Court File and Parties

COURT FILE NO.: C-440-17

DATE: 20211108

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Interpal Dhillon, Sarita Dhillon, Jasmeen Dhillon, Anisha Dhillon, Benita Dhillon and Krisma Dhillon, Plaintiffs

AND:

The Corporation of the City of Cambridge, The Cambridge & District Humane Society o/a Animal Services Cambridge, Arian Gashi, Mohammad Hadi and Kandi Simpson, Defendants

BEFORE: Justice D.A. Broad

COUNSEL: Michael W. Kelly, for the Plaintiffs

Branko J. Kurpis, for the Defendants, The Corporation of the City of Cambridge and The Cambridge & District Humane Society o/a Animal Services Cambridge

HEARD: October 21, 2021

reasons for decision

Parties and Pleadings

[1] The plaintiffs’ action, commenced May 10, 2017, arises from a dog bite incident on August 15, 2016 (the “subject incident”) at a residence rented by the defendants Mohammad Hadi (“Hadi”) and Kandi Simpson (“Simpson”) at 638 Franklin Boulevard in the City of Cambridge Ontario. The plaintiff Interpal Dhillon (the “plaintiff” or “Dhillon”) was attacked by a dog identified as a bulldog with the name “Chewy” alleged to have been owned and harboured by Hadi and Simpson, and sustained injuries as a result. The plaintiff has claimed damages against all defendants in the Statement of Claim. The plaintiffs Sarita Dhillon, Jasmeen Dhillon, Anisha Dhillon, Benita Dhillon and Krisma Dhillon claimed damages against the defendants for their alleged pecuniary loss resulting from the injury to Interpal Dhillon pursuant to s.61 of The Family Law Act, R.S.O. 1990, c. F.3.

[2] The defendant Arian Gashi (“Gashi”) was the owner of the rental premises occupied by Hadi and Simpson.

[3] The Corporation of the City of Cambridge (the “City” or “Cambridge) enacted Cambridge City Dog By-law No. 172-13 (the “Cambridge Dog By-law” or the “By-law”).

[4] The Cambridge & District Humane Society o/a Animal Services (the “Humane Society”) is described in the Statement of Claim as a quasi-governmental body responsible for the administration and enforcement of the Cambridge Dog By-law pursuant to a contract entered into between it and the City.

[5] For clarity and conciseness, the City and the Humane Society are together hereinafter referred to as “Animal Services.”

[6] Animal Services delivered a Statement of Defence and Cross-claim against all co-defendants dated November 7, 2017.

[7] Gashi delivered a Statement of Defence and Cross-Claim against all co-defendants dated November 14, 2017.

[8] Hadi and Simpson have been noted in default.

Motion for Summary Judgment

[9] Animal Services has brought a motion for summary judgment dismissing the action and all cross-claims as against them pursuant to rule 20 of the Rules of Civil Procedure.

[10] The court was advised that Animal Services and Gashi have entered into an agreement providing that, if the plaintiffs’ action is dismissed on the motion, their cross-claims against each other would be dismissed without costs. Gashi therefore did not respond to or participate in the motion.

[11] Animal Services says that the plaintiffs’ claim is without a legal and evidentiary basis that would attribute any liability to them and there is therefore no genuine issue requiring a trial with respect the plaintiffs’ action against them.

Principles Governing Motions for Summary Judgment

[12] The basic principles governing motions for summary judgment, as laid out in rule 20 of the Rules of Civil Procedure and explained in the case of Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, are well known and there is no controversy between the parties on those basis principles.

[13] Rule 20.04(2)(a) of the Rules of Civil Procedure provides that the Court shall grant summary judgment if it is satisfied that there is no issue requiring a trial. This will be the case where the summary judgment motion process provides the court with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportional procedure.

[14] If the court finds that there are genuine issues requiring a trial and the record on the motion is insufficient to permit the determination of the genuine issues requiring a trial, it must consider whether the issues can be decided using the fact-finding resources available under rule 20.04(2.1) and (2.2). These resources include weighing the evidence, evaluating the credibility of a deponent and drawing any reasonable inference from the evidence.

