A homeowners’ dog bites the dog-walker. A liability riddle: Who owns the dog?

A dog-walker bit by a dog in her care was the “owner” of that dog at the time of the attack under the Dog Owners’ Liability Act (DOLA) and therefore can’t claim $1 million in liability against the dog’s true owners, the Ontario Court of Appeal has found.

The case highlights nuances in how insurance covers liability associated with dog-walking.

Michael and Amanda Luciano hired a dog-walking company to look after their two dogs, a large male boxer named Forrest Gump and Benny.

Amanda Nigro, who worked part-time at the dog-walking company, began walking Forrest in November 2021. She looked after the dogs at the Lucianos’ house about three times a week and had a key to the house.

Forrest developed an infection in his foot in February 2022. The vet advised the Lucianos that Forrest was not to come into contact with mud or anything that could cause infection. It was recommended that Forrest wear rubber booties when walking in wet areas.

Nigro attended the Lucianos’ residence to look after the dogs on Mar. 24, 2022. Alone in the home, she let the second dog, Benny, outside to use the washroom, and Forrest refused to go. A bit later that morning, Nigro wanted to let Forrest out in the backyard; since mud and snow covered the backyard, she decided to put booties on Forrest before letting him out. It was the first time she tried to put booties on Forrest.

As she approached Forrest with the booties in one hand, the dog lunged at her, bit into her left arm and started shaking it. After she got her arm loose, Forrest continued to attack her, biting various parts of her body. Nigro suffered injuries to her abdomen, left upper thigh, and both arms.

There was no history of aggressive behaviour by Forrest in Nigro’s presence or otherwise. 

Nigro sued the Lucianos for general damages of $350,000 and special damages of $650,000, for a total of $1 million.

The Ontario Superior court dismissed her claim, finding that Nigro possessed or harboured the dog at the time of the attack. The DOLA defines “owner” in s. 1(1) of the Act as follows: “’owner,’ when used in relation to a dog, includes a person who possesses or harbours the dog and, where the owner is a minor, the person responsible for the custody of the minor.”

Nigro appealed to the Ontario Court of Appeal, which upheld the finding in the lower court.

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“There can be no doubt that [Nigro] was an owner of Forrest for purposes of the DOLA,” the Court of Appeal for Ontario ruled in a decision released on Apr. 17. “[Nigro] was the sole person in the company of the dogs at the time of the incident.

“She was employed by the [Lucianos] and had attended at the house to care for the dogs three times a week. She had been in possession of the dogs on prior occasions, just as she was in possession of them on the day of the incident. As was found by the motion judge, she was unquestionably the person in a position to control the behaviour of the dogs at the critical time.”

The Appeal Court similarly rejected Nigro’s claim that the Lucianos were the true owners of the dog because the attack occurred in their home.

“Lest there be any doubt, the DOLA expressly ousts application of the Occupiers’ Liability Act…in relation to the liability of the owner, when the dog bite occurs on the premises of the owner,” the Appeal Court found. “This reflects a policy choice to base liability on something other than ownership or possession of the building in which the incident occurred.

“The DOLA seeks to promote responsibility and accountability in those who are best able to prevent dog bites and attacks, wherever they occur. It would defeat this legislative objective if someone meeting the definition of owner could escape liability merely because they were in someone else’s home at the time of the incident.”

How would the dog-walker be covered?

Would the dog-owner’s injuries be covered under insurance for the incident?

It depends.

CU research on broker websites shows most Canadian home insurance policies include personal liability coverage, which can apply if the homeowners’ dog injures someone (including a hired dog-walker).

However, home insurance policy exclusions for animals may apply, including for breed restrictions, a known aggressive history of a pet, a business arrangement, or liability related to animals.

If a dog-walker owns a commercial general liability (CGL) policy, that might cover a dog-walker if someone else was bitten while the dog was in his or her care.

That said, a standard CGL policy may exclude animal-related claims, and so a dog-walker would need either a specialized pet insurance package or a CGL with an explicit endorsement for pets or animal care.

But what happens if a dog bites the dog-walker?

Typically, a CGL would not cover dog walkers if dogs attack them while in their possession.

Coverage for medical expenses in that case may fall under Workers’ Compensation (WSIB in Ontario), personal accident or injury insurance, or health insurance.

David Gambrill

David has twice served as Canadian Underwriter’s senior editor, both from 2005 to 2012, and again from 2017 to the present.