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Dog and Cat - Custody-Ownership. Nigro v. Luciano
In Nigro v. Luciano (Ont CA, 2026) the Ontario Court of Appeal dismissed an appeal, this involving "the definition of “owner” in the Dog Owners’ Liability Act" (DOLA):[1] This appeal turns on the definition of “owner” in the Dog Owners’ Liability Act, R.S.O. 1990, c. D.16 (the “Act” or the “DOLA”). The appellant was employed as a dog-walker by the respondents. On one occasion, while the appellant was preparing the dog Forrest Gump (“Forrest”) for a walk, Forrest attacked the appellant causing significant injuries. The appellant brought an action against the respondents, alleging that, as “owners” of the dog, they were strictly liable for damages under the DOLA. The respondents brought a motion for summary judgment dismissing the claims against them, arguing that the appellant was herself an “owner” as defined by the Act, and that under the Act, all owners are jointly and severally liable. The motion judge agreed that the appellant was an owner. She granted summary judgment to the respondents on this basis.
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THE DECISION UNDER APPEAL
[12] The motion judge granted summary judgment against the appellant and dismissed her claim against the respondents. Applying the principles set out by this court in Wilk v. Arbour, 2017 ONCA 21, 135 O.R. (3d) 708, the motion judge concluded that the appellant was an “owner” as defined in the DOLA and, on that basis, was jointly and severally liable for injuries caused by the dog. She therefore had no cause of action against other owners of the dog.
[13] Pursuant to s. 1(1) of the DOLA, the motion judge observed that “owner” when used in relation to a dog, includes a person who possesses or harbours the dog. She also noted this court’s holding in Wilk that “a person who is in physical possession and control over a dog just before it bites or attacks another person or animal” is a person who “possesses” a dog, and is therefore an “owner”, under the Act.
[14] The motion judge considered the appellant’s argument that she, as a hired dog walker, was simply carrying out specific instructions of the respondents who were the “true” owners. She rejected this argument, finding that the Act does not require that an owner have dominion or ultimate control over the animal. As she said: “[i]t is irrelevant whether the Plaintiff was exercising control over Forrest with or without the Defendants’ direction or approval”. Instead, the motion judge found that the appellant was “unquestionably” in physical possession of Forrest because she 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”.
[15] Finally, the motion judge found that, as an owner, the appellant could not recover damages from another owner under the DOLA. On this basis, she granted summary judgment in favour of the respondents.
ANALYSIS
[16] The standard of review is that of correctness because the motion judge was called upon to interpret a statute, which is a question of law.
[17] The DOLA defines “owner" in s. 1(1) of the Act 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; [18] Pursuant to ss. 2 and 3 of the Act: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.
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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. [19] In Wilk, Weiler J.A. interpreted “owner” in the DOLA as follows: “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”. She observed that the statutory definition of owner "includes a person who possesses or harbours the dog". I note that those who possess or harbour a dog have one thing in common: the ability to exercise control over the dog. The legislature chose to impose liability on those persons who are best placed to control the dog and prevent damage to persons and other animals.
[20] The appellant argues that Wilk is distinguishable on two grounds. First, the appellant points out that the attack took place in the respondents’ home. She argues that, in those circumstances, the respondents, as both homeowners and owners of the dog, should be liable for Forrest’s actions. However, in my view, this is a distinction without a difference: liability is not governed by the location of the incident.
[21] Lest there be any doubt, the DOLA expressly ousts application of the Occupiers’ Liability Act, R.S.O. 1990, c. O.2, in relation to the liability of the owner, when the dog bite occurs on the premises of the owner. This reflects a policy choice to base liability on something other than ownership or possession of the building in which the incident occurred. The DOLA seeks to promote responsibility and accountability in those who are best able to prevent dog bites and attacks, wherever they occur. It would defeat this legislative objective if someone meeting the definition of owner could escape liability merely because they were in someone else’s home at the time of the incident.
