Overview of Facts
After suffering injuries from a dog bite incident while visiting a home owned by Ashley Bain, Tamara Hartin brought a lawsuit against Ashley and others who resided at the property at the time.
While Ashley Bain did not reside at the home at the time, she had purchased it for her father, Joseph Bain, to reside. She did not know that her father invited her brother, Rick Bain, to live there with him.
Rick allowed a dog named “Blue” to reside at the property for breeding. On the date in question, the owner of Blue attended the property along with Tamara Hartin. Blue bit Tamara on the leg causing injury.
Summary Judgment Motion
The defendant, Ashley Bain, brought a motion for summary judgment, arguing that she was neither the owner of Blue nor was she vicariously liable for the dog bite.
Justice Muszynski granted summary judgment in favour of Ashley Bain.
First, Justice Muszynski confirmed that Ashley Bain did not meet the definition of “owner” under the Dog Owners’ Liability Act.
Second, Justice Muszynski held that there was no evidence of any agency relationship between Ashley Bain and Rick Bain (the dog’s owner). While Ashley had a relationship with her father, she had no knowledge her brother had moved into the home. Therefore, with no evidence that Ashley had consented to Rick acting on her behalf or impliedly represented that he had such authority, there was no agency relationship between them. Justice Muszynski therefore concluded there was no basis for vicarious liability.
Court of Appeal Decision
Tamara Hartin appealed the decision, arguing that Justice Muszynski erred by failing to conclude that Ashley was vicariously liable for the actions of the dog’s owner, Rick Bain. Tamara argued that the father, Joseph Bain, was an agent of Ashley Bain and his decision to allow Rick to live there made Rick an agent of Ashley.
Justices Huscroft, Zarnett, and Pomerance for the Court of Appeal for Ontario found no error in Justice Muszynski’s analysis and ultimately dismissed the appeal.
They concluded that just because Ashley Bain had purchased the home and assumed her father would manage the property did not establish an agency relationship between the dog’s owner, Rick Bain, and Ashley in relation to his activities with the dog. “Something more was required before such a finding could ensue”.
Ultimately, the Court found that Ashley’s involvement was too remote to attract liability and to find her liable would “cast an impermissibly broad net of liability”.
Tamara Hartin was ordered to pay costs of $10,000 to Ashley Bain.