[15] The party responding to a motion for summary judgment is required to put its “best foot forward” and the court is entitled to assume that the evidence led on the motion for summary judgment will be the evidence at trial.

Factual Background

[16] The plaintiffs, in response to the motion, rely entirely upon the documents and records of Animal Services and the discovery evidence of Animal Control Officer Andrew Falcioni (“Falcioni”). The plaintiffs led no evidence independent from that of Animal Services in response to the motion. It agrees that there is no genuine issue requiring a trial respecting the liability of Animal Services and submits that the appropriate disposition of the motion would be to order that Animal Services was in breach of its duty to enforce the dog bylaw and is responsible for the plaintiffs’ damages to be determined at trial.

[17] The Statement of Claim alleges that Animal Services carried out investigations of two prior dog attack incidents which had been reported to it which are relevant to the issues involved in the subject attack.

[18] The first attack occurred on or about September 21, 2015 (the “September 2015 incident”) at Hadi’s auto repair shop at 3 Pretoria Road, Cambridge and was alleged to have involved a dog, identified as a female dog, owned by Hadi and Simpson, named “Asia.” The victim in the September 2015 incident sustained injuries as a result of the attack. Following the September 2015 incident, the dog identified as “Asia” was designated by Animal Services as a Dangerous Dog, resulting in restrictions being placed on the dog and certain obligations on Hadi and Simpson. A prescribed letter was prepared by by-law officer E. Miller (“Miller”) on September 24, 2015 addressed to Hadi at his residence at 638 Franklin Boulevard. The letter required that certain steps be complied with within specified time frames. The letter stated that 1) the identified dog “Asia” must commencing immediately wear a muzzle at all times when off the owners’ property, 2) the owners must display “Dangerous Dog” signs at both locations (638 Franklin Blvd and 3 Pretoria Road), 3) within 5 days “dogs” must have a current city license, to be kept up to date annually with proof of rabies vaccine, 4) the identified dog “should be crated in the presence of customers” and 5) within 30 days the identified dog must have a microchip implanted, proof of rabies vaccine kept up to date annually, be spayed and proof of $1,000,000 liability insurance obtained.

[19] The plaintiffs state that Animal Services has not produced any evidence that any Animal Control Officer returned to Hadi’s residence to confirm whether he had complied with the obligations set forth in the letter within the times specified.

[20] The second attack occurred on or about March 18, 2016 (the “March 2016 incident”) again at Hadi’s auto repair shop at 3 Pretoria Road. The dog involved was apparently under the control of a person identified as Ricardo Ramirez who the victim Katrina Pearce assumed, according to her written statement, to be the dog’s owner.

[21] Falcioni responded to the March 2016 incident on behalf of Animal Services. He took a statement from Ms. Pearce who identified the dog’s name as “Chewie.” On March 21, 2016 Falcioni also took a statement from Ramirez at 3 Pretoria Road. Ramirez stated that the dog was male and was named “Lux.” He indicated that the dog was his friend’s but no information was noted by Falcioni as to who the friend was. Falcioni entered the dog’s names as “Chewy,” Lux” and “Asia” in his report, the latter name because he was aware of the September 2015 incident. As part of his investigation Falcioni had pulled and read the file on that incident.

[22] When he attended to take a statement from Ramirez, Falcioni did not see the dog involved and was therefore unable to take any photographs. He did not note down any description of the dog from Mr. Ramirez, except that it was a male dog.

[23] On March 24, 2016 Falcioni re-attended at the auto shop at 3 Pretoria Road to leave a note for “Ricardo” asking to be contacted regarding information about “Lux.” On April 3, 2016 Falcioni left another note at the auto shop stating “Ricardo please contact me with a dog owner info ASAP before possible police involvement.”

[24] Falcioni testified on discovery that he included the reference to “police involvement” as a “tactic” to get people to respond. He added that Animal Services can have the police attend to ask for information. Falcioni did not contact the police to ask for their assistance in reference to the March 2016 incident.

