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Dog and Cat Control (Ontario)
Legal Guide
Chapter 7 - Civil Liability, Trespass and Related Topics
(01 August 2019)- Overview
- Civil Liability for Dog Harm
- Municipal By-Laws
- "Self-Help"
(a) Overview
(b) Protection of Livestock and Poultry from Dogs Act
(c) Dogs and Hunting/Fishing
- Dogs and Public Parkland
- Civil Liability for Harm on Dogs and Cats
- Dogs and Residential Tenancies
1. Overview
Historically, the subject of dogs 'trespassing' or 'running at large' has attracted a significant amount of legal attention - no doubt due to the significance to agriculture of food animals such as cattle.
From a modern day perspective, the older case law is populated relatively heavily with 'trespassing dogs' shooting cases. As well, dog damage was one of the main themes of the pre-2005 version of the Dog Owners' Liability Act ["DOLA"]. The present (2005) DOLA however, while still concerned with civil liability for dog damage, now focusses much more on dog control orders and pit bull terriers - a largely urban phenomenon.
In the Isthatlegal.ca "Animals and the Criminal Law" Guide [at Ch.3, s.3(f): "Main Offences: Kept Non-Cattle Animal and Birds: Trespassing Dogs"] I discuss this topic in relation to the criminal law protecting dogs from unwarranted killing. I repeat much of that discussion in this chapter.
"Cat trespass", on the other hand, appears to be such a minor nuisance that it has never attracted much attention outside of local municipal by-laws (which should be checked). Of course, it may attract some application of private nuisance or trespass tort law, but damages would normally be so minor that I am not going to address it further here. Of course, owners of publically-accessed private property are free to exclude dogs from their premises [eg. a "No Dogs" sign in a retail store].
In section 6 ("Civil Liability for Harm on Dogs and Cats") I address the relatively novel use of civil litigation for harm caused to pets, here a poodle dog who was killed intentionally in the course of a landlord and tenant dispute.
2. Civil Liability for Dog Harm
The civil issue is relatively straightforward (and constitutes the bulk of the case law respecting DOLA), with dog owners being strictly liable (ie. no 'due diligence' excuse) for 'bite or attack' damage their dogs cause. Otherwise the situation is subject to standard negligence law principles of contributory negligence and mutual contribution amongst tortfeasors (wrongdoers) [for an explanation of these principles, see the Isthatlegal.ca Small Claims Court (Ontario) Guide, Ch.4, s.4: "Parties: Joint Liability Amongst Parties"] [DOLA s.2(1)]: s.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.
s.2(2)
Where there is more than one owner of a dog, they are jointly and severally liable under this section.
s.2(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.
s.2(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. With respect to owners of property where dogs are kept or present, the Occupiers Liability Act (Ontario) ["OLA"] operates generally to limit their liability to uninvited persons on their property. However DOLA s.3(1) exempts the operation of OLA in this respect, re-asserting liability as described immediately above for dog-caused harm. The only exception to this is for criminal trespassers where the keeping of dog on the premises was reasonable for the protection of persons or property [DOLA s.3(2)].
3. Municipal By-Laws
The old Municipal Act [RSO 1990, c.M45; repealed 01 Jan 2002] granted the following by-law-making authority to municipalities: . "for prohibiting or regulating the running at large of dogs in the municipality ..., for seizing and impounding and for killing, whether before or after impounding, dogs running at large contrary to the by-law, and for selling dogs so impounded" [s.210, c.13] On the other hand, the "new" [post-01 January 2003] Municipal Act, RSO 2001. c.25 ["MA"] - while granting a general authority to make bylaws "respecting ... animals" - still expressly addresses dogs 'at large' by granting municipalities authority to make by-laws with respect to the: . seizing, impounding and sale of animals at large [MA, s.103; City of Toronto Act s.106]; Note that 'killing' of such dogs is no longer included in this authority. This fate, if it is to be applied, now appears to be reserved entirely to the province-wide Dog Owners' Liability Act and Animals for Research Act regimes [see Ch.2 "Seizures" and Ch.3: "Pounds, Shelters and Research"].
4. "Self-Help"
(a) Overview
"Self help" is legalese for just that: persons, believing or risking that they are in the legal right, 'taking the law into their own hands' and acting directly to assert their rights. The 'dog trespass' version of that usually translates into the shooting of a trespassing dog.
Such situations are commonly, though not always, rural neighbour disputes and can be quite messy.
(b) Protection of Livestock and Poultry from Dogs Act
The circumstances in which a dog can be shot are codified in statute, and are quite narrow. The provincial Protection of Livestock and Poultry from Dogs Act reads: s.2
Any person may kill a dog,
(a) that is found killing or injuring livestock or poultry;
(b) [Repealed]
(c) that is found straying at any time, and not under proper control, upon premises where livestock or poultry are habitually kept. It seems unnecesarily 'vengeful' though, with no excuses allowed such as relocating the dog to urban areas:s.8(1)
The owner of a dog who has knowledge that the dog has killed or injured livestock or poultry shall destroy the dog or cause the dog to be destroyed within forty-eight hours after acquiring such knowledge. (c) Dogs and Hunting/Fishing
While hunting or fishing on private land is of course generally prohibited without the land "occupier's" [typically the resident owner or tenant] permission [FWCA s.10(1)], the Fish and Wildlife Conservation Act, s.10(5) further reads: s.10(5)
A person shall not, for the purpose of hunting or fishing, enter or permit a dog to enter land on which any crop is growing or standing without the express permission of the occupier. This express prohibition renders such dog 'crop' trespass an FWCA offence, but the absence of any similar provision respecting non-crop lands suggests that situation remains a civil trespass matter only. I have not explored that issue in any further detail.