[22] Second, the appellant argues that she is not a true owner because she was passively carrying out the wishes of the respondents, who directed that she place booties on Forrest before allowing him outside. This, too, is of no legal significance. It is not uncommon for dog owners to give instructions to those hired to care for their dogs, whether in matters of feeding, walking, administering medication, or other care instructions. The person in possession of the dog is best placed to assess whether, when and how such instructions are to be carried out.
[23] Moreover, as was held in Wilk, the Act does not restrict liability to those who have the highest level of authority over the dog. By defining owners as those who possess or harbour 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”: Wilk, at para. 30. There is no requirement that the possessor be the only owner, or that the possessor be acting exclusively on her own volition.
[24] In short, given the statutory definition of owner, as interpreted in Wilk, there can be no doubt that the appellant was an owner of Forrest for purposes of the DOLA. The appellant was the sole person in the company of the dogs at the time of the incident. She was employed by the respondents and had attended at the house to care for the dogs three times a week. She had been in possession of the dogs on prior occasions, just as she was in possession of them on the day of the incident. As was found by the motion judge, she was unquestionably the person in a position to control the behaviour of the dogs at the critical time: see Wilk, at para. 35.
[25] Finally, I note that the question of whether a person is an “owner” is fact and context specific. In Wilk, at para. 36, Weiler J.A. pointed out that, because of the broad range of circumstances that might arise, a rigid definition is to be avoided. During oral argument, the appellant posited a number of hypothetical situations, all of which were very different than the case at bar. It is unhelpful to speculate about how the statute applies to imaginary cases. Those cases are best addressed if and when they come before the court for consideration. . Carvalho Estate v. Verma
In Carvalho Estate v. Verma (Ont CA, 2024) the Ontario Court of Appeal dismissed a novel 'stay pending appeal' motion where the main object of concern was a dog, Rocco. At the lower application stage the dog was held to be the property of the estate, and thus the dog was ordered returned to the estate trustee.
Here the court considers this dog situation under the 'merits' (primarily, the 'ownership'), the 'irreparable harm' and the 'balance of convenience' elements of the RJR-MacDonald 'stay pending appeal' test:[1] On March 14, 2024 I dismissed, with reasons to follow, a motion seeking to stay pending appeal to this court the order of Stewart J. dated February 26, 2024. These are my reasons.
[2] In the order under appeal the application judge declared that the dog, Rocco Jr., was owned by Leonard Carvalho at the time of his death on November 24, 2022 and formed part of his estate. She ordered Ms. Verma to return the dog to the estate trustee, Arlete Carvalho, by March 15, 2024. In making the order the application judge considered a voluminous record that included numerous affidavits, transcripts of cross-examinations and documentary evidence. She heard and addressed the oral and written submissions of counsel.
[3] Ms. Verma commenced an appeal by serving and filing a notice of appeal. The order is not automatically stayed pending appeal. The order is final and is expected to be complied with even if it is appealed, in the absence of a stay pursuant to r. 63.02(1) of the Rules of Civil Procedure.
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[9] In support of her stay motion Ms. Verma advanced four grounds of appeal:1. that the application judge’s decision was inconsistent with her finding at para. 3 of her reasons that Mr. Carvalho and Ms. Verma had “acquired” the dog;
2. that the application judge erred by failing to apply a “contractual formation” analysis to the question of ownership of Rocco Jr.;
3. that the application judge erred by failing to consider whether Ms. Verma was a joint owner of the dog, despite counsel advising the application judge at the end of closing submissions that it was “open to her” to do so; and
4. that the application judge overlooked evidence when she observed, at para. 19 of her reasons, that Ms. Verma did not assert that she owned the dog or that the dog was a gift until after Mr. Carvalho’s death. [10] Based on the record before me, I have concluded that these grounds of appeal have little, if any, prospect of success.
[11] The first and fourth grounds of appeal take isolated sentences in the application judge’s reasons out of context, rather than considering her reasons in their entirety as this court has directed: Wasylyk v. Simcoe (County), 2023 ONCA 781, at para. 15. A review of the application judge’s reasons as a whole reveals that she carefully assessed the issue before her: whether Ms. Verma owned or had received the dog as a gift. She applied the correct legal analysis that was endorsed by the parties, namely the factors in Coates v. Dickson, 2021 ONSC 992. She explained her findings under each factor in detail and with reference to the evidence.