[25] On April 4, 2016, Falcioni received a call from a person identified as “Jay” (understood to be Hadi) advising that Ramirez was in jail. On the same day he attended at the address that Ramirez had given at the time of his initial statement and left a note stating “Ricardo please contact me about ‘Lux’ owner info before possible police involvement.”

[26] No further investigatory steps were taken by Falcioni (or any other by-law officer) subsequent to leaving the April 4, 2016 note. Falcioni closed his investigation and made a note to the file “Closed APB Offending Dog cannot be found.”

[27] The plaintiffs allege in the Statement of Claim that Animal Services are jointly and severally liable along with all the other defendants in negligence and for nonfeasance and their failure to properly enforce their statutory responsibilities.

Discussion

Legal Framework

[28] A leading authority respecting the municipality’s liability to a private citizen for damages where a breach of a by-law is alleged is the case of Kamloops v. Nielsen, 1984 CanLII 21 (SCC), [1984] 2 S.C.R. 2. Wilson, J., writing for the majority and citing Anns v. Merton London Borough Council, [1978] A.C. 728, made the following observations at pp. 9-13:

(a) the first step is to analyse the powers and duties of the authority to determine whether they require the authority to make “policy” decisions or “operational” decisions;

(b) since local authorities are public bodies operating under statute with a clear responsibility for public health in their area, they must make their discretionary decisions responsibly and for reasons that accord with the statutory purpose;

(c) where there is an option to the local authority whether or not to do the thing authorized by statute, if it elects to do it and does it negligently, the policy decision having been made, there is a duty at the operational level to use due care in giving effect to it; and

(d) in discharging its operational duty, the municipality must take care not to injure persons whose relationship to the municipality is sufficiently close that the municipality ought reasonably to have had such persons in contemplation.

[29] Section 11(3) 9. of the Municipal Act, 2001, S.O. 2001, c. 25 provides that a lower-tier municipality, such as the City in the case at bar, may pass by-laws respecting “animals.” Pursuant to the power conferred by this section, the City passed the Cambridge Dog By-law on October 21, 2013 and it remained in effect on the date of the subject incident.

[30] Section 8.1 of the Cambridge Dog By-law provides that an Animal Control Officer may designate a dog as a Potentially Dangerous Dog, a Dangerous Dog, a Restricted Dog, or a Prohibited Dog.

[31] Section. 9.1 of the By-Law provides that where an Animal Control Officer designates a dog as a Potentially Dangerous Dog, a Dangerous Dog, or a Restricted Dog and serves the owner with notice of such designation, the notice may impose any or all of the restrictions listed at subparagraphs (a) to (n).

[32] Section 14.1 of the By-law provides that any Animal Control Officer may enter on land at any reasonable time for the purpose of enforcing the By-law and s. 14.2 confers certain inspection powers on Animal Control Officers.

Position of Animal Services

[33] Animal Services submits that it had no information regarding the offending dog prior to the plaintiff being bitten in the subject incident.

[34] The dog involved in the September 2015 incident was identified by Hadi to Miller as a female American bulldog named “Asia.” As indicated above, “Asia” was designated by by-law officer Miller as a “Dangerous Dog” pursuant to the Cambridge Dog By-law. Notice of the designation was given to the dog’s owner Hadi who was required to adhere to a series of conditions, including, as noted above, requirements that Asia to wear a muzzle at all times when off Hadi’s property and for Asia to be crated in the presence of customers. There is no evidence that Animal Services had any information regarding whether Hadi had other dogs. There is also no evidence that the dog involved in the subject incident was the same dog as “Asia” which had been designated a Dangerous Dog in September, 2015, and which was subject to the restrictions imposed by Miller.

[35] Animal Services also submits that there is insufficient evidence linking the dog in the March 2016 incident with the dog involved in the subject incident on August 15, 2016. There was ambiguity with respect to the name of the dog involved in the March 2016 incident between “Chewy” and “Lux.” The name “Asia” was indicated by Falcioni as a possible name of the dog only because he had read the report of the September 2015 incident. However, it is noted that “Asia” was identified as a female dog, whereas the dog implicated in the March 2016 incident was identified as a male dog.

