CITATION: Wilk v. Arbour, 2016 ONSC 1179
COURT FILE NO.: CV-14-510437
DATE: 20160224
CORRECTED DECISION RELEASED: 20160330
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
DONNA MARIE WILK
Plaintiff
– and –
KEVIN ARBOUR
Defendant
David E. Preszler, for the Plaintiff
Kalin I. Stoykov and Dana Yoon, for the Defendant
HEARD: February 10, 2016
M. D. FAIETA J.
CORRECTED REASONS FOR DECISION
Corrected decision: The text of the original judgment was corrected on March 30, 2016 and a description of the correction is appended
INTRODUCTION
[1] The plaintiff, Donna Marie Wilk, brings this action for damages she sustained as a result of the top half of her right thumb being bitten off by the defendant’s dog, Zeus, on December 28, 2013. The defendant, Kevin Arbour, brings this motion for summary judgment to dismiss this action. The plaintiff brings a cross-motion for summary judgment for an order that Arbour is liable and an order that this action proceed to trial only on the issue of damages.
[2] At the time of this incident, Zeus was a nine-year-old Great Dane with various ailments and had lived with Arbour for about six years. A year earlier, Zeus had stomach surgery and was on a special diet. Arbour would prepare meals for Zeus using cooked chicken. Zeus was also taking Prednisone for seizures that he suffered. Zeus had no history of biting or attacking people.
[3] Arbour and Wilk had been in a romantic relationship for almost one year. While they did not reside together, Wilk spent almost every weekend at Arbour’s home or cottage. On the afternoon of Friday, December 27, 2013 Wilk went to Arbour’s home, which was located on a 50-acre property. Arbour was a service technician and had been called in to work a 20-hour shift. He asked Wilk to feed Zeus at 6 p.m., which she did. Arbour provided no further instructions to Wilk. In particular, he did not tell her to feed Zeus breakfast or provide medication.
[4] Arbour returned home from work at about 4 a.m. or 5 a.m. on December 28, 2013. Wilk woke up at 8 a.m. on that day. Arbour was asleep, but Wilk asked Arbour whether he wanted her to take Zeus outside for a walk. Arbour answered affirmatively. At about 8:20 a.m. Wilk took Zeus for a walk on Arbour’s property. This was the first time that she had taken Zeus out for a walk without Arbour’s presence. Zeus was on a four-foot leash to ensure that he did not chase horses on the property. Within about 15 minutes, Zeus suffered what appeared to be a seizure while walking along a road on the property. Zeus collapsed. Wilk called Arbour and asked him to come. Zeus eventually regained consciousness and stood up. In doing so, he took a few steps back and came out of his loosely fitting collar that was attached to the leash being held by Wilk. As Zeus backed up, he fell several feet down the side of the road into a ditch. Wilk called Zeus to come up to the road without success. Wilk then tried to retrieve Zeus but she also slipped and fell into the ditch. In doing so, Wilk collided with Zeus and he bit Wilk’s thumb. Wilk lost that part of her thumb above the joint.
[5] Wilk brings this Claim relying on two causes of action: (1) section 2 of the Dog Owners’ Liability Act, R.S.O. 1990, c. D.16, as amended (the “Act”) and (2) negligence. Arbour submits that the Claim raises no genuine issue requiring a trial for the following reasons: (1) Arbour submits that Wilk was in “possession” of Zeus at the time that he bit her and that, as a result, Wilk is not entitled to compensation under section 2(1) of the Act; (2) Arbour also submits that the injury sustained by Wilk was not a foreseeable result of Arbour’s failure to advise Wilk that Zeus required to be fed and given medication on a regular basis. Wilk submits that this motion raises novel questions of law and should proceed to trial. In the alternative, Wilk submits that summary judgment should be granted holding Arbour fully liable for Wilk’s injury and that this action proceed to trial on the issue of damages only.
[6] In summary, this motion raises the following issues:
- Is a motion for summary judgment appropriate where the motion raises a novel question of law?
- Is Wilk an “owner” under the Act?
