



COURT OF APPEAL FOR ONTARIO

CITATION: Wilk v. Arbour, 2017 ONCA 21

DATE: 20170113

DOCKET: C61949

Weiler, Rouleau and Roberts JJ.A.

BETWEEN

Donna Marie Wilk

Plaintiff (Respondent in Appeal)

and

Kevin Arbour

Defendant (Appellant)

Stuart E.E. Wright and (Dana) Hyeseung Yoon, for the
    appellant

David E. Preszler, for the respondent

Heard: November 10, 2016

On appeal from the order of Justice Mario D. Faieta of
    the Superior Court of Justice, dated February 24, 2016, with reasons reported
    at 2016 ONSC 1179.

Weiler J.A.:

A.

Overview

[1]

This appeal requires us to determine when a person is in possession of a
    dog under the
Dog Owners Liability Act
, R.S.O. 1990, c. D.16 (the
    Act or the DOLA). The motion judge held that a person possesses a dog within
    the meaning of the Act when that person exercises dominion and control over
    the dog or, in other words, when the person is sovereign or stands in the shoes
    of the owner. I would hold that the word possesses in the definition of
    owner under the DOLA includes a person who is in physical possession and
    control over a dog just before it bites or attacks another person or animal.

[2]

Accordingly, for the reasons that follow, I would allow the appeal. I
    would dismiss the cross-appeal alleging negligence on the part of the dogs
    registered owner.

B.

Factual Background

[3]

Zeus is a nine year old Great Dane dog owned by the appellant Kevin
    Arbour.

[4]

On the morning of December 28, 2013, the respondent, Donna Marie Wilk,
    who at the time was in a romantic relationship with Kevin Arbour, offered to
    take Zeus for a walk and Mr. Arbour accepted her offer. Although Ms. Wilk had
    walked Zeus before, she had always done so with Mr. Arbour.

[5]

During their walk, Zeus, who was on a leash attached to his collar,
    suffered a seizure and became unconscious. When Zeus regained consciousness, he
    backed up, came out of his collar, slipped on ice and fell down an embankment
    into a ditch. Ms. Wilk tried to retrieve Zeus, but also slipped into the ditch.
    She collided with Zeus and Zeus bit her thumb, causing her to lose her thumb
    above the joint.

[6]

Ms. Wilk brought an action for damages for her injuries under s. 2 of
    the
DOLA.

[7]

For ease of reference, the relevant provisions of the Act are as
    follows:

1. In this Act,

owner when used in relation to a dog, includes a
    person who possesses or harbours the dog and, where the owner is a minor, the
    person responsible for the custody of the minor.

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.

(2) Where there is more than one owner of a dog, they
    are jointly and severally liable under this section.

(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.

(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 persons fault or negligence
    caused or contributed to the damages.

[8]

Mr. Arbour brought a motion for summary judgment to dismiss Ms. Wilks
    action. He alleged the claim raised no genuine issue for trial as Ms. Wilk was
    in possession of Zeus at the time that he bit her and, as an owner, she was
    not entitled to compensation under s. 2(1) of the Act
.
His position was
    that the Act only provides for liability by an owner to another person, that
    is, a non-owner.

[9]

Ms. Wilk brought a cross-motion for summary judgment on the basis that she
    did not possess Zeus and that Mr. Arbour, as the owner, was liable for her
    injury, and requested an order that the action proceed to trial on the issues
    of damages only.

[10]

Ms. Wilk also sued Mr. Arbour in negligence. Zeus had health problems
    and had suffered seizure-like incidents in the past. Mr. Arbour typically cooked
    Zeus meals in advance and administered Prednisone medication for seizures, but
    on the morning at issue Zeus had not been fed and had not received his
    medication before Ms. Wilk took him for a walk. Ms. Wilk alleged that Mr.
    Arbour was aware that Zeus was more likely to suffer a seizure after missing a
    meal and that he knew she would only feed or medicate Zeus if he specifically
    instructed her to do so. It is these omissions that form the major part of the
    claim in negligence by Ms. Wilk against Mr. Arbour. I note that the previous
    evening Mr. Arbour had asked Ms. Wilk to feed Zeus when he was called into
    work and she had done so. Ms. Wilk also alleged negligence on the part of Mr.
    Arbour in that the collar on Zeus was too loose.

