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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 53 by a cocker spaniel but was unable to show that the owners had actual knowledge of the dog’s violent nature. The new Animal Liability Act proposes to make scienter inapplicable in cases of injuries caused by animals. The legislation was introduced in the spring of 2016 in the legislature in response to a vicious dog attack in Saanich, British Columbia. Section 9 of the Animal Liability Act would abolish scienter and impose strict liability on the owner of a dog or any animal regardless of whether the owner is aware of a dog’s propensity to cause damage. The Animal Liability Act would define an animal as “any creature that is not human” and consequently the liability for injuries and damage extends not only to dogs, but also to any exotic pet that causes injury or damage. Additionally, where a dog bite occurs at the owner’s house, the Animal Liability Act would determine liability in place of the Occupiers Liability Act. If the legislation is enacted, the first bite will no longer be free. The proposed Animal Liability Act is fashioned after similar animal liability legislation in place in Manitoba, Newfoundland and Ontario. Ontario’s Dog Owner’s Liability Act14 and Newfoundland’s legislation15 have been in place since 1990, followed by Manitoba’s Animal Liability Act16 in 1998. Ontario’s legislation has arguably made it far easier to prove liability in dog bite cases. In Rai v. Flowers,17 a recent Ontario decision, Mr. Justice Emery held that under the Dog Owner’s Liability Act once ownership of a dog has been established, liability for all damage from the dog follows. In Manitoba, a similar interpretation has emerged.18 A plaintiff in provinces that have strict liability for animal attacks in place only needs to demonstrate that the defendant was the owner of the dog that caused harm before liability is imposed. Had the Animal Liability Act been in place in British Columbia at the time the earlier-noted B.C. cases were tried, they would likely have all been decided in the plaintiff’s favour. If the Act is passed, evidence of an offending dog’s prior violent history and the owner’s knowledge of that history would no longer be required. To be successful a plaintiff would simply have to establish ownership of the dog that caused harm to impose liability and consequently recoup damages for his or her injuries. Although a person injured by a dog bite in British Columbia would no longer be required to prove propensity and knowledge under the Animal Liability Act, these elements are still necessary in order to make out an action in negligence. This was most recently stated by Mr. Justice Turcotte of the Queen’s Bench for Saskatchewan in Kwok v. Jennings,19 where the court affirmed that knowledge of a dog’s propensity elevates the standard of care to be applied in assessing the extent of a dog owner’s liability for


Jan Advocate 2017
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