Further, while not necessarily a trespass issue, readers should note that the FWCA Hunting and Trapping Regulations contain numerous further limitations and licensing requirements on the use of dogs.
5. Dogs and Public Parkland
Dogs are often prohibited from entry into municipal, provincial and federal parklands, and most Conservation Areas - or at least subject to strict leashing and other restrictions.
The specific laws governing such situations are numerous, particularly the multitude of municipal park-specific rules, so I will not itemize them here other than to quote (in part) the following typical example [Provincial Parks and Conservation Reserves Act, Reg 347/07]: s.6(1)
No person in control of a domestic animal shall permit the animal to be,
(a) in a provincial park unless the animal is secured on a leash that does not exceed two metres in length;
(b) in any waters in a provincial park designated as a swimming area or upon any beach adjacent to it,
...
Note:
The prohibitions and conditions continue for 9 more sub-sections, and include seizure of the animal by a parks officer and delivery to a pound. Technically, parks seizures cannot trigger the ARA pound procedures (only municipalities and DOLA seizures) [see Ch.3: "Pounds, Shelters and Research"] but such seizures must happens infrequently in parks, and they are sure not to have any proper pound facilities. It would not be surprising if a 'parks' dog got inadvertently caught up in an ARA pound and into the research cycle. Anyone caught up in such a situation would have to firmly advocate. Essentially, persons considering taking their dog to any park area (and certainly before allowing them to run free) should review signage and/or inquire of appropriate authorities beforehand. If nothing else, take a leash.
6. Civil Liability for Harm on Dogs and Cats
It's surprising given the amount of affection and expense expended by pet owners on dogs and cats that harm to them has not been the subject of more litigation. To my knowledge it was my client, George Robitaille (now deceased) who has achieved the largest damage award in Canada for a pet harming, this against his landlord Patrick Moore who killed George's poodle dog intentionally while George was at work.
There must have been more cases like this, so if you have or know of any, please let me know.
In any event, this is an extract of the Reasons for Judgment in Robitaille v Moore (Ont Superior Ct, 2004) Court File # 97-CU-119459:The plaintiff rented a basement area in the defendant's house. The plaintiff had a black poodle dog named Ebony. On November 29, 1996, the plaintiff and defendant were sharing drinks in the plaintiff's living area for a number of hours. The defendant consumed about three or four pitchers of beer during this time.
At some point an argument erupted over whether the defendant's pets were the source of the plaintiff's dog's flea problem. The defendant became very agitated and belligerent. Yelling and shouting ensured. After some time the defendant stormed up the stairs. As he did so, the plaintiff's friend, James Miller, who came to visit the plaintiff, encountered the defendant. Miller testified that the defendant said to the plaintiff words to the effect that he "would kill his damn dog". About two hours later, the defendant descended the stairs and told the plaintiff he would have to move by the end of the month.
Early the next morning, on November 30, the plaintiff went to work. He left his dog in the bedroom area. Upon returning around 5pm, he was met with the gruesome sight of his dog Ebony dead on his bed with a rock nearby. Her head appeared to be bashed in. There was extensive blood and bodily fluid in her fur and on the bed.
.......
The defendant Moore was charged under the Criminal Code with willfully and without lawful excuse killing a dog. He pleaded guilty and was placed on probation for one year and ordered to do fifty hours community service and to pay restitution of $250 for OSPCA costs.
........
The act of brutally killing the dog and leaving its body on the plaintiff's bed for the plaintiff's discovery was meant to shock the plaintiff and to convey to him a message in no uncertain terms that he was no longer welcome as a tenant. The defendant's conduct was calculated to shock and frighten the plaintiff, and it had that desired effect. The defendant knew of the deep affection that the plaintiff had for his dog Ebony.
.......
[The Justice reviews case law on damages] ... I find that the sum of $15,000 is appropriate compensatory damages. I have included an element of $5,000 for aggravated damages in that amount
The plaintiff also seeks punitive damages. Even though there has been criminal punishment, plaintiff's counsel submits that it was not adequate in the circumstances. I agree. The evidence in the civil case shows a culpability of a greater degree than emerged before the criminal court. There was premeditation on the defendant's part.
......
Taking into account the factors outlined in Whitten v Pilor Insurance Company (2002) 1 SCR 595, this is an appropriate case for punitive damages, and I award $15,000 for this head of damage.
Accordingly, the plaintiff is entitled to damages of $740 special damages, $15,000 general and aggravated damages, $15,000 punitive damages, for a total of $30,740, plus prejudgment interest in accordance with the Courts of Justice Act.
[costs were fixed at $12,000 plus disbursements of $2,588]
Lederman J The only statutory mention of such harm is this [OSPCAA 19]:s.19
Inspectors and agents of the Society, veterinarians, and member of the Society Board are immune from civil liability for anything done by them in good faith under, or purporting to be under, the authority of this Act.
7. Dogs and Residential Tenancies
The subject of pet animals and residential tenancies, particularly as it relates to terminations and evictions - and the legal duties of landlords towards 'left' animals, is dealt with in the Isthatlegal.ca Residential Landlord and Tenant Law (Ontario) Guide, linked here:
Ch.6, s.8: Early Termination for Cause: Animals in the Premises
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