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A BIT ABOUT BITES: LIABILITY FOR
DAMAGES CAUSED BY A DOG

Paul Perell*

Under the common law and under statute, where a dog causes harm,
its owner may be liable to the person suffering damage. Usually, the
harm is caused by the dog biting or attacking a person or another ani-
mal, but damage can also be caused by a playful dog simply knocking
down a person or in any other way disturbing something. The majority
of claims involve negligence or statutory liability or both. If a dog
causes damage and the normal elements of the tort of negligence are
proven, then the owner of a dog will be liable for the damage caused
by the dog.' There are, however, other potential legal grounds for the
owner's liability including statutory liability and occupier's liability.2
There also may be liability under a common law rule associated with
the principle of scienter.
* Judge, Superior Court of Justice.
1. Caine Fur Farms Ltd. v. Kokolsky, [1963] S.C.R. 315, 39 D.L.R. (2d) 134, 45
W.W.R. 76; Morris v. Baily, [1970] 3 O.R. 386, 13 D.L.R. (3d) 150 (C.A.);
Witman v. Johnson (1990), 74 D.L.R. (4th) 428, [1991] 1 W.W.R. 408, 67 Man.
R. (2d) 289 (Q.B.); Bates (Next friend of) v. Horkoff (1991), 84 Alta. L.R. (2d)
236, 119 A.R. 27 (Q.B.); Gulash v. Meier, [1997] A.J. No. 988 (QL), 207 A.R.
202 (Q.B.); Moffett v. Downing (1981), 32 O.R. (2d) 155, 120 D.L.R. (3d) 560,
16 C.C.L.T. 313 (C.A.); Brewer v. Saunders (1986), 28 D.L.R. (4th) 45,73 N.S.R.
(2d) 93, 37 C.C.L.T. 237 (C.A.); New v. Hendsbee, [1991] N.S.J. No. 401 (QL),
106 N.S.R. (2d) 437 (C.A.); LeBlanc v. Legere, [1995] N.B.J. No. 5 (QL), 157
N.B.R. (2d) 26 (Q.B.); Sgro v. Verbeek (1980), 28 O.R. (2d) 712, 111 D.L.R. (3d)
479 (H.C.J.); Morsillo v. Migliano (1985), 52 O.R. (2d) 319, 13 C.C.L.I. 1 (Dist.
Ct.); Porter v. Joe (1979), 34 N.S.R. (2d) 530, 106 D.L.R. (3d) 206 (T.D.);
Bennett v. Magera, [1993] A.J. No. 101 (QL), 138 A.R. 75 (Prov. Ct.); Grant
Estate v. Mathers (1991), 100 N.S.R. (2d) 363 (S.C.), supp. reasons 108 N.S.R.
(2d) 397; Playter v. L'Esperance(1989), 230 A.P.R. 393, 90 N.S.R. (2d) 393 (Co.
Ct.); Fardon v. Harcourt-Rivington (1932), 145 L.T. 391; Draper v. Hodder,
[1972] 2 All E.R. 210 (C.A.).
2. See Neufeld v. Krasnesky (1985), 38 Man. R. (2d) 44 (Q.B.); Stanford v. Robertson,
[1947] 1 D.L.R. 493 (Alta. C.A.); Gulash v. Meier, ibid.; Stubler v. Mattias, [1976]
M.J. No. 208 (QL) (Q.B.); Konkin v. Bartel, [1988] B.C.J. No. 1716 (QL), 11

347
348 The Advocates' Quarterly [Vol. 31

Historically, at common law, as an alternative to the claim in negli-

gence or in the absence of a claim in negligence, a "keeper" of a dog,
or other domestic animal,3 would be liable for that dog or animal injur-
ing a person if the keeper had prior knowledge of a vicious propensity
of the dog or animal to commit harm.4 The requisite knowledge was
called scienter. If there was no claim in negligence, proof of scienter
was essential for liability under the common law for damage caused by
a domestic animal.' At common law, the keeper of a dog was strictly
liable for any harm caused by the dog if the keeper knew that the ani-
mal previously committed or attempted to commit a vicious or mis-
chievous act, although not necessarily the precise misbehaviour that
actually caused harm.6 The keeper of a domestic animal that is known
to have a vicious or mischievous propensity keeps the animal at his or
her peril, and the keeper of the animal has a duty to control it so that it
causes no harm to other persons.7 Under the common law, liability,
however, was not absolute and could be rebutted by showing that the
person harmed by the dog was the author of his own misfortune in that
he meddled with or provoked the dog.8 The doctrine of scienter does
not apply to a police dog carrying out its duties under the supervision
of a police officer.9