[11]

Mr. Arbour claimed that the injury to Ms. Wilk was not reasonably
    foreseeable and sought to have her action in negligence dismissed against him
    as well.

C.

Decision Below

(1)

Liability under the DOLA

[12]

The motion judge dismissed Mr. Arbours motion for summary judgment
    under the DOLA and granted Ms. Wilks cross-motion. Although he held the DOLA
    does not provide for strict liability against another owner, he concluded Ms.
    Wilk was not in possession of Zeus at the relevant time and was not an owner. The
    core part of his reasoning is as follows:

Having considered the ordinary meaning of the word owner, the
    statutory context for the use of the word, including the objects of the
Act
,

it is my view that a just and
    reasonable result is that the word possesses when used in relation to a dog
    means the exercise of dominion and control similar and in substitution for that
    which ordinarily would be exerted by its owner (namely the person to whom the
    dog belongs) over the dog.

[13]

The motion judge held Ms. Wilk was entitled to compensation and ordered
    that her action proceed on the issue of damages only.

(2)

Liability in negligence

[14]

The motion judge dismissed Ms. Wilks claim in negligence. He held:

Even if I were to accept the submission that such actions could
    amount to negligence, it is my view that the injury suffered by Wilk was not a
    reasonably foreseeable consequence of Arbours actions. Although admirable,
    Wilk was not obliged to retrieve Zeus from the ditch after he had recovered
    from the seizure. Given the terrain, Wilk could have decided to wait or seek
    assistance. In my view, the risk of Wilk being bitten was not a ...consequence
    fairly to be regarded as within the risk created by Arbours alleged
    negligence described above. [Citation omitted].

[15]

The motion judge added corrected reasons to the effect that Ms. Wilk had
    not contributed to her injury as she had no knowledge of the propensity of the
    dog to bite in these circumstances. He found, In any event, Zeus had never
    bitten anyone before, so the consequence of being bitten was not within the
    risk created of slipping and falling down the embankment and colliding with
    Zeus. He further held Ms. Wilk had done nothing intentionally to provoke Zeus
    to bite her.

D.

Issues

[16]

The issues on appeal are: (a) the motion judges interpretation of the
    word possess; and (b) whether the motion judge made a palpable and overriding
    error in finding that Ms. Wilk was not in possession of Zeus at the time of the
    incident.

[17]

By way of cross-appeal, Ms. Wilk submits that the motion judge made a
    palpable and overriding error in finding that her injuries were not reasonably
    foreseeable and that her action in negligence ought to be allowed to proceed.

E.

Discussion

(1)

Standard of Review

[18]

The parties are in agreement as to the appropriate standard of review. The
    interpretation of a statute is a question of law. On pure questions of law the
    standard of review is correctness. On questions of mixed fact and law, the
    standard is palpable and overriding error. A palpable error is one that is
    obvious, plain to see, or clear, and an overriding error is one that is
    sufficiently significant to vitiate the challenged finding of fact:
Housen
    v. Nikolaisen
, 2002 SCC 33, [2002] 2 S.C.R. 235;
Waxman v. Waxman
,
    44 B.L.R. (3d) 165 (Ont. C.A.), at paras. 296-297.

(2)

The Appeal

(a)

Did the motion judge err in his interpretation of a person who
    possesses a dog under the
Dog Owners Liability Act
?

[19]

The motion judge correctly set out the proper approach to statutory
    interpretation, namely, that the words of an Act are to be read in their entire
    context, in their grammatical and ordinary sense, harmoniously with the scheme
    of the Act, the object of the Act, and the intention of Parliament or the
    legislature:
Bell ExpressVu Limited Partnership v. Rex
,

2002 SCC 42,
[2002] 2 S.C.R. 559, at para. 26, quoting
    Elmer Driedger,
Construction of Statutes
, 2d ed. (Toronto:
    Butterworths, 1983), at p. 87.

