Personal injury actions in Canada may arise out of any number of circumstances. Still, perhaps the two most common scenarios are those involving motor vehicle accidents and those involving an attack by a domesticated pet – usually, a dog. Whether a person will be considered entitled to damages for the injury suffered depends on the incident’s circumstances. For example, concerning an injury caused by a dog, relevant questions include the severity of the injuries suffered, whether the injured party was the owner of the animal that caused the injury, and how and why the animal attacked the victim. For purposes of determination of fault and liability, it is relevant whether, for example, the victim was at an off-leash dog park when the attack occurred or whether they were walking down the street, minding their own business, and were suddenly attacked by an off-leash pet. In circumstances where a person willingly attends a property where a dog is known to reside, proof of liability on the dog owner’s part may be more difficult to establish, as illustrated by a recent BC Court of Appeal decision.

Woman Attends Dinner Party And Gets Bitten By Dog

The lawsuit central to Evans v. Berry, 2024 BCCA 103, arose from a dinner party. Erin Berry and Sophie Anderson are two friends who rented an apartment together in November 2017. The plaintiff, Linda Evans, was a friend of Berry and Anderson, with whom they occasionally socialized. 

In Spring 2017, Berry and Anderson determined they would like to adopt a pet together. To this end, they adopted “Bones,” a mixed-breed 30-pound dog from a local rescue. At the time of his adoption, Bones was missing one foreleg and his other foreleg was injured. During the seven months in which Berry and Anderson had Bones before the incident in question, they observed that Bones had exhibited several behavioural issues, including that on a trip in August of 2017, Bones had “nipped” the ankles of three different people, including Evans. However, neither Berry nor Anderson was present, nor were any of the three incidents observed. Bones had also nipped at another friend’s shoe on a separate occasion when Berry and Anderson were present and observed what took place. Bones also had a history of attacking and becoming aggressive with other dogs, including an attack at Berry and Anderson’s apartment building, in Berry and Anderson’s presence, when Bones bit another dog hard enough to draw blood. In October 2017, Bones attacked Berry’s father, biting him hard enough on the arm that Berry’s father’s skin was broken and he was bleeding. 

In August 2017, Anderson and Berry took Bones to a trainer to train him to behave better. Anderson and Berry switched Bones to a new trainer for 5-6 training sessions when the first two training sessions appeared ineffective. Importantly, these training sessions focused largely on Bones’ interactions with other dogs, not his interactions with people. Berry and Anderson also arranged for Bones to meet with a behavioural therapist, though the appointment was scheduled after the events that gave rise to this lawsuit.

In November of 2017, Evans attended Berry and Anderson’s apartment as a guest at a dinner party. There were several other guests at the party. Once dinner had ended and people were ready to leave, Evans knelt to pet Bones, lying on the floor. She petted Bones, and he rolled over and exposed his belly, so Evans took that as a prompt to continue petting Bones. At some point during this interaction, Bones went straight for Evan’s face and bit her, resulting in a three-inch laceration to her forehead and a two-inch laceration to the side of her face that required numerous stitches. Bones was subsequently euthanized, largely as a result of his attack on Evans. 

Victim Claims Damages in Negligence And Scienter

Evans sued Berry and Anderson in negligence and scienter, claiming that she was entitled to damages for the injuries suffered due to Bones’ actions. 

What is Scienter and When Does it Apply?

Under the doctrine of scienter, a person who owns a dog that bites another dog or person will not be liable simply because they are the dog’s owner. Rather, liability only attaches if the victim can establish three criteria:

1. That the defendant is the owner of the dog (or was at the time of the incident in question);
2. that the dog had demonstrated a propensity to behave in such a manner as to cause the type of injury or damage suffered and
3. that the owner was aware of the dog’s tendency to behave in that manner

The person who claims to have suffered damage or injury as a result of the dog’s actions is the one who bears the onus of proving all three elements of the test. 

Application of the Legal Principles to this Case

In the initial trial of this case, the judge easily found the first criterion, that the victim established that the defendant is the owner of the dog in question, established in that both Berry and Anderson admitted to joint ownership of Bones. However, the trial judge determined that the second and third criteria had not been successfully proven. 

To whether Bones had been demonstrated to have a propensity to behave in the manner he did that caused injury, the trial judge considered the incidents of Bones “nipping” (described as latching onto a body part but not drawing blood or breaking skin) as well as the incident with Berry’s father, and concluded that “it is simply not clear that this was an act of aggression on Bones’ part towards Ms. Berry’s father” and, further, that, “considering the evidence in its entirety, I am simply unable to conclude that Bones had manifested a propensity to cause harm of the type occasioned’ on the night of” the incident in question, as “the evidence does not establish, on a balance of probabilities, that Bones had that propensity, inclination, trait or habit.”

The trial judge also noted that Berry and Anderson had taken Bones to dog trainers, who advised Berry and Anderson that Bones did not require the use of a muzzle, as Bones’ nipping behaviour had improved with training and Bones had not exhibited nipping behaviour toward other dogs after he completed the training. Further, the evidence with respect to the bite on Mr. Berry indicated that the incident was most likely a result of an accident, in that both Bones and Mr. Berry were pursuing the same food object at the same time, which was the more likely cause of the accident. Moreover, when Berry and Anderson brought Bones to the veterinarian in the aftermath of the attack on Mr. Berry, the veterinarian did not recommend that Bones be muzzled or that he should be quarantined from people other than Berry and Anderson. Finally, the trial court considered it significant that none of the other dinner party attendees present at the time of Evans’ bite indicated that they were fearful of Bones or uneasy in his presence. In these circumstances, the trial judge was satisfied that Berry and Anderson were unaware that Bones would have a propensity to behave as he did on the night of the dinner party. 

The trial judge dismissed the case because two of the three criteria necessary for a finding of scienter had not been met. The Court of Appeal similarly dismissed Evans’ appeal of that decision on the grounds that the trial judge had made no error of fact or law that would justify overturning the initial decision.

Contact Merdian Law Group for Your Personal Injury Legal Needs

If you have suffered personal injury due to an accident, a dog bite, or a slip and fall, you require a personal injury lawyer to handle your claim for damages. Even if the injuries are not catastrophic or life-changing, damages may still be warranted and recoverable. 

Located in downtown Vancouver, British Columbia, Meridian Law Group is proud to serve clients throughout the province and assist them with their personal injury, estate, family, and commercial litigation matters. Contact us online or via telephone at (604) 687-2277 to schedule a confidential consultation.