BARRIE COURT FILE NO.: CV-21-1163

DATE: 20230825

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: EMBERLYN REBECCA GRACE WALPOLE BY HER LITIGATION GUARDIAN STEVEN WALPOLE, CAULTON JEFFREY KENNETH WALPOLE BY HIS LITIGATION GUARDIAN STEVEN WALPOLE, CHERI KIMBERLY WALPOLE, AND STEVEN WALPOLE, Plaintiffs

AND:

TAMMY BRUSH, BDO CANADA LIMITED AS TRUSTEE OF THE ESTATE OF LARRY OSTERTAG, JULIAN CRISOL AND MARIANETTE CRISOL, Respondents

BEFORE: The Honourable Justice S.E. Fraser

COUNSEL: Alan Clausi, for the Plaintiffs aclausi@ccglaw.ca

Stephen Walsh, for the Defendants, Julian and Marianette Crisol stephen.walsh@dgig.ca

Tammy Brush, Self-Represented tam_h_70@hotmail.com

No one appearing for the BDO Canada Limited as Trustee of the Estate of Larry Ostertag although properly served.

HEARD: May 19, 2023, further written submissions delivered June 2, 2023

ENDORSEMENT

I. Nature of the Motion

[1] Tammy Brush and Larry Ostertag’s dog Chestnut tore into the face of six-year old Emberlynn who was, with her parents, visiting the residence of Ms. Brush and Mr. Ostertag. Ms. Brush and Mr. Ostertag rented their home from the Defendant Crisols who were not present when the dog attacked.

[2] This summary judgment motion raises the issue of whether a landlord can be held liable for damages resulting from an attack by a tenant’s dog on the rented premises.

[3] The Crisol Defendants bring this motion for summary judgment arguing that there is no genuine issue for trial as the Dog Owners’ Liability Act, R.S.O. 1990, c. D.16 (DOLA) places liability squarely on the owner of the dog and that the Occupiers’ Liability Act, R.S.O. 1990, c. O.2 (OLA) does not apply in these circumstances.

[4] The Plaintiffs accept in law that Tammy and Larry were Chestnut’s owners, and that DOLA imposes a strict liability. They concede that the Crisol Defendants were neither harbourers nor owners of Chestnut. However, they assert that as landlords, the Crisol Defendants have breached their common law and statutory duties as occupiers and landlords. They argue that they did not inspect the property, keep a copy of the lease, ensure that the tenants had tenant insurance as is required by the lease, and, among other things, took no steps to keep the property safe.

[5] They argue that as landlords under the Residential Tenancies Act 2006, S.O. 2006, c.17, that Chestnut was a hazard on the property and that the Crisol Defendants are liable for the damage he caused to Emberlynn.

[6] For the reasons that follow, I reject the Plaintiffs’ argument. I find that there is no genuine issue for trial relating to the Crisol Defendants and that it is appropriate to grant partial summary judgment.

II. Issues & Analysis

[7] On this motion, I must determine whether there is a genuine issue for trial. In order do so, I must determine whether DOLA precludes liability against the Crisol Defendants. As will be discussed further, this turns on who owned Chestnut the dog and where the attack took place. If Tammy and Larry are strictly liable under DOLA, can liability be imposed on the Crisol Defendants by statute or the common law? This will involve an examination of DOLA and its relationship to OLA.

(a) DOLA

[8] Section 2 of DOLA provides:

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

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

(3) The liability of the owner does not depend upon knowledge of the propensity of the dog or fault or negligence on the part of the owner, but the court shall reduce the damages awarded in proportion to the degree, if any, to which the fault or negligence of the plaintiff caused or contributed to the damages.

(4) An owner who is liable to pay damages under this section is entitled to recover contribution and indemnity from any other person in proportion to the degree to which the other person’s fault or negligence caused or contributed to the damages.

[Emphasis added.]

[9] Section 1 of DOLA defines owner as “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”.

[10] Section 3 of DOLA provides that:

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.

(2) Where a person is on premises with the intention of committing, or in the commission of, a criminal act on the premises and incurs damage caused by being bitten or attacked by a dog, the owner is not liable under section 2 unless the keeping of the dog on the premises was unreasonable for the purpose of the protection of persons or property.

[Emphasis added.]

(b) Does DOLA Preclude Liability Under OLA?

[11] From the above DOLA provisions, it follows that:

a. There is strict liability for damages on the part of the owner of the dog;

b. Where the bite or attack occurs on the premises of the owner of the dog, liability is determined under DOLA, not OLA.

[12] 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.

