Shane Howard Katz

The court granted summary judgment dismissing the plaintiff’s claim for damages arising from a dog bite, holding that the plaintiff, a dog walker, was an “owner” under the Dog Owners’ Liability Act (DOLA) at the time of the incident.

The court found that the plaintiff was in physical possession and control of the dog immediately before the bite, and thus was jointly and severally liable under the DOLA, precluding her from recovering damages from the other owners.

The decision applies the Ontario Court of Appeal’s interpretation of “owner” in Wilk v. Arbour and clarifies that dominion or independent control is not required for liability under the DOLA.

On appeal from a summary judgment decision, the Court of Appeal considered whether a motion judge properly granted judgment to the plaintiff in the absence of a cross-motion, whether hearsay evidence was improperly admitted on the summary judgment motion, and whether the defendant occupier breached its statutory duty under the Occupiers' Liability Act.

The plaintiff was injured when he tripped over a skateboard in a shopping mall food court.

The motion judge granted summary judgment in favour of the plaintiff on liability, directing a trial only on damages assessment.

The Court of Appeal allowed the appeal, finding the motion judge acted unfairly by granting judgment not requested by the plaintiff, improperly admitted hearsay evidence on contested issues, and erred in finding liability.

The Court granted summary judgment dismissing the action.

In an occupier's liability action, the court determined costs following the dismissal of the defendant's summary judgment motion, which had granted the plaintiff judgment with damages to be assessed.

The plaintiff sought costs of $21,784.14 for counsel fees and $7,127.43 for disbursements.

The defendant argued for a lower award, limited to the summary judgment motion, and sought a set-off for the plaintiff's expert evidence that was ultimately ruled inadmissible.

The court awarded the plaintiff $18,500 for counsel fees and $7,127.43 for disbursements, finding it appropriate to award costs for the action to date to facilitate settlement.

The court rejected the defendant's set-off claim and affirmed that computer-assisted legal research is a recoverable disbursement.

The defendant, Cadillac Fairview, moved for summary judgment to dismiss an occupier's liability action brought by the plaintiff, Stephen Drummond, who was injured after tripping over a skateboard in the mall's food court.

The court dismissed Cadillac Fairview's motion and instead granted summary judgment on liability to the plaintiff, finding that Cadillac Fairview breached its statutory duty under the Occupiers' Liability Act by failing to adequately implement its own safety policies regarding skateboard use, despite having a reasonable system in place.

Damages are to be assessed at a later trial if not settled.