- Does an “owner” have a right to compensation from another owner under the Act?
- Is Arbour liable in negligence for the damages suffered by Wilk?
- Did Wilk’s fault or negligence cause or contribute to the damages that she suffered?
[7] For the reasons set out below, I would answer these questions as follows:
- Novel questions of law can be determined on a summary judgment motion;
- Wilk was not the “owner” of the dog, but Arbour is an “owner”, under the Act;
- While I need not answer the third question, an owner does not have a right to compensation from another owner under the Act;
- Arbour is not liable in negligence for the damages suffered by Wilk because her injuries were not reasonably foreseeable;
- There was no fault or negligence on Wilk’s part that caused or contributed to her damages.
[8] Having found Arbour liable under the Act, but not in negligence, I dismiss Arbour’s motion for summary judgment and grant the cross-motion for summary judgment.
ISSUE #1: IS A MOTION FOR SUMMARY JUDGMENT APPROPRIATE WHERE THE MOTION RAISES A NOVEL QUESTION OF LAW?
[9] Wilk submits that this action raises a novel question of law, namely, whether she is an “owner” under the Act. Wilk relies on Blanchard v. Parrott, 2015 ONSC 6846, 259 A.C.W.S. (3d) 666, at para. 11, where this Court stated:
…this is a case that potentially raises a novel question of law concerning the duty of care in situations of volunteer organized events at which alcohol is served. This is an issue that has not been considered by the courts and it would be inappropriate to determine it on a motion for summary judgment.
[10] I respectfully disagree with the view that a novel question of law cannot be determined on a motion for summary judgment for two reasons. First, Rule 20.04(4) of the Rules of Civil Procedure contemplates that a question of law may be determined on a motion for summary judgment. It does not make an exception for novel questions of law. Second, the Supreme Court of Canada in Hryniak v. Mauldin et al., 2014 SCC 7, [2014] 1 S.C.R. 87, at paras. 4 and 5 stated that the rules for summary judgment motions should be interpreted “broadly, favouring proportionately and fair access to the affordable, timely and just adjudication of claims”. In my view, the material facts have been placed before this Court. They are not disputed. I fail to see how a trial judge would be in any better position to determine the questions of law raised on this motion.
[11] I agree with the following statement made by Justice R.F. Goldstein in France v. Kumon Canada Inc., 2014 ONSC 5890, [2014] O.J. No. 5795, at paras. 29 and 30:
29 As I read Hryniak, a judge on a summary judgment motion should make a decision and settle a novel area of law where it is in the interests of justice to do so. It is true that Hryniak focussed mostly on using the new fact-finding powers to come to a timely and just resolution of disputes. The policy reasons behind Hryniak, however, make it clear that a motions judge's over-arching duty is to achieve a fair and just result. Furthermore, from an access-to-justice point of view there is no reason why private -- and public -- resources should be devoted to a trial when the issue can be settled in a summary manner.
30 There no reason why a fair and just result should be limited to resolving questions of fact but not novel questions of law. It no longer makes sense to say that an action can be resolved on the basis of the record on a summary judgment motion only where factual issues are in dispute. A motions judge may resolve novel issues of law. In the absence of a rule to the contrary there should be nothing unusual about that. That is what common law judges have always done.
[12] Accordingly, I conclude that this motion for summary judgment is an appropriate forum to resolve the questions of law that it raises.
ISSUE #2: IS WILK AN “OWNER” UNDER THE DOG OWNERS’ LIABILITY ACT?
[13] Section 2 of the Act provides a right to compensation for person who have been bitten or attacked by a dog as follows:
Definitions
- (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;
CIVIL LIABILITY
Liability of owner
- (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.
Where more than one owner
(2) Where there is more than one owner of a dog, they are jointly and severally liable under this section.
Extent of liability
(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.
Contribution by person at fault
(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. [Emphasis added]
[14] Arbour does not take the position that Wilk “harboured” Zeus. However, he submits that Wilk was a person who “possessed” Zeus at the time that she was bitten.
