Wilk v. Arbour

Ontario Reports

Court of Appeal for Ontario,

Weiler, Rouleau and L.B. Roberts JJ.A.

January 13, 2017

135 O.R. (3d) 708 | 2017 ONCA 21

Case Summary

Animals — Owner's liability — Person "possessing" dog within meaning of Dog Owners' Liability Act where that person is in physical possession and control of dog just before it bites or attacks another person — Plaintiff bitten while walking dog for defendant owner — Motion judge erring in finding that plaintiff was not in possession of dog at time of incident as she was not exercising "dominion" and control over dog — Plaintiff in possession of dog just before incident as she was exercising actual control over it — Dog Owners' Liability Act, R.S.O. 1990, c. D.16.

Torts — Negligence — Foreseeability — Plaintiff walking defendant's dog — Dog having seizure and then slipping down icy embankment into ditch — Plaintiff slipping into ditch and colliding with dog when she attempted to retrieve it — Dog biting plaintiff — Plaintiff's injury not reasonably foreseeable — Plaintiff's decision to leave path and attempt to retrieve dog interrupting chain of causation and constituting intervening act.

The plaintiff was walking the defendant's dog Zeus when Zeus had a seizure, became unconscious, regained consciousness, came out of his collar, slipped on ice and fell down an embankment into a ditch. The plaintiff tried to retrieve Zeus but also slipped into the ditch. She collided with Zeus and Zeus bit her thumb, causing her to lose the thumb above the joint. The plaintiff brought an action for damages under the Dog Owners' Liability Act. She also sought damages for negligence. The defendant brought a motion for summary judgment dismissing the action, arguing that the plaintiff came within the definition of "owner" in the Act and therefore was not entitled to compensation under s. 2(1) of the Act. In turn, the plaintiff defended that allegation on the basis that she did not come within the definition of "owner" as she did not "possess" Zeus at the time of the incident. The motion judge dismissed the defendant's motion for summary judgment under the Act and granted the plaintiff's cross-motion. He held that a person possesses a dog within the meaning of the Act when that person exercises "dominion and control" over the dog or, in other words, when the person is sovereign or stands in the shoes of the owner. He found that the plaintiff was not an "owner" of the dog. The motion judge dismissed the plaintiff's claim in negligence on the basis that her injury was not a reasonably foreseeable consequence of the defendant's actions. The defendant appealed, and the plaintiff cross-appealed.

Held, the appeal should be allowed; the cross-appeal should be dismissed.

The word "possesses" in the definition of "owner" under the Act includes a person who is in physical possession and control of a dog just before it bites or attacks another person or animal. The legislature wished to make those who were in a position to exercise a measure of control over a dog responsible for its behaviour. By requiring dominion as well as control over a dog for a person to possess a dog, the motion judge read into the Act a higher standard for liability than the unambiguous plain meaning of the words required and one that was not consonant with the Act's overall purpose of liability for those exercising control over a dog. The motion judge made a palpable and overriding error in finding that the plaintiff was not in possession of Zeus at the time of the incident. The [page709] plaintiff was the person exercising actual control of Zeus just prior to the incident, and she was best placed to prevent the bite that occurred.

The motion judge did not err in finding that the plaintiff's injury was not reasonably foreseeable. The plaintiff was not obliged to retrieve Zeus. Zeus was not in immediate danger, and the plaintiff could have decided to wait or to seek assistance. Her decision to leave the safety of the path and proceed down the icy slope to retrieve Zeus interrupted the chain of causation and was an intervening act. The defendant's alleged negligence in failing to ensure that Zeus was fed and medicated before his walk and that his collar was not too loose was not the proximate cause of the plaintiff's injury.

Bingley v. Morrison Fuels (2009), 95 O.R. (3d) 191, [2009] O.J. No. 1576, 2009 ONCA 319, 248 O.A.C. 176, 177 A.C.W.S. (3d) 553, consd

