Legal Analysis

Case Law and Legislation

Ross (Litigation Guardian of) v. Vidnes, 2012 SKQB 317
The 7-year-old plaintiff was bitten on her head and face by a dog, resulting in a considerable amount of skin and flesh being torn from his face. He suffered nerve damage and severe scarring from his left eye to jaw line. He underwent surgery, which led to complications and required 6 to 8 months to heal. He also needed painful rabies shots. He was left with permanent dark scarring and a fear of dogs. He was teased by his classmates and had to move to another school. He received $55,000 in general damages.

Zhan v. Kumar, 2008 BCSC 443
The plaintiff variety store owner was bitten by an unleashed dog while taking belongings from his store to his car. The bite caused multiple facial lacerations, which required lengthy medical treatment, including two operations. He suffered some residual numbness, pain, and scarring at the time of trial. He suffered depression as a result of the event and was unable to return to his employment. He received $35,000 in general damages.

Liu v. Demasi, 2012 ONSC 4061
The plaintiff was attacked by two dogs while walking his own dog. He suffered multiple bites to his right inner arm, outer arm, right forearm, left calf, and right flank. The wounds were cleaned and stapled at the hospital. He suffered anxiety about the permanent scarring on his body. He received $30,000 in general damages.

Doctrine of scienter and dog attacks

In common law, liability for damages caused by a dog attack is determined by general principles of negligence or by the doctrine of scienter (“foreknowledge”). To find liability based on scienter, a plaintiff needed to prove that the defendant was the owner of the dog that attacked him, the dog had previously shown a propensity to cause the type of harm occasioned (i.e., it had attacked before), and the owner knew of this propensity. If these three elements were proven, liability was “strict” because it did not matter if the defendant took reasonable care to prevent injury to the plaintiff. Woods v. Standish, (1991), 58 B.B.L.R. (2d)

In Nova Scotia, however, the Municipal Government Act, 1998, c. 18, s. 179 reformed the common law as it related to liability for dog attacks by making liability even more strict than it was under the scienter doctrine. Section 179 of this Act reads as follows:

Proof at trial

179 Upon the trial of an action brought against the owner or harbourer of a dog for any injury caused, or damage occasioned by, such dog, it is not necessary to prove knowledge by, or notice to, the owner or harbourer of any mischievous propensity of the dog.

Therefore, a plaintiff has the burden to prove only two things, that the defendant was the owner of the dog that attacked him, and the dog had previously shown a propensity to cause the type of harm occasioned (i.e., it had attacked before). If this is proven, the defendant is “strictly” liable for the plaintiff’s injuries. The common law criteria of knowledge of the dog’s dangerous propensities is no longer a requirement in Nova Scotia.

An example of the application of by-laws to a dog injury case

An individual in the Cape Breton Regional Municipality in Nova Scotia was knocked down and injured by a dog running free, and the plaintiff’s position in this case is outlined in the following example.

The Municipal Government Act, R.S.N.S. 1998, C.18, gives broad authority to municipal councils to enact and pass by-laws that councils deem appropriate. The Act recognizes that the purpose of municipal governance is to provide “services, facilities and other things that, in the opinion of the council, are necessary or desirable for all or part of the municipality.” Specifically, section 175(1) of this Act reads:

    175(1)

    Without limiting the generality of Section 172, a council may make by-laws  

        1. Regulating the running at large of dogs, including permitting the running at large of dogs in certain places or at certain times;
          
    …

In accordance with this authority, the Cape Breton Regional Municipality enacted the following dog by-law:

    Definitions: 

    In this By-law, the following definitions shall apply:

    “At large” means off the property occupied, or owned, by the owner of the dog and:

        2.  Not in the physical restraint of a leash no more that 6 feet in length controlled by the owner or the person in charge; or  
        3.  …  
        4.  While on or within any trail, park, sports field, street, sidewalk, parking area or other recreational space within the Municipality in Cape Breton Regional Municipality and in the presence of the owner or some person in charge thereof, the dog is not under effective physical restraint of a leash no more than 6 feet in length controlled by the owner or the person in charge.  

        
    Offence
  
        5.  It is an offence of this By-law when any of the following occur;  
        6.  The dog runs at large contrary to this By-law

    …  

Generally, dog owners will not be liable for the acts of their dogs when unaware of the dog’s propensity for certain types of behaviour. However, it is well established in common law that a dog owner will be liable for injuries caused by a dog’s mischievous behaviour if the owner is aware of these propensities. For example, in Konkin v. Bartel [1988] B.C.J. No. 1716 Justice Rowles summarized the common law position toward dog owner responsibility in the following manner:

A dog ordinarily is presumed to be a tame animal, and its owner is not responsible for what it may do in the way of biting, but if it has proved itself to his knowledge not to be of the presumed tame character which the law attributes to dogs, then he is liable absolutely if it escapes from his control and causes damage by way of biting a human being. It does not matter whether he has taken the strongest and the greatest precaution that might be taken to keep it under control; his liability is absolute, just like the liability of the defendant in Rylands v. Fletcher.

