Court File and Parties

Court File No.: CV-23-00000044-0000
Date: 2025-02-28
Court: Ontario Superior Court of Justice

Between:
Amanda Nigro (Plaintiff)
– and –
Amanda Luciano and Michael Luciano (Defendants)

Appearances:
Shane Katz, for the Plaintiff
Erica Lewin, for the Defendants

Heard: February 27, 2025

Ruling on Summary Judgment Motion
Justice V. Christie

Overview

[1] The Defendants, Amanda and Michael Luciano, have brought this motion seeking an Order for summary judgment dismissing all claims against them on the ground that there are no genuine issues requiring a trial.

[2] The Plaintiff, Amanda Nigro, requests that the motion be dismissed, however, encourages this court to decide the issue of liability in her favour, with the action proceeding to trial on the issue of damages only.

[3] This action is brought in relation to an alleged dog bite. The parties agree that the issue to be determined by this court on this motion is a narrow one, specifically, whether the Plaintiff is an “owner” pursuant to the Dog Owners' Liability Act, RSO 1990, c D.16 (“DOLA”). If the Plaintiff is an owner as defined in the DOLA, then she has no cause of action, as all owners are jointly and severally liable under the legislation (s. 2(2)). If she is not an owner, then there is strict liability under this legislation. There is no pleading of negligence in this case; rather, the entire focus of the claim is on the DOLA. Therefore, the question of ownership determines the liability in this case.

Facts and Litigation History

[4] The relevant facts are not in dispute and can be summarized as follows:

a. The Defendants have resided at their residence, a detached house in Oshawa, since December 2019.

b. At the time of the incident, the Defendants had two dogs, Forrest Gump Luciano, a large male Boxer, and Benny Luciano. Forrest was approximately five years old in March 2022.

c. When Forrest was about six months old, the Defendants hired Syd’s Kids, a dog walking company.

d. Initially, the owner of the company walked Forrest a few times a week, and the Defendants would also board Forrest with the owner, in her home, when they were away. The owner had a key to the Defendants' home to walk Forrest if needed.

e. As the owner of the company became too busy, the Plaintiff, Amanda Nigro, a part-time employee with Syd’s Kids, took over walking Forrest around November 2021.

f. The Plaintiff was given a key to the Defendants’ home, and she provided services up to the date of the incident. She walked Forrest approximately three times per week and provided puppy visits for Benny, who the Defendants obtained in November 2021, only a few weeks after the Plaintiff started walking Forrest.

g. As a dog walker, the Plaintiff’s duties included playing with the dogs, walking them, and cleaning up after them. The Plaintiff provided these services for both Forrest and Benny.

h. Forrest developed an infection in his foot in February 2022.

i. On March 14, 2022, the toenails that had not fallen off on the infected foot were removed. The Defendants were instructed by the veterinarian to give Forrest a medication for the infection, to clean his paws with apple cider vinegar, to have him take shorter mild walks only in and out of the house, to have no contact with mud or anything that could cause infection, and it was recommended that Forrest wear rubber booties in wet areas.

j. On March 15, 2022, the Plaintiff was advised by the Defendant, Amanda Luciano, via text, that Forrest's nails had been removed, she would be obtaining booties, and to only allow Forrest on the snow, not on the mud, to prevent infection. The Plaintiff was advised that Forrest could not be walked until he was not so sensitive, and the Defendant would see how he was walking around the house over the next few days.

k. On March 17, 2022, the Defendant, Amanda Luciano, advised the Plaintiff, via text, that, if there was snow when she arrived at the premises, there were booties available. The Plaintiff confirmed that, if it was "mucky", she would put the booties on Forrest.

l. On March 17, 2022, the Plaintiff advised, via text, that she had carried Forrest to the snow to try to help him urinate. No problems were reported.

m. On March 22, 2022, the Defendant, Amanda Luciano, texted the Plaintiff advising that she was to walk the dogs on that date, and that she and her husband would walk the dogs the following two days, so on those dates, the Plaintiff would just be visiting and cuddling. The Defendant advised that Forrest could go in the backyard as long as it was not soaking wet, and to keep his paws away from mud. She advised that she had been spraying a paper towel with apple cider vinegar and wiping both dogs' paws after coming inside, but more gently with Forrest.

n. On March 22, 2022, the Plaintiff texted the Defendant advising that she had taken both dogs out and the mud was dry. She had wiped Forrest's paws with "ACV" (apple cider vinegar). No problems were reported.