Other cases referred to

Assiniboine South School Division No. 3 v. Greater Winnipeg Gas Co., [1973] S.C.R. vi, 1973 CanLII 1313 (SCC), [1973] S.C.J. No. 48, 40 D.L.R. (3d) 480, 1 N.R. 32, [1973] 6 W.W.R. 765, affg 1971 CanLII 959 (MB CA), [1971] M.J. No. 39, 21 D.L.R. (3d) 608 (C.A.); Bates (Guardian of) v. Horkoff, 1991 CanLII 5958 (AB KB), [1991] A.J. No. 960, 84 Alta. L.R. (2d) 236, 119 A.R. 270, 29 A.C.W.S. (3d) 1167 (Q.B.); Bell ExpressVu Limited Partnership v. Rex, [2002] 2 S.C.R. 559, [2002] S.C.J. No. 43, 2002 SCC 42, 212 D.L.R. (4th) 1, 287 N.R. 248, [2002] 5 W.W.R. 1, J.E. 2002-775, 166 B.C.A.C. 1, 100 B.C.L.R. (3d) 1, 18 C.P.R. (4th) 289, 93 C.R.R. (2d) 189, REJB 2002-30904, 113 A.C.W.S. (3d) 52; Blue Star Trailer Rentals Inc. v. 407 ETR Concession Co. (2008), 91 O.R. (3d) 321, [2008] O.J. No. 2776, 2008 ONCA 561, 62 M.V.R. (5th) 180, 295 D.L.R. (4th) 83, 239 O.A.C. 162, 168 A.C.W.S. (3d) 355; Bradford v. Kanellos, 1973 CanLII 19 (SCC), [1974] S.C.R. 409, [1973] S.C.J. No. 85, 40 D.L.R. (3d) 578; Brewer v. Saunders, 1986 CanLII 4009 (NS SC), [1986] N.S.J. No. 188, 28 D.L.R. (4th) 45, 73 N.S.R. (2d) 93, 37 C.C.L.T. 237, 38 A.C.W.S. (2d) 218 (C.A.); Graham (Litigation Guardian of) v. 640847 Ontario Ltd., [2005] O.J. No. 3685, [2005] O.T.C. 739, 141 A.C.W.S. (3d) 879 (S.C.J.); Housen v. Nikolaisen, [2002] 2 S.C.R. 235, [2002] S.C.J. No. 31, 2002 SCC 33, 211 D.L.R. (4th) 577, 286 N.R. 1, [2002] 7 W.W.R. 1, J.E. 2002-617, 219 Sask. R. 1, 10 C.C.L.T. (3d) 157, 30 M.P.L.R. (3d) 1, 112 A.C.W.S. (3d) 991; Knott v London County Council, [1933] All E.R. Rep. 172, [1934] 1 K.B. 126, 103 L.J.K.B. 100, 150 LT 91, 97 J.P. 335, 50 T.L.R. 55, 31 L.G.R. 395 (C.A.); McAllister v. Wiegand, [2009] O.J. No. 169 (S.C.J.); M'Kone v. Wood (1831), 172 E.R. 850; Morris v. Baily, 1970 CanLII 347 (ON CA), [1970] 3 O.R. 386, [1970] O.J. No. 1545, 13 D.L.R. (3d) 150 (C.A.); Mustapha v. Culligan of Canada Ltd., [2008] 2 S.C.R. 114, [2008] S.C.J. No. 27, 2008 SCC 27, EYB 2008-133554, J.E. 2008-1083, 55 C.C.L.T. (3d) 36, 293 D.L.R. (4th) 29, 375 N.R. 81, 238 O.A.C. 130, 165 A.C.W.S. (3d) 954; Purcell v. Taylor, 1994 CanLII 7514 (ON SC), [1994] O.J. No. 2845, 120 D.L.R. (4th) 161, 51 A.C.W.S. (3d) 1227 (C.J.); Purcell v. Taylor, [1992] O.J. No. 2554, 1992 CarswellOnt 4018 (C.J.); R. v. Huggins, [2007] O.J. No. 2693, 2007 ONCJ 306, 74 W.C.B. (2d) 313; Ray v. Bates, [2015] B.C.J. No. 1039, 2015 BCCA 216, 79 M.V.R. (6th) 1, 372 B.C.A.C. 116, 77 B.C.L.R. (5th) 64, [2016] 1 W.W.R. 633, 254 A.C.W.S. (3d) 239; Singh (Litigation guardian of) v. Chini, [2005] O.J. No. 5965, 145 A.C.W.S. (3d) 5 (S.C.J.); Tucows.com Co. v. Lojas Renner S.A. (2011), 106 O.R. (3d) 561, [2011] O.J. No. 3576, 2011 ONCA 548, 18 P.P.S.A.C. (3d) 296, 7 C.P.C. (7th) 35, 281 O.A.C. 379, 87 B.L.R. (4th) 42, 336 D.L.R. (4th) 443, 95 C.P.R. (4th) 49, 206 A.C.W.S. (3d) 321; Wawanesa Mutual Insurance Co. v. Axa Insurance (Canada) (2012), 112 O.R. (3d) 354, [2012] O.J. No. 4196, 2012 ONCA 592, 296 O.A.C. 199, 354 D.L.R. (4th) 457, 38 M.V.R. (6th) 76, 15 C.C.L.I. (5th) 1, 220 A.C.W.S. (3d) 409; Waxman v. Waxman, 2004 CanLII 39040 (ON CA), [2004] O.J. No. 1765, 186 O.A.C. 201, 44 B.L.R. (3d) 165, 132 A.C.W.S. (3d) 1046 (C.A.) [page710]

