Documentation:Torts/Keeping dangerous animals

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Strict Liability
Keeping dangerous animals • Non-natural use of land • Ultrahazardous activities • Vicarious liability
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Index
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Keeping dangerous animals
An owner of a dangerous animal may be held strictly liable for injuries caused to others by the animal in their care.[1] Strict liability means that a defendant must provide compensation to the wronged party even in the absence of fault.[1] The law recognizes that there are two categories of dangerous animals: ferae naturae and mansuetae naturae.[2] Ferae naturae refers to animal species that are plainly dangerous, such as lions and bears, while mansuetae naturae refers to animal species that are typically considered harmless, such as cats and dogs.[2] A person who is injured by an animal of mansuetae naturae may bring an action against the owner through the action of scienter.[2]

Development of the tort of keeping dangerous animals

The common law doctrine of scienter

The basic definition of scienter is "knowledge", but in the context of dangerous animal lawsuits, it refers more specifically to the owner's knowledge of an animal's "mischievous disposition".[3]

In British Columbia, the doctrine of scienter has been recognised in case law for over a century, introduced initially in Neville v. Laing.[4] Chief Justice Begbie explained that a plaintiff has the onus of establishing three distinct elements to prove liability against a defendant. These elements have been affirmed by the leading British Columbia Court of Appeal case, Janota-Bzowska v. Lewis:

CollapseElements of the doctrine of scienter[5]
1. The defendant was the owner of the animal.
2. The animal had manifested a propensity to cause the type of harm occasioned.
3. The owner knew of that propensity.

The doctrine of scienter, which is often applied in the context of dog bites,[6] is said to be encapsulated by the adage that "every dog is entitled to one bite".[7] However, Justice Cumming in Janota-Bzowska v. Lewis clarified that while the adage is a reasonably accurate restatement of the doctrine of scienter, it is not necessary for "a dog to have caused the specific type of harm on a prior occasion for the doctrine to apply."[8] Furthermore, the "one-bite" adage is not to be understood as a principle of law. Instead, the three aforementioned elements remain the guiding principles for an action in scienter,[9] and as such, knowledge of "vicious or mischievous propensities" may be enough to ground liability.[10]

Scienter as modified by legislation

The common law doctrine of scienter has been modified or abolished by several Canadian provincial statutes which remove the need for a plaintiff to show that the owner knew of the animal's propensity to cause harm, thus significantly alleviating the burden of proof. For example, Manitoba's Animal Liability Act explicitly abolishes any action in scienter and instead stipulates that liability is not dependent on proving that the owner had knowledge of an animal's propensity to cause harm.[11] Along the same lines, Ontario's Dog Owners' Liability Act provides that the owner of a dog that bites or attacks a person is liable in the absence of proof of fault, negligence, or knowledge of the dog's propensity.[12]

Legislation modifying scienter
Manitoba: Animal Liability Act, CCSM c A95, ss 2, 4.
Newfoundland and Labrador: Animal Health and Protection Act, SNL 2010, c A-9.1 s 34.
Nova Scotia: Municipal Government Act, SNS 1998, c 18, s 179.
Ontario: Dog Owners’ Liability Act, RSO 1990, c D-16, s 2; Protection of Livestock and Poultry from Dogs Act, RSO 1990, c L-24, s 3.
Prince Edward Island: Dog Act, RSPEI 1988, c D-13, s 11(2).
Saskatchewan: Municipalities Act, SS 2005, c M-36.1, s 380; Animal Protection Act, SS 2018, c A-21.2, s 31.
Northwest Territories: Dog Act, RSNWT 1988, c D-7, s 23.
Nunavut: Dog Act, RSNWT (Nu.) 1988, c D-7, s 12.

