Court of Appeal for Ontario

Date: 2024-05-21 Docket: COA-23-CV-1038

Before: van Rensburg, Sossin and Dawe JJ.A.

Between:

Emberlyn Rebecca Grace Walpole by her litigation guardian Steve Walpole, Caulton Jeffrey Kenneth Walpole by his litigation guardian Steve Walpole, Cheri Kimberly Walpole, and Steve Walpole Plaintiffs (Appellants)

And

Tammy Brush, BDO Canada Limited as trustee of the Estate of Larry Ostertag, Julian Crisol* and Marianette Crisol* Defendants (Respondents*)

Counsel:

Alan Clausi, Ian Mair and Mirel Giugaru [1], for the appellants Stephen Walsh, for the respondents Julian Crisol and Marianette Crisol

Heard: May 6, 2024

On appeal from the judgment of Justice Suzan E. Fraser of the Superior Court of Justice, dated August 25, 2023, reported at 2023 ONSC 4869.

Dawe J.A.:

[1] This appeal arises out of a lawsuit over a dog bite injury. The appellants, the Walpole family, were visiting the home of the defendants, Tammy Brush and Larry Ostertag. During the visit, six-year-old Emberlyn Walpole was sitting on the floor petting Ms. Brush and Mr. Ostertag’s dog, Chestnut, when the dog bit her on the face, badly injuring her.

[2] Ms. Brush and Mr. Ostertag rented their home from the owners of the property, the respondents Julian and Marianette Crisol (“the Crisols”), neither of whom were present when Emberlyn was bitten.

[3] The appellants commenced an action against the owners of the dog and the Crisols. The Crisols brought a motion for partial summary judgment, seeking to have the action dismissed as against them. The motion judge agreed, and dismissed the action as against the Crisols. The appellants appeal from this judgment.

[4] The appellants’ first argument on appeal focuses on the motion judge’s reliance on s. 3(1) of the Dog Owners’ Liability Act, R.S.O. 1990 c. D.16 (“the DOLA”).

[5] The relevant provisions of the DOLA can be summarized as follows. First, s. 1(1) defines the term “owner”, when used “in relation to a dog”, to include “a person who possesses or harbours the dog”. It is common ground that the Crisols were not Chestnut’s “owners” under any of the branches of this definition.

[6] Second, s. 2(1) of the DOLA provides that “[t]he owner of a dog is liable for damages resulting from a bite or attack by the dog on another person”, while s. 2(3) provides that this liability “does not depend upon knowledge of the propensity of the dog or fault or negligence on the part of the owner”. It is common ground that this provision applies to Ms. Brush and Mr. Ostertag, as Chestnut’s owners, but not to the Crisols.

[7] Third, s. 3(1) of the DOLA provides:

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. O.2 (“the OLA”)

It is the interpretation of this provision that is in issue in this appeal.

[8] The motion judge concluded that “[w]here the bite or attack occurs on the premises of the owner of the dog, liability is determined under DOLA, not OLA.” Since the bite in this case occurred on the rented premises where the dog’s owners resided, and since the DOLA does not impose liability on anyone other than the dog’s owners, this led her to conclude that the Crisols were statutorily exempt from any liability that might otherwise have attached to them under the OLA. The motion judge explained:

The statute, and it appears the case law, divides liability on the basis of where the attack takes place. Where the dog bite occurs on the premises of the owner, OLA does not apply. The facts of this case are similar to Hudyma v. Martin, [1991] O.J. No. 1184. In that case, Justice Dunnet found that there was no liability on the part of the landlord, even though the landlord knew that the Mastiffs were being raised on the property where the dog attack occurred. She noted that the doctrine of scienter and OLA had no application to the case, noting that where the attack occurs on the premises of the owner, the OLA has no application.

[9] I agree with the appellant that the motion judge erred by concluding that s. 3(1) of the DOLA entirely ousts the operation of the OLA in situations where the dog bite or attack occurs on the dog owner’s property. The section provides only that when a dog bite or attack occurs “on the premises of the owner”, the liability of the owner is determined under the DOLA, rather than under the OLA. It does not address the potential liability, under either the OLA or common law, of persons other than the owners of the dog. As Perell J. noted in Elbaum v. York Condominium Corporation No. 67, 2014 ONSC 1182, at para. 20, if the defendant is not the “owner” of the dog within the meaning of s. 1 of the DOLA, “then there is no strict liability, but there is also no preclusion of a common law negligence claim or a claim under the Occupiers’ Liability Act.”

