40 of Residential Tenancies Act did not apply as the attack took place in a home, which was a rental unit, and not a common area of a residential complex.
Conclusion and Takeaways
Upon determining that neither the Residential Tenancies Act or the Occupiers’ Liability Act applied in these circumstances, the Landlords were granted summary judgement and the action against them was dismissed. The action against the Tenants was allowed to proceed.
This case is interesting for its use of creative arguments in an effort to bring more parties into the lawsuit, including the use of the Residential Tenancies Act as a basis for potential liability against a landlord where their tenant owns a dog.
It is also clear that the location of a dog attack is quite important for the application of the Occupiers Liability Act. This case leaves open the possibility for the occupier of a premises where a dog attack occurs, involving a dog that does not belong to the occupier, to be held liable for the dog attack pursuant to the Occupiers’ Laibility Act. Parties to a potential dog attack lawsuit should be aware of the importance of location in the application of the law to such actions.
It is clear from this case, however, that landlords will not be held responsible for a dog attack that occurs at the dog’s owner’s residence, only by virtue of being the landlord of the premises.