Wilk v Arbour, 2017 ONCA 21. This is an appeal from an order of Faieta J. dismissing the Plaintiff’s motion for summary judgement under the Dog Owner’s Liability Act and granting the Plaintiff’s cross-motion, finding that she was entitled to damages. The appeal was allowed.

The Plaintiff was injured when, in 2013, the Defendant’s dog had a seizure, became confused, and bit her thumb off. The parties were in a romantic relationship at the time, and this was the first time the Plaintiff had walked the dog alone. The Plaintiff sued for damages under the Dog Owner’s Liability Act. The Defendant denied all liability, arguing that the Plaintiff was an owner and so not entitled to compensation under the Act.

The motion judge concluded that the Plaintiff was not in possession of the dog at the relevant time and was not the owner. In so concluding, the motion judge looked to U.S. case law and reasoned that ‘possesses’ means “the exercise of dominion and control similar [to] and in substitution for that which ordinarily would be exerted by its owner” (emphasis added).

The motion judge dismissed the Plaintiff’s claim in negligence, finding that the injury suffered was not reasonably foreseeable, given that the dog had never bitten anyone before.

On appeal, the main issue was the motion judge’s definition of “possession” in the context of the Act, with the Defendant arguing for a broader definition than the one adopted by the motion judge. The Defendant argued that the motion judge made a palpable and overriding error in finding that the Plaintiff was not in possession of the dog. The Plaintiff argued, by way of cross-appeal, that the motion judge made a palpable and overriding error in finding that her injuries were not reasonably foreseeable.

The Court of Appeal concluded that the legislature, by including in the Act’s definition of ‘owner’ one who ‘possesses’ and ‘harbours’ a dog, intended to impose liability on those with less-than-full rights over a dog. The Court of Appeal observed that this definition is consistent with the common law, under which liability can be extended to one who possesses or harbours a dog. The Court of Appeal found that the motion judge erred in adopting a definition of ‘possesses’ which imposed a higher a standard for liability than that envisioned by the Act.

The Court of Appeal found that the Plaintiff, by being in physical possession of and having control over the dog just prior to the incident, was in possession of the dog. As such, the Plaintiff was not entitled to damages under the Act. On the issue of negligence, the Court of Appeal dismissed the Plaintiff’s cross-motion and upheld the motion judge’s finding that there was no negligence.

What the Insurer Should Know

If a person who is in possession of dog is bitten by that dog, they do not have a right of action under the Dog Owner’s Liabilty Act.  Also, an action in negligence can be avoided where the act of the animal was unforeseeable.

Mitch Kitagawa	Joshua Vickery, Articling Student