It has long been held that the owner of a dog may be liable
for the actions of their dog in one of two ways: strict liability
under the doctrine of scienter or in negligence.
Liability will only attach under the doctrine of
scienter if the plaintiff can establish three conditions,
as set out in Janota-Bzowska v. Lewis, 1997 CanLII 3258
That a defendant was the owner of the dog;
That the dog has manifested a propensity to cause the type of
harm occasioned; and
That the owner knew of that propensity.
If a plaintiff can establish the above three criteria, an owner
of a dog which causes harm will be strictly liable for all the
One issue which has been identified recently by the courts is
whether the doctrine of scienter will apply when an animal
is leashed but nonetheless causes harm.
This question was raised, but not conclusively answered, in two
recent court decisions.
In the Saskatchewan Queen's Bench decision of Ross v.
Vidnes, 2012 SKQB 317, the Court commented that a crucial
factor for liability under the doctrine of scienter is
control of the dog. The Court went on to state that:
"If an animal is caged, chained, or leashed, but
nevertheless manages to inflict injury on a plaintiff, it has been
held, in some cases, that the doctrine of scienter is
inapplicable. The doctrine of scienter has been
applied only where the animal has escaped from the owner's
This issue was again touched upon by the New Brunswick Court of
Queen's Bench in Russell v. Aventriep 2013 NBQB
134. That case involved an altercation between two dogs, one
of which was on leash at the time of the incident. The incident
occurred when the Plaintiff's Pomeranian ran across the road in
front of its house to approach the Defendant's German Shepherd
which was walking on leash with its owner. As the Court noted
"some barking ensued" and "both dogs began baring
their teeth and growling at each other". While the
defence was raised that the Pomeranian was the aggressor, the Court
noted that if it was aggressive towards the German Shepherd this
"was not an aggression rooted in the true strength and
ferocity of the much smaller dog". Ultimately the
Pomeranian was bitten by the German Shepherd.
The Court held that the German Shepherd had not displayed any
form of aggression before the incident and accordingly did not have
a propensity to act in the way that it did so as to establish
either negligence or liability under scienter.
However, the Court did note that the fact that the German Shepherd
was leashed and being escorted by the owner raised some concerns
regarding the applicability of the doctrine of
scienter. The Court, having already held that the
German Shepherd did not have a propensity to act in an aggressive
matter, did not find it necessary to determine the issue of whether
the doctrine of scienter applied given the German Shepherd
Accordingly, this issue remains to be conclusively
determined. However, it is an interesting point and one to
keep in mind when considering the applicability of the
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