[10] I also agree with the appellant that the word “owner” in s. 3(1) must be understood as meaning the owner of the dog and not, as the respondents contend, as the owner of the property where the bite or attack occurred. Statutory language must be interpreted contextually, in its “grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament”: Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at para. 21, citing Elmer Driedger, Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1983), at p. 87. The plain and obvious goal of the DOLA is to hold dog owners absolutely liable for injuries caused by their dogs. Interpreting s. 3(1) as referring to the owner of the dog accomplishes this objective, by ensuring that the absolute liability rule in s. 2 of the DOLA takes precedence over the negligence-based liability of an “occupier” under the OLA.

[11] Conversely, interpreting “owner” to mean “owner of the premises”, as the respondents propose, would have the undesirable effect of immunizing property owners who are not also the owners of the dog under the s. 1 definition from being found liable for dog bites that occur on their property, even in circumstances where they have negligently breached a duty of care owed to the victim under the OLA. Moreover, the respondent’s proposed interpretation requires s. 3(1) to be read as referring to the “premises of the owner [of the premises]”, which would be an oddly circular phrasing.

[12] I would also note that the motion judge did not interpret “owner” in s. 3(1) to mean the owner of the premises, as the respondents propose. Rather, she concluded that “[w]here the bite or attack occurs on the premises of the owner of the dog, liability is determined under DOLA, not OLA”. Her error was to overlook the limiting words “liability of the owner” in s. 3(1), not to mistakenly interpret “owner” as meaning the owner of the premises.

[13] The motion judge seems to have based her conclusion that the DOLA entirely ousts the operation of the OLA in the circumstances of this case largely on an obiter comment in Hudyma v. Martin. Like the case at bar, Hudyma involved a dog bite on tenanted property where the landlord who owned the property was not the dog’s owner. Dunnet J. accepted the landlord’s argument that on the facts of the case he was not liable under the Occupiers’ Liability Act, but then added: “Surely the Legislature did not intend the Occupiers' Liability Act to apply to cases such as the one at bar”.

[14] The motion judge seems to have treated Dunnet J.’s concluding comment as creating a bright-line rule that entirely ousts the application of the OLA for all persons whenever dog bites occur on the premises of the dog’s owner. As I have explained, this conclusion is not supported by the plain language of s. 3(1) of the DOLA, which only ousts the application of the OLA to the dog’s owner.

[15] I accordingly agree with the appellants that the motion judge erred in law by concluding that the DOLA barred the Crisols from being found liable under the OLA.

[16] However, that does not end the analysis, since the motion judge also held that even if she was wrong in her interpretation of the DOLA, she would still have granted summary judgment in favour of the Crisols. She explained:

Like Justice Dunnet, I find that the Legislature did not intend OLA to apply in the case at bar. The cases provided to me by the Plaintiffs regarding other animals are of no application as the Legislature has established a separate statutory framework for dogs.

If I am wrong about this, I find that it is not necessary to have a trial to determine whether the Crisol Defendants had a duty of care to Emberlynn [sic] and whether they breached the duty of care.

I find that there is no basis by which to place liability on the Crisol Defendants. Even if the failures alleged are made out, they do not establish a duty of care to the Plaintiffs which has been breached and the failures are not causally connected to the Plaintiff’s injuries.

[17] The appellants challenge the adequacy of this aspect of the motion judge’s reasons. As a remedy, they ask that her decision be set aside and the case remitted to the trial court, without prejudice to the Crisols’ ability to renew their motion for summary judgment.

[18] Section 134(1)(a) of the Courts of Justice Act, R.S.O. 1990, c. C.43 empowers an appellate court to “make any order or decision that ought to or could have been made by the court or tribunal appealed from”. When the adequacy of judicial reasons is raised as a ground of appeal, the exercise of this power becomes intertwined with the underlying question of whether the reasons of the court appealed from are insufficient to allow for “meaningful appellate review of the correctness of the … decision”: R. v. Sheppard, [2002] 1 S.C.R. 869, at para. 55. As Binnie J. noted further in Sheppard, at para. 55:

Where the trial decision is deficient in explaining the result to the parties, but the appeal court considers itself able to do so, the appeal court’s explanation in its own reasons is sufficient.

[19] In Bruno v. Dacosta, 2020 ONCA 602, at para. 23, Lauwers J.A. explained:

In assessing the trial judge’s reasons for sufficiency, “the reviewing court must examine the evidence and determine whether the reasons [for judgment] are, in fact, patent on the record”: R. v. Dinardo, [2008] 1 S.C.R. 788, at para. 32, per Charron J., who ordered a new trial. An appellate court must review the record to determine whether the trial decision can be rendered more comprehensible when read in the context of the record.

[20] While the motion judge’s reasons in this case were indeed brief, I am satisfied that the record as a whole clarifies and explains why she concluded that the appellants’ claim against the Crisols did not present any genuine issues that required a trial. In this regard, it is significant that the motion judge made her determination on a paper record, and was not asked to resolve conflicting evidence or make any assessments of credibility: see Bruno, at para. 25.