Statutes referred to

Dog Owners' Liability Act, R.S.O. 1990, c. D.16 [as am.], ss. 1 [as am.], (1) [as am.], 2, (1), (3), 4(3) [as am.]

Authorities referred to

Driedger, Elmer, The Construction of Statutes, 2nd ed. (Toronto: Butterworths-Heinemann, 1983)

Klar, Lewis N., Tort Law, 5th ed. (Toronto: Carswell, 2012)

Sappideen, Carolyn, and Prue Vines, eds., Fleming's The Law of Torts, 10th ed. (Pyrmont, N.S.W.: Thomson Reuters/ Lawbook Co., 2011)

Sullivan, Ruth, Sullivan on the Construction of Statutes, 6th ed. (Toronto: LexisNexis, 2014)

APPEAL AND CROSS-APPEAL from the order of Faieta J., [2016] O.J. No. 1087, 2016 ONSC 1179 (S.C.J.) on motions for summary judgment.

Stuart E.E. Wright and (Dana) Hyeseung Yoon, for appellant.

David E. Preszler, for respondent.

The judgment of the court was delivered by

WEILER J. A.: --

A. Overview

[1] This appeal requires us to determine when a person is in possession of a dog under the Dog Owners' Liability Act, R.S.O. 1990, c. D.16 (the "Act" or the "DOLA"). The motion judge held that a person possesses a dog within the meaning of the Act when that person exercises "dominion and control" over the dog or, in other words, when the person is sovereign or stands in the shoes of the owner. I would hold that the word "possesses" in the definition of "owner" under the DOLA includes a person who is in physical possession and control over a dog just before it bites or attacks another person or animal.

[2] Accordingly, for the reasons that follow, I would allow the appeal. I would dismiss the cross-appeal alleging negligence on the part of the dog's registered owner.

B. Factual Background

[3] Zeus is a nine-year-old Great Dane dog owned by the appellant, Kevin Arbour.

[4] On the morning of December 28, 2013, the respondent, Donna Marie Wilk, who at the time was in a romantic relationship with Kevin Arbour, offered to take Zeus for a walk, and Mr. Arbour accepted her offer. Although Ms. Wilk had walked Zeus before, she had always done so with Mr. Arbour. [page711]

[5] During their walk, Zeus, who was on a leash attached to his collar, suffered a seizure and became unconscious. When Zeus regained consciousness, he backed up, came out of his collar, slipped on ice and fell down an embankment into a ditch. Ms. Wilk tried to retrieve Zeus, but also slipped into the ditch. She collided with Zeus and Zeus bit her thumb, causing her to lose her thumb above the joint.

[6] Ms. Wilk brought an action for damages for her injuries under s. 2 of the DOLA.

[7] For ease of reference, the relevant provisions of the Act are as follows:

1. In this Act,

"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 responsible for the custody of the minor;

2(1) The owner of a dog is liable for damages resulting from a bite or attack by the dog on another person or domestic animal.

(2) Where there is more than one owner of a dog, they are jointly and severally liable under this section.

(3) 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.

(4) 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.

[8] Mr. Arbour brought a motion for summary judgment to dismiss Ms. Wilk's action. He alleged the claim raised no genuine issue for trial as Ms. Wilk was in possession of Zeus at the time that he bit her and, as an "owner", she was not entitled to compensation under s. 2(1) of the Act. His position was that the Act only provides for liability by an owner to "another person", that is, a non-owner.