A.C.W.S. (3d) 414 (S.C.); Manuwald (Guardian ad litem of) v. Carter, [1985]
B.C.J. No. 2954 (QL), 34 A.C.W.S. (2d) 286 (S.C.); Hare v. Onofrychuk, [1999]
A.J. No. 1169 (QL), 252 A.R. 279 (Prov. Ct.).
3. The common law differentiated between domestic animals, which included dogs
(mansuetae naturae or domitae naturae) and wild animals (ferae naturae).
4. Michalik v. Khan, [1995] O.J. No. 1021 (QL), 80 O.A.C. 353 (Div. Ct.); O'Neill
v. Kavanagh, [2001] N.J. No. 205 (QL) (Prov. Ct.); Gulash v. Meier, supra, foot-
note 1; Robinson and Robinson v. Phillips, [1982] P.E.I.J. No. 81 (QL), 35 Nfld.
& P.E.I.R. 509 (P.E.I.C.A.); Morsillo v. Migliano, supra, footnote 1; Purcell v.
Taylor, [1994] O.J. No. 2845 (QL), 120 D.L.R. (4th) 161 (Gen. Div.).
5. Richard v. Hoban (1970), 16 D.L.R. (3d) 679, 3 N.B.R. (2d) 81 (C.A.).
6. Janota-Bzowska v. Lewis, [1997] B.C.J. No. 2053 (QL), 155 W.A.C. 70, 43
B.C.L.R. (3d) 352 (C.A.); Sparvier v. MacMillan, [1990] S.J. No. 124 (QL), 67
D.L.R. (4th) 759, [1990] 3 W.W.R. 533 (Q.B.).
7. Morris v. Baily, supra, footnote 1; McNeill v. Frankenfield(1963), 44 D.L.R. (2d)
132, 46 W.W.R. 257 (B.C.C.A.); Baker v. Snell, [1908] 2 K.B. 825 (C.A.);
Nichols v. Marsland (1876), 2 Ex. D. 1; Arn (Litigation Guardianof) v. Beattie
(1991), 98 Sask. R. 163 (Q.B.); Sparvier v. MacMillan, ibid.
8. McNeill v. Frankenfield,ibid.; Kirk v. Trerise (1981), 122 D.L.R. (3d) 642, [1981]
4 W.W.R. 677, 28 B.C.L.R. 165 (C.A.); Knott v. London County Council, [1934]
1 K.B. 126; Grant Estate v. Mathers, supra, footnote 1.
9. Myers v. Graham, [2005] B.C.J. No. 51 (QL), 136 A.C.W.S. (3d) 954, 2005
BCSC 5 (S.C.). See also Fennell v. Victoria (City), [1996] 2 W.W.R. 529
(B.C.S.C.) and Arnault v. PrinceAlbert (City) Commissioners of Police, [1996] 4
W.W.R. 38, 136 Sask. R. 49, 28 C.C.L.T. (2d) 15 (Q.B.) where claims in negli-
gence with respect to the work of a police dog were dismissed.
2006] Liability for Damages Caused by a Dog 349

