OVERVIEW
In May 2024, in the case of Walpole v. Crisol, 2024 ONCA 400 (“Walpole”), the Ontario Court of Appeal (the “Court”) was tasked with making a crucial determination of whether a landlord could be held liable for damages caused by a tenant’s dog.
An improper decision risked opening the flood gates to landlords being forced to assume the role of insurers.
BACKGROUND
In Walpole[1], the owner of the property was an absentee landlord. The landlord-tenant agreement was standard, apportioning the landlord with typical maintenance obligations. It did not bar the tenant from having dogs on the property.
The tenants dog ended up biting one of the tenants’ guests who was visiting the property. In turn, the guest not only sued the tenant, but brought a claim against the landlord as well.
Up to being served with the Statement of Claim, the landlord did not have knowledge of a dog on the property, and the tenant purchased the dog after the commencement of the lease agreement.
The landlord brought a summary judgement motion and was successful. The motion judge determined that when a dog attack occurs on the premises of a property owner, that the liability of the property owner is determined under the Dog Owners Liability Act, which imposes strict liability on the dog owner. Therefore, if the attack occurs on a property owner who is not the dog owner, such as an absentee landlord, they are excluded from liability.[2]
LEGISLATIVE HISTORY
Prior to the enactment of the Dog Owners Liability Act (“DOLA”)[3], the common law governing doctrine of dog bite liability was the Doctrine of Scienter. Scienter requires a party seeking damages to satisfy three things: (1) the dog in question is the dog that inflicted the injury (2) the dog had a mischievous propensity to commit such acts and (3) the owner knew of the propensity (aka had scienter).[4]
The main issue with the applicability of the Scienter in such cases is that it traditionally applied to those who a) own the dog, and/or b) control or harbour the dog. This aspect of Scienter has been subject to inconsistent application over the years. In some cases, it has been found that a landlord cannot be liable if they do not meet the threshold as an owner or harbourer.[5] In other cases, it was found that Scienter does not apply altogether to a landlord, and instead we shall look at other avenues of liability such as the common law tort of negligence.[6]
The enactment of the DOLA displaced the doctrine of Scienter in Ontario. DOLA aimed to impose a more onerous standard on dog owners. Section 2(1) of DOLA imposes strict liability on dog owners for dog bites/attacks.[7] Section 2(1) differs from Scienter, which previously in essence gave dogs “one free bite” by including the propensity to attack, and knowledge of such propensity, as a requirement for liability.
However, the question in Walpole v Crisol remains, how did the enactment of DOLA change the liability of landlords in these situations?
BASIS OF THE APPEAL
Two key issues raised by the Appellant were:
1) Did the trial judge err in their interpretation of section 3(1) of DOLA?
2) Did the trial judge err in their application of the Occupiers Liability Act?
ANALYSIS
1) The implications of DOLA on the liability of landlords and the interpretation of section 3(1)
At the heart of the appeal was the interpretation of ‘owner’ in section 3(1) of DOLA[8], which reads:
Application of Occupiers’ Liability Act
3 (1) 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. R.S.O. 1990, c. D.16, s. 3 (1).
The Appellant/Tenant argued that ‘owner’ in 3(1) referred to the owner of the dog and was meant to displace the OLA in cases where the owner of the dog and owner of the premises were the same person. They relied on the definition of “owner” in section 1(1), which reads:
(1) “owner,” when used in relation to a dog, includes a person who possesses or harbours the dog.
The Appellants purported that because the landlord was not an owner or harbourer of the dog, that section 3(1) did not apply to them. Therefore, their liability should be determined under OLA or common law.
The Respondent/Landlord argued (and the trial judge previously concluded) that ‘owner’ meant ‘owner of the property.’ Based on this interpretation, the liability of landlords would be determined under DOLA rather than the OLA. This would result in landlords facing limited liability due to DOLA imposing the strict liability standard on dog owners, indirectly extinguishing those who are not dog owners, from liability for dog attacks.
The Respondents relied on the wording of the definition “owner.” Particularly, that the definition applied “when used in relation to a dog.” The Respondents argued that section 3(1) did not use the term owner in relation to a dog. In fact, section 3(1) is the only free-standing section of DOLA, that at no point uses the verbiage “owner of the dog.” Instead, it simply uses “owner.” The Respondent argued that this verbiage, combined with the context of section 3(1), which references premises, rather than dogs, show intention of the section to apply to property owners rather than dog owners. [9]
Further, the Respondents argued that the Scienter only attached liability to dog owners, and that as DOLA was its replacement, it should hold the same principle. If DOLA were not to apply to dog owners, the common law would be engaged, and trigger the doctrine of Scienter, have the same result as if DOLA were engaged. The Respondents suggested that this was a circular process that led to the same outcome.