[36] There was also uncertainty with respect to the identity of the dog’s owner. Falcioni was unable to locate either the owner or the dog and closed his investigation.

[37] Animal Services submits that it acted in good faith and with reasonable care in reference to the September 2015 and March 2016 incidents. It also submits that there is no evidence that the dog “Asia” identified as being involved in the September 2015 incident was the dog that attacked the plaintiff and insufficient proof on a balance of probabilities that the dog involved in the March 2016 incident was involved in the attack on the plaintiff. Moreover, even if Animal Services breached the applicable standard of care in respect of the first two dog attacks, the plaintiff’s case would still fail for lack of proof of the requisite causal link between such negligence and the subject incident.

Position of the Plaintiffs

[38] In the Statement of Claim the alleged that Animal Services failed to take appropriate steps to ensure the safety of the public in thirteen respects. In the plaintiffs’ Factum the plaintiffs identified seven actions or steps which Animal Services had the ability and power to take but did not as follows:

(a) conduct follow-up visits with Hadi at 638 Franklin and 3 Pretoria to determine if there had been compliance with the original dangerous dog letter in respect of “Asia” of September 24, 2015;

(b) if there were still violations, issuance of a ticket and referral of the matter for prosecution;

(c) inquire of Hadi if he was in fact the “friend” referred to by Mr. Ramirez as the owner of the dog in respect of the March 2016 incident;

(d) return to interview Ms. Pearce to seek more information about discrepancies in the dog’s name in respect of the March 2016 incident;

(e) contact the police to try to locate if Mr. Ramirez was in fact in jail and to assist in obtaining information about the owner of the dog that attacked Ms. Pearce;

(f) enter both 638 Franklin and 3 Pretoria to investigate and determine what dogs were present, and potentially to confirm that Hadi was the owner of the dog in the March 2016 incident; and

(g) solicit further assistance of the police, who are deemed “Animal Control Officers” under section 1(c) of the By-law.

[39] In oral submissions, counsel for the plaintiff’s focused on the alleged failures of the animal control officers at (a), (e) and (g) above. It appears that (e) and (g) cover the same ground. Counsel also submitted that Animal Services could have issued a ticket to Mr. Ramirez. This latter alleged failure was not listed among the particulars of negligence of Animal Services pleaded in the Statement of Claim.

[40] In summary, counsel submitted that Animal Services:

(1) failed to follow up on compliance by Hadi with the requirements of the dangerous dog letter issued in respect of “Asia” following the September 2015 incident, pointing to para. 6.1 (h) of the Memorandum of Understanding dated April 29, 2008 between the City of Cambridge and the Cambridge & District Humane Society (the MOU”) which provided that when a dog is designated a Dangerous or Potentially Dangerous the Society “will contact the owner and, within seven days complete a site inspection of the dog owner’s home to confirm they have complied with the notice of designation and/or to establish a time frame within which to comply;” and

(2) conducted only a “cursory” investigation to identify the dog involved in the March 2016 incident and its owner before closing its file and in particular failed to enlist the assistance of the police when it had the opportunity to do so.

[41] On the issue of causation, counsel for the plaintiffs submitted that it is impossible for them to prove what would have happened had Animal Services acted reasonably by taking its investigation more seriously. He submitted that the plaintiffs were deprived, by the negligence of the animal control officer, of the opportunity to prove the identity of the dog involved in the March 2016 incident. The plaintiffs submit that scientific proof of causation is not necessary.

Analysis

[42] Both counsel made reference to the case of Butterman v. Richmond (City), 2013 BCSC 423 (B.C.S.C.) which involved a claim against the City of Richmond British Columbia and Richmond Animal Protection Society (RAPS), a charitable organization under contract with the City to provide animal control bylaw enforcement services, arising out of a dog attack in which the plaintiff was injured.