Liability under negligence

In the news
Woman wins civil case against dog owner and municipality
Frontal shot of a black dog with a white stripe on nose, lying on its stomach.
In 2019, Dominique Alain was mauled by three dogs while out on a jog, sustaining serious life-altering injuries. Five years later, the Quebec Superior Court found both the dog owner and the municipality liable in negligence, awarding Alain a total of $460k in damages.[13]

Alternatively to the doctrine of scienter, a plaintiff can recover damages against the owner of an animal who attacks them through an action founded on negligence, which may succeed even when scienter is not proven.[14]

A plaintiff must prove all five elements of negligence: the defendant owed the plaintiff a duty of care, the defendant's behaviour breached the duty of care, the plaintiff suffered damage, and the plaintiff's damage was caused by the defendant's breach in fact and in law.[15]

Judge Conrad in Bates v. Horkoff clarified that the question to be asked in assessing a potential breach of duty is whether "the owner of the particular animal, with its particular characteristics, in the particular circumstances, [should] have reasonably foreseen the danger that could result in damage".[16] The burden is on the plaintiff to show that the defendant knew or should have known that the animal would cause injury to a third party.[17] It is not necessary to prove that the owner ought to have foreseen the actual injury, only that it was "within the range of likely consequences."[18] In Bates v. Horkoff, the three year-old plaintiff was visiting a playground adjacent to the defendant's property when she was bitten by his German Shepherd. The dog had reached through the holes in its backyard fence to grab hold of her arm. Judge Conrad found that the owner had breached his duty to the plaintiff because he should have foreseen the danger posed to nearby children and taken steps to properly restrain his dog.[19]

Contributory negligence

In some cases, a defendant may have a defence of contributory negligence if the victim was partly responsible for their injuries. Contributory negligence involves "a person's carelessness in looking after his own safety."[20] The onus is on the defendant to prove that the plaintiff was contributorily negligent.[21]

Where contributory negligence is found, damages may be apportioned accordingly to the parties under provincial apportionment statutes.[22] In Kent v. Laverdiere, for example, the plaintiff sustained serious injuries from an attack by one of her grandmother's dogs.[21] However, the court found that her own negligence contributed to her injuries because she had disobeyed her grandmother's rule to stay out of the backyard where the dogs were kept.[21] The damages were therefore reduced by 25% for the plaintiff's contributory negligence.[23] Another example can be seen in McKinlay v. Zachow, where the court found the plaintiff 50% liable for damages because she had touched the dog and intruded into its space without permission.[24]

Species-ban legislation

A sideways shot of a brown American Pit Bull terrier with a blue collar and its head turned to the left.

Some jurisdictions across Canada have passed legislation banning certain breeds of dogs that are considered particularly dangerous. Ontario, for example, passed a bill in 2005 that banned people from acquiring pit bull breeds and required existing owners to neuter and muzzle their pit bulls.[25] The ban came after a series of violent pit bull attacks on children, adults, and other animals, including one "bloodbath" where a man was attacked by two pit bulls he was walking for a friend.[25][26] Meanwhile, pit bulls have been illegal in Winnipeg since 1990 pursuant to the city's responsible pet ownership by-laws, and the city recently voted to keep that ban in place.[27]

However, there has been controversy around such legislation and questions as to how effective they truly are. According to personal injury lawyer Jasmine Daya, it is difficult to regulate the presence of pit bulls in Ontario, and the province has done a "very poor job" of enforcing the ban.[26] One suggestion that Daya put forth is to ensure that dogs are properly licensed so that the owner's identity and place of residence can be identified in case of an attack, thus allowing for charges to be pressed if necessary.[26] It may also be helpful to legally require home insurance because although civil suits can be extremely lengthy, the dog owner's home insurance company may be more likely to hire a lawyer and facilitate a quicker case settlement.[26]

Discussion questions

  • As Donahue v. Belitski discusses, some provincial statutes have modified the elements of the doctrine of scienter.[28] What is the policy rationale behind scienter statutes that hold owners responsible regardless of whether they were aware of their animal’s propensity to harm? Is this consistent with the ordinary principles and polices of tort liability?
  • In British Columbia, “the Animals Act, RSBC 1979, c 16 had reversed the common law onus of proof, thereby requiring owners to show they did not know or have the means to know their dog ‘was or is vicious … or accustomed to causing injury.’ However, the Animals Act was repealed and the common law onus of proving strict liability under the doctrine of scienter shifted from the dog owner back to the plaintiff.”[29] How should the law of scienter balance the aims of redress for plaintiffs against fairness for defendants?


