COURT FILE NO.: CV-15-73-00A1
DATE: 2018-05-23
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HAYDEN WIENS by his litigation guardian, KRIS WIENS, KRIS WIENS and ERIN WIENS
Plaintiffs
– and –
ALLAN MINO and LAURIE MINO
Defendants
– and –
Annette A. Casullo, for the Plaintiffs
Ryan D. Truax, for the Defendants
DEBBIE LIVINGSTON
Jason G. Arcuri, for the Third Party
Third Party
M. P. EBERHARD
[1] The Third Party moves for Summary Judgment dismissing the claim against her brought by the Defendants alleging that her negligence contributed to the injury to the child Hayden from the Defendants’ dog Murdock on April 18, 2014 when Hayden was 2 years and 10 months of age.
[2] The Defendants, are liable by section 2(1) of the Dog Owner's Liability Act. I will hereafter refer to Allan Mino as the owner as it was he who was present and he who supplies the Defendants’ evidence.
[3] The Defendants claim that the Third Party, the child’s Grandma, may be found at least 1% liable, by a properly instructed jury, based on subsection 2(4) of the Dog Owner's Liability Act which states:
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.
[4] The incident took place while Hayden was out walking in his Grandma’s neighbourhood under his Grandma’s care.
[5] Grandma was walking her older dog. Allan Mino had his young golden retriever Murdock by the collar as the adults spoke near the end of his driveway.
[6] There is a factual dispute between the owner and the Grandma as to whether Hayden was by her side as the owner crouched beside his dog during the conversation or approached from behind the owner towards the adults who were in conversation introducing the dogs to each other.
[7] If, as the Grandma states, Hayden was quietly at her side when the incident occurred, there can be no assertion she was negligent.
[8] If Hayden was not at her side, there is dispute whether she had left the child “unattended” so as to constitute negligence.
[9] Counsel are not in dispute as to the nature of Summary Judgment. If it is to be granted based on a finding of fact it would necessarily be under the expanded powers now legislated and recognized in Hryniak[^1] and subsequent. The two versions really are not reconcilable so I do not proceed on that basis. Rather, I will analyze the owner’s testimony asserting facts upon which it is claimed the Grandma’s negligence may have contributed to the incident. His testimony puts “his best foot forward” as traditional Summary Judgment analysis contemplates.
[10] I state at the outset, that this injury which resulted, in what the owner could not distinguish was from a nip or a scratch by the dog, arose out of the most commonplace and benign neighbourhood interaction. Discussion here of strict liability and negligence does not elevate this activity to malevolence or indifference.
[11] By whichever version or splicing of versions of the factual accounts, a child straying from his Grandma’s side onto neighbourhood lawns on their walk of itself raises no spectre of negligence. A dog owner bending beside his dog whose collar is in his grasp, managing the introduction between the two dogs, is prudent and amiable. A boisterous young dog straining against being held by the collar need not even be characterized as aggressive. But lunging can nevertheless cause some harm. Both the owner and the Grandma describe that the dog lunged.
[12] The owner’s liability arises out of a legislated policy likely made necessary by just such occurrences as this, where everyone is behaving appropriately, but a dog acts suddenly to create some misadventure. So be it. That is our legislated context.
[13] It leaves the only question one of the sufficiency of the Grandma’s supervision in the circumstances.
[14] As indicated, if the Grandma’s evidence is accepted there is no viable suggestion of negligence. However on this motion for Summary Judgment, the untested assertions of the owner and the Grandma cannot be reconciled so I limit my consideration to whether there is a triable issue if the owner’s evidence is accepted.
[15] I find the owner cannot take comfort from the case law cited. In Sgro[^2] the parent was found 25% liable as he left his child unattended with a German Sheppard dog of unknown propensities. In that case the father had gone behind a building such that the child and un- restrained dog were out of his sight.
[16] That is highly distinguishable from the present circumstance where the two adults were standing together and the owner had his dog by the collar and was bending to manage the introduction of his dog to the Grandma’s older dog. This was exactly the sort of control that the Grandma would be expected to be alert for to assess the danger the dog might present and quite appropriate for her to rely on the owner’s control.
[17] The owner asserts that the child approached from somewhere on his lawn and came into the dogs vicinity. Counsel suggests that the Grandma was negligent in allowing the child away from her side, speculating that she was providing insufficient protection against the child bolting in front of a car or, as asserted here, approaching a dog.
[18] In Ontario we leash dogs, not children. There is no ten foot standard as suggested by counsel. While the owner claims he did not see the child until he was approaching down the slope of his lawn, he did see him coming. Even in his version of what happened there is no reason to suppose the Grandma was not attentive to the movements of the child on the lawn, even as the child approached the near circle with the collared dog, two adults and a known docile dog. The merest opportunity to intervene might have arisen as the child approached, to warn the child to stay back from the boisterous young dog, though he was held by his master, or the merest chance to possibly insert herself between them.
[19] Dogs and children do unexpected actions in the blink of an eye. Not acting on the merest opportunity to avoid a dog’s action that seemed to be, and was intended to be, controlled by its master’s direct conduct of holding its collar is highly distinguishable from walking to the far side of a building out of site as in Sgro.
[20] I turn to the owner’s testimony given on examinations:
129 Q: When did you first see Hayden, who was the little boy?
A: When the dog – when he ran down the hill to the dog.
