Amanda, a dog walker, had been babysitting Forrest Gump – not a movie character, but a Boxer dog – at his owners’ house. She wanted to let him out to do his business in the backyard. When Amanda approached Forrest to put dog booties on him, he bit her. Amanda sustained injuries to multiple parts of her body. She sued Forrest’s owners for $1 million. In court, however, Amanda learned that she was the owner. And since you can’t sue yourself, the case was dismissed.
You Don’t Need To Own the Dog To Legally Be Its Owner
In legal terms, an “owner” is a person who possesses or harbours a dog. If you sue someone under the Dog Owners Liability Act (DOLA),1 this definition applies. The benefit of suing under the DOLA is that you don’t need to prove negligence of the owner to succeed – if their dog bites, they’re responsible. The downside? The DOLA applies only to dogs (not other animals) and only to damage to humans and their pets – not property damage. The definition of “owner” also helps define cases where the DOLA applies and where it does not. If the definition is broad, more people who can be sued and less who can sue – and vice versa.
According to the Ontario Court of Appeal, “possession” of a dog refers to physical possession and control over it just before the attack. “Harbouring” means some degree of care or control of a dog, which is lesser than a full collection of ownership rights.2
In other words, you don’t need to have ownership of the dog to be its owner. This may not be the most intuitive concept, but it’s a rational one. Strict liability is an exception to the usual legal rules, created to make it easier for dog bite victims to get compensation. Like most legal exceptions granting privileges, courts interpret it narrowly, limiting the number of people who can sue.
What About Amanda?
In Nigro v Luciano, Justice V. Christie had no doubt: Amanda was an “owner” under the DOLA. Her Honour stated that Amanda was “most certainly” in control and “unquestionably” in physical possession of Forrest because Amanda was attempting to put booties on Forrest.
That’s a remarkably low bar for “control” and “possession.” Forrest was loose at Amanda’s clients’ house. Does mere presence on the premises amount to possession? Courts have previously said no – for example, hosts are not responsible for their guests’ dogs.3 Moreover, Amanda wasn’t holding a leash, walking Forrest, or even managing to get the booties on him – she was just trying to let him out, and he refused to cooperate. If this qualifies as “control,” it was pretty ineffective control at best.
Regardless, the court’s conclusion sealed Amanda’s fate: since she was legally an “owner” at the time of the bite, there was no one to sue.
What Could Amanda Have Done Differently?
Amanda’s case was based solely on the DOLA, which ultimately backfired when the court ruled that she was the “owner” and, therefore, she had no one to sue. But the DOLA isn’t the only way to seek compensation for a dog bite. Even when strict liability under the DOLA doesn’t apply, there are other legal avenues to go after the real owners:
Scienter
One potential route Amanda could have explored is the common law doctrine of scienter, which comes from the Latin scire – “to know.” This doctrine applies not just to dogs but to any animal with a known dangerous propensity.4 The legal shorthand for scienter is often the saying, “every dog gets one bite” – which isn’t entirely accurate, since some courts have given dogs two, three, or more.5
However, scienter has its limitations. Courts have rejected scienter claims in cases where someone was caring for an animal at the time of the injury. Take, for example, the case of a horseman who was struck in the face by a horse he was hired to stable. The court ruled he was the horse’s “owner” while it was in his care, meaning he had no claim against the real owners.6 Sound familiar? It’s the same reasoning applied to Amanda.
So, while scienter might be an interesting angle for dog walkers, it’s not necessarily a winning one. But unlike the DOLA, there’s no statute that locks in a strict definition of “owner” or outright bars one “owner” from suing another. That might leave some room for argument.
Negligence
The more viable legal option is plain old negligence. It’s well established that dog owners owe a duty of care to others – otherwise, we wouldn’t have DOLA or scienter in the first place. In order to succeed in a negligence claim, a plaintiff would need to demonstrate:
- The standard of care (e.g., keeping the dog restrained, warning others of aggressive behavior).
- That the owners failed to meet that standard (e.g., failing to warn Amanda about Forrest’s tendencies).
Sounds simple, right? Not so fast.
In a recent Ontario Court of Appeal case, the court threw in a new hurdle: to hold an animal owner liable for negligence, “special circumstances must exist.” If an animal acts in an unexpected way and injures someone, the owner isn’t automatically negligent. Liability depends on foreseeability of harm and unreasonable conduct.7
This complicates things. Foreseeability is already a tricky legal concept, but in negligence law, it’s used twice:
- At the start – to decide if the defendant even owes a duty of care.
- At the end – to check if the damages were too remote to be claimed.
Normally, the first step is only a concern in novel cases—like when courts decide if police owe a duty of care to the public.8 But the Ontario Court of Appeal’s ruling suggests that, in dog bite cases, foreseeability has to be re-examined in every single case.
Now, back to Amanda. Even though she didn’t sue in negligence, Justice Christie confidently declared that “frankly, there was no foreseeability of harm.” The court said this, despite the fact that Forrest had been excessively barking at Amanda in the presence of his owners and had recently undergone toenail removal because of an infection. The court did not mention these factors in its foreseeability analysis, setting a notably high threshold.
Concentric Circles of Liability
Ideally, we could compare the law on dog owners’ liability to ripples on water. Strict liability under DOLA is the smallest circle – it applies to the fewest plaintiffs but offers the simplest path to recovery. The next, wider circle is scienter, covering more cases but requiring proof of a dog’s known dangerous propensity. The broadest circle is negligence, which can be pleaded by anyone but demands proof of breached standard of care, a far from easy task.
Amanda’s case distorts this picture. It shrinks strict liability even further by effectively establishing a hard rule that dog walkers cannot sue their clients under DOLA. It also muddies the waters on foreseeability in negligence, making its application narrower than one might expect.
The result? Ontarians are now less protected from dog attacks. But does this align with the policy behind DOLA? That remains to be seen – Amanda still has time to appeal.
See: Nigro v Luciano, 2025 ONSC 1362, https://canlii.ca/t/k9wp6.
1 Dog Owners’ Liability Act, RSO 1990, c D.16, https://canlii.ca/t/5689m.
2 Wilk v Arbour, 2017 ONCA 21 at paras 29–33, https://canlii.ca/t/gwvh1.
3 Purcell v Taylor, 1994 CanLII 7514 (ON SC), https://canlii.ca/t/1wc2x.
4 Sgro et al v Verbeek, 1980 CanLII 1745 (ON SC), https://canlii.ca/t/g1b13.
5 See, for example, Evans v Berry, 2024 BCCA 103, https://canlii.ca/t/k3gxv.
6 Belton v Spencer, 2021 ONSC 2029, https://canlii.ca/t/jdvm3.
7 Wilk v Arbour, 2017 ONCA 21, at para 40, https://canlii.ca/t/gwvh1#par40.
8 Hill v Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41, https://canlii.ca/t/1t3lv