[43] At para. 35 of Butterman Bernard, J., citing Mustapha v. Culligan of Canada Ltd., 2008 SCC 27, [2008] 2 S.C.R. 114 (S.C.C.) at para. 3, confirmed that it is well settled that to prove a claim of negligence, plaintiff must show: (a) that the defendant owed the plaintiff a duty of care; (b) that the defendant’s conduct breached the applicable standard of care; (c) that the plaintiff sustained damages, and, (d) that the damage was caused, in fact and in law, by the defendant’s breach.

[44] Citing Foley v. Shamess, 2008 ONCA 588 (Ont. C.A.) Bernard, J. observed at para. 36 that the City and RAPS owed the plaintiff a duty of care in relation to the enforcement of Richmond’s animal control bylaw and that the applicable standard of care is that which would be expected of an ordinary, reasonable and prudent body in the same circumstances.

[45] Bernard, J. went on to note that the manner of enforcement of the bylaw in question was a matter of policy within the discretion of the City, and that, in the absence of an express or implied statutory duty obliging the City to enforce the bylaw, the jurisprudence establishes that the City has a broad discretion to determine how it will enforce its own bylaws, and the manner of enforcement is not to be left to the whims or dictates of the citizenry, citing Foley at para. 29.

[46] Bernard, J. quoted from Froese v. Hik, 1993 CanLII 2815 (BC SC), [1993] B.C.J. No. 731 (B.C. S.C.) para. 38:

“municipalities… owe a duty of good faith decision-making to the public as a whole and a duty to take reasonable care in the implementation of a regulatory scheme to those in sufficient proximity to merit that duty. The precise nature and extent of that duty is determined on a case-by-case basis, taking into account the nature and purpose of the authorizing legislation, the nature and purpose of the subordinate legislation, and the relationship between the municipality and the person asserting its obligation of care.”

[47] As was the situation in Butterman, it is not a matter of controversy in the case at bar that Animal Services owed the plaintiff a duty of care in relation to the enforcement of the Animal Control By-law. The argument revolved around the issues of (a) whether the steps taken by Animal Services following the September 2015 and March 2016 incidents met the applicable standard of care of an ordinary, reasonable and prudent body in the same circumstances and (b) whether the plaintiff’s damages were caused, in fact and in law, by Animal Services’ alleged breach.

[48] The stated goal of the MOU as expressed at sub-para. 2.1 was as follows:

“This MOU is intended to facilitate a collaborative approach between the City and CDHS, in increasing certainty, consistency, efficiency and effectiveness of the investigation process when the City is dealing with Dangerous or Potentially Dangerous or Prohibited dogs, as it pertains to our Animal Control By-law.”

[49] On the basis that the MOU represents a statement of policy by the City of Cambridge, the steps enumerated in section 6.0 entitled “Potentially Dangerous/Dangerous/Prohibited Dog Complaint Procedure” (including sub-para. 6.1 (h) referred to above) assist in framing the applicable standard of care.

[50] The plaintiffs submit that, in failing to contact Hadi and to conduct a site inspection of Hadi’s premises within 7 days as provided in sub-para. 6.1(h) of the MOU, Animal Services breached the reasonable standard of care in a way that is relevant to their claim against it.

[51] I am unable to accept this submission. Section 9 of the Animal Control By-law provides that, where the Animal Control Officer designates a dog as a Potentially Dangerous Dog, Dangerous Dog or Restricted Dog, the notice served on the owner may require any or all of a list of actions specified at sub-paragraphs (a) to (n) to be taken with respect to the particular dog. To similar effect, the duty placed on Animal Services at subparagraph 6.1(h) of the MOU to complete a site inspection is referable to a particular dog that is designated Dangerous or Potentially Dangerous under the By-law. Thus, any duty on Animal Services to attend to verify compliance with the Notice of Designation letter dated September 24, 2015 was referable solely to the dog “Asia” that was involved in the September 2015 incident. The instructions given in the letter were directed to control of the dog Asia in order to protect members of the public from injury that may result from a future attack by that particular dog. The instructions were not given for the purpose of controlling Hadi’s and Simpson’s conduct in their ownership and harbouring of dogs generally except the instruction that “dogs” must have a current city license, to be kept up to date annually with proof of rabies vaccine.