o. On March 24, 2022, the Plaintiff attended the Defendants' residence. The Plaintiff was alone in the Defendants’ home at the time of these events. She let Benny out to use the washroom. She then attempted to let Forrest out to the front yard; however, he refused to go to the washroom in that area. A little later in the morning, the Plaintiff attempted to let Forrest out a second time to go to the washroom in the backyard. As there was mud and snow, the Plaintiff proceeded to put booties on Forrest prior to exiting the house. This was the first time she had ever attempted to put a dog bootie on Forrest Gump. The Plaintiff was in the hallway. She had the booties in one hand and approached Forrest’s paw to put on the bootie, when Forrest is said to have lunged at her, bit into her left arm, and started shaking. After eventually getting her left arm loose, Forrest is said to have continued to attack her, biting her on various parts of her body. The Plaintiff sustained injuries to her abdomen, left upper thigh, and both arms.

p. It is a bit unclear whether the Plaintiff had or had not touched Forrest with the bootie when the events occurred.

q. The Plaintiff confirmed at her examination and in her affidavit that there was no history of aggressive behaviour by Forrest Gump in her presence. Although, the Plaintiff states that, when she first started walking Forrest, he seemed reluctant to go on any type of walks. Upon voicing concerns to her employer, the Plaintiff was advised by her employer to keep Forrest away from other people, children, and other dogs, as per the Defendants’ instructions. The Plaintiff also stated that, in the presence of the Defendants, Forrest would bark excessively at her and guard them; however, he did not behave like this when the Defendants were not present.

r. Prior to the incident, the Defendant, Amanda Luciano, had put booties on Forrest herself approximately five times without issues. Ms. Luciano observed no change in Forrest's disposition leading up to the incident.

[5] The Statement of Claim was issued on January 10, 2023, claiming general damages in the sum of $350,000 and special damages in the sum of $650,000, for a total of $1 million.

[6] The Defendants served a Statement of Defence on March 27, 2023.

[7] An examination for discovery proceeded on July 17 and 18, 2023.

Analysis

[8] An owner is defined for purposes of the DOLA in section 1(1) as follows:

“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.

[9] Pursuant to section 2(1) of the DOLA, an "owner" of a dog is liable for damages resulting from a bite or attack by the dog on another person or domestic animal. Pursuant to section 2(2), owners are jointly and severally liable.

[10] When the dog bite occurs on the premises of the owner, the DOLA applies, not the Occupiers’ Liability Act, RSO 1990, c O.2, as per section 3(1) of the DOLA.

[11] In the view of this court, the determination of this motion is dictated by the Court of Appeal’s findings in Wilk v. Arbour, 2017 ONCA 21. In Wilk, the Plaintiff volunteered to take her boyfriend’s Great Dane, Zeus, for a walk to which he agreed. This was the first time the Plaintiff had walked Zeus alone. While on the walk, Zeus had a seizure and became unconscious. When he regained consciousness, he backed up, came out of his collar, slipped on ice, and fell into a ditch. The Plaintiff slipped trying to retrieve him, colliding with the dog, who bit her thumb, causing the Plaintiff to lose her thumb above the joint. The Plaintiff pleaded liability under the DOLA, but also in negligence. Similar to the case at bar, the Defendant argued that there was no genuine issue requiring a trial, as the Plaintiff was an owner of the dog at the time, as defined in the DOLA, given that she was in possession of the dog at the time he bit her. He also claimed that the injury was not reasonably foreseeable and, therefore, the action in negligence must also be dismissed. The motion judge did not agree that the Plaintiff was an owner pursuant to the DOLA, concluding that the word “possesses” in section 1(1) of the DOLA 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. The motion judge concluded that the Plaintiff did not exercise such dominion and control and did not exercise any control over the dog without the Defendant’s direction or approval and ordered the action proceed on the issue of damages only. As for liability in negligence, the motion judge did dismiss the claim finding that there was no reasonable foreseeability. The Court of Appeal disagreed with the motion judge on the issue of ownership and stated as follows:

[1] ….I would hold that the word "possesses" in the definition of "owner" under the DOLA includes a person who is in physical possession and control over a dog just before it bites or attacks another person or animal.