Principles of Statutory Interpretation
[15] In Wawanesa Mutual Insurance Co. v. Axa Insurance (Canada), 2012 ONCA 592, [2012] O.J. NO. 4196, at para. 32, the Ontario Court of Appeal stated that a purposive approach is to be applied when interpreting legislation. It stated, at paras. 33-35:
The Supreme Court of Canada has consistently endorsed Elmer Driedger's purposive approach to statutory interpretation…As Driedger explains, at p. 87 of his Construction of Statutes, 2d ed., (Toronto: Butterworths, 1983):
[T]he words of an Act are to read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.
The purposive approach to statutory interpretation requires the court to take the following three steps: (1) it must examine the words of the provision in their ordinary and grammatical sense; (2) it must consider the entire context that the provision is located within; and (3) it must consider whether the proposed interpretation produces a just and reasonable result.
The factors comprising the "entire context" include the history of the provision at issue, its place in the overall scheme of the Act, the object of the Act itself, and the legislature's intent in enacting the Act as a whole and the particular provision at issue…A just and reasonable result promotes applications of the Act that advance its purpose and avoids applications that are foolish and pointless.
[Citation references omitted]
Ordinary and Grammatical Meaning
[16] “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”.
[17] Although most other provinces and territories in Canada have legislation that imposes liability on persons who harbour or possess dogs that cause damage to persons or property, there has been very little case law interpreting those provisions. Only one case in Canada has been provided that considers whether a person was in possession of a dog.
[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.[^1] In that context, “possession” of a dog has been interpreted as “the exercise of dominion and control similar to and in substitution for that which ordinarily would be exerted by the owner over the dog”.[^2]
[19] Applying the above test, a church was found to not be in “possession” of a dog where a visitor to the parish house was bitten by a dog of a church employee who lived in an apartment in the parish house. In Auster v. Norwalk United Methodist Church, at pp. 160-163, the church did not permit its employee’s dog to roam freely on its property. The church required the dog to be kept indoors during the day and to be tied up to a railing at other times. The Supreme Court of Connecticut found that the church’s minimal control over the dog’s actions was an insufficient basis to find that the church was in possession of the dog.
[20] On the other hand, a person who volunteered to take care of a dog in his home for five days was found to be in possession of the dog. In Murphy v Buonato, 42 Conn. App. 239 (1996); 679 A. 2d 411, the plaintiff agreed to take care of the defendant’s dog for one week while the defendant was out of town. The plaintiff was bitten by the dog during his stay. The plaintiff was in sole possession of the defendant’s dog, allowed it to live at his own residence, provided it with shelter and lodging, accepted full responsibility for its care and controlled each of the dog’s actions from the moment the defendant delivered it until the moment the plaintiff was bitten. Accordingly, the plaintiff was in “possession” of the dog. The Court dismissed the plaintiff’s claim as it determined that the dog liability legislation was designed to provide compensation only to persons who were not the owner of a dog.
[21] An “owner” also includes a person who “harbours” a dog. In Purcell v. Taylor, [1993] O.J. No. 1935 (Div Ct), at para. 3, the court found that a person “harbours” a dog when he or she provides lodging or shelter for a dog.[^3] A person that “harbours” a dog must exercise some degree of care or control over the dog. See Purcell v Taylor, [1996] O.J. No. 4655 (Div Ct), at para. 1. Accordingly, “harbouring” was not established where:
- A motel owner merely permitted a dog on its premises;A person who allowed his brother and his two dogs to live in his house while he was at the cottage over the weekend did not “harbour” the dogs as he exercised no care or control over the dogs and was unaware that the dogs were in his home
See Graham (Litigation Guardian of) v. 640847 Ontario Ltd., [2005] O.J. No. 3685; Hudyman v. Martin, [1991] O.J. No. 1184; and Purcell v. Taylor, [1994] O.J. No. 2845.
Entire Context
[22] The Act was enacted in 1980. On Second Reading, the Parliamentary Assistant who introduced this legislation stated:
Mr. Speaker, there has been an increasing problem in our province, and particularly in urban areas, in relation to the control of dogs that are owned by many of our citizens. This bill attempts to meet those problems. It changes the existing law by changing the onus that a dog owner incurs when a dog takes its first bite.