[12] As for the second and third grounds of appeal, the responding party noted that the contractual formation and joint ownership arguments were not raised at first instance and are therefore unlikely to be entertained by this court on appeal: Ontario (Labour) v. Cobra Float Service Inc., 2020 ONCA 527, at para. 19. Even if these arguments had been expressly considered by the application judge, I agree with the responding party that it is difficult to see how they would have made any difference to the outcome.
[13] Applying a contractual formation test to the transaction with the vendor of Rocco Jr. would not have assisted the application judge. The issue before her was who, as between Mr. Carvalho and Ms. Verma, owned the dog – not what the vendor might have intended or understood. As the Coates factors direct, the application judge focused her analysis on whether there was “any express or implied agreement as to ownership” between Mr. Carvalho and Ms. Verma that was made “either at the time [Rocco Jr.] was acquired or after”. She considered not only who paid for the dog, but also other relevant factors such as Ms. Verma’s access to the dog.
[14] Similarly, there is nothing to suggest that the application judge’s decision would have been any different had she expressly referred to the question of joint ownership. The reasons explain why she concluded that Mr. Carvalho was the owner of the dog, and that even if there had been an intention to gift the dog to Ms. Verma, the gift failed because the gift was not completed through delivery. The application judge considered the electronic communications between the parties and found that Ms. Verma’s access to the dog was entirely dependent on Mr. Carvalho’s agreement and permission. This is inconsistent with any claim to joint ownership.
[15] While I have concluded that the appeal does not raise a serious issue that passes the first part of the test for a stay, I have also considered the questions of irreparable harm and balance of convenience.
(b) Irreparable Harm
[16] The evidence does not establish that Rocco Jr. is, as Ms. Verma contends, her emotional support animal (“ESA”) for generalized anxiety, or that, in any event Ms. Verma would suffer irreparable harm to her mental or emotional health if the stay were refused.
[17] The application judge concluded, on Ms. Verma’s own evidence supported by that of a social worker, that Rocco Jr. was not an ESA. The additional evidence on this motion from her family doctor and psychotherapist is essentially an extension of the evidence that the application judge rejected. At its highest, it confirms Ms. Verma’s self-reported emotional distress and reliance on Rocco Jr. as a source of comfort.
[18] Further, irreparable harm in the context of a stay motion is harm that flows from the denial of a stay: Belton v. Spencer, 2020 ONCA 623, 58 C.P.C. (8th) 16, at para. 51. The evidence, including that of her health care providers, suggests that Ms. Verma’s anxiety is instead significantly related to the underlying litigation. In any event, Ms. Verma has known since the litigation began that she is in possession of the dog without the consent of Mr. Carvalho’s legal representatives. She has also known since the order under appeal was made, that absent a stay she would be required to part with the dog by March 15. She has had time to put in place other measures to address her anxiety.
(c) Balance of Convenience
[19] Finally, I have concluded that the balance of convenience favours the responding party. The affidavits of the estate trustee and her sister describe their distress for the dog’s well-being and whether he would ever be returned. Their concern is understandable given Ms. Verma’s past conduct, particularly in her use of self-help measures to gain access to Mr. Carvalho’s home after his death and take Rocco Jr. How the dog came into her possession is a factor that weighs against the equitable relief she is seeking.
[20] The responding party also pointed to aspects of Ms. Verma’s social media campaign, including misleading posts about the litigation and favorable responses to comments encouraging her to run away with the dog and to use violence against Mr. Carvalho’s family. I agree that these circumstances weigh against the granting of a stay.
Conclusion and Costs
[21] For these reasons the motion for a stay was dismissed. While there was no suggestion that anyone had the intention to sell or give away Rocco Jr., it is understood and so ordered that the dog shall be preserved by Mr. Carvalho’s family pending the disposition of the appeal./blockquote>
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