[28] Ruth Sullivan, Sullivan on the Construction of Statutes, 6th ed. (Toronto: LexisNexis, 2014), at 3.11, pp. 30-31, tells us that one principle of language and of statutory interpretation is that the meaning of a word is influenced by the words with which it is associated. For that reason, context is important. In s. 1(1) of the DOLA, owner "includes a person who possesses or harbours the dog". The words owner, possesses and harbours have one thing in common: the ability to exercise control over the dog. In Purcell v. Taylor, [1994] O.J. No. 2845, 120 D.L.R. (4th) 161 (C.J.), the court was concerned with the definition of "harbours" under the DOLA. After an extensive review of cases decided at common law and under American statutes, Borins J., as he then was, held, at para. 30, that a person does not harbour a dog "unless he or she exercises some degree of care or control over the dog". See, also, Singh (Litigation guardian of) v. Chini, [2005] O.J. No. 5965, 145 A.C.W.S. (3d) 5 (S.C.J.), at paras. 29-30; Graham (Litigation Guardian of) v. 640847 Ontario Ltd., [2005] O.J. No. 3685, [2005] O.T.C. 739 (S.C.J.), at paras. 7-9; McAllister v. Wiegand, [2009] O.J. No. 169 (S.C.J.), at para. 1.

[29] Thus, the weight of Canadian jurisprudence respecting harbouring requires "some degree of control" in the specific situation of providing shelter to a dog; it does not use the phrase "dominion and control" as does the American jurisprudence relating to the keeper of a dog. The word "dominion" is defined in The Shorter Oxford Dictionary, Thumb Index Edition (1993) as follows: "Sovereign authority" and "control". Reading in the word"dominion" in addition to control, in order for a person to possess a dog, as did the motion judge, imports a requirement that the person who physically has the dog has the right to exercise sovereign authority or the highest measure of control over the dog and stands in the shoes of the owner.

[30] In the Shorter Oxford Dictionary, a person who is the "owner" of a dog is "a person who owns something". The word "own" as in the transitive verb "to own" is defined: "To have or hold as one's own, be proprietor of, possess". Property is a collection of rights over things that can be enforced against others: Tucows.com Co. v. Lojas Renner S.A., 2011 ONCA 548, para 60. In defining "owner" to include a person who "possesses" or "harbours" a dog, the legislature indicated an intention to impose liability on persons who had less than the full collection of rights belonging to an owner but who had attributes of ownership, possession and harbouring (providing safe shelter to the dog) where a measure of control over the dog is exercised.

[31] The meaning ascribed to the word "possesses" by the motion judge is also not consonant with the overall purpose of the DOLA. Section 2(1) of the Act imposes liability on the owner of a dog, as defined in s. 1, for damages resulting from a bite or attack by the dog on a person or domestic animal. The definition of owner in the Act is consistent with the common law strict liability doctrine of scienter, which extends liability beyond the dog's owner to one who harbours or possesses it: Purcell v. Taylor (1994), at para. 28, citing M'Kone v. Wood (1831), 172 E.R. 850, at p. 850; and Knott v. London County Council, [1934] 1 K.B. 126, [1933] All E.R. Rep. 172 (C.A.), at pp. 140-41 K.B. However, s. 2(3) of the Act does away with the common law scienter requirement that a person wishing to sue for being bitten by a dog must establish a propensity on the part of the dog to viciousness or mischief, knowledge of the dog's propensity by the owner, or that the injury was attributable to the owner's negligence. The owner of the dog is responsible for any damage caused by the dog biting or attacking a person or animal irrespective of whether the owner knew the dog might hurt someone or made efforts to prevent that from happening. In addition, s. 4(3) of the Act provides that in certain circumstances a court may order that a dog be destroyed or impose other security measures with respect to the dog: see Purcell v. Taylor (1994), at para. 8; and Purcell v. Taylor, [1992] O.J. No. 2554, 1992 CarswellOnt 4018 (C.J.), at para. 10.

[33] … The legislature wished to make those who were in a position to exercise a measure of control over a dog responsible for its behaviour. This makes sense as the person exercising actual control over a dog is generally in the best position to avoid damage being caused by the dog to another person or animal. By requiring dominion as well as control over a dog, for a person to possess a dog, the motion judge read into the DOLA a higher standard for liability than the unambiguous plain meaning of the words required and one that was not consonant with the Act's overall purpose of liability for those exercising control over a dog. Thus, the trial judge erred in his interpretation of "a person who possesses a dog" under the DOLA.

[35] In my opinion, the motion judge did make a palpable and overriding error in finding that Ms. Wilk was not in "possession" of Zeus. The critical time to determine possession is the time just before the incident. Ms. Wilk was the person exercising actual control of the dog just prior to the incident and she was best placed to prevent the bite that occurred.