[20]

The purposive approach required the judge to first consider the ordinary
    meaning of the word or words being interpreted; next, the context in which the
    words are found and the purpose of the legislation; and then, whether the
    proposed interpretation produced a just and reasonable result:
Blue Star
    Trailer Rentals Inc. v. 407 ETR Concession Co
,

2008 ONCA 561, 295 D.L.R. (4th) 83, at paras. 24-25;
Wawanesa Mutual Insurance Co. v. Axa Insurance (Canada)
,

2012 ONCA 592, 112 O.R. (3d)
    354, at para. 34.

[21]

The motion judge followed the first step. At para. 16 of his reasons he
    stated:

Possess is defined in the Concise Oxford Dictionary, 12th
    Edition, to mean have (something) belonging to one.have possession of as
    distinct from ownership. Possession is defined as the state of possessing
    somethingvisible power or control, as distinct from lawful ownership.
    Blacks Law Dictionary, Tenth Edition defines possess as to have in ones
    actual control.

[22]

However, the motion judge did not stop there. Having regard to the
    paucity of case law interpreting the provision in issue, he commented at para.
    18: Legislation in some states of the United States of America imposes strict
    liability for damages caused by a dog on a person that has a dog in his
    possession.

[23]

The motion judges footnote to this statement explains:

Liability for damages caused by a dog is imposed on the owner
    or keeper of the dog. In turn, keeper is defined as a person, other than the
    owner, harboring or having in his possession any dog. See
Auster v. Norwalk
    United Methodist Church
,

943
    A. 2d 391 (2008), (Supreme Court of Connecticut) p. 160. I also note that the
    dog liability statutes in all eleven American cases provided by Arbour and the
    one American case provided by Wilk imposed liability on a keeper. The
    statutes in those cases did not directly or indirectly impose liability on a
    person in possession of a dog. Accordingly, the cases provided are of no
    assistance in interpreting what is meant by possession under the
Act
.

[24]

Notwithstanding this footnote, the motion judges very next sentence in
    para. 18 states, In that context, possession of a dog has been interpreted
    as the exercise of dominion and control similar to and in substitution for
    that which ordinarily would be exerted by the owner over the dog. In para. 30
    of his reasons, the motion judge concluded that the word possesses when used
    in relation to a dog, means the exercise of dominion and control similar and
    in substitution for that which ordinarily would be exerted by its owner (namely
    the person to whom the dog belongs) over the dog.

[25]

Mr. Arbour submits that the motion judge erred in adopting this definition
    as the
Auster
decision deals with the definition of keeper, which,
    he submits is more analogous to the term to harbour in the DOLA. The
    definition the motion judge adopted instead frustrates the legislative intent
    in s. 1 of the DOLA which is aimed at expanding the definition of owner and
    requires more people to be more responsible and held accountable for the
    actions of dogs. He submits that the plain meaning first enunciated by the
    motion judge is clear and best accords with the context of the words, the
    purpose of the Act and will produce a just result.

[26]

In support of his position, Mr. Arbour relies on the obiter in
R. v.
    Huggins
, 2007 ONCJ 306, at pp. 4 and 7, appealed to this court on the
    issue of the destruction order of the dog only, in which the court opined that
    Ms. Razac, the dog owners mother who was walking the dog at the time of the
    dog attack was an owner under the DOLA. The court stated, at p.7, that:

After hearing the evidence at trial, this Court was puzzled why
    the prosecution chose to lay the charge against Philip Huggins rather than his
    mother. It is imperative to understand that it was Bernadette Razac [the
    defendants mother], not the defendant, who had actual custody of the dog at
    the time of this incident. Ironically, the
Dog Owners
    Liability Act

defines owner to include a person who
    possesses the dog. In the circumstances of this case, and with my findings of
    credibility and fact, had Bernadette Razac been charged, she would have been
    found guilty.

[27]

Ms. Wilks position is that the motion judges definition takes better
    account of the significance of the word possess in the context of the scheme
    of the DOLA. The motion judges definition characterizes possession as an
    active form of power and responsibility counterbalancing the more passive
    relation between owner and dog exercised in harbouring. Mr. Arbours proposed
    definition, she submits, does not countenance any dimension of the active and
    affirmative elements that the motion judges definition recognizes as implied
    by the scheme of the Act.