The Court determined that finding section 3(1) applied to owner of the property would result in the “undesirable effect of immunizing property owners who are not also owners of the dog”.[10] This left the door open for the landlord to found liable under the OLA or common law.
2) Is the landlord liable under the Occupiers Liability Act?
The Appellants argued that the landlord was liable as an occupier under section 8(1) of the Occupiers Liability Act (“OLA”).[11] The Appellants argued that the dog was a hazard, and by failing to mitigate the risks, the landlord failed to uphold their maintenance obligations under section 20 of the Residential Tenancies Act (“RTA”).[12]
In section 20 of the RTA, the landlord is responsible for providing and maintaining a residential complex, including the residential units in it, in a good state of repair and fit for habitation and for complying with health, safety, housing and maintenance standards.[13]
The Respondents argued that pursuant to section 44 of the Maintenance Standards Regulations, the obligations laid out under section 20, to keep a unit clear of “hazards” applies to “interior common areas”, including laundry rooms, garbage rooms, corridors, lobbies, vestibules, boiler rooms, parking garages, storage areas and recreation rooms. [14]
Further, the maintenance standards enforced by section 20 of the RTA are clarified in sections 37-47 of O Reg 517/06.[15] The maintenance standards include structural elements and fixtures of a building, such as floors and ceilings. The Respondents applied this to infer that a landlord is responsible for the property that it provides to the tenant, and not dogs that the tenant might bring onto the property. This intent further supplanted by section 14 of the RTA, which bars landlords from prohibiting tenants from keeping pets. Exposing landlords to such liability while also limited them from mitigating such risks presented severe public policy concerns.[16]
The Respondents further relied on section 8(2), which limits the application of 8(1), and states:
For the purposes of this section, a landlord shall not be deemed to have made default in carrying out any obligation to a person unless the landlord’s default is such as to be actionable at the suit of the person entitled to possession of the premises.[17]
The Respondents argued that guests entering a property assume the rights of the tenant. In other words, if the tenant was put in the place of the guest and could not claim against the landlord, the guest is also unable to make such a claim.
The Respondents argued that this right is not only a result of the hazard itself but flows from the person who created that hazard. They relied on Musselman v. 875667 Ontario Inc. et al., 2010 ONSC 3177. In Musselman, a guest tripped and fell down a flight of stairs. The tenant erected the staircase creating the hazard, that caused the Plaintiff’s injuries. The tenant was barred under section 8(2) from bringing a claim against the landlord, due to them creating the hazard.[18]
It was the Respondents position that the dog in this case was analogous to the staircase, and that because the tenant created the hazard, if the dog attacked the tenant (the dog owner), the tenant would not have the right to sue the landlord. Therefore, guest was barred under section 8(2) by bringing a claim under section 8(1). The Court agreed with this proposition.[19]
DECISION AND TAKEAWAYS
The Court decided that “owner” under section 3(1) of DOLA means the owner of the dog and does not apply to landlords. Notwithstanding this, they dismissed the appeal on the basis that the landlord would not be found liable under the OLA.
The decision leaves the door open for a landlord to liable for a tenant’s dog attack in the future. However, the courts reasoning severely limits this application to circumstances where the landlord is the one responsible for the creating the hazard. Merely allowing a tenant to have a dog is not sufficient for such liability.
ABOUT THE AUTHOR
Francesco Bruno is a member of Desjardins Claims Legal Department. The opinions expressed in this paper are those of the author and do not necessarily reflect the opinions of the Desjardins Companies.
[1] Walpole v. Crisol, 2024 ONCA 400.
[2] Walpole v. Brush, 2023 ONSC 4869.
[3] Dog Owners’ Liability Act R.S.O. 1990, c. D.16
[4] Janota-Bzowska v Lewis, [1997] B C J No 2053, para 20.
[5] Hudyma v Martin, (1991) 27 A C W S (3d) 1088.
[6] Elbaum v York Condominium Corporation No. 67, 2014 ONSC 1182.
[7] DOLA, supra note 3, at s 2(1).
[8] DOLA, supra note 3, at s 3(1).
[9] DOLA, supra note 3, at s 3(1).
[10] Walpole, supra note 1 at para 11.
[11] Occupiers’ Liability Act, R S O 1990, c O 2.
[12] Residential Tenancies Act, 2006 c 17, at s 20.
[13] Ibid.
[14] Ontario Regulation 517/06, Maintenance Standards, at s 44.
[15] Ibid s 37-47.
[16]RTA, supra note 11 at s 14.
[17] OLA, supra note 10 at s 8(2).
[18] Musselman v 875667 Ontario Inc. et al, 2010 ONSC 3177.
[19] Walpole, supra note 1 at para 26.
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