[13] Where the dog bite occurs elsewhere, liability may attach to others. In Elbaum v. York Condominium Corporation No. 67, 2014 ONSC 1182, Justice Perell found at paras. 18-20, that if the defendant is not the owner of the dog, liability is not precluded under common law negligence or OLA. In Elbaum, the dog attack occurred in the common elements area of the condominium. The case survived a Rule 21 motion by the Defendants because it was not plain and obvious to the court that the condominium corporation could not be found liable and that this should be determined by way of a summary judgment motion or a trial of the issue.

[14] The Plaintiffs rely on Downing et al. v. Moffett et al. for the proposition that the Court of Appeal for Ontario held that “it is right to impose liability for injury caused by a dog in negligence.”.

[15] While I agree that a finding of negligence was made, I disagree that the Court of Appeal considered the application of DOLA. The facts in Moffett are distinguishable. The Court of Appeal described the events and how the damages occurred as follows:

The plaintiff Kells Moffett and her friend were riding their horses along the south shoulder of Gormley Side Road in Richmond Hill on a sunny spring holiday. At the same time some children were playing with a dog on a grassy slope on an adjoining the road. Miss Moffett called to the children to hold on to the dog, but they did not do so and the dog ran towards the horses, barking and snapping at the heels of Miss Moffett’s horse. The horse reared up and threw Miss Moffett, and then turned on to the travelled portion of the highway where it was struck by a motor car being operated by the plaintiff, James Downing.

[16] It is clear from this description that the dog snapped at the heels of the horse at the side of the road such that the snapping occurred not on the premises of the dog owner. The plaintiff’s damages were sustained on the highway, not on the premises of the dog owner. The Moffett decision neither references nor relies on DOLA as it was clearly inapplicable on the facts. In my view, this case does not assist me with the interplay between DOLA and OLA.

[17] I am easily able to find that Ms. Brush and Mr. Ostertag were the owners of Chestnut and that Chestnut bit Emberlynn such that DOLA applies. Tammy and Larry are responsible for any damages under DOLA.

[18] 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.

[19] 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 and whether they breached the duty of care.

[20] 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.

(c) Residential Tenancies Act

[21] The Plaintiffs also submit that s. 20 of the Residential Tenancies Act, 2006, S.O. 2006, c.17 (RTA) establishes a statutory duty mandating that the property be kept in good repair and free of hazards. Section 20(1) provides that “a landlord is responsible for providing and maintaining a residential complex, including the rental units in it, in a good state of repair and fit for habitation and for complying with health, safety, housing and maintenance standards.”

[22] Section 22 of O.Reg. 517/06 under the RTA provides that “except as otherwise provided, the landlord shall ensure that the maintenance standards in the regulation are complied with.” Section 44 contains a provision that common areas shall be free of hazards. It provides:

(1) All interior common areas and exterior common areas shall be kept clean and free of hazards.

(2) For the purpose of subsection (1), “interior common areas” includes laundry rooms, garbage rooms, corridors, lobbies, vestibules, boiler rooms, parking garages, storage areas and recreation rooms.

[23] This provision applies to common areas and not the rental unit. In my view, it does not create a statutory duty to keep a rental unit free of a hazard that is a dog. Rather, s. 14 of the RTA renders void any provision in the rental agreement that prohibits the present of in or about the residential complex. A residential complex includes a rental unit.

[24] I therefore find no liability under the RTA.

(d) Should Summary Judgment Be Granted?

[25] I understand that my task on a motion for summary judgment is to determine whether there is a genuine issue for trial. That involves assessing whether the evidence allows me to fairly and justly adjudicate the matter in a fashion that is timely, affordable and proportionate under Rule 20.04 (2.1) and (2.2). (See Hryniak v. Mauldin, 2014 SCC 7, [2014] 1.S.C.R. 87, at paras. 47-51, 66).

[26] This is an appropriate case for summary judgment. 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.

[27] I find that granting partial summary judgment in respect of only the Crisol Defendants will not result in duplicative proceedings. In fact, it will narrow the issues at trial.

[28] Partial summary judgment is therefore granted, and the action is dismissed as against the Crisol Defendants only. The action will proceed against Tammy Brush and Larry Ostetrag.

III. Costs

[29] If the parties are not able to resolve costs, the Crisol Defendants may deliver their costs submissions of no more than three double-spaced pages within two weeks of the release of these reasons. The Plaintiffs and the other Defendants may deliver any responding submission of no more than three double-spaced pages within two weeks of receipt of the Crisol Defendants submissions.

[30] I note that Ms. Brush, while participating in the motion, is self-represented. She did not file materials or add to the time required for the hearing of this motion. I ask that the represented parties set out in simple terms what they are asking the court to do in terms of costs and let her know at the earliest opportunity whether any costs are being sought against her to afford her an opportunity to obtain legal advice.

Justice S.E. Fraser

Date: August 25, 2023