This act does two things. First, it creates the rules for civil liability between the owner of a dog which has bitten a person and the person who has been bitten. Second, it deals with a system whereby the courts can deal with the dog in determining whether that dog should be destroyed…We have been fairly careful with the definitions set out in the act, as careful as we can be, so that it would be very difficult for someone to deny ownership of the dog, which has been a problem in the past in terms of litigation in this matter.[^4]
Prevention
[23] There are several provisions of the Act which reflect its prevention objective.
[24] Pursuant to section 5.1, the owner of a dog is required to exercise reasonable precautions to prevent it from: (1) biting or attacking a person or domestic animal, or (2) behaving in a manner that poses a menace to the safety of persons or domestic animals.
[25] Under section 4 of the Act, a proceeding may be commenced in the Ontario Court of Justice against an owner of a dog for an order that the dog be destroyed or that the owner of the dog take more effective control of the dog in the event that:
- The dog bit or attacked a person or domestic animal
- The dog behaved in a manner that poses a menace to the safety of person or domestic animals
- The owner did not exercise reasonable precautions to prevent the dog from biting or attacking a person or domestic animal or behaving in a manner that poses a menace to the safety of persons or domestic animals.
[26] Further, pursuant to section 5 of the Act, the Ontario Court of Justice may make an order prohibiting a dog owner from owning another dog during a specified period of time.
[27] A person who contravenes a provision of the Act or an order under the Act is guilty of an offence and liable, on conviction, to a fine of not more than $10,000 or to imprisonment for a term of not more than six months. See section 18(1) of the Act.
Compensation
The liability of a dog owner at common law was described in Morsillo v. Migliano, (1985), 52 O.R. (2d) 319 (District Court of Ontario), at para. 10 as follows:
At common law the owner of a domestic animal which is normally harmless is not liable, in the absence of negligence, for an act of a vicious or mischievous kind which it is not the animal's nature usually to commit. He will be strictly liable, however, where he knows that the animal has that particular vicious or mischievous propensity; proof of this knowledge or scienter is essential. Where this knowledge exists, the owner keeps such an animal at his peril and is answerable in damages for any harm done by the animal…In the application of the scienter doctrine it is not accurate to say that "every dog is allowed one bite". Liability in scienter may result from known vicious or mischievous propensities: Morris v. Baily, [1970] 3 O.R. 386, 13 D.L.R. (3d) 150 (C.A.). To prove scienter one must show: (a) that the animal had previously committed, or attempted to commit, at least one act that showed the particular kind of viciousness now complained of, and (b) that the defendant knew of the act or attempt….
[28] As noted, a dog owner may be liable for damages resulting from a dog bite or attack if such damages are attributable to the owner’s negligence. For instance, in Sgro v. Verbeek (1980), 28 O.R. (2d) 712 (H.C.), the owner of a dog that bit a child petting the dog was liable in negligence even though scienter was not proven. The dog owner admitted that the dog was unaccustomed to the presence of children and behaved differently in the presence of strangers. The Court found that the owner ought to have reasonably foreseen that the child might be injured if he did not take preventative measures.
[29] The right to compensation under section 2(3) of the Act does not require proof of scienter or negligence. According to the Ontario Court of Appeal in Wong v. Arnold et al. (1987), 59 O.R. (2d) 299, at para. 4, section 2 of the Act “…creates a prima facie liability on the part of the owner for injuries resulting from an attack by a dog, but it is still open to him to establish affirmatively, if he can, facts excusing him from liability.” Specifically, under section 2(3), a dog owner’s liability for damages shall be reduced by the degree to which the fault or negligence of the plaintiff caused or contributed to the damages.
Conclusion
[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.
[31] Arbour submitted that Wilk had spent the previous evening alone at Arbour’s home with Zeus while he was at work and this fact, along with the fact that she was bitten while taking Zeus for a walk the next day, supported the conclusion that Wilk was in possession of Zeus at the time of the incident. I disagree.