[12] This court appreciates that the Court of Appeal in Wilk went on to state:

[36] … I would hold that the word "possesses" in the definition of "owner" under the DOLA includes a person who is in physical possession and control over a dog just before it bites or attacks another person or animal. … By using the word "includes", I want to make it clear that this definition is not an exhaustive definition. The meaning of the term "possesses" in the DOLA must be assessed in the context of the specific circumstances of any given case. Given the variety of circumstances that may arise, a rigid definition is to be avoided.

The Plaintiff suggests that this statement supports their argument that each case must be considered on its own facts and that Wilk is distinguishable. While this court accepts that the facts in Wilk are not identical to the facts in the case at bar, there is no question that the principles and interpretation of the DOLA is applicable in the case at bar. Further, these comments in Wilk seem to suggest that the word “possesses” might even include other and more circumstances, not less circumstances, which is contrary to the more restrictive definition that the Plaintiff seeks to apply.

[13] In the present case, the Plaintiff, who was alone with Forrest in the Defendants’ home at the time, was most certainly exercising actual control of Forrest just prior to the incident and she was best placed to prevent the bite that occurred. The Plaintiff intended to, and was attempting to, put a bootie onto Forrest in order to let him outside when the event occurred. The Plaintiff was unquestionably in physical possession and control over Forrest just before the incident.

[14] The Plaintiff’s arguments suggest that dominion over Forrest is required to be established, and emphasizes the fact that, in this case, the Plaintiff, as a hired dog walker, was required to care for and control Forrest pursuant to the specific instructions provided by the Defendants, who according to the Plaintiff, are the true owners. The Plaintiff argues that her control over Forrest was limited to carrying out the instructions of the Defendants, the true owners, not making independent decisions about his health, behaviour, or overall care, which at all times, according to her, were decisions controlled by and directed by the Defendants. Dominion or independent control over the dog is exactly what the Court in Wilk held was not required for possession. It is irrelevant whether the Plaintiff was exercising control over Forrest with or without the Defendants’ direction or approval. All that is relevant is that the Plaintiff was in physical possession of Forrest directly before the incident.

[15] As previously stated, when the dog bite occurs on the premises of the owner, the DOLA applies, not the Occupiers’ Liability Act, as per section 3(1) of the DOLA. Pursuant to section 2(2) of the DOLA, owners are jointly and severally liable. In Wilk v. Arbour, 2016 ONSC 1179, paras 6-7, the motion judge concluded that an “owner” does not have a right to compensation from another owner under the DOLA, a finding that was upheld by the Court of Appeal. The Plaintiff does not suggest otherwise in this case. The Plaintiff, Amanda Nigro, meets the definition of an “owner” and has no cause of action against other owners of the dog. She is, therefore, not entitled to damages under the DOLA.

[16] Rule 20.04(2) of the Rules of Civil Procedure, RRO 1990, Reg 194 requires the court to grant summary judgment if the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence.

[17] As the Supreme Court of Canada made clear in Hryniak v. Mauldin, 2014 SCC 7, the first step is to determine if there is a genuine issue requiring a trial based only on the evidence presented by the parties without using the fact-finding powers in r. 20.04(2.1) and (2.2). The expectation is that in making or responding to the motion, the parties have each put their best foot forward. There will be no genuine issue requiring a trial when the court is able to reach a fair and just determination on the merits. Such a determination is possible when the court can make the necessary findings of fact, apply the law to the facts, and where the result is a proportionate, more expeditious and less expensive means to achieve a just result.

[18] If, however, the judge cannot determine whether there is a genuine issue for trial based only on the evidence before them, the judge may resort to fact finding powers in rule 20.04(2.1), including: (a) weighing of evidence; (b) evaluating the credibility of a deponent; and (c) drawing any reasonable inference from the evidence: Hryniak, at para. 66.

[19] There is no genuine issue requiring a trial with respect to liability under the DOLA. Given that there is no claim in negligence pleaded and, frankly, there was no foreseeability of harm or unreasonable conduct on behalf of the Defendants, there are no other genuine issues requiring a trial.

[20] The Defendants’ motion for summary judgment is granted. The claim as against them is dismissed.

[21] As for costs, the parties advised at the hearing that this issue had already been agreed to. Therefore, no order is made in this regard.

Justice V. Christie

Released: February 28, 2025