Who is Liable When a Dog Bites or Attacks?
In a recent decision, the Ontario Court of Appeal in Wilk v Arbour held that the word “possesses,” in the definition of “owner” under the Dog Owners Liability Act (DOLA), includes a person who is in physical possession and control over a dog just before it bites or attacks another person or animal.
Ms. Wilk had the top half of her right thumb bitten off by the defendant’s dog, Zeus. Ms. Wilk had taken Zeus for a walk and the dog suffered what appeared to be a seizure. When the dog regained consciousness, he stood up, came out of his collar and fell several feet into a ditch. Ms. Wilk attempted to rescue Zeus but she also slipped into the ditch, collided with Zeus and he bit Ms. Wilk’s thumb.
The court reviewed the definition of “possesses” under the DOLA and determined that the person in physical possession and control over a dog just before it bites or attacks is to assume liability for the dog. The court interpreted the legislation as indicating “an intention to impose liability on persons who had less than the full collection of rights belonging to an owner but who had attributes of ownership, possession and harbouring.” The court also determined that the legislature intended to impose responsibility to anyone who is in a position of control over a dog. Possession of a dog for the purposes of liability is determined by who had possession of the dog immediately before the incident.
As a result of the Court of Appeal’s ruling, Ms. Wilk was not able to recover damages for her injuries. However, the ruling should make it easier for victims of dog bite injuries to identify the appropriate parties in similar incidents and recover damages in the future.
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