In this recent court decision the court had to decide whether a landlord of a residential complex was liable for the damages caused to a six year old’s face when it was bitten by a dog owned by the tenant while visiting with family in the tenant’s apartment.
Liability of the dog owner is rarely in doubt because the Ontario Dog Owners’ Liability Act, R.S.O. 1990, c. D.16 (“DOLA”) places liability squarely on the owner of the dog, and it is essentially strict liability which means there is no excuse that can exonerate a dog owner when their dog attacks an innocent person (ie: they can’t say I didn’t know, or that the dog has never done that before, etc).
The twist in this case, however, was that the child and his parents wanted to fix the landlord with responsibility as well, even though the landlord was not present and did not own the dog. The theory was that the landlord breached their common law and statutory duties as occupiers (under the Ontario Occupiers’ Liability Act, R.S.O. 1990, c. O.2 (“OLA”) and as landlords (under the Ontario Residential Tenancies Act 2006, S.O. 2006, c.17 (“RTA”). The argument was that the landlords failed to inspect the property, failed to keep a copy of the lease, failed to ensure that the tenants had tenant insurance as is required by the lease, and, among other things, failed to take sufficient steps to keep the property free of hazards: in this case the tenant’s dog.
Based on the allegations, the tenant was perhaps penniless which would make it hard to recover money following a monetary judgment from the court. The landlord, by contrast, even if without insurance to cover this loss, still had a significant asset (the property) which would allow for a timely and decent, if not full, recovery on any monetary judgment rendered by the court.
The landlord did not want to wait until trial to determine their fate, so a pre-emptive motion was brought to ask the court to dismiss the claim against them on the basis that there was no viable theory in law that could make them responsible for a dog they didn’t own, caused in the tenant’s unit. Fortunately for them, the court agreed, and dismissed the case against the landlord.
This case is not the first one to deal with a dog bite victim trying to sue a landlord, and based on prior cases it is fairly well established that landlords cannot be held responsible for injuries caused inside a tenant’s unit by the tenant’s dog, however if the attack occurs elsewhere on the property, the landlord may be exposed to liability if the facts warrant this conclusion after applying the principals of common law negligence and/or the statutory provision of the OLA.
A landlord would have more defences than a dog owner. A landlord, unlike a dog owner, could argue that they had no idea that the dog had a propensity to bite. To fasten liability against the landlord it would most likely have to be shown that the landlord knew the dog had a propensity to bite or cause harm, and subsequently failed to take reasonable steps to prevent the dog from frequenting the common areas without a muzzle, for example. Obviously a landlord does not have actual control over the dog, but as long as the landlord is seen to be doing something to lower or eliminate the risk (ie: speaking with the tenant, requesting a muzzle be worn when in the common areas, putting up signs, calling animal control, etc.), the landlord is apt to be exonerated.
What was novel in this case, however, was the plaintiff’s request to find the landlord liable under the Ontario Residential Tenancies Act (previously referred to as the “RTA”). The court concluded that the RTA did not make the landlord liable for the “hazard” (ie: the dog) in the apartment unit because after a careful review of wording of the RTA, the court found that the landlord is only responsible to remove hazards in the common areas, and not in the residential units themselves. When it comes to the inside of residential units, the landlord only has the duty to keep it “in a good state of repair and fit for habitation and for complying with health, safety, housing and maintenance standards.” Although the judge didn’t comment on this, presumably allowing for a family pet makes the apartment unit fit for habitation, and compliant with health, safety, housing and maintenance standards.
Walpole v. Brush, 2023 ONSC 4869
https://www.canlii.org/en/on/onsc/doc/2023/2023onsc4869/2023onsc4869.html