[9] Ms. Wilk brought a cross-motion for summary judgment on the basis that she did not possess Zeus and that Mr. Arbour, as the owner, was liable for her injury, and requested an order that the action proceed to trial on the issues of damages only.

[10] Ms. Wilk also sued Mr. Arbour in negligence. Zeus had health problems and had suffered seizure-like incidents in the past. Mr. Arbour typically cooked Zeus' meals in advance and administered Prednisone medication for seizures, but on the [page712] morning at issue, Zeus had not been fed and had not received his medication before Ms. Wilk took him for a walk. Ms. Wilk alleged that Mr. Arbour was aware that Zeus was more likely to suffer a seizure after missing a meal and that he knew she would only feed or medicate Zeus if he specifically instructed her to do so. It is these omissions that form the major part of the claim in negligence by Ms. Wilk against Mr. Arbour. I note that the previous evening, Mr. Arbour had asked Ms. Wilk to feed Zeus when he was called into work and she had done so. Ms. Wilk also alleged negligence on the part of Mr. Arbour in that the collar on Zeus was too loose.

[11] Mr. Arbour claimed that the injury to Ms. Wilk was not reasonably foreseeable and sought to have her action in negligence dismissed against him as well.

C. Decision Below

(1) Liability under the DOLA

[12] The motion judge dismissed Mr. Arbour's motion for summary judgment under the DOLA and granted Ms. Wilk's cross-motion. Although he held the DOLA does not provide for strict liability against another owner, he concluded Ms. Wilk was not in possession of Zeus at the relevant time and was not an owner. The core part of his reasoning is as follows [at para. 30]:

Having considered the ordinary meaning of the word "owner", the statutory context for the use of the word, including the objects of the Act, it is my view that a just and reasonable result is that the word "possesses" when used in relation to a dog means the exercise of dominion and control similar and in substitution for that which ordinarily would be exerted by its owner (namely the person to whom the dog belongs) over the dog.

[13] The motion judge held Ms. Wilk was entitled to compensation and ordered that her action proceed on the issue of damages only.

(2) Liability in negligence

[14] The motion judge dismissed Ms. Wilk's claim in negligence. He held [at para. 40]:

Even if I were to accept the submission that such actions could amount to negligence, it is my view that the injury suffered by Wilk was not a reasonably foreseeable consequence of Arbour's actions. Although admirable, Wilk was not obliged to retrieve Zeus from the ditch after he had recovered from the seizure. Given the terrain, Wilk could have decided to wait or seek assistance. In my view, the risk of Wilk being bitten was not a ". . . consequence fairly to be regarded as within the risk created . . ." by Arbour's alleged negligence described above.

(Citation omitted) [page713]

[15] The motion judge added corrected reasons to the effect that Ms. Wilk had not contributed to her injury as she had no knowledge of the propensity of the dog to bite in these circumstances. He found [at para. 42], "In any event, Zeus had never bitten anyone before, so the consequence of being bitten was not within the risk created of slipping and falling down the embankment and colliding with Zeus." He further held Ms. Wilk had done nothing intentionally to provoke Zeus to bite her.

D. Issues

[16] The issues on appeal are (a) the motion judge's interpretation of the word "possess"; and (b) whether the motion judge made a palpable and overriding error in finding that Ms. Wilk was not in possession of Zeus at the time of the incident.

[17] By way of cross-appeal, Ms. Wilk submits that the motion judge made a palpable and overriding error in finding that her injuries were not reasonably foreseeable and that her action in negligence ought to be allowed to proceed.

E. Discussion

(1) Standard of review

[18] The parties are in agreement as to the appropriate standard of review. The interpretation of a statute is a question of law. On pure questions of law, the standard of review is correctness. On questions of mixed fact and law, the standard is palpable and overriding error. A "palpable" error is one that is obvious, plain to see, or clear, and an "overriding" error is one that is sufficiently significant to vitiate the challenged finding of fact: Housen v. Nikolaisen, [2002] 2 S.C.R. 235, [2002] S.C.J. No. 31, 2002 SCC 33; Waxman v. Waxman, 2004 CanLII 39040 (ON CA), [2004] O.J. No. 1765, 44 B.L.R. (3d) 165 (C.A.), at paras. 296-97.

(2) The appeal

(a) Did the motion judge err in his interpretation of "a person who possesses a dog" under the Dog Owners' Liability Act?

