Can a landlord be responsible for a dog bite victim's injuries when the dog is owned by a different tenant?
Dog bites can be a really nasty business. The injuries that victims sustain may range from quite minor to catastrophic permanently disabling and disfiguring injuries. All dogs, no matter how friendly or well trained, are ultimately unpredictable and dangerous. There are just far too many examples of friendly dogs causing significant injuries to argue the point otherwise.
In the residential landlord and tenant context landlords are not permitted to enforce "no pet clauses" in residential leases. Section 14 of the Residential Tenancies Act prevents a landlord from prohibiting the presence of animals in or about the residential complex. Given the known unpredictability of animals (and specifically dogs), you can read section 14 of the RTA as requiring a landlord to assume the risks that come with the presence of animals in a residential complex.
One of the ways that a landlord can reduce the risks of liability for injuries caused by animals owned by tenants is to require a tenant to have insurance. Paragraph 11 of the Ontario Standard Form Lease (the form of lease that most landlords are required to use), speaks to the issue of tenant's insurance. Oddly, the paragraph provides an option where the landlord does not impose any insurance requirements on the tenant. The alternative (second box to tick), does require the tenant to have liability insurance. It is inconceivable to me that a landlord would not tick this box and require a tenant to have liability insurance. In fact, it is arguable that paragraph 11 remains too vague and that a landlord should expand on the insurance requirement by adding terms at paragraph 15 of the Standard Form Lease. An example of additional clarification would be to establish minimum coverage for any potential liability. As losses caused by a tenant's negligence can be extremely expensive it is imperative that proper coverages be insisted upon.
Tenant's insurance will cover the liability that arises if the tenant's dog bites another person on the residential complex (or anywhere in the world for that matter based on the usual wording of tenant insurance policies). With sufficient insurance coverage, it is likely that a bite or maul victim's lawyer will be satisfied to stop looking for additional or other defendants to pay for the damages sustained by the victim. If the dog owner's insurance can make the victim whole then it may not be necessary to also name and sue the dog owner's landlord.
Can a landlord be liable to a victim for damages caused by a tenant's dog? The answer is now, unequivocally, "yes". Until very recently there was some debate in the case law that the Dog Owner's Liability Act restricted liability for dog bites to the owner of the dog. The idea that a dog owner, plus the owner of lands on which the dog bite occurred could be liable, was an idea the case law rejected.
This law has now been clarified by the Ontario Court of Appeal in Walpole v. Crisol, 2024 ONCA 400 (CanLII).
The Court of Appeal analyzes the responsibility of a dog owner under the Dog Owner's Liability Act. Beyond that, the Court goes on to explore the issue of whether a residential landlord may be liable to a dog bite victim under the Occupier's Liability Act. The answer is "yes", in that the Dog Owner's Liability Act does not insulate other persons (like landlords) from liability under other statutes like the Occupier's Liability Act.
In Walpole the Court looks at the record and determines that the landlord of the dog owner could indeed be liable for the victim's injuries under the Occupier's Liability Act. The DOLA does not exclude them from potential liability. However, in the evidence of the case under appeal the landlord was held not to be liable because there was no evidence to support that the landlord had any knowledge of the risks posed by the dog and there was no history of attacks or injuries caused by the dog to others. Had there been evidence of the landlord being aware of the dog being unleashed, biting or being aggressive towards others, or other circumstances revealing a threat to others, then it is clear that the Court was open to finding that the landlord could indeed have been liable for the injuries sustained by the dog bite victim. This is true even though there is no relationship between the landlord and the victim and the landlord has no legal right to prohibit the presence of animals on the property.
A lesson for landlords is to reiterate the importance of taking action against dog owning tenants where there is evidence of by-law breaches, dogs being off leash, and dog being aggressive or injuring other persons. Landlords who "know" of dangerous animals or practices that permit dogs to attack others (i.e. being off leash and not under control) will likely give rise to liability to a dog bite victim. While a Landlord is not permitted to prohibit the presence of animals via a lease condition, a landlord may (must & should) take action to terminate a tenancy of a dog owner where the dog owning tenant breaches by-laws, leashing, or keeping their dog under control. Taking action to terminate and evict will be the reasonable action needed to reasonably ensure the safety of persons entering on the property. It is likely sage advice to landlords to keep an eye open for pet behaviour, document same, and take action if there is any non-compliance.
Unquestionably, it will be a difficult task for a landlord to regulate a tenant's behaviour with their dog and to always ensure that a tenant is a responsible dog owner. As it will be an imperfect circumstance, forcing the tenant to have insurance and making sure that the insurance is in place, with sufficient coverage, is something that may protect the landlord from unwanted legal claims by injury victims. If the dog owner has insurance in place then the strict liability of that owner under the Dog Owner's Liability Act will likely stop a victim from bothering to assert a claim against a landlord.
If a dog owner does not have insurance then a victim will be forced to look for someone who may be liable who does have insurance (or assets to seize). That "someone" will very likely be the landlord. It is to be noted that the landlord's degree of responsibility will possibly be a small percentage of the total responsibility as divided between the dog owner and the landlord. One might think, then, that the extent of the financial risk to a landlord is small. That would be in error in analysis as the landlord will likely be liable to indemnify a bite victim for the entirety of the damages the victim sustained even if the landlords percentage of responsibility for the dog bite incident is low. The landlord may have the right to recover the full losses that they are forced to pay to the injury victim from the dog owner. For example, if the responsibility is divided 10% landlord and 90% dog owner, the landlord would still have to pay the victim 100% of the damages but be entitled to recover 90% of what the landlord paid from the dog owning tenant. And while that might sound "fair", if a tenant has no insurance and no assets, then the landlord in all practical terms will recover nothing from the dog owner. Hence, another reason to ensure that all of the landlord's tenants are properly insured and that the insurance requirement is followed up with and verified to be in place for the duration of the tenancy.
Michael Thiele
www.ottawalawyers.com
