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Dog and Cat - DOLA versus OLA. 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'], as opposed to the Occupier's Liability Act (OLA):[5] The relevant provisions of the DOLA can be summarized as follows. First, s. 1(1) defines the term “owner”, when used “in relation to a dog”, to include “a person who possesses or harbours the dog”. It is common ground that the Crisols were not Chestnut’s “owners” under any of the branches of this definition.
[6] Second, s. 2(1) of the DOLA provides that “[t]he owner of a dog is liable for damages resulting from a bite or attack by the dog on another person”, while s. 2(3) provides that this liability “does not depend upon knowledge of the propensity of the dog or fault or negligence on the part of the owner”. It is common ground that this provision applies to Ms. Brush and Mr. Ostertag, as Chestnut’s owners, but not to the Crisols.
[7] Third, s. 3(1) of the DOLA provides: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 [R.S.O. 1990, c. O.2 (“the OLA”)] It is the interpretation of this provision that is in issue in this appeal.
[8] The motion judge concluded that “[w]here the bite or attack occurs on the premises of the owner of the dog, liability is determined under DOLA, not OLA.” Since the bite in this case occurred on the rented premises where the dog’s owners resided, and since the DOLA does not impose liability on anyone other than the dog’s owners, this led her to conclude that the Crisols were statutorily exempt from any liability that might otherwise have attached to them under the OLA. The motion judge explained:The statute, and it appears the case law, divides liability on the basis of where the attack takes place. Where the dog bite occurs on the premises of the owner, OLA does not apply. The facts of this case are similar to Hudyma v. Martin, [1991] O.J. No. 1184. In that case, Justice Dunnet found that there was no liability on the part of the landlord, even though the landlord knew that the Mastiffs were being raised on the property where the dog attack occurred. She noted that the doctrine of scienter and OLA had no application to the case, noting that where the attack occurs on the premises of the owner, the OLA has no application. [9] I agree with the appellant that the motion judge erred by concluding that s. 3(1) of the DOLA entirely ousts the operation of the OLA in situations where the dog bite or attack occurs on the dog owner’s property. The section provides only that when a dog bite or attack occurs “on the premises of the owner”, the liability of the owner is determined under the DOLA, rather than under the OLA. It does not address the potential liability, under either the OLA or common law, of persons other than the owners of the dog. As Perell J. noted in Elbaum v. York Condominium Corporation No. 67, 2014 ONSC 1182, at para. 20, if the defendant is not the “owner” of the dog within the meaning of s. 1 of the DOLA, “then there is no strict liability, but there is also no preclusion of a common law negligence claim or a claim under the Occupiers’ Liability Act.”
[10] I also agree with the appellant that the word “owner” in s. 3(1) must be understood as meaning the owner of the dog and not, as the respondents contend, as the owner of the property where the bite or attack occurred. Statutory language must be interpreted contextually, in its “grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament”: Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27, at para. 21, citing Elmer Driedger, Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1983), at p. 87. The plain and obvious goal of the DOLA is to hold dog owners absolutely liable for injuries caused by their dogs. Interpreting s. 3(1) as referring to the owner of the dog accomplishes this objective, by ensuring that the absolute liability rule in s. 2 of the DOLA takes precedence over the negligence-based liability of an “occupier” under the OLA.
[11] Conversely, interpreting “owner” to mean “owner of the premises”, as the respondents propose, would have the undesirable effect of immunizing property owners who are not also the owners of the dog under the s. 1 definition from being found liable for dog bites that occur on their property, even in circumstances where they have negligently breached a duty of care owed to the victim under the OLA. Moreover, the respondent’s proposed interpretation requires s. 3(1) to be read as referring to the “premises of the owner [of the premises]”, which would be an oddly circular phrasing.
[12] I would also note that the motion judge did not interpret “owner” in s. 3(1) to mean the owner of the premises, as the respondents propose. Rather, she concluded that “[w]here the bite or attack occurs on the premises of the owner of the dog, liability is determined under DOLA, not OLA”. Her error was to overlook the limiting words “liability of the owner” in s. 3(1), not to mistakenly interpret “owner” as meaning the owner of the premises.
[13] The motion judge seems to have based her conclusion that the DOLA entirely ousts the operation of the OLA in the circumstances of this case largely on an obiter comment in Hudyma v. Martin. Like the case at bar, Hudyma involved a dog bite on tenanted property where the landlord who owned the property was not the dog’s owner. Dunnet J. accepted the landlord’s argument that on the facts of the case he was not liable under the Occupiers’ Liability Act, but then added: “Surely the Legislature did not intend the Occupiers' Liability Act to apply to cases such as the one at bar”.
[14] The motion judge seems to have treated Dunnet J.’s concluding comment as creating a bright-line rule that entirely ousts the application of the OLA for all persons whenever dog bites occur on the premises of the dog’s owner. As I have explained, this conclusion is not supported by the plain language of s. 3(1) of the DOLA, which only ousts the application of the OLA to the dog’s owner.
[15] I accordingly agree with the appellants that the motion judge erred in law by concluding that the DOLA barred the Crisols from being found liable under the OLA.
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