Canada: Barking Dogs Can Also Bite: Condo Corps May Be On The Hook For Dog Attacks On Common Property

In most cases, cohabitation between condominium residents and "a man's best friend" go without a hitch. Society has accepted that pets form part of many families and owners are, for the most part, responsible and respectful of their neighbours. To assist with this peaceful cohabitation, many condominiums have put in place various restrictions on dog ownership and have adopted rules dealing with dog etiquette in units or on common property. Some condominiums prohibit dogs all together, while others put restrictions on the number, size or weight of dogs. In most (if not in all cases), condominiums also have rules to deal with dogs that become a nuisance.

Still there is no shortage of reported legal cases where pets and condominium corporations are adversaries. Many cases deal with barking dogs that become a nuisance, but there is an increasing number of cases dealing with dog attacks on common property. A recent decision1 confirmed that when such attacks occur, the victim can claim from both the dog owner and the condominium corporation.

The liability of a dog owner

In Ontario, the Dog Owners' Liability Act imposes on dog owners what is called "strict liability". Section 2 of this Act could not be clearer: "The owner of a dog is liable for damages resulting from a bite or attack by the dog on another person or domestic animal". When there is more than one owner, they are all jointly and severally liable.

Strict liability means that the dog owner will be held responsible for damages resulting from the attack by his or her dog even if the owner is not at fault. All that the victim of the attack has to demonstrate is that this specific dog attacked him/her (or his/her domestic animal), and that this other specific person is the owner of the attacking dog. The fact that the owner had no knowledge of the dog's propensity to attack will not reduce the owner's responsibility. You are the owner: you are responsible for the damage it causes in the context of an attack – period.

Having stated this, the damages (money) to be awarded may be reduced by a court if the victim of the attack contributed to their loss by their own fault or negligence. For example, a court may reduce the amount of money to be awarded if the victim of the attack provoked the dog, or if he/she failed to take reasonable precautions to avoid the attack or injuries.

It is also interesting to note that the person who gets attacked while committing a criminal act (or with the intent of committing a criminal act) will not benefit from the protection of this Act – unless the keeping of the dog on the premises was unreasonable for the purpose of the protection of the persons or property.

If a court concludes that a dog has bitten or attacked a person or a domestic animal, or if the court concludes that the dog's behaviour is such that the dog is a menace to the safety of people or of other domestic animals, a court may order the elimination of the dog, may impose specific control measures on the dog (such as confining the dog to the owner's property, restraining the dog with a leash or muzzle or posting warning signs). In some cases, the courts can order that the dog be neutered or spayed and can even prohibit a specific owner from owning a dog for a defined period of time.

The Liability of a Condominium Corporation

The first part of this article dealt with the liability as imposed on the dog and the owner of the dog. However, as indicated in the introduction, a condominium corporation may also be on the hook when a dog attacks while on common property. The corporation's liability is triggered by the Occupiers' Liability Act.

In a nutshell, the "occupier" of premises owes a duty to take reasonable steps to ensure that persons entering on the property are reasonably safe while on the premises. The definition of an "occupier" includes:

  • The person in physical possession of the premises;
  • The person who has the responsibility for, and the control over, the conditions of premises;
  • The person who controls the activities carried on the property or the persons allowed to enter the premises.

It is worth mentioning, at the outset, that section 26 of the Condominium Act, confirms that for the purpose of determining liability under the Occupiers' Liability Act, it is the condominium corporation (and not the individual owners) who is deemed to be the "occupier" of the common elements. That is to say that it is the corporation who has the legal obligations to ensure that the property is reasonably safe for its visitors. This makes sense since, while all owners "own" the common elements, it is the corporation who is in the best position to control the conditions of the premises and to control the activities and the individuals allowed on common property.

It is also interesting to note that the Occupiers' Liability Act does not protect individuals who are committing or who intend on committing a criminal act. In fact, it does not protect individuals who are trespassing or individuals who have willingly assumed certain risk. Posting a sign that there is a dangerous dog and that trespassers do so at their own risk, may therefore reduce the risk of an occupier under this Act – the trespasser having assumed the risk.

All this to say that, pursuant to the Occupiers' Liability Act, a corporation could be found liable for damages resulting from a dog attack on common elements if the corporation has failed to take reasonable steps to ensure the safety of other individuals on the property.

This was recently confirmed in the decision of Elbaum v. York Condominium Corp. No. 67. In this case, a 89 year old condominium owner was seriously injured when she was attacked by an unleashed dog while she was walking on the common elements of the condominium corporation. She sued the dog owner pursuant to the Dog Owners' Liability Act, but also sued the condominium corporation for negligence pursuant to the Occupiers' Liability Act. At the time of drafting this article, the court had not yet ruled on the merits of the case (i.e. on whether the defendants were responsible or what damages should be awarded). The reported decision strictly dealt, for the time being, with whether the victim of a dog attack can also sue a condominium corporation if the attack took place on common property. And the answer is yes.

So, what is a corporation to do to protect itself?

As indicated above, the level of responsibility to be applied to a dog owner is different from that to be imposed on a condominium corporation. In the case of the dog owner, strict liability applies (that is to say that the responsibility is triggered strictly on the basis of ownership of the dog). In the case of a corporation, however, a judge will have to determine whether the corporation has taken all reasonable steps to ensure the safety of the individuals entering the common elements.

Such reasonable steps to be taken by the corporation could include adopting and enforcing rules with respect to dog ownership. Such rules could limit the size or weight of dogs, or impose on owners the obligation to always have their dogs on a leash while on common property. The corporation should also always take seriously and act on any complaints dealing with dog misbehaviour or dealing with breaches of a dog-related rule. Certainly, the corporation should act at once when it is dealing with a dog it knows is dangerous or has a propensity to attack.

It is to be noted that "the jury is still out" on whether a corporation can adopt a blanket rule prohibiting all pets. A board may make rules promoting the safety, security or welfare of the owners and may make rules preventing unreasonable interference with the use and enjoyment of the common elements and units. However, the rules must be reasonable and consistent with the Condominium Act, with the declaration and with the by-laws.

There are cases where judges question whether it is "reasonable" to promote the safety, security or welfare of the owners by prohibiting all pets. "How dangerous can a single goldfish be?", asked a judge of the Superior Court of Justice in a Niagara Condominium case. Others also question whether a dog's weight should be the sole determining factor in determining its hazardousness. Remember that part of the test for a court to enforce a rule is whether the rule is reasonable.

It has generally been accepted that a pet prohibition in the declaration may be easier to enforce than the same prohibition found in the corporation's rules.

Finally, it may be worth reminding readers that, in addition to the restrictions presently found in the corporation's rules and declaration, owners have to abide by other regulation. The province of Ontario, for instance, prohibits the ownership, breeding, training, transfer, sale or gift of pit bulls (with some exceptions). As for the city of Ottawa, it has its own Animal Care and Control By-law, prohibiting the ownership of more than 3 dogs within the city's limits.

As always, an ounce of prevention is worth a pound of cure. Corporations should review their declaration, by-law and rules and should actively take steps to remind their residents of their obligations in this respect. Corporations should also consider revising or adopting new rules dealing with pets to pro-actively deal with these matters and minimize the risk to the corporation and to the owners.

Footnote

[1] Elbaum v. York Condominium Corp. No. 67, [2014] O.J. No. 864

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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