[19] The motion judge correctly set out the proper approach to statutory interpretation, namely, that the words of an Act are to be read in their entire context, in their grammatical and ordinary sense, harmoniously with the scheme of the Act, the object of the Act and the intention of Parliament or the legislature: Bell ExpressVu Limited Partnership v. Rex, [2002] 2 S.C.R. 559, [2002] S.C.J. No. 43, 2002 SCC 42, at para. 26, quoting Elmer Driedger, The Construction of Statutes, 2nd ed. (Toronto: Butterworths-Heinemann, 1983), at p. 87.

[20] The purposive approach required the judge to first consider the ordinary meaning of the word or words being interpreted; next, the context in which the words are found and the purpose of the legislation; and then, whether the proposed interpretation produced a just and reasonable result: Blue Star Trailer Rentals Inc. v. 407 ETR Concession Co. (2008), 91 O.R. (3d) 321, [2008] O.J. No. 2776, 2008 ONCA 561, 295 D.L.R. (4th) 83, at paras. 24-25; Wawanesa Mutual Insurance Co. v. Axa Insurance (Canada) (2012), 112 O.R. (3d) 354, [2012] O.J. No. 4196, 2012 ONCA 592, at para. 34.

[21] The motion judge followed the first step. At para. 16 of his reasons, he stated:

"Possess" is defined in the Concise Oxford Dictionary, 12th Edition, to mean "have (something) belonging to one . . . have possession of as distinct from ownership". "Possession" is defined as "the state of possessing something . . . visible power or control, as distinct from lawful ownership. . . ." Black's Law Dictionary, Tenth Edition defines "possess" as "to have in one's actual control".

[22] However, the motion judge did not stop there. Having regard to the paucity of case law interpreting the provision in issue, he commented, at para. 18: "Legislation in some states of the United States of America imposes strict liability for damages caused by a dog on a person that has a dog in his possession."

[23] The motion judge's footnote to this statement explains [at fn 1]:

Liability for damages caused by a dog is imposed on the owner or keeper of the dog. In turn, "keeper" is defined as a person, other than the owner, harboring or having in his possession any dog. See Auster v. Norwalk United Methodist Church, 943 A. 2d 391 (2008), (Supreme Court of Connecticut) p. 160. I also note that the dog liability statutes in all eleven American cases provided by Arbour and the one American case provided by Wilk imposed liability on a "keeper". The statutes in those cases did not directly or indirectly impose liability on a person in "possession" of a dog. Accordingly, the cases provided are of no assistance in interpreting what is meant by "possession" under the Act.

[24] Notwithstanding this footnote, the motion judge's very next sentence, in para. 18, states, "In that context, aepossession' of a dog has been interpreted as aethe exercise of dominion and control similar to and in substitution for that which ordinarily would be exerted by the owner over the dog'." In para. 30 of his reasons, the motion judge concluded that the word "possesses", when used in relation to a dog, "means the exercise of dominion and control similar and in substitution for that which ordinarily would be exerted by its owner (namely the person to whom the dog belongs) over the dog". [page715]

[25] Mr. Arbour submits that the motion judge erred in adopting this definition as the Auster decision deals with the definition of "keeper", which, he submits, is more analogous to the term to "harbour" in the DOLA. The definition the motion judge adopted instead frustrates the legislative intent in s. 1 of the DOLA, which is aimed at expanding the definition of "owner" and requires more people to be more responsible and held accountable for the actions of dogs. He submits that the plain meaning first enunciated by the motion judge is clear and best accords with the context of the words, the purpose of the Act and will produce a just result.

[26] In support of his position, Mr. Arbour relies on the obiter in R. v. Huggins, [2007] O.J. No. 2693, 2007 ONCJ 306, at pp. 4 and 7, appealed to this court on the issue of the destruction order of the dog only, in which the court opined that Ms. Razac, the dog owner's mother who was walking the dog at the time of the dog attack was an "owner" under the DOLA. The court stated, at p. 7, that:

After hearing the evidence at trial, this Court was puzzled why the prosecution chose to lay the charge against Philip Huggins rather than his mother. It is imperative to understand that it was Bernadette Razac [the defendant's mother], not the defendant, who had actual custody of the dog at the time of this incident. Ironically, the Dog Owners' Liability Act defines "owner" to include "a person who possesses . . . the dog". In the circumstances of this case, and with my findings of credibility and fact, had Bernadette Razac been charged, she would have been found guilty.