[32] In my view, Wilk was not in “possession” of Zeus within the meaning of the Act at the time that she was bitten. Zeus had belonged to Arbour for about six years at the time of this incident and lived on Arbour’s property. Arbour controlled Zeus’s activities and it is clear that he cared very much for Zeus. Given his medical conditions, Arbour cooked Zeus’ meals in advance and administered Prednisone for seizures. The time at which Zeus ate his meals was also scheduled by Arbour. On the day prior to this incident, Arbour instructed Wilk to feed Zeus at 6 p.m. She followed his instruction. On the day of this incident, Wilk asked Arbour, who was at home asleep, for permission to take Zeus for a walk. Arbour approved and Wilk took Zeus for a walk. This was the first time that she had taken Zeus for a walk alone. In short, Wilk did not exercise any control over Zeus without Arbour’s direction or approval.
[33] Further, this is not a situation where Zeus was left at Wilk’s home for any amount of time to be under her sole care. Even if I were to accept that Wilk had a possessory right to Zeus while she stayed at Arbour’s home alone when Arbour was at work, such limited control expired when Arbour returned and assumed control over Zeus’ affairs during the early morning of December 28. In short, the circumstances in this case are far from those that existed in Murphy v Buonato described earlier. In my view, the dominion or control exercised by Wilk over Zeus before, and at the time, she was bitten is an insufficient basis to find that she was in “possession” of Zeus for the purposes of the Act, especially given the obligations and liabilities imposed by the Act on an “owner”.
[34] However, given the circumstances that I have described above, I find that Arbour was the “owner” of Zeus at the time that Wilk was bitten.
ISSUE #3: DOES AN “OWNER” HAVE A RIGHT TO COMPENSATION FROM ANOTHER “OWNER” UNDER THE DOG OWNERS’ LIABILITY ACT?
[35] If I had found that Wilk was an “owner” under the Act, then I would have accepted Arbour’s submission that she did not have a right to compensation under the Act.
[36] Subsection 2(1) of the Act provides that:
The owner of a dog is liable for damages resulting from a bite or attack by the dog on another person or domestic animal.
[37] In my view, the phrase “another person” is to be read in reference to the phrase “the owner of a dog”. The use of the word “another” indicates that the right to compensation is only available to persons who do not own the dog. Had the drafters intended otherwise, then they could have simply said “a person” rather than “another person”.
[38] Further, the policy objectives of the Act to provide non-owners with a right to compensation for dog bites or attacks is not served by interpreting the Act as providing a right of compensation to an owner.
ISSUE #4: IS ARBOUR LIABLE IN NEGLIGENCE FOR THE DAMAGES SUFFERED BY WILK?
[39] Wilk submits that Arbour is liable in negligence for her injuries. Wilk alleges that Arbour was aware that Zeus was more likely to suffer a seizure after missing a meal. Wilk also alleges that Arbour knew that she would only feed or medicate Zeus in accordance with his specific instructions. Finally, it is also alleged that Arbour did not provide a suitable or proper fitting collar for Zeus which led to him falling down the ditch.
[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. See Bradford v. Kanellos, [1974] S.C.R. 409, at pp. 412-413.
[41] Accordingly, I dismiss the action against Arbour in negligence as I find that Wilk’s injuries were not reasonably foreseeable.
ISSUE #5: DID WILK’S “FAULT OR NEGLIGENCE” CAUSE OR CONTRIBUTE TO THE DAMAGES THAT SHE SUFFERED?
[42] Arbour submits that it was reasonably foreseeable that Wilk would slip walking down the embankment to rescue Zeus, that she would collide with Zeus upon falling and that he would then bite her thumb off. In my view, the risk of Wilk being bitten was not a “…consequence fairly to be regarded as within the risk created…” of Wilk choosing to walk down the embankment. I do not accept Arbour’s view that Wilk’s negligence caused or contributed to the damages that she suffered. To find that Wilk negligently caused or contributed to the damages that she suffered would, as the Ontario Court of Appeal noted in Wong v. Arnold (1987), 59 O.R. (2d) 299, at para. 5, “…necessitate imparting to the victim a knowledge of the propensity of the dog to attack if someone shouts in his vicintiy. The statute did not transfer scienter from the owner to the victim.” 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.
