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Dog and Cat Control Law (Ontario)
(August 2008)

Chapter 7 - Dog Trespass and Related Topics


  1. Overview
  2. Civil Liability for Dog Harm
  3. Municipal By-Laws+
  4. "Self-Help"
    (a) Overview
    (b) Livestock, Poultry and Honey Bee Protection Act
    (c) Yuke v Angus (Ont Prov Ct, 1995)
    (d) Dogs and Hunting/Fishing
    (e) Summary
  5. Dogs and Public Parkland
  6. 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 new 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].


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"].

How this new limited jurisdiction will be applied by municipalities will vary from place to place, so anyone involved in such a situation should inquire as to their local animal by-laws. The extensive City of Toronto by-law is linked at Ch.8: "Dogs, Cat and Municipalities".


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) Livestock, Poultry and Honey Bee Protection Act

Thankfully the circumstances in which a dog can be shot are codified in statute, and are quite narrow. The provincial Livestock, Poultry and Honey Bee Protection 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.

Note: It is essential to read the Yuke v Angus case (below) before interpreting this provision.
Relevant statutory definitions for this provision are:
"injured" in respect of livestock or poultry means
injured by wounding, worrying or pursuing, and "injury" has a corresponding meaning;

"livestock" means cattle, fur-bearing animals, goats, horses, rabbits, sheep or swine;

"poultry" includes game birds where game birds are kept pursuant to a licence under the Fish and Wildlife Conservation Act, 1997;
Note that the repealed "(b)" provision allowed the general killing of dogs 'running at large' between sunset and sundown in rural areas, as has in past been common municipal practice [the provision is quoted verbatim below in the Yuke v Angus discussion].

(c) Yuke v Angus (Ont Prov Ct, 1995)

As is discussed at the "Animals and the Criminal Law" Guide reference (s.1, above) the balancing act that a livestock owner must engage in is that between the Livestock, Poultry and Honey Bee Protection Act (above) and the s.445(1) Criminal Code provision respecting what I call 'kept non-cattle animals and birds'.

Yuke v Angus (Ont Prov Ct, 1995) was an interesting "kept non-cattle animals and birds" private criminal prosecution involving the admitted killing of the prosecutor's dog which was trespassing on the neighbour defendant's property. The neighbour kept cattle, but the dog was not close to them when shot.

The court considered two defences, one under the common law (killing dog while it attacks is justified) and the other statutory, under the Livestock, Poultry and Bee Protection Act, s.2 (quoted below in its form at the time).

The common law defence was dismissed on the fact that no attack was taking place, the court quoting from R v Comber (Ont Co Ct, 1975):
There are certain occasions when a dog may be lawfully killed and it has been held that where it is attacking domestic animals, the owner of such animals is entitled, if he catches the dog in the course of such attack, to protect his property by killing the dog. However, once the attack is over, he is not entitled to follow the dog to its place of residence or indeed, I rather gather from the authorities, is he entitled to shoot the dog unless it is in the act of attacking the animals in question.
The statutory defence was grounded in s.2 of the Livestock, Poultry and Bee Protection Act, which read at that time:
2. Any person may kill a dog,

(a) that is found killing or injuring livestock or poultry;

(b) that in a township or village is found between sunset and sunrise straying from the premises where the dog is habitually kept;

(c) that is found straying at any time, and not under proper control, upon premises where livestock [or] poultry are habitually kept.

[* note that sub-sec (b) was repealed in 2002, but that the remainder of the provision is identical today]
Focussing on sub-sec. (c), the court distinguished it's application to the facts at hand on the reasoning that the term "premises" did not equate with "property", and that the area where the dog was shot (distant from the cattle) was not in fact "premises where livestock or poultry are habitually kept". A conviction was therefore entered.

While it was not material to the case, the court commented that if the killing were justified, there was no requirement of a warning shot before a killing shot. Other cases cited in Yuke suggest a dog-lenient interpretation of (c) in such circumstances.

(d) 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.

(e) Summary

As much as a farmer may be angered by stray dogs harassing their livetock, they must take great care before embarking on a self-help remedy, as they are at risk of so committing a criminal offence. Prudence would dictate non-lethal measures, recourse to local small animal control authorities, and/or civil remedies.

ANYONE facing such a situation is well-advised to videotape or at least photograph the situation thoroughly [if you do not have a camera handy, find the nearest twelve-year old with a cell phone camera].


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. If such seizure results in delivery to a pound the consequences can be dire [see Ch.3: "Pounds, Shelters and Research"].
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. 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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