[27] Ms. Wilk's position is that the motion judge's definition takes better account of the significance of the word "possess" in the context of the scheme of the DOLA. The motion judge's definition characterizes possession as an active form of power and responsibility counterbalancing the more passive relation between owner and dog exercised in harbouring. Mr. Arbour's proposed definition, she submits, does not countenance any dimension of the active and affirmative elements that the motion judge's definition recognizes as implied by the scheme of the Act.

[28] Ruth Sullivan, Sullivan on the Construction of Statutes, 6th ed. (Toronto: LexisNexis, 2014), at 3.11, pp. 30-31, tells us that one principle of language and of statutory interpretation is that the meaning of a word is influenced by the words with which it is associated.1 For that reason, context is important. In s. 1(1) of the DOLA, owner "includes a person who possesses [page716] or harbours the dog". The words owner, possesses and harbours have one thing in common: the ability to exercise control over the dog. In Purcell v. Taylor, 1994 CanLII 7514 (ON SC), [1994] O.J. No. 2845, 120 D.L.R. (4th) 161 (C.J.), the court was concerned with the definition of "harbours" under the DOLA. After an extensive review of cases decided at common law and under American statutes, Borins J., as he then was, held, at para. 30, that a person does not harbour a dog "unless he or she exercises some degree of care or control over the dog". See, also, Singh (Litigation guardian of) v. Chini, [2005] O.J. No. 5965, 145 A.C.W.S. (3d) 5 (S.C.J.), at paras. 29-30; Graham (Litigation Guardian of) v. 640847 Ontario Ltd., [2005] O.J. No. 3685, [2005] O.T.C. 739 (S.C.J.), at paras. 7-9; McAllister v. Wiegand, [2009] O.J. No. 169 (S.C.J.), at para. 1.

[29] Thus, the weight of Canadian jurisprudence respecting harbouring requires "some degree of control" in the specific situation of providing shelter to a dog; it does not use the phrase "dominion and control" as does the American jurisprudence relating to the keeper of a dog. The word "dominion" is defined in The Shorter Oxford Dictionary, Thumb Index Edition (1993) as follows: "Sovereign authority" and "control". Reading in the word, "dominion" in addition to control, in order for a person to possess a dog, as did the motion judge, imports a requirement that the person who physically has the dog has the right to exercise sovereign authority or the highest measure of control over the dog and stands in the shoes of the owner.

[30] In the Shorter Oxford Dictionary, a person who is the "owner" of a dog is "a person who owns something". The word "own" as in the transitive verb "to own" is defined: "To have or hold as one's own, be proprietor of, possess". Property is a collection of rights over things that can be enforced against others: Tucows.com Co. v. Lojas Renner S.A. (2011), 106 O.R. (3d) 561, [2011] O.J. No. 3576, 2011 ONCA 548, at para. 60. In defining "owner" to include a person who "possesses" or "harbours" a dog, the legislature indicated 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 (providing safe shelter to the dog) where a measure of control over the dog is exercised.

[31] The meaning ascribed to the word "possesses" by the motion judge is also not consonant with the overall purpose of the DOLA. Section 2(1) of the Act imposes liability on the owner of a dog, as defined in s. 1, for damages resulting from a bite or attack by the dog on a person or domestic animal. The definition of owner in the Act is consistent with the common law strict liability doctrine of scienter,2 which extends liability beyond the dog's owner to one who harbours or possesses it: Purcell v. Taylor (1994), at para. 28, citing M'Kone v. Wood (1831), 172 E.R. 850, at p. 850; and Knott v. London County Council, [1934] 1 K.B. 126, [1933] All E.R. Rep. 172 (C.A.), at pp. 140-41 K.B. However, s. 2(3) of the Act does away with the common law scienter requirement that a person wishing to sue for being bitten by a dog must establish a propensity on the part of the dog to viciousness or mischief, knowledge of the dog's propensity by the owner, or that the injury was attributable to the owner's negligence. The owner of the dog is responsible for any damage caused by the dog biting or attacking a person or animal irrespective of whether the owner knew the dog might hurt someone or made efforts to prevent that from happening. In addition, s. 4(3) of the Act provides that in certain circumstances a court may order that a dog be destroyed or impose other security measures with respect to the dog: see Purcell v. Taylor (1994), at para. 8; and Purcell v. Taylor, [1992] O.J. No. 2554, 1992 CarswellOnt 4018 (C.J.), at para. 10.