[28]

Ruth Sullivan,
Sullivan
    on the Construction of Statutes,
6th
    ed. (Toronto: LexisNexis Canada Inc., 2014), at
§3.11, pp. 30-31,
    tells us that one principle of language and of statutory interpretation is that
    the meaning of a word is influenced by the words with which it is associated.
[1]
For that reason, context is important. In s. 1(1) of the DOLA, owner includes
    a person who possesses or harbours the dog. The words owner, possesses and
    harbours have one thing in common: the ability to exercise control over the
    dog. In
Purcell v. Taylor
(1994),

120 D.L.R. (4th) 161 (Ont. C.J.)
,

the court was concerned with the definition of harbours under the DOLA.
    After an extensive review of cases decided at common law and under American Statutes,
    Borins J., as he then was, held at para. 34 that a person does not harbour a
    dog unless he or she exercises some degree of care or control over the dog.
    See also
Singh v. Chini,
[2005] O.J. No. 5965 (S.C.), at paras. 29-30;
Graham (Litigation Guardian of) v. 64087 Ontario Ltd.
, [2005] O.J. No.
    3685 (S.C.), at paras. 7-9;
McAllister v. Wiegand
,

[2009] O.J. No. 169 (S.C.), at
    para. 1.

[29]

Thus, the weight of Canadian jurisprudence respecting harbouring
    requires some degree of control in the specific situation of providing
    shelter to a dog; it does not use the phrase dominion and control as does the
    American jurisprudence relating to the keeper of a dog. The word, dominion is
    defined in
The Shorter Oxford Dictionary
, Thumb Index Edition (1993)

as follows: Sovereign authority and control. Reading in the word,
    dominion in addition to control, in order for a person to possess a dog, as
    did the motion judge, imports a requirement that the person who physically has
    the dog has the right to exercise sovereign authority or the highest measure of
    control over the dog and stands in the shoes of the owner.

[30]

In the
Shorter Oxford Dictionary
, a person who is the owner
    of a dog, is a person who owns something. The word own as in the transitive
    verb to own is defined: To have or hold as ones own, be proprietor of, possess.
    Property is a collection of rights over things that can be enforced against
    others:
Tucows.Com Co. v. Lojas Renner S.A.
, 2011 ONCA 548, 106 O.R.
    (3d) 561, at para. 60. In defining owner to include a person who possesses
    or harbours a dog, the legislature indicated an intention to impose liability
    on persons who had less than the full collection of rights belonging to an
    owner but who had attributes of ownership, possession and harbouring (providing
    safe shelter to the dog) where a measure of control over the dog is exercised.

[31]

The meaning ascribed to the word possesses by the motion judge is also
    not consonant with the overall purpose of the DOLA. Section 2(1) of the Act
    imposes liability on the owner of a dog, as defined in s. 1, for damages
    resulting from a bite or attack by the dog on a person or domestic animal. The
    definition of owner in the Act is consistent with the common law strict
    liability doctrine of
scienter
,
[2]
which extends liability beyond the dogs owner to one who harbours or possesses
    it:
Purcell v. Taylor
(1994), at
    para. 28
, citing
M'Kone v. Wood
(1831), 172 E.R. 850,
    at p. 850, and
Knott v. London County Council
, [1934] 1 K.B. 126, at
    pp. 140-141. However, s. 2(3) of the Act does away with the common law
scienter
requirement that a person wishing to sue for being bitten by a dog must
    establish a propensity on the part of the dog to viciousness or mischief,
    knowledge of the dogs propensity by the owner, or that the injury was
    attributable to the owners negligence. The owner of the dog is responsible for
    any damage caused by the dog biting or attacking a person or animal
    irrespective of whether the owner knew the dog might hurt someone or made
    efforts to prevent that from happening. In addition, s. 4(3) of the Act
    provides that in certain circumstances a court may order that a dog be
    destroyed or impose other security measures with respect to the dog: see
Purcell
    v. Taylor
(1994), at para. 8 and

Purcell v. Taylor
, 1992 CarswellOnt 4018 (C.J.), at para. 10.

[32]

Ms. Wilk submits that the legislature intended to impose responsible dog
    ownership and that actual physical possession voids the legislatures stated
    intention regarding the enforcement of the responsibility that goes along with
    dog ownership.

