At the End of Their Leash: Potential Limits on the Scope of the Scienter Doctrine

It has long been held that the owner of a dog may be liable for the actions of their dog in one of two ways: strict liability under the doctrine of scienter or in negligence.

Liability will only attach under the doctrine of scienter if the plaintiff can establish three conditions, as set out in Janota-Bzowska v. Lewis, 1997 CanLII 3258 (BCCA):

  1. That a defendant was the owner of the dog;
  2. That the dog has manifested a propensity to cause the type of harm occasioned; and
  3. That the owner knew of that propensity.

If a plaintiff can establish the above three criteria, an owner of a dog which causes harm will be strictly liable for all the damage caused.

One issue which has been identified recently by the courts is whether the doctrine of scienter will apply when an animal is leashed but nonetheless causes harm.

This question was raised, but not conclusively answered, in two recent court decisions.

In the Saskatchewan Queen’s Bench decision of Ross v. Vidnes, 2012 SKQB 317, the Court commented that a crucial factor for liability under the doctrine of scienter is control of the dog.  The Court went on to state that:

“If an animal is caged, chained, or leashed, but nevertheless manages to inflict injury on a plaintiff, it has been held, in some cases, that the doctrine of scienter is inapplicable.  The doctrine of scienter has been applied only where the animal has escaped from the owner’s control.”

This issue was again touched upon by the New Brunswick Court of Queen’s Bench in Russell v. Aventriep 2013 NBQB 134.  That case involved an altercation between two dogs, one of which was on leash at the time of the incident. The incident occurred when the Plaintiff’s Pomeranian ran across the road in front of its house to approach the Defendant’s German Shepherd which was walking on leash with its owner.  As the Court noted “some barking ensued” and “both dogs began baring their teeth and growling at each other”.  While the defence was raised that the Pomeranian was the aggressor, the Court noted that if it was aggressive towards the German Shepherd this “was not an aggression rooted in the true strength and ferocity of the much smaller dog”.  Ultimately the Pomeranian was bitten by the German Shepherd.

The Court held that the German Shepherd had not displayed any form of aggression before the incident and accordingly did not have a propensity to act in the way that it did so as to establish either negligence or liability under scienter.  However, the Court did note that the fact that the German Shepherd was leashed and being escorted by the owner raised some concerns regarding the applicability of the doctrine of scienter.  The Court, having already held that the German Shepherd did not have a propensity to act in an aggressive matter, did not find it necessary to determine the issue of whether the doctrine of scienter applied given the German Shepherd was leashed.

Accordingly, this issue remains to be conclusively determined.  However, it is an interesting point and one to keep in mind when considering the applicability of the scienter doctrine.