[52] With respect to the plaintiffs’ submission that Animal Services breached the standard of care by failing to enlist the assistance of police in attempting to locate Mr. Ramirez and in obtaining information about the owner of the dog involved in the March 2016 incident, it is noted that the MOU is silent with respect to circumstances under which an Animal Control Officer may be required or expected to involve the police in an investigation. The determination of whether to involve police is therefore a matter for the exercise of the particular Animal Control Officer’s discretion and judgment on a case-by-case basis.

[53] The Supreme Court of Canada considered the standard of care that applies to a claim of negligent investigation, which is in essence the claim advanced by the plaintiffs in the case at bar, in the case of Hill v. Hamilton-Westworth (Regional Municipality) Police Services Board, 2007 SCC 41. Chief Justice McLachlin, writing for the majority, stated as follows at para. 73:

I conclude that the appropriate standard of care is the overarching standard of a reasonable police officer in similar circumstances. This standard should be applied in a manner that gives due recognition to the discretion inherent in police investigation. Like other professionals, police officers are entitled to exercise their discretion as they see fit, provided that they stay within the bounds of reasonableness. The standard of care is not breached because a police officer exercises his or her discretion in a manner other than that deemed optimal by the reviewing court. A number of choices may be open to a police officer investigating a crime, all of which may fall within the range of reasonableness. So long as discretion is exercised within this range, the standard of care is not breached. The standard is not perfection, or even the optimum, judged from the vantage of hindsight. It is that of a reasonable officer, judged in the circumstances prevailing at the time the decision was made — circumstances that may include urgency and deficiencies of information. The law of negligence does not require perfection of professionals; nor does it guarantee desired results. Rather, it accepts that police officers, like other professionals, may make minor errors or errors in judgment which cause unfortunate results, without breaching the standard of care. The law distinguishes between unreasonable mistakes breaching the standard of care and mere "errors in judgment" which any reasonable professional might have made and therefore, which do not breach the standard of care.

(authorities and citations omitted)

[54] In my view, Falcioni’s exercise of discretion not to enlist the assistance of the police in locating Ramirez and in identifying the dog involved in the March 2016 incident, when viewed through the lens of the Supreme Court of Canada’s elucidation of the applicable standard of care which applies to the tort of negligent investigation, did not fall below the standard of a reasonable animal control officer in the circumstances. At worst, it represented an “error in judgment” which any reasonable professional animal control officer might have made.

[55] I also find that Falcioni’s exercise of discretion not to issue a ticket to Ramirez, even if that were open to him, did not fall below the applicable standard of care.

[56] Even if I am in error and Animal Services did fail to meet the applicable standard of care, the plaintiffs’ claim against Animal Services must fail due to a lack of proof of a causal link between Animal Services failure to enlist the assistance of the police or to issue a ticket to Ramirez and the plaintiff’s injuries.

[57] It is speculative to suggest that, had Falcioni persisted in his investigation to a degree deemed by the court to have been reasonable, he would have been ultimately successful in identifying the offending dog in the March 2016 incident and its owner. It is also speculative to suggest that the dog involved in the subject incident was the same dog involved in the March 2016 incident.

[58] Moreover, even if that dog involved in the March 2016 incident had been identified, the likely outcome at most would have been for Animal Services to designate the dog as a Dangerous Dog, leading to the issuance of a letter similar to the letter issued to Hadi in respect of “Asia” following the September 2015 incident, which would not have prevented the subject incident. Prevention of the subject incident would have required the dog to be impounded. It is unlikely that the dog would have been seized and impounded by Animal Services as the preconditions to impounding a dog in para. 11.1 of the Animal Control By-law, including the making of an order by the Regional Medical Officer of Health in accordance with the Health Protection and Promotion Act, R.S.O. 1990, c. H.7. under para. (d), would not have been satisfied. The other listed preconditions in the paragraph have no application.

