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Dog and Cat - Landlord's Liability. Walpole v. Crisol
In Walpole v. Crisol (Ont CA, 2024) the Ontario Court of Appeal dismissed an appeal on the application of DOLA 3(1) ['Application of Occupiers’ Liability Act'].
The court examines a landlord's (here called an 'absentee landlord') liability for a dog bite:[20] While the motion judge’s reasons in this case were indeed brief, I am satisfied that the record as a whole clarifies and explains why she concluded that the appellants’ claim against the Crisols did not present any genuine issues that required a trial. In this regard, it is significant that the motion judge made her determination on a paper record, and was not asked to resolve conflicting evidence or make any assessments of credibility: see Bruno, at para. 25.
[21] The evidence establishes that the Crisols were absentee landlords of the property where the dog owners resided. The dog’s owners only acquired Chestnut some time after they became the Crisols’ tenants. Under s. 14 of the Residential Tenancies Act, 2006, S.O. 2006, c. 17 (“the RTA”), the Crisols could not have prevented their tenants from keeping a dog on the rented property. There was no evidence that the Crisols had ever assumed any responsibility for Chestnut, or that they asserted any control over who their tenants could choose to invite onto the rented property. Mr. Crisol’s evidence was that he only learned about Chestnut’s existence when the Crisols were served with the appellants’ statement of claim. There is no evidence that they had any prior knowledge of Chestnut’s particular temperament or history of behaviour.
[22] Significantly, the appellants have not pointed to any case where an absentee landlord has ever been held liable for injuries caused by a tenant’s dog in similar circumstances. In Purcell v. Taylor (1994),1994 CanLII 7514 (ON SC), 120 D.L.R. (4th) 161 (Ont. Gen. Div.), Borins J. (as he then was) explained that the common law generally did not extend liability for dog bites beyond those persons who could be said to have “owned”, “possessed” or “harboured” the dog: that is, those same persons who are now subject to the absolute liability provisions of the DOLA. The DOLA does not change the potential liability of other persons, either one way or the other. Nevertheless, the appellants have not identified any cases where persons similarly situated to the Crisols have been found liable, either at common law or under the OLA or some other statute.
[23] The appellants argue that the motion judge did not properly consider s. 8(1) of the OLA, which “applies whether or not the landlord is found to be an occupier”: Taylor v. Allen, 2010 ONCA 596, 325 D.L.R. (4th) 761, at para. 12. This section provides:8 (1) Where premises are occupied or used by virtue of a tenancy under which the landlord is responsible for the maintenance or repair of the premises, it is the duty of the landlord to show towards any person or the property brought on the premises by those persons, the same duty of care in respect of dangers arising from any failure on the landlord’s part in carrying out the landlord’s responsibility as is required by this Act to be shown by an occupier of the premises. [24] In my view, s. 8(1) has no application in the circumstances of this case. To the extent that the tenancy agreement made the Crisols “responsible for the maintenance or repair of the premises”, there is no evidence that the dog bite at issue here was causally linked to any failure by them to properly maintain or repair the rented property. To the extent that s. 8(1) imposed a duty of care on the Crisols, this duty was limited to “dangers arising from any failure on [their] part in carrying out [their] responsibility” to maintain or repair the premises.
[25] The two cases the appellants rely on where absentee landlords were found liable under s. 8(1), Taylor v. Allen and MacFadyen v. MacFadyen, 2014 ONSC 6589, did not involve injuries caused by a tenant’s dog. Rather, both involved injuries that were causally linked to problems with the property itself, for which the landlord was responsible. In my view, a tenant’s dog cannot be treated as if it is part of the rented property, so as to bring it within the landlords’ “maintenance and repair” obligations.
[26] The appellants’ argument also disregards s. 8(2) of the OLA, which limits liability under s. 8(1) to situations where “the landlord’s default is such as to be actionable at the suit of the person entitled to possession of the premises”. The dog’s owners would not have been able to sue the Crisols if one of them had been bitten by their own dog.
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