Landlords Found Not Liable for Tenant Dog Attack

Reasons for judgement were published this week by the BC Supreme Court, New Westminster Registry, dismissing an injury claim following a dog attack.

In this week’s case (Ali v. Samra) the Plaintiff was walking to a park when a pitbull left a nearby property and attacked him in an alley where he was walking.  The incident was described as follows:

On May 3, 2015, the plaintiff left his house to meet his friends at a nearby school playground. As he had done on many occasions, he walked down the alley at the back of his house and reached the corner of the alley at 98A Avenue and 132A Street in Surrey, British Columbia, when a brown pit bull came from a nearby property at 13232 – 98A Avenue, (the “Property”), and ran towards him. The plaintiff ran away from the dog but it jumped on him and bit him severely on the back and under an arm. He had done nothing to provoke the dog.

The Plaintiff sued the homeowner where the dog came from along with tenants who supposedly owned the dog.  At the time of the attack the homeowners did not occupy the residence rather it was leased out to a tenant who sub leased the property to recovering heroin addicts.  The terms of the homeowners lease specified that no pets were permitted.

The Plaintiff sued the homeowner under the Occupier’s Liability Act and under the doctrines of negligence and scienter.  All three claims failed with the Mr. Justice Bowden providing the following reasons:

[17]         The evidence establishes that the plaintiff was bitten by the dog when the plaintiff was walking in an alley near to the property. The plaintiff argues that the defendants as owners, namely the Samra’s, owed a duty to him because they were aware that a potentially dangerous dog was present on the premises.

[18]         In my view, the definition of premises does not include an alley behind the premises that is not part of the property owed by the defendants.

[19]         In Gardner v. Unimet Investments Ltd. (1995 CanLII 3265 (BCSC), the court held that the owner of premises was not liable under the OLA when the plaintiff slipped and fell on an adjacent sidewalk and injured himself when he fell through a window of the premises. As in Gardner, in the case at bar the defendants were not in physical control of or have responsibility for the alley beside the Property even if the plaintiff may have ended up on their property after the dog attacked him.

[20]         In my view the plaintiff’s claim under the OLA must fail because he was attacked on property that was not part of the premises nor in respect of which the Samras were occupiers.

[21]         In Gallant v. Slootweg, 2014 BCSC 1579, property owners were held liable in negligence because of their failure to ensure that an electronic fence was operating properly so as to restrain a dog owned by them. The dog ran from their property and knocked the plaintiff off of his bicycle. They were also held liable on the basis of scienter.

[22]         With regard to the claim in negligence while the Samra defendants may have had a duty of care in respect of the tenants of the Property and to visitors on the Property, in my view they do not owe a duty of care to a stranger walking by the property. As referred to in Gardner at paras. 17 and 18, an occupier of property adjacent to a public sidewalk, or in the case at bar, a public alley, owes no duty of care to users of the alley absent special circumstances. Where a hotel had placed planters on an adjacent sidewalk which obstructed pedestrians a duty of care was found to be present.

[23]         In the case at bar special circumstances might have existed if the owners had known that a dangerous dog was present in the premises. I have concluded that even if the Samra’s knew that there was a dog present in the building on the Property, they did not know it was dangerous. While Mr. Smith testified that the dog had bitten someone else in the past, he said that he did not inform the Samra’s of that. In my view no special circumstances were present that would give rise to a duty of care by the owners of the property to a pedestrian on an adjoining alley.

[24]         The doctrine of scienter may have applied to the defendants Johns and Perry, however the evidence falls short of establishing that they owned the dog. The doctrine does not apply to the Samra’s as they neither owned the dog nor, even assuming that they knew the dog was present, did they knew it was dangerous.

Ali v. Samra, bc injury law, dog bite injuries, Mr. Justice Bowden, Scienter

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ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

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