At common law it was the "keeper" of the domestic animal who was
exposed to the scienter action, and the keeper was not necessarily the
"owner" of the animal.1" The keeper, who could include the owner, is a
person who harbours or controls the animal by providing care and
lodging for it." Care and control includes, among other things, feed-
ing, training, walking and sheltering a dog. It is a question of fact in
any particular case whether a person is the keeper of an animal. 2
In contemporary times, in some provinces, statutory claims have
displaced reliance on the scienter claim. For example, the Ontario Dog
Owners' Liability Act 13 imposes strict liability on the "owner" of a dog
that bites or attacks a person or a domestic animal. There is comparable
legislation in other provinces." To varying degrees, these statutes dis-
pense with the common law requirement that the plaintiff must estab-
lish a previously known mischievous or vicious propensity in the dog.'5
To varying degrees, the statutes do away with the commonly held but
mistaken notion that "every dog is entitled to one bite" and impose
strict liability on the dog owner simply if is shown that the dog has bit-
ten or attacked another person or domestic animal. 6 Thus,
s. 2(3) of the Ontario Act provides that "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".
Thus, under the Ontario Act, an owner may be liable without any
negligence or fault. 7

10. Purcell v. Taylor, [1992] O.J. No. 2554 (QL) (Gen. Div.), revd on other grounds
[1993] O.J. No. 1935 (QL) (Div. Ct.).
11. Stanford v. Robertson, supra, footnote 2.
12. Stanford v. Robertson, ibid.
13. R.S.O. 1990, c. D.16.
14. Animal Liability Act, C.C.S.M., c. A95; The Dog Act, R.S.N.L. 1990, c. D-26;
Municipal Government Act, S.N.S. 1998, c. 18, s. 179; Dog Act, R.S.P.E.I 1988,
c. D-13.
15. Wong v. Arnold (1987), 59 O.R. (2d) 299, 38 D.L.R. (4th) 319, 19 O.A.C. 399
(C.A.); Purcell v. Taylor, supra, footnote 4; Karras v. Richter, [1995] S.J. No. 388
(QL), [1995] 7 W.W.R. 406, 133 Sask. R. 40 (Q.B.); O'Neill v. Kavanagh,, supra,
footnote 4; Witman v. Johnson, supra, footnote 1; Lupu v. Rabinovitch (1975), 60
D.L.R. (3d) 641, [1975] 5 W.W.R. 1 (Man. Q.B.); Robinson and Robinson v.
Phillips, supra, footnote 4; Brewer v. Saunders, supra, footnote I (the statute
applies with respect to stray dogs).
16. Morsillo v. Migliano, supra, footnote 1; Hudyma v. Martin, [1991] O.J. No. 1184
(QL), 27 A.C.W.S. (3d) 1088 (Gen. Div.); Wong v. Arnold, ibid.
17. Slusarchuk v. DaCunha, [1984] O.J. No. 298 (QL) (H.C.J.); Michalik v. Khan,
supra, footnote 4.
350 The Advocates' Quarterly [Vol. 31

In other provinces, the comparable legislation may not be as liberal

as the Ontario statute or, subject to the caution that old case law may
not reflect the current position because of subsequent amendments to
the statute, the provincial court may not interpret the comparable
legislation as generously as in Ontario.' 8
The statutory provisions may not confine liability to owners. For
example, in Ontario, the Dog Owners' Liability Act expands who is an
"owner" of a dog. Section 1 of the Ontario Act provides that "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 respon-
sible for the custody of the minor. Section 2(2) of the Ontario statute
provides that where there is more than one owner of a dog, they are
jointly and severally liable under the Act. The key element of harbouring
a dog is the act of assuming some degree of control over the dog
similar to the possession or control that would be exercised by the
owner of the dog.' 9 Merely tolerating the presence of the dog on one's
property or merely permitting the presence of the dog along with his or
her owner on one's property does not constitute harbouring the dog.
For harbouring, some degree of care and intentional control must be
exercised over the dog. Although the mere presence of a dog on one's
property would not constitute harbouring the dog, even if one had
knowledge of that presence, a person may be found to harbour a dog
by providing temporary or indirect care or control of the dog. E°
In Graham (Litigation Guardian oJ) v. 640847 Ontario Ltd.,E1 the
owner of a motel who permitted a dog on its premises despite a no-
dogs-allowed policy was found not to have harboured the dog. The
court held that there was a mental element involved in harbouring a
dog and there must be an intention to take care of the dog. In Purcell
v. Taylor,E2 a homeowner who allowed a guest to bring his dogs with
him while visiting was found not to have harboured the dogs.
In some circumstances, the Ontario Act displaces the possibility of
liability under the Occupiers Liability Act.23 Section 3(1) of the Act
provides that "where damage is caused by being bitten or attacked by
a dog on the premises of the owner, the liability of the owner is deter-
mined under this Act and not under the Occupiers' Liability Act". In