[33]

I would reject this submission. The legislature wished to make those who
    were in a position to exercise a measure of control over a dog responsible for
    its behaviour. This makes sense as the person exercising actual control over a
    dog is generally in the best position to avoid damage being caused by the dog
    to another person or animal. By requiring dominion as well as control over a
    dog, for a person to possess a dog, the motion judge read into the DOLA a
    higher standard for liability than the unambiguous plain meaning of the words
    required and one that was not consonant with the Acts overall purpose of liability
    for those exercising control over a dog. Thus, the trial judge erred in his
    interpretation of a person who possesses a dog under the DOLA.

(b)

Did the motion judge make a palpable and overriding error in finding
    that Ms. Wilk was not in possession of Mr. Arbours dog at the time of the
    incident?

[34]

Even though the motion judge erred in interpreting the word, possesses,
    Ms. Wilks position is that the motion judge did not make a palpable and
    overriding error in finding she was not in possession of the dog at the
    material time. It is not obvious, plain to see and clear that she was
    exercising dominion and control over the dog similar to and in substitution for
    that which would ordinarily be exercised by Mr. Arbour over his dog. Since the
    motion judge found that Ms. Wilk did not exercise any control over the dog
    without Mr. Arbours instruction and approval, she could not have exercised
    dominion and control in substitution for that which ordinarily would be exerted
    by Mr. Arbour. Furthermore, the motion judges additional findings of fact,
    including that the dog was living on Mr. Arbours property, Mr. Arbour
    controlled the dogs activities and Mr. Arbour cooked and scheduled the dogs
    meals, indicate that it was not plain that Ms. Wilk was in possession of the
    dog. Even if an error was made with respect to the use of the words dominion
    and control as opposed to simply control, it is not sufficiently significant
    to vitiate the motion judges findings of fact on this question of mixed fact
    and law.

[35]

In my opinion, the motion judge did make a palpable and overriding error
    in finding that Ms. Wilk was not in possession of Zeus. The critical time to
    determine possession is the time just before the incident. Ms. Wilk was the
    person exercising actual control of the dog just prior to the incident and she
    was best placed to prevent the bite that occurred.

[36]

The motion judges error in interpreting the word possesses affected
    his application of the word. In holding that Ms. Wilk was not in possession of
    the dog and therefore not an owner the motion judge committed a palpable and
    overriding error. I would hold that the word possesses in the definition of
    owner under the DOLA includes a person who is in physical possession and
    control over a dog just before it bites or attacks another person or animal.
    This is a definition which accords with the definition in
Blacks Law
    Dictionary
, 10th ed. (2014) and existing Canadian jurisprudence. By using
    the word includes I want to make it clear that this definition is not an
    exhaustive definition. The meaning of the term possesses in the DOLA must be
    assessed in the context of the specific circumstances of any given case. Given
    the variety of circumstances that may arise, a rigid definition is to be
    avoided.

[37]

As a result, I would allow the appeal, set aside the motion judges
    order, and dismiss Ms. Wilks action under the DOLA.

(3)

The Cross-Appeal

[38]

As indicated earlier, Ms. Wilk cross-appeals the motion judges
    dismissal of her action in negligence. The well-established elements of
    negligence are: 1) whether the defendant owed the plaintiff a duty of care; 2)
    whether the defendants behaviour breached the standard of care; 3) whether the
    plaintiff sustained damage; and 4) whether the defendants breach caused the
    plaintiffs harm in fact and law:
Mustapha v. Culligan of Canada Ltd.
,
    2008 SCC 27, [2008] 2 S.C.R. 114, at para. 3.

[39]

As discussed above, although it would be necessary to prove that the animal
    had vicious or mischievous propensities to establish liability on the common
    law strict liability doctrine of
scienter
,

the courts have
    held that the rule of
scienter
does not abridge other general
    principles of tort liability like negligence:
Morris v. Baily
, [1970]
    3 O.R. 386 (C.A.);
Brewer v. Saunders
(1986), 28 D.L.R. (4th) 45 (N.S.
    C.A.). There is still an ordinary duty of a person to take care that his animal
    does not become a source of harm to others: Carolyn Sappideen & Prue Vines,
    eds.,
Flemings The Law of Torts
, 10th ed.

(Toronto: Thomson
    Reuters (Professional) Australia Ltd., 2011), at §17.1, p. 418.

