There is no shortage of reported legal cases where pets and condominium corporations are adversaries. Many cases deal with the nuisance of a barking dog or with dogs in breaches of the corporation’s rules. But there is an increasing number of cases dealing with dog attacks on common property. In such cases, both the corporation and the owner of the dog may be held responsible. In this post, we will discuss what a condominium corporation can do to reduce the risk of liability.
The liability of a dog owner
In Ontario, the Dog Owners’ Liability Act imposes on the owner of a dog what is called “strict liability”. Section 2 of this Act could not be clearer: “The owner of a dog is liable for damages resulting from a bite or attack by the dog on another person or domestic animal”. When there is more than one owner, they are jointly and severally liable.
Strict liability means that the dog owner will be held responsible for damages resulting from the attack by his or her dog even if the owner is not at fault. All that the victim of the attack has to demonstrate is that this specific dog attacked him/her (or his/her domestic animal), and that this other specific person is the owner of the attacking dog. The fact that the owner had no knowledge of the dog’s propensity to attack will not reduce the owner’s liability.
If you are the owner of a dog: you are responsible for the damage it causes in the context of an attack – period.
Having stated this, the damages (the amount of money) to be awarded may be reduced by a court if the victim of the attack contributed to their loss by their own fault or negligence. For example, a court may reduce the amount of money to be awarded if the victim of the attack provoked the dog, or if he/she failed to take reasonable precautions to avoid the attack or injuries.
The Liability of a Condominium Corporation
On the other hand, the potential liability of condominium corporations is triggered by the Occupiers’ Liability Act. In a nutshell, under this Act, the “occupier” of premises owes a duty to take reasonable steps to ensure that persons entering on the property are reasonably safe while on the premises. The definition of an “occupier” includes:
- The person in physical possession of the premises;
- The person who has the responsibility for, and the control over, the conditions of premises;
- The person who controls the activities carried on the property or the persons allowed to enter the premises.
Section 26 of the Condominium Act confirms that, for the purpose of determining liability under the Occupiers’ Liability Act, it is the condominium corporation (and not the individual owners) who is deemed to be the “occupier” of the common elements. That is to say that it is the corporation who has the legal obligation to ensure that the property is reasonably safe for its visitors/occupants. This makes sense since it is the corporation who is in the best position to control the conditions of the premises and to control the activities and the individuals allowed on common property.
All this to say that, pursuant to the Occupiers’ Liability Act, a condominium corporation could be found liable for damages resulting from a dog attack on common elements if the corporation has failed to take reasonable steps to ensure the safety of other individuals on the property.
So, what is a condominium corporation to do to protect itself?
As indicated above, the level of responsibility to be applied to a dog owner is different from that to be imposed on a condominium corporation. In the case of the dog owner, strict liability applies (that is to say that the responsibility is triggered strictly on the basis of ownership of the dog). However, in the case of a condominium corporation, a judge will have to determine whether the corporation has taken all reasonable steps to ensure the safety of the individuals entering the common elements.
Such reasonable steps could include adopting and enforcing rules with respect to dog ownership. Such rules could limit the size or weight of dogs, or impose on owners the obligation to always have their dogs on a leash while on common property. The corporation should also always act on any complaints dealing with misbehaving dogs or dealing with breaches of dog-related rules. Certainly, the corporation should act at once when it is dealing with a dog it knows is dangerous or has a propensity to attack.
Finally, it may be worth reminding that, in addition to the restrictions presently found in the corporation’s rules and declaration, owners have to abide by other regulation. The province of Ontario, for instance, prohibits the ownership, breeding, training, transfer, sale or gift of pit bulls (with some exceptions). Many city have their own restriction. The city of Ottawa, for instance, prohibits the ownership of more than 3 dogs within the city’s limits.
As always, an ounce of prevention is worth a pound of cure. Condo directors should review their declaration, by-law and rules and should take active steps to remind their residents of their obligations in this respect. Corporations should also consider revising or adopting new rules dealing with pets to pro-actively deal with these matters and minimize the risk to the corporation and to the owners.