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District Court of Ontario

Morsillo v. Migliano
Canada
1985 CarswellOnt 786


Case Details
Printable Version
Summary:   The child plaintiff Morsillo was attacked and bitten by a neighbour's pet German Shepherd, which tended to 'bark savagely' at local children, had bitten once before, and was kept in a secure fenced yard and only taken out on a leash and choke-chain. The boy was playing cops and robbers with the dog owner's son on the owner's front lawn, while the owner's teenaged daughter was taking the leashed dog to the garage, when