18. Brewer v. Saunders, supra, footnote 1; Playter v. L'Esperance,supra, footnote 1;

Kirk v. Trerise, supra, footnote 8.
19. Purcell v. Taylor, supra, footnote 4.
20. Purcellv. Taylor (Div. Ct.), supra,footnote 10, revg Purcellv. Taylor (Gen. Div.),
supra, footnote 10.
21. [2005] O.J. No. 3685 (QL), 141 A.C.W.S. (3d) 879 (S.C.J.).
22. Purcell v. Taylor (Div. Ct.), supra, footnote 10.
23. R.S.O. 1990, c. 0.2.
2006] Liability for Damages Caused by a Dog 351

Graham (Litigation Guardian of) v. 640847 Ontario Ltd.,24 a motel

owner who permitted a dog on its premises was found not to be an
owner under the Dog Owners' Liability Act,25 and it was unsuccessful-
ly argued that the motel owner should be liable as an occupier. This
argument failed because it was not established that the owner of the
motel violated the duty of care imposed by the Occupiers' Liability
Act. A similar argument also failed in Hudyma v. Martin26 against a
landlord who knew that his tenant was keeping large dogs on the
rented property.
There are also defences to the strict liability of the statutes. The
victim's own fault in bringing the injury upon himself or herself may
be raised as a defence. 27 There is an exception to the strict liability of
the Ontario Dog Owners' Liability Act, if the claimant is injured by a
dog while committing a criminal act. Section 3(2) of the Ontario Act
provides that "where a person is on premises with the intention of com-
mitting, 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 under section 2 unless the keeping of the dog on the prem-
ises was unreasonable for the purpose of the protection of persons or
property".
Where an owner is liable under the Dog Owners'LiabilityAct he or
she may be able to claim contribution and indemnity against others
who may have caused or contributed to the damage. Section 2(4) of the
Ontario Act provides that: "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."
The Ontario Act also provides for proceedings under the Provincial
Offences Act28 in the Ontario court against an owner for violating any
provision of the Act or its regulations or if it is alleged that a dog has
bitten or attacked a person or domestic animal, the dog has behaved in
a manner that poses a menace to the safety of persons or domestic
animals, or the owner did not exercise reasonable precautions to pre-
vent the dog 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. The court is, among other things, empowered to
make an order that the dog be destroyed or that the owner take

24. Supra, footnote 21.

25. R.S.O. 1990, c. D.16.
26. Supra, footnote 16.
27. Cummings v. Granger, [1975] 1 W.L.R. 1330 (Q.B.); Sycamore v. Ley (1932), 147
L.T. 342; Witman v. Johnson, supra, footnote 1.
28. R.S.O. 1990, c. P.33.
352 The Advocates' Quarterly [Vol. 31

measures for the more effective control of the dog or for purposes of
public safety including confining the dog to its owner's property,
restraining the dog by means of a leash, restraining the dog by means
of a muzzle, and posting warning signs. Recently, the Ontario Act was
amended to provide specific provisions for the breed of dog known as
a "pitbull".
Thus, there appears to be ample means to impose liability on a dog
owner for the harmful acts of his or her pet and, in any given case, the
owner may be liable on one or more grounds if his or her dog bites or
attacks a person or another animal or damages property. In Canadian
cases, the owners of many different breeds of dog have been found
liable for injuries caused by their dogs. For example, the following
breeds of dog have made their way into the case law (with the amount
of general damages, if any, noted before any deduction for contributory
negligence, if any):
(a) Bouvier ($35,000),29 ($1,500)"0
(b) Chow ($2,000)"
(c) Collie ($4,000),32 ($2,500)" 3
(d) Doberman Pinscher ($1,500)" 4
35
(e) German Shepherd
39 4($12,000),36 4 1($8,500),"42 ($7,000)38
($6,500), ($3,500), 0 ($2,500),' ($1,000)