Although in the Cape Breton case, the Defendants’ dog did not bite the plaintiff and seems to have had no history of biting, the Defendants’ dog did have a history of running at large. This is confirmed by the fact that numerous neighbours had complained to the Defendants about their dog running off their property and not being on a leash. The issue was frequent enough to cause several of the Defendants’ neighbours to report the problem to the local Cape Breton SPCA. Therefore, the Defendants were aware of their dog’s propensity to run off their property and to become excited when in the presence of other dogs.

In addition, dog owner liability need not be dependent on the existence of an owner’s awareness of their dog’s mischievous behaviour, which may be established under the general principles of negligence. In Caine Fur Farms Limited v. John Kokolsky, [1963] SCR 315, the Supreme Court of Canada considered the case of a dog that was permitted to roam “at large” causing damage to the plaintiff’s mink farm. The Court held that the Defendants were negligent in allowing their dog to roam “at large” in contravention of a municipal by-law and Alberta’s The Game Act, R.S.A. 1955, c. 126. The Court rejected the Defendants’ argument that their lack of knowledge surrounding the dog’s propensities allowed them to escape liability in negligence. The Court held that the duty of care imposed by the applicable by-law and legislation was not met by the Defendants. On page 317, Justice Martland states:

The liability of a dog owner for damage caused by his dog did not necessarily have to be founded on the rule of strict liability relating to the keeping of dangerous animals. It might be established in negligence if, in the circumstances, a duty to take care in relation to the dog existed and there had been a breach of it. This proposition was recognized by the House of Lords in Fardon v. Harcourt-Rivington, and it is stated by Lord Atkin in that case, at p. 392, as follows:

But it is also true that, quite apart from the liability imposed upon the owner of animals or the person having control of them by reason of the knowledge of their propensities, there is the ordinary duty of a person to take care either that his animal or his chattel is not put to such a use as is likely to injure his neighbour—the ordinary duty to take care in the cases put upon negligence.

Justice Martland further states at page 318:

Put at their lowest, however, these provisions are of significance in establishing that the appellants did not have any legal right to permit their dog to run at large. It seems to me that they serve as a complete answer to the contention made by the appellants, based on the English decisions of Buckle v. Holmes, supra, Tallents v. Bell and Goddard, and Toogood v. Wright, that a dog owner is not to be found liable in negligence because he suffers his dog to be at large, knowing of the natural propensities of dogs and that harm may possibly result when these propensities are manifested. In none of these cases did there exist a statutory provision which forbade the dog owner from permitting his animal to run at large.

In The Queen v. Saskatchewan Wheat Pool, [1983] 1 SCR 205, the Supreme Court of Canada determined that a breach of statutory duty should be subsumed in the law of negligence. The Court held that proof of a statutory breach, and the existence of damages, may be evidence of negligent conduct. Speaking on behalf of the Court, Justice Dickson states the following at page 225:

Breach of statute, where it has an effect upon civil liability, should be considered in the context of the general law of negligence. Negligence and its common law duty of care have become pervasive enough to serve the purpose invoked for the existence of the action for statutory breach.

It must not be forgotten that the other elements of tortious responsibility equally apply to situations involving statutory breach, i.e. principles of causation and damages. To be relevant at all, the statutory breach must have caused the damage to which the plaintiff complains. Should this be so, the violation of the statute should be evidence of negligence on the part of the defendant.

Returning to the Cape Breton Regional Municipality case, the Defendants clearly owed a duty of care to the plaintiff in ensuring that their dog was properly restrained and not running “at large” off their property. In addition, the Defendants failed to meet the requisite standard of care imposed by the Cape Breton Regional Municipality’s Dog By-Law of ensuring that their dog was restrained and thereby unable to run “at large.” By demonstrating conduct that falls below that expected of a reasonable dog owner in similar circumstances, the Defendants have failed to meet this standard of care. The Defendants’ failure to ensure that their dog was appropriately restrained resulted in the foreseeable consequence of the plaintiff being tripped and knocked over.

Causation is also clearly established. But for the Defendants’ negligent conduct in not securing their dog, and thereby allowing it to roam “at large” the two fractures to the plaintiff’s left wrist would have been avoided.

Nova Scotia, New Brunswick, Newfoundland and Labrador, and Prince Edward Island all handle dog bites and dog attacks differently based on their provincial legislation. Because of this, it is important to discuss your case with an experienced injury lawyer.

If you have been injured by a dog, contact MacGillivray Law to have the facts of your case evaluated. Consultations are free.