On April 6, 2016, Dr. Andrew Weaver, Green Party MLA, introduced Bill M212, the Animal Liability Act (“ALA”). On the face of it, it is a laudable piece of legislation. The explanatory note attached to the Bill is “this Bill will ensure that owners of animals are held liable for the actions of their animals.” Who wouldn’t agree with that statement? As a responsible dog and cat guardian, I certainly do.
However, a closer examination of this Bill reveals that it is problematic. In a huge way. Currently, the law in BC is that if a dog bites, the guardian may be held liable in scienter, negligence or under the Occupier’s Liability Act, RSBC 1996, c. 337 (“OLA”).
Under scienter, the plaintiff must prove that (1) the defendant was the owner of the dog, (2) the dog had manifested a propensity to cause the type of harm that occurred, and (3) the owner knew of that propensity. The significance of this is that a dog guardian is not automatically guilty if the dog bites. The plaintiff must prove that the dog guardian actually knew of the dog’s propensity to harm, and the surrounding circumstances of the incident are inevitably included in the evidence. The old adage that “every dog is entitled to one bite” applies. While a different legal analysis is used to determine liability under negligence or under the OLA, dog guardians (and dogs) have a fair chance to rebut their alleged liability.
On the other hand, the ALA – at least in its current version – does not provide any such chance, and in fact removes all defenses, including those that can be raised under scienter and the law of negligence.
So what is the problem? The ALA essentially creates a legal scheme of absolute liability. This means that if the dog bites, no matter the reason – even if he is protecting his own property – the dog guardian (and dog) is liable. End of story.
This is grossly unfair. Surrounding circumstances must be considered. Was the dog provoked or protecting his own territory or toy? Was the “victim” ignorant in the way he approached the dog (think person bending down and looking the dog straight in the face – which dogs often perceive as a threat). Was a yappy little fluff ball of a dog (think Paris Hilton’s dog) jumping in the face of the bigger dog?
Other considerations should also be taken into account such as: the dog’s and dog guardian’s past and present temperament and behaviour, improbability that a similar incident would be repeated, the dog’s potential for inflicting harm, the dog guardian’s history of dog guardianship, and precautions taken by the dog guardian – all of which are considerations that are included in similar legislation in Ontario.
Another problem is that the ALA would create unintentional consequences, such as giving animal control extra justification to seize dogs (which ultimately results in welfare concerns for the dogs under BC’s current “dangerous” dog laws), and people abandoning their pets for fear of being liable once their dog has bitten or injured someone.
The ALA is also ineffective. To quote Mr. Chief Justice Dickson, as he then was, writing for a unanimous Supreme Court of Canada in R. v. Sault Ste. Marie, [1978] 2 SCR 1299, “[t]here is no evidence that a higher standard of care results from absolute liability.” He also explained that absolute liability serves to punish the innocent and adds nothing to deterrence.
I commend Dr. Weaver for his intentions to reduce the number of dog bites. However, the ALA is simply a band-aid solution that fails to resolve the root of a complex problem – irresponsible human behaviour. The only way to ensure responsible (and effective) pet guardianship is through education and with proactive laws, as opposed to reactive and punitive laws such as the ALA. Dog activists in BC have already suggested that local animal control could offer courses on basic human/canine good citizenship, and municipalities can offer a two-tiered license fee, where a license would cost less if the dog passes a temperament test or a canine good citizen test.
Encouraging and legislating responsible pet guardianship would be far more effective than threatening liability.
This article was first published in the June 2016 issue of BarTalk.