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Jan Advocate 2017

THE ADVOCATE V O L . 7 5 P A R T 1 J A N U A R Y 2 0 1 7 51 THE FIRST BITE IS NO LONGER FREE: NEW LEGISLATION PROPOSES CHANGES TO A DOG OWNER’S LIABILITY By Amanda James Adog bite can cause severe injuries and in rare cases death, especially when small children are involved. There are over 500,000 dog bites per year recorded in Canada and in 2011 Ontario recorded over 13,000 emergency room visits related to dog attacks, according to the Canadian Institute for Health Information (“CIHI”).1 Many claims related to dog bites are made under homeowners insurance policies. In the United States, close to one-third of all liability claims paid in 2009 (average claim $24,840) were for dog bites and although the Insurance Bureau of Canada (“IBC”) does not track dog bite statistics,2 it has stated that similar statistics likely apply to Canada.3 Presently in British Columbia, as explained below, liability for dog bites can be loosely summarized with a tagline: the first bite is free.4 However, new proposed legislation in British Columbia5 would, if enacted, bring stark changes to the current law and bring British Columbia in line with other provinces that have legislated strict liability for dog bite injuries. The new Animal Liability Act would make it easier for plaintiffs to prove liability and receive compensation not only for dog bite injuries but also, more generally, for any injury caused by an animal. Liability for dog bites in British Columbia has been traditionally based on the longstanding doctrine of scienter. The doctrine of scienter has its origins in traditional English common law, which draws a distinction between animals ferae naturae and animals mansueate naturae. Animals that fall into the category of ferae naturae (such as wolves and tigers) are considered by their nature to be dangerous to people while animals mansueate naturae (such as cats and dogs) are considered by their nature to be harmless to people. At common law, then, dogs are classified as a harmless animal, mansueate naturae. An owner who keeps an animal ferae nature is presumed to


Jan Advocate 2017
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