(f) Golden Retriever ($32,000), 4 3 ($22,000)"

4
(g) Labrador4 5 ($5000),46 ($2,500), ($200)48
29. Prasadv. Wepruk, [2004] B.C.J. No. 868 (QL), 130 A.C.W.S. (3d) 442 (S.C.).
30. Abdolabbas v. Lonergan, [1998] B.C.J. No. 2549 (QL) (Prov. Ct.).
31. Kerby (Guardianad litem of) v. Visco, [1994] B.C.J. No. 933 (QL), 47 A.C.W.S.
(3d) 530 (S.C.).
32. Morris v.Baily, supra, footnote 1.
33. Strynatka v. Forbes, [2002] B.C.J. No. 2589 (QL), 2002 BCPC 481 (Prov. Ct.).
34. Slusarchuk v. DaCunha, supra, footnote 17.
35. Wong v.Arnold, supra, footnote 15 (quantum of damages, not noted); Morsillo v.
Migliano, supra, footnote 1 (quantum of damages, not noted).
36. McNeill v.Frankenfield,supra, footnote 7.
37. Bates (Next friend of) v. Horkoff, supra, footnote 1.
38. Thorn v. Pavlinek, [1979] O.J. No. 155 (QL) (H.C.J.).
39. Sgro v. Verbeek, supra, footnote 1.
40. Bennett v. Magera, supra, footnote 1.
41. Collins (Litigation Guardian of) v. St. Amour, [1996] O.J. No. 485 (QL), 61
A.C.W.S. (3d) 220 (Gen. Div.).
42. Stubler v. Mattias, supra, footnote 2.
43. Konkin v. Bartel, supra, footnote 2.
44. Strom (Litigation Guardianof) v. White (1994), 21 O.R. (3d) 205 (Gen. Div.).
45. O'Neill v. Kavanagh, supra, footnote 4.
46. Porter v. Joe, supra, footnote 1.
47. Purcell v. Taylor, supra, footnote 4.
48. Cook v. Fanning,[1976] N.J. No. 132 (QL), 10 Nfld. & PEIR. 212 (Nfld. Dist. Ct.).
2006] Liability for Damages Caused by a Dog 353

(h) Mastiff ($5,000) 49

(i) Pit Bull ($20,000)," ° ($12,000),'51 ($6,000),52 ($5,000)," 3
54
($2,300) 55
(j) Rottweiler ($7,500)
(k) Spaniel ($3,500)56 5
(1) St. Bernard ($2,500) 1
(m) Unidentified or mixed breed ($90,000),58 ($40,000),19
($25 ,000),60 ($20,000),61 ($16,000),62 ($15 ,000) 63 ($3,000), 6
($1,000),65 ($400).66
In addition to general damages and pre-judgment and post-judgment
interest, the heads of recoverable damages for harm caused by a dog
have included:
(a) family law statutory liability claim by dependant; 67
68
(b) future care costs;
(c) loss of wages or business income;6 9

