You’re responsible if Fido’s bite is worse than his bark

Joyce Blond Frank B.A., B.C.L., LL.M.

March, 2011

Spring has almost arrived and warmer weather will soon follow. We will remove our heavy coats and boots and the smell of spring will lure us outside.

We will walk our dogs more; we may even let it outside on its own. Some may decide to acquire a pet. We all know of dogs rescued from terrible conditions and can’t help asking ourselves how such situations can be permitted to exist. We want to help where society in general seems to have failed.

Our laws do not adequately protect our furry four-legged friends. But then, the law treats animals as “things.” For example, the Civil Code of Quebec refers to animals in the wild as “things without an owner.”

In one case a judge, referred to a domestic animal as moveable property that continues to belong to its owner even when lost.

When an SPCA sold two found pet dogs without attempting to find their owner and then refused to provide the owner with the name of the person who had purchased them, the judge held that the SPCA had deprived the owner of “peaceful possession of his property.”

The judgment in this case was favourable to the owner but the words used by the judge illustrate a mindset that influences how domestic animals are treated. A thing does not have rights, nor does it have obligations. But when that “thing” is an animal, its owner will suffer the consequences when the “thing” it owns or controls causes damage.

The Civil Code provides that the owner of an animal must pay for injuries or damages the animal causes even where that animal has strayed or escaped. A third person who has custody or control of the animal will also be held liable.

There is a legal presumption of liability against both the owner and third person and release from such liability can only occur if the injury or damage is the result of an unforeseeable and irresistible event.

Where a domestic animal injures someone, the courts will also look at the behaviour of the victim. When a child was bitten by a dog in the yard of a neighbour who was watching the dog for the day for a friend who had found it and was returning it to the SPCA, the court held the neighbour did not own or control the dog but was acting as a good Samaritan and helping out for the day.

The judge felt that if fault had to be attributed, it was to the parents who had left the child unsupervised with an unknown animal.

Similarly, a 14-year-old was held to be partially responsible for her injuries when bitten by a 6-month-old puppy.

Because the dog had caused the injuries, the owner’s liability was maintained, but the injured girl had to bear 50 per cent of the responsibility, as the judge felt she should have known that the reaction of a dog you don’t know is unforeseeable and she was reckless in approaching it without sufficient caution.

When the owner or guardian of an animal that has caused damage or injury is not able to rebut the legal presumption of liability against him, he will be ordered to pay damages.

When a horse kicked the person attempting to lead it into a pasture and the victim was doing everything the right way, the owner was held liable.

When a known friendly dog bit a child and his mother while under the control of a third person, the event was held to be unforeseeable and both the owner and the third party were jointly ordered to pay damages. When a horse escaped from the barn where it was boarded and caused damage to a vehicle, judgment was rendered against both the owner of the horse and the owner of the barn.

When the arm of a visitor to an animal park was injured by an animal he had fed with food sold to him by the park for that purpose, as he rested his arm on the window ledge of his car, the court held that the park could not be exonerated from its responsibility on the ground that the man accepted the risk as this is not one of the grounds for exoneration from liability set out by the Civil Code. So enjoy your pet because we all know it is much more than just a “thing,” but remember that your pet is an animal capable of causing injury and damage and that it is you who will bear the responsibility.