  1. ↑ Jump up to: 1.0 1.1 Klar, Lewis N. (30 July 2013). "Torts in Canada". The Canadian Encyclopedia.
  2. ↑ Jump up to: 2.0 2.1 2.2 Brewer v. Saunders, 1986 CanLII 4009 (NSSC) at para 11 citing Wright, Cecil; Linden, Allen. Canadian Tort Law, 7th ed. (Toronto: Butterworths, 1980) at 12-18.
  3. ↑ Osborn, PG (1927). A Concise Law Dictionary. Sweet & Maxwell. p. 252.
  4. ↑ Neville v. Laing (1892), 2 BCR 100 (BCCA).
  5. ↑ Janota-Bzowska v. Lewis, 1997 CanLII 3258 (BCCA) at para 20.
  6. ↑ See e.g. Evans v. Berry, 2024 BCCA 103 (§22.3.1); Garside v. Dougan, 2022 BCSC 799; Weeks v. Baloniak, 2003 BCSC 1684.
  7. ↑ Woods v. Standish, 1991 CanLII 321 (BCSC).
  8. ↑ Janota-Bzowska v. Lewis, 1997 CanLII 3258 (BCCA) at para 19.
  9. ↑ Evans v. Berry, 2024 BCCA 103 (§22.3.1) at para 29.
  10. ↑ Morsillo et al. v. Migliano et al., 1985 CanLII 2220 (ONSC) citing Morris v. Baily, 1970 CanLII 347 (ONCA).
  11. ↑ Animal Liability Act, CCSM c A95, ss 2, 4.
  12. ↑ Dog Owners’ Liability Act, RSO 1990, c D-16, s 2.
  13. ↑ Rachel Watts (17 May 2024). "Quebec woman mauled in dog attack wins $460K civil case against small town and owner". CBC News.
  14. ↑ Janota-Bzowska v. Lewis, 1997 CanLII 3258 (BCCA) at para 10.
  15. ↑ Mustapha v. Culligan of Canada Ltd, 2008 SCC 27 (§17.1.2).
  16. ↑ Bates v. Horkoff, 1991 CanLII 5958 (ABKB) at para 23.
  17. ↑ Parris v. Rogers, 2019 BCSC 1828 at para 51.
  18. ↑ Draper v. Hodder, [1972] 2 QB 556 p. 220.
  19. ↑ Bates v. Horkoff, 1991 CanLII 5958 (ABKB).
  20. ↑ Donohue v. Belistski, 2015 SKQB 47 (§22.3.2) at para 76.
  21. ↑ Jump up to: 21.0 21.1 21.2 Kent v. Laverdiere, 2011 ONSC 5411 at para 158.
  22. ↑ See e.g. Negligence Act, RSBC 1996, c 333, ss 1–2, 4; Negligence Act, RSO 1990, c N.1, ss 1–4; Civil Code of Quebec, CQLR c CCQ-1991, art 1478.
  23. ↑ Kent v. Laverdiere, 2011 ONSC 5411 at para 169.
  24. ↑ McKinlay v. Zachow, 2018 ABQB 365 at paras 67–74.
  25. ↑ Jump up to: 25.0 25.1 CBC News (1 March 2005). "Ontario Passes Ban on Pit Bulls". CBC News.
  26. ↑ Jump up to: 26.0 26.1 26.2 26.3 Manuela Vega (1 April 2024). "Ontario banned pit bulls in 2005. Here's why you're still seeing them". Toronto Star.
  27. ↑ Kevin Hirschfield (28 August 2022). "Winnipeg City Council Votes to Keep Pit Bull Ban in Place". Global News.
  28. ↑ Donahue v. Belitski, 2015 SKQB 47 at paras 58–59.
  29. ↑ Evans v. Anderson, 2023 BCSC 143 at para 95.
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