[32] Ms. Wilk submits that the legislature intended to impose responsible dog ownership and that actual physical possession voids the legislature's stated intention regarding the enforcement of the responsibility that goes along with dog ownership.

[33] I would reject this submission. The legislature wished to make those who were in a position to exercise a measure of control over a dog responsible for its behaviour. This makes sense as the person exercising actual control over a dog is generally in the best position to avoid damage being caused by the dog to another person or animal. By requiring dominion as well as control over a dog, for a person to possess a dog, the motion judge read into the DOLA a higher standard for liability than the unambiguous plain meaning of the words required and one that was not consonant with the Act's overall purpose of liability for those exercising control over a dog. Thus, the trial judge erred in his interpretation of "a person who possesses a dog" under the DOLA. [page718]

(b) Did the motion judge make a palpable and overriding error in finding that Ms. Wilk was not in possession of Mr. Arbour's dog at the time of the incident?

[34] Even though the motion judge erred in interpreting the word "possesses", Ms. Wilk's position is that the motion judge did not make a palpable and overriding error in finding she was not in "possession" of the dog at the material time. It is not obvious, plain to see and clear that she was exercising dominion and control over the dog similar to and in substitution for that which would ordinarily be exercised by Mr. Arbour over his dog. Since the motion judge found that Ms. Wilk did not exercise any control over the dog without Mr. Arbour's instruction and approval, she could not have exercised dominion and control in substitution for that which ordinarily would be exerted by Mr. Arbour. Furthermore, the motion judge's additional findings of fact, including that the dog was living on Mr. Arbour's property, Mr. Arbour controlled the dog's activities and Mr. Arbour cooked and scheduled the dog's meals, indicate that it was not plain that Ms. Wilk was in possession of the dog. Even if an error was made with respect to the use of the words "dominion and control" as opposed to simply "control", it is not sufficiently significant to vitiate the motion judge's findings of fact on this question of mixed fact and law.

[35] In my opinion, the motion judge did make a palpable and overriding error in finding that Ms. Wilk was not in "possession" of Zeus. The critical time to determine possession is the time just before the incident. Ms. Wilk was the person exercising actual control of the dog just prior to the incident and she was best placed to prevent the bite that occurred.

[36] The motion judge's error in interpreting the word "possesses" affected his application of the word. In holding that Ms. Wilk was not in possession of the dog and therefore not an owner, the motion judge committed a palpable and overriding error. I would hold that the word "possesses" in the definition of "owner" under the DOLA includes a person who is in physical possession and control over a dog just before it bites or attacks another person or animal. This is a definition which accords with the definition in Black's Law Dictionary, 10th ed. (2014) and existing Canadian jurisprudence. By using the word "includes", I want to make it clear that this definition is not an exhaustive definition. The meaning of the term "possesses" in the DOLA must be assessed in the context of the specific circumstances of any given case. Given the variety of circumstances that may arise, a rigid definition is to be avoided. [page719]

[37] As a result, I would allow the appeal, set aside the motion judge's order and dismiss Ms. Wilk's action under the DOLA.

(3) The cross-appeal

[38] As indicated earlier, Ms. Wilk cross-appeals the motion judge's dismissal of her action in negligence. The well-established elements of negligence are (1) whether the defendant owed the plaintiff a duty of care; (2) whether the defendant's behaviour breached the standard of care; (3) whether the plaintiff sustained damage; and (4) whether the defendant's breach caused the plaintiff's harm in fact and law: Mustapha v. Culligan of Canada Ltd., [2008] 2 S.C.R. 114, [2008] S.C.J. No. 27, 2008 SCC 27, at para. 3.

[39] As discussed above, although it would be necessary to prove that the animal had vicious or mischievous propensities to establish liability on the common law strict liability doctrine of scienter, the courts have held that the rule of scienter does not abridge other general principles of tort liability like negligence: Morris v. Baily, 1970 CanLII 347 (ON CA), [1970] 3 O.R. 386, [1970] O.J. No. 1545 (C.A.); Brewer v. Saunders, 1986 CanLII 4009 (NS SC), [1986] N.S.J. No. 188, 28 D.L.R. (4th) 45 (C.A.). There is still an ordinary duty of a person to take care that his animal does not become a source of harm to others: Carolyn Sappideen and Prue Vines, eds., Fleming's The Law of Torts, 10th ed. (Pyrmont, N.S.W.: Thomson Reuters/Lawbook Co., 2011), at 17.1, p. 418.