130 Q: What hill are you speaking about?
A: From the top of our grass down to the driveway.
141Q: You don’t know where he came from?
A: Before I saw him no, I don’t know where he was. But he wasn’t with the dog and grandma because the street is straight and as they’re walking along you can see who is there. So he wasn’t with grandma or the dog.
142 Q: I see there’s vehicles in the---
142 Q: Yeah, there wasn’t when the day that it happened…..
145 Q: That’s when you knelt down with Murdock?
A: That’s when I stopped and knelt down and held him close to me, so that their dog could be introduced to him.
151 Q: Did you warn them that Murdock wasn’t tied up?
A: No, I had him so he was contained, so there was no problem with the other dog. This other –her dog was old so they just usually looked at each other when they—when Abbey and the old dog looked they just didn't really get too excited about it. So, I just wanted to make sure if she came to explore who Abbey or who Murdock was, that you know, I had control of him.
153 Q: Why don’t you describe to me what you remember about the actual bite itself?
A: Well, it happened so quick I didn't even know whether it was a bite or whether it was a paw mark. So, it was just the chap came down the hill and I had Murdock. And Murdock was so excited he just raised up, lunged, whatever you want to call it. And that resulted in something on his cheek. He was covered up pretty good and grandmother freaked out, Debbie, you said her name was. And—
154 Q: Sorry, so you said it was covered up pretty good? I don’t know what that means.
A: Well, everybody was like you know, in- like I had the dog so they all went like he had hurt himself. …
156 Q: Was Murdock ever out of your ---
A: no.
157 Q: You held Murdock during the bite?
A: Consistently.
159 Q: Did you pull Murdock off Hayden?
He was—it was just a flash encounter. When the damage was done, it was like he wasn’t on him. The lunge cause the incident. But as I say, it was so fast I didn't even know at the time whether it was a paw or whether it was he nipped him.
160 Q: Can you say how far away Hayden was from Murdock when it happened?
A: Two feet, but he was running down so the incident sort of like stopped him.
161 Q: Did you yell at Hayden to stop running?
A: No, I had the dog.
162 Q: Did Hayden do anything to provoke the bite?
A: Except run at him, run at Murdock.
163 Q: How do you know he was running at Murdock and not maybe running to his Grandma?
A: Well, everybody was in the same vicinity. So, whether it was Grandma or Murdock or me.
190 Q; did Hayden lunge at—
A: He was in motion.
191 Q:--- Murdock
A: Like he didn’t stop and then jump, it was just he was in motion running down the hill towards the three of us.
197 Q: She was standing on the road for eight to ten minutes before the dog bite?
A: We were talking, I thought you said walking towards the front. So, it would probably be about five, six minutes from the time she was there and I was kneeling down that we were talking.
220 Q: ….so you’re standing in the position as it is in Exhibit 1. You’re having a conversation with Debbie for about five to six minutes. You don’t know where Hayden is, you didn't know that he was there anywhere. ….
221 A: Hayden, if Hayden came down, whether he was coming to see Murdock or his grandmother it was we were all in the same vicinity. Whether we were two, three feet apart or whatever. So, it would have been up the driveway because I wasn’t getting up and moving around with Murdock.
237 Q: back to Exhibit 1, this red line that you’ve drawn on, kind of showing the direction of where Hayden came from, the beginning of the line starts kind of right behind the circular little garden that’s got some rocks around the outside:
A: okay
238 Q Is the red line accurate as to where you first saw Hayden? Did you first see him when he was—
A: I just saw him coming---
[21] From that testimony it is clear that the owner was aware of the child running towards the two adults and two dogs who were in the same vicinity. It is clear that the owner was at all times crouched down beside his dog holding his collar for the very purpose of controlling the dog’s activities and never let him go. The excited dog lunged at the moment when the child neared the group. Despite the owner’s hold on the dog there was a moment of contact.
[22] The owner was doing everything he should and he is clear in answering that it was reasonable to rely on the control he had over the dog:
“161 Q: Did you yell at Hayden to stop running?
A: No, I had the dog.
[23] I find no blame in the conduct of the owner, but there is liability by statute.
[24] I find it was reasonable for the Grandma to rely on the control the owner had over the dog.
[25] I have already observed that letting the child run about on the lawns while walking with him in the neighbourhood does not constitute “unattended” to bring the circumstances within the case law relied on by the Defendants.
[26] There is no evidence, considering only the version most favourable to the Defendant, upon which Third Party negligence could be found.
[27] Accordingly, Summary Judgment is granted, dismissing the claim against the Third Party.
[28] Both the owner and the Grandma, by their actions and the tone of their testimony, seem like nice people being friendly, responsible neighbours until interrupted by the momentary contact between the child and an excited dog, and the more so by litigation using terms of blameworthiness.
[29] If it is necessary to address costs, the Third party may submit written argument of no more than two pages, together with a bill of costs and any offers, to the judicial secretary in Bracebridge by June 8, 2018. The Defendants may respond with no more than two pages by June 15, 2018 and any reply by June 19, 2018.
Justice M.P. Eberhard
Released: May 24, 2018
[^1]: Hryniak v Mauldin [2014 SCC7 [^2]: Sgro v Verbeek 1980 CarswellOnt 832832