[59] The test for causation was reviewed by the Supreme Court of Canada in Hanke v. Resurface Corp. 2007 SCC 7. Chief Justice McLachlin, writing for the Court stated as follows at paras. 21-25:

First, the basic test for determining causation remains the "but for" test. This applies to multi-cause injuries. The plaintiff bears the burden of showing that "but for" the negligent act or omission of each defendant, the injury would not have occurred. Having done this, contributory negligence may be apportioned, as permitted by statute.

This fundamental rule has never been displaced and remains the primary test for causation in negligence actions. As stated in Athey v. Leonati, at para. 14, per Major J., "[t]he general, but not conclusive, test for causation is the 'but for' test, which requires the plaintiff to show that the injury would not have occurred but for the negligence of the defendant." Similarly, as I noted in Blackwater v. Plint, at para. 78, "[t]he rules of causation consider generally whether 'but for' the defendant's acts, the plaintiff's damages would have been incurred on a balance of probabilities."

The "but for" test recognizes that compensation for negligent conduct should only be made "where a substantial connection between the injury and defendant's conduct" is present. It ensures that a defendant will not be held liable for the plaintiff's injuries where they "may very well be due to factors unconnected to the defendant and not the fault of anyone": Snell v. Farrell, at p. 327, per Sopinka J.

However, in special circumstances, the law has recognized exceptions to the basic "but for" test, and applied a "material contribution" test. Broadly speaking, the cases in which the "material contribution" test is properly applied involve two requirements.

First, it must be impossible for the plaintiff to prove that the defendant's negligence caused the plaintiff's injury using the "but for" test. The impossibility must be due to factors that are outside of the plaintiff's control; for example, current limits of scientific knowledge. Second, it must be clear that the defendant breached a duty of care owed to the plaintiff, thereby exposing the plaintiff to an unreasonable risk of injury, and the plaintiff must have suffered that form of injury. In other words, the plaintiff's injury must fall within the ambit of the risk created by the defendant's breach. In those exceptional cases where these two requirements are satisfied, liability may be imposed, even though the "but for" test is not satisfied, because it would offend basic notions of fairness and justice to deny liability by applying a "but for" approach.

(see also Kent (Litigation Guardian of) v. Laverdiere, 2011 ONSC 5411 (S.C.J.) at para. 141)

[60] I am unable to conclude that it is clear that Animal Services breached a duty of care owed to the plaintiff, thereby exposing him to an unreasonable risk of injury, such that the plaintiff's injury fell within the ambit of the risk created by Animal Control’s breach, so as to bring this case with the category of extraordinary cases whether liability must be imposed, even though the “but for” test for causation is not satisfied.

Disposition

[61] I therefore find that there is no genuine issue for trial respecting the plaintiffs’ claim that Animal Services is liable to them for damages arising from the injury sustained by the plaintiff Interpal Dhillon in the dog bite incident on August 15, 2016. It is ordered and adjudged that the action be dismissed against the defendants The Corporation of the City of Cambridge and The Cambridge & District Humane Society o/a Animal Services Cambridge.

Costs

[62] The parties are strongly encouraged to agree upon the issue of costs.

[63] If the parties cannot agree, the defendants The Corporation of the City of Cambridge and The Cambridge & District Humane Society o/a Animal Services Cambridge may make written submissions as to costs within 21 days of the release of these reasons for decision. The plaintiffs have 14 days after receipt the said defendants’ submissions to respond. The said defendants shall have 5 days thereafter to deliver reply submissions. The initial written submission of each side shall not exceed five (5) double-spaced pages, exclusive of Bills of Costs and Offers to Settle and the reply submissions, if any, shall not exceed three (3) double-spaced pages. All such written submissions are to be forwarded to me by email to the Trial Coordinator at Brantford at the email address utilized for the release of these Reasons for Decision.

[64] If no submissions are received within this timeframe, the parties shall be deemed to have settled the issue of costs as between themselves.

[65] If either party does not intend to file submissions or reply submissions on costs, they are asked to advise the court accordingly.

D.A. Broad, J.

Date: November 8, 2021