The reasons delivered by Justice Leach in the recent decision of Zantingh v. Jerry
provides a thoughtful and informative look at dog owner liability in Ontario.
Hudson Zantingh was only 3-years-old when he was attacked by his neighbour’s dog - a German-Shepherd/Rottweiler mix named “Bear”. Hudson lived in a rural area with his mother and 5-year-old brother Cooper. There was no fence or other barrier separating Hudson’s property from his neighbour, who was in the habit of chaining Bear to a tree on his property. On October 30, 2010 Hudson was out in his yard playing with his brother while his mother raked leaves. His neighbour had gone out for dinner and left Bear chained to a tree as usual. Hudson’s mother went inside to turn off a crockpot and in that brief moment Hudson’s brother Cooper accidentally kicked a ball over to the neighbour’s property. Hudson went to retrieve it and was savagely attacked by Bear, who had never exhibited any aggressive behaviour in the past. Hudson’s mother managed to save Hudson by pulling him beyond the reach of Bear’s chain (not without getting bitten herself). Hudson sustained serious lacerations to his face and scalp.
Justice Leach conducted a thorough review of the law in arriving at his decision. This started with a discussion of the common law requirement that a plaintiff prove that the defendant dog owner had prior knowledge of his dog’s propensity to commit vicious harm. As Justice Leach stated, this “gave rise to the old saw that ‘every dog was entitled to one bite’ before liability would be imposed”. The common law was displaced by the enactment of the Dog Owner’s Liability Act
, which eliminated the requirement to prove prior knowledge of the dog’s propensity for violence. Instead, the dog owner - regardless of his culpability or the dog’s history - is automatically liable for damages occasioned by his dog’s actions. However, the Dog Owner’s Liability Act
does include a provision that permits those damages to be reduced if the plaintiff’s own fault or negligence caused or contributed to those damages.
This is precisely what the dog owner in Zantingh tried to argue. Specifically, it was argued that perhaps the children had provoked the dog or, alternatively, Hudson’s mother was negligent for failing to adequately supervise her children. Both arguments were rejected due to the absence of evidence. Indeed, the evidence indicated that Hudson’s mother was watching over the children quite closely the afternoon of the attack. The fact that she stepped into the kitchen for 2-3 minutes was not negligent, particularly since there was no indication that the neighbour’s dog posed a threat.
The decision entire decision can be read here