[43] Further, Wilk’s damages were not caused or contributed by her fault. There was no intentional act on Wilk’s part that caused or contributed to her damages. She was not a trespasser and she did nothing intentionally to provoke Zeus to bite her.
CONCLUSIONS
[44] For the reasons given above, I have dismissed the motion for summary judgment and I have granted the cross-motion for summary judgment.
[45] I seize myself of this action. I direct that a brief case conference, by telephone, be held at 8:45 a.m. on March 8, 2016. My assistant will provide the parties with the teleconference call details.
[46] Wilk claims her costs of this motion on a partial indemnity basis in the amount of $21,319.76. Mr. Preszler was called to the Bar in 2008 and claims $336/hour on a partial indemnity basis. Armour submitted a claim for costs on a partial indemnity basis in the amount of $10,872.34. Mr. Stoykov was called to the Bar in 2010 and claims $180/hour in costs. Ms. Yoon, was called to the Bar in 2015 and claims $120/hour. Finally, Joseph Lin was called to the Bar in 2001 and claims $250/hour. In my view, it is fair and reasonable, and within his reasonable contemplation, for Arbour to pay costs of this motion in the amount of $15,000.00, inclusive of disbursements and HST, to Wilk within 30 days.
Mr. Justice M. D. Faieta
Released: March 30, 2016
Corrected decision: The following was added to paragraph six, “Did Wilk’s fault or negligence cause or contribute to the damages that she suffered?”
Corrected decision: The following was added to paragraph 7, “There was no fault or negligence on Wilk’s part that caused or contributed to her damages.”
Corrected decision: The following paragraphs 42 and 43 were added,
"ISSUE #5: DID WILK’S “FAULT OR NEGLIGENCE” CAUSE OR CONTRIBUTE TO THE DAMAGES THAT SHE SUFFERED?
[47] Arbour submits that it was reasonably foreseeable that Wilk would slip walking down the embankment to rescue Zeus, that she would collide with Zeus upon falling and that he would then bite her thumb off. In my view, the risk of Wilk being bitten was not a “…consequence fairly to be regarded as within the risk created…” of Wilk choosing to walk down the embankment. I do not accept Arbour’s view that Wilk’s negligence caused or contributed to the damages that she suffered. To find that Wilk negligently caused or contributed to the damages that she suffered would, as the Ontario Court of Appeal noted in Wong v. Arnold (1987), 59 O.R. (2d) 299, at para. 5, “…necessitate imparting to the victim a knowledge of the propensity of the dog to attack if someone shouts in his vicintiy. The statute did not transfer scienter from the owner to the victim.” 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.
[48] Further, Wilk’s damages were not caused or contributed by her fault. There was no intentional act on Wilk’s part that caused or contributed to her damages. She was not a trespasser and she did nothing intentionally to provoke Zeus to bite her."
CITATION: Wilk v. Arbour, 2016 ONSC 1179
COURT FILE NO.: CV-14-510437
DATE: 20160224
CORRECTED DECISION RELEASED: 20160330
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
DONNA MARIE WILK
Plaintiff
– and –
KEVIN ARBOUR
Defendant
REASONS FOR DECISION
Mr. Justice M. D. Faieta
Released: March 30, 2016
[^1]: Liability for damages caused by a dog is imposed on the owner or keeper of the dog. In turn, “keeper” is defined as 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.
[^2]: See Auster, at160.
[^3]: Also see the Concise Oxford Dictionary.
[^4]: Ontario, Legislative Assembly, Official Report of Debates (Hansard), 34th, Parl., 4th Sess (4 November 1980), page 40; Also see Philip H. Osborne, The Law of Torts, 3d ed., (Toronto: Irwin Law, 2007) at p. 341.