David E. Preszler

The respondent was injured while walking the appellant’s dog when the dog suffered a seizure, escaped its collar, fell down an icy embankment, and bit her while she attempted to retrieve it.

The motion judge held that the respondent was not an “owner” under the Dog Owners’ Liability Act because she did not exercise “dominion and control” over the dog, and therefore allowed her statutory claim but dismissed her negligence claim.

The Court of Appeal held that the motion judge erred in interpreting “possesses” in the Act: possession includes physical possession and control immediately before a bite or attack.

Because the respondent was exercising actual control over the dog just prior to the incident, she fell within the statutory definition of “owner,” barring her claim under the Act.

The negligence claim was also properly dismissed because the injury was not reasonably foreseeable and the respondent’s voluntary decision to descend the icy slope constituted an intervening act breaking the chain of causation.

The plaintiff was bitten by the defendant's dog, losing part of her thumb, after the dog suffered a seizure and fell into a ditch while the plaintiff was walking it.

The defendant brought a motion for summary judgment to dismiss the action, arguing the plaintiff was in 'possession' of the dog and thus an 'owner' precluded from claiming compensation under the Dog Owners' Liability Act.

The plaintiff brought a cross-motion for summary judgment on liability.

The court held that novel questions of law can be decided on summary judgment.

The court found the plaintiff was not in 'possession' of the dog as she did not exercise dominion and control similar to an owner.

The court found the defendant strictly liable under the Act, dismissed the negligence claim as the injuries were not reasonably foreseeable, and found no contributory negligence by the plaintiff.

The defendant's motion was dismissed and the plaintiff's cross-motion was granted, with the action to proceed to trial on damages only.