49. Hudyma v. Martin, supra, footnote 16.

50. Somerville v. Malloy, [1999] O.J. No. 4208 (QL), 92 A.C.W.S. (3d) 560 (S.C.J.).
51. Bacon (Litigation Guardianof) v. Ryan, [1996] 3 W.W.R. 215, 138 Sask. R. 297
sub nom. Bacon v. Ryan, 27 C.C.L.T. (2d) 308 (Q.B.).
52. Manuwald (Guardianad litem of) v. Carter,supra, footnote 2.
53. Bacon (Litigation Guardianof) v. Ryan, supra, footnote 51.
54. New v. Hendsbee, supra, footnote 1.
55. Gulash v. Meier, supra, footnote 1.
56. Witman v. Johnson, supra, footnote 1.
57. Neufeld v. Krasnesky, supra, footnote 2.
58. Miller v. Devenz, [2001] O.J. No. 4048 (QL), 108 A.C.W.S. (3d) 989 (S.C.J.).
59. Ruckheim v. Robinson, [1995] 4 W.W.R. 284, 88 W.A.C. 189, 1 B.C.L.R. (3d) 46
(C.A.)
60. Heywood v. Bakator (1980), 5 Man. R. (2d) 168 (C.A.).
61. LeBlanc v. Legere, supra, footnote 1.
62. Usselman v. Bartsch, [1982] S.J. No. 217 (QL), 17 Sask. R. 134 (Q.B.)
63. Woods v. Standish, [1991] B.C.J. No. 1004 (QL), 58 B.C.L.R. (2d) 302 (S.C.).
64. Walker v. Huffinan, [2001] O.J. No. 3864 (QL), 108 A.C.W.S. (3d) 571 (S.C.J.).
65. Michalik v. Khan, supra, footnote 4.
66. Duke v. Reis (1990), 64 Man. R. (2d) 238 (Q.B.).
67. Family Law Act, R.S.O. 1990, c. F.3, s. 61: Miller v. Devenz, supra, footnote 58;
Strom (Litigation Guardianof) v. White, supra, footnote 44; Collins (Litigation
Guardianof) v. St. Amour, supra, footnote 41.
68. Miller v. Devenz, ibid.
69. Slusarchuk v. DaCunha, supra, footnote 17; Miller v. Devenz, ibid.; Hudyma v.
Martin, supra, footnote 16; Ruckheim v. Robinson, supra, footnote 59; Duke v.
Reis, supra, footnote 66; Stubler v. Mattias,supra, footnote 2; Witman v. Johnson,
supra, footnote 1; LeBlanc v. Legere, supra, footnote 1; Neufeld v. Krasnesky,
supra, footnote 2; Prasadv. Wepruk, supra,footnote 29; Abdolabbas v. Lonergan,
supra, footnote 30.

13 - 31 A.Q.
354 The Advocates' Quarterly [Vol. 31

(d) loss of future earnings or earning capacity; 70

(e) loss or injury to domestic animal;7'
(f) out-of-pocket expense for ambulance;72
(g) out-of-pocket expense for clothing or other personal property
damaged;73
(h) out-of-pocket expense for medication;74
(i) out-of-pocket expense for photographs;75
(j) out-of-pocket expense for cost of veterinarian;76 and
(k) subrogated claim under a provincial health insurance plan.77
In Slusarchuk v. DaCunha,8 the subrogated claim under the Ontario
Health Insurance Act,79 which must arise "as a result of negligence or
other wrongful act or omission" was disallowed when the owner's
liability was based only on the strict liability provisions of the Dog
Owner's Liability Act. The authority of this judgment was doubted in
Morsillo v. Migliano,8 ° and the better view as expressed persuasively in
that case is that the subrogated claim is available even when the only
ground of liability is under the statute.

70. Miller v. Devenz, ibid.; Konkin v. Bartel, supra, footnote 2; Prasadv. Wepruk,
supra, footnote 29; Ruckheim v. Robinson, supra, footnote 59.
71. Somerville v. Malloy, supra, footnote 50; O'Neill v. Kavanagh, supra, footnote 4;
Cook v. Fanning,supra, footnote 48.
72. Slusarchuk v. DaCunha,supra, footnote 17.
73. Slusarchuk v. DaCunha, ibid.; Cook v. Fanning,supra, footnote 48.
74. Slusarchuk v. DaCunha, ibid.; Witman v. Johnson, supra, footnote 1.
75. Slusarchuk v. DaCunha,ibid.
76. Somerville v. Malloy, supra, footnote 50; O'Neill v. Kavanagh, supra, footnote 4.
77. Walker v. Huffinan, supra, footnote 64; Bates (Next friend ofp v. Horkoff, supra,
footnote 1; Morsillo v. Migliano, supra, footnote 1; Witman v. Johnson, supra,
footnote 1; LeBlanc v. Legere, supra, footnote 1.
78. Supra, footnote 17.
79. R.S.O. 1990, c. H.6.
80. Supra, footnote 1.