[40] Nevertheless, to establish liability for animals in negligence, special circumstances must exist. The owner of an animal cannot be negligent if the animal acts in an unexpected way and injures someone. For a person to be held negligent, there must be foreseeability of harm and unreasonable conduct, or put another way, it must be found that "the owner of the particular animal, with its particular characteristics, in the particular circumstances [could] have reasonably foreseen the danger that could result in damage": Lewis N. Klar, Tort Law, 5th ed. (Toronto: Carswell, 2012), at p. 666; Bates (Guardian of) v. Horkoff, 1991 CanLII 5958 (AB KB), [1991] A.J. No. 960, 119 A.R. 270 (Q.B.), at p. 276 A.R.

[41] In this case, following Bradford v. Kanellos, 1973 CanLII 19 (SCC), [1974] S.C.R. 409, [1973] S.C.J. No. 85, at para. 12, the motion judge determined that Ms. Wilk's injuries were not reasonably foreseeable since the risk of Ms. Wilk being bitten was not a "consequence fairly to be regarded as within the risk created . . ." by Mr. Arbour's alleged negligence. The facts underlying his determination were that Ms. Wilk was not obliged to retrieve Zeus and that she could have decided to wait or seek assistance. As Ms. Wilk states in her affidavit, she "chose to leave the pathway [page720] and proceed down the icy slope", and in doing so, slipped on the ice and slid down the slope towards Zeus where he bit her right thumb. Zeus was not in immediate danger.

[42] Ms. Wilk submits that the motion judge's reliance on foreseeability in Bradford v. Kanellos is misplaced and that he ought, instead, to have relied on Bingley v. Morrison Fuels (2009), 95 O.R. (3d) 191, [2009] O.J. No. 1576, 2009 ONCA 319. At paras. 21-22, this court quoted Assiniboine South School Division No. 3 v. Greater Winnipeg Gas Co., 1971 CanLII 959 (MB CA), [1971] M.J. No. 39, 21 D.L.R. (3d) 608 (C.A.), at pp. 613-14 D.L.R., affd 1973 CanLII 1313 (SCC), [1973] S.C.J. No. 48, in holding that

It is enough to fix liability if one could foresee in a general way the sort of thing that happened. The extent of the damage and its manner of incidence need not be foreseeable if physical damage of the kind which in fact ensues is foreseeable.

[O]ne need not envisage "the precise concatenation of circumstances which led up to the accident", provided that the general harm is reasonably foreseeable.

[Citations omitted]

[43] While the Bingley test correctly states the law that the precise circumstances leading up to an accident need not be foreseeable, applying the Bingley test would not have made any difference to the motion judge's ultimate conclusion to dismiss the action in negligence. Ms. Wilk's decision to leave the safety of the path, and proceed down the icy slope to retrieve the dog, interrupted the alleged chain of causation and was an intervening act: Fleming's Law of Torts, at 9.190, p. 250; Ray v. Bates, [2015] B.C.J. No. 1039, 2015 BCCA 216, 77 B.C.L.R. (5th) 64, at paras. 12-13. Given this voluntary, intervening act, Mr. Arbour's alleged negligence was not the proximate cause of Ms. Wilk's injury. Consequently, I would dismiss the cross-appeal.

F. Costs

[44] The parties have agreed on the quantum of costs. Accordingly, Mr. Arbour is entitled to his costs of the appeal fixed in the amount of $5,500 and to the costs of the motion at first instance fixed in the amount of $15,000, both inclusive of HST and disbursements.

[45] Mr. Arbour is also entitled to the costs of the cross-appeal in the amount of $3,000, all inclusive.

Appeal allowed; cross-appeal dismissed.

Notes

1 Sullivan notes that the ordinary meaning of a word should consider the immediate textual context, which consists of as much of the surrounding text as needed to make sense of the words being read. In a statute, the context is usually the section or subsection in which the words in question appear.

2 To establish liability on the common law doctrine of scienter where an individual has been injured by an animal, such as a dog, it is necessary to prove (1) that it was the dog in question which inflicted the injury; (2) that the dog had a mischievous propensity to commit the particular act of injury; and (3) that the owner or keeper knew of such propensity, or in other words, had scienter.

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