[40]

Nevertheless, to establish liability for animals in negligence, special
    circumstances must exist. The owner of an animal cannot be negligent if the animal
    acts in an unexpected way and injures someone. For a person to be held
    negligent there must be foreseeability of harm and unreasonable conduct, or put
    another way, it must be found that the owner of the particular animal, with
    its particular characteristics, in the particular circumstances [could] have
    reasonably foreseen the danger that could result in damage: Lewis N. Klar,
Tort
    Law
, 5th ed. (Toronto: Thomson Reuters Canada Ltd., 2012), at p. 666;
Bates
    (Guardian of) v. Horkoff
, 1991 A.R. 270 (Q.B.), at p. 276.

[41]

In this case, following
Bradford v. Kanellos
, [1974] S.C.R. 409,
    at para. 12, the motion judge determined that Ms. Wilks injuries were not
    reasonably foreseeable since the risk of Ms. Wilk being bitten was not a
    consequence fairly to be regarded as within the risk created by Mr. Arbours
    alleged negligence. The facts underlying his determination were that Ms. Wilk
    was not obliged to retrieve Zeus and that she could have decided to wait or
    seek assistance. As Ms. Wilk states in her affidavit, she chose to leave
    the pathway and proceed down the icy slope, and in doing so, slipped on the
    ice and slid down the slope towards Zeus where he bit her right thumb. Zeus was
    not in immediate danger.

[42]

Ms. Wilk submits that the motion judges reliance on foreseeability in
Bradford
    v. Kanellos
is misplaced and that he ought, instead, to have relied on
Bingley
    v. Morrison Fuels
, 2009 ONCA 319, 95 O.R. (3d) 191. At paras. 21-22, this
    court quoted
Assiniboine South School Division No. 3 v. Greater Winnipeg
    Gas Co.
(1971), 21 D.L.R. (3d) 608 (Man. C.A.), at pp. 613-614, affd
    [1973] S.C.R. vi, in holding that:

It is enough to fix liability if one could foresee in a general
    way the sort of thing that happened. The extent of the damage and its manner of
    incidence need not be foreseeable if physical damage of the kind which in fact
    ensues is foreseeable.

.

[O]ne need not envisage the precise concatenation of
    circumstances which led up to the accident, provided that the general harm is
    reasonably foreseeable.

[43]

While the
Bingley
test correctly states the law that the
    precise circumstances leading up to an accident need not be foreseeable, applying
    the
Bingley
test would not have made any difference to the motion
    judges ultimate conclusion to dismiss the action in negligence. Ms. Wilks
    decision to leave the safety of the path, and proceed down the icy slope to
    retrieve the dog, interrupted the alleged chain of causation and was an
    intervening act:
Flemings Law of Torts
, at §9.190, p. 250;
Ray v.
    Bates
, 2015 BCCA 216, 77 B.C.L.R. (5th) 64, at paras. 12-13. Given this voluntary,
    intervening act, Mr. Arbours alleged negligence was not the proximate cause of
    Ms. Wilks injury. Consequently, I would dismiss the cross-appeal.

F.

Costs

[44]

The parties have agreed on the quantum of costs. Accordingly, Mr. Arbour
    is entitled to his costs of the appeal fixed in the amount of $5,500 and to the
    costs of the motion at first instance fixed in the amount of $15,000, both
    inclusive of HST and disbursements.

[45]

Mr. Arbour is also entitled to the costs of the cross-appeal in the
    amount of $3,000 all inclusive.

Released: K.M.W. January 13, 2017

Karen M. Weiler J.A.

I agree Paul Rouleau
    J.A.

I agree Roberts J.A.





[1]
Sullivan notes that the ordinary meaning of a word should consider the
    immediate textual context, which consists of as much of the surrounding text as
    needed to make sense of the words being read. In a statute, the context is
    usually the section or subsection in which the words in question appear.



[2]
To establish liability on the common law doctrine of
scienter
where an
    individual has been injured by an animal, such as a dog, it is necessary to
    prove (1) that it was the dog in question which inflicted the injury; (2) that
    the dog had a mischievous propensity to commit the particular act of injury;
    and (3) that the owner or keeper knew of such propensity, or in other words,
    had
scienter
.