[21] The evidence establishes that the Crisols were absentee landlords of the property where the dog owners resided. The dog’s owners only acquired Chestnut some time after they became the Crisols’ tenants. Under s. 14 of the Residential Tenancies Act, 2006, S.O. 2006, c. 17 (“the RTA”), the Crisols could not have prevented their tenants from keeping a dog on the rented property. There was no evidence that the Crisols had ever assumed any responsibility for Chestnut, or that they asserted any control over who their tenants could choose to invite onto the rented property. Mr. Crisol’s evidence was that he only learned about Chestnut’s existence when the Crisols were served with the appellants’ statement of claim. There is no evidence that they had any prior knowledge of Chestnut’s particular temperament or history of behaviour.

[22] Significantly, the appellants have not pointed to any case where an absentee landlord has ever been held liable for injuries caused by a tenant’s dog in similar circumstances. In Purcell v. Taylor (1994), 120 D.L.R. (4th) 161 (Ont. Gen. Div.), Borins J. (as he then was) explained that the common law generally did not extend liability for dog bites beyond those persons who could be said to have “owned”, “possessed” or “harboured” the dog: that is, those same persons who are now subject to the absolute liability provisions of the DOLA. The DOLA does not change the potential liability of other persons, either one way or the other. Nevertheless, the appellants have not identified any cases where persons similarly situated to the Crisols have been found liable, either at common law or under the OLA or some other statute.

[23] The appellants argue that the motion judge did not properly consider s. 8(1) of the OLA, which “applies whether or not the landlord is found to be an occupier”: Taylor v. Allen, 2010 ONCA 596, at para. 12. This section provides:

8 (1) Where premises are occupied or used by virtue of a tenancy under which the landlord is responsible for the maintenance or repair of the premises, it is the duty of the landlord to show towards any person or the property brought on the premises by those persons, the same duty of care in respect of dangers arising from any failure on the landlord’s part in carrying out the landlord’s responsibility as is required by this Act to be shown by an occupier of the premises.

[24] In my view, s. 8(1) has no application in the circumstances of this case. To the extent that the tenancy agreement made the Crisols “responsible for the maintenance or repair of the premises”, there is no evidence that the dog bite at issue here was causally linked to any failure by them to properly maintain or repair the rented property. To the extent that s. 8(1) imposed a duty of care on the Crisols, this duty was limited to “dangers arising from any failure on [their] part in carrying out [their] responsibility” to maintain or repair the premises.

[25] The two cases the appellants rely on where absentee landlords were found liable under s. 8(1), Taylor v. Allen and MacFadyen v. MacFadyen, 2014 ONSC 6589, did not involve injuries caused by a tenant’s dog. Rather, both involved injuries that were causally linked to problems with the property itself, for which the landlord was responsible. In my view, a tenant’s dog cannot be treated as if it is part of the rented property, so as to bring it within the landlords’ “maintenance and repair” obligations.

[26] The appellants’ argument also disregards s. 8(2) of the OLA, which limits liability under s. 8(1) to situations where “the landlord’s default is such as to be actionable at the suit of the person entitled to possession of the premises”. The dog’s owners would not have been able to sue the Crisols if one of them had been bitten by their own dog.

[27] Likewise, I am not persuaded that the motion judge made any error by rejecting the appellants’ reliance on s. 20 of the Residential Tenancies Act, which imposes a duty on landlords to ensure that rented premises are in “a good state of repair”, and the associated regulation that requires common areas to be “kept … free of hazards”. I agree with the motion judge’s conclusion that these provisions do not “create a statutory duty [on landlords] to keep a rental unit free of a hazard that is a dog”. Indeed, as noted above, s. 14 of the RTA bars landlords from prohibiting residential tenants from keeping pets.

[28] In the result, I see no error in the motion judge’s conclusion that the appellants had not demonstrated that their claim against the Crisols presented any genuine issues that required a trial. As the motion judge stated in her reasons:

I am able to determine on the facts before me that there is no genuine issue for trial. The Plaintiffs have put their best foot forward, but it does not establish liability on the part of the Crisol Defendants.

[29] While the motion judge’s reasons, considered in isolation, may not have fully explained how she arrived at this conclusion, her reasoning path becomes apparent when her reasons are read “in the context of the evidence, [and] the arguments”: R. v. R.E.M., [2008] 3 S.C.R. 3, at para 35.

[30] I would accordingly dismiss the appeal. The parties have agreed that costs of the appeal should be fixed at $25,000 all inclusive, payable by the appellants to the respondents.

Released: May 21, 2024 “K.M.v.R.” “J. Dawe J.A.” “I agree. K. van Rensburg J.A.” “I agree. Sossin J.A.”

[1] Mirel Giugaru appeared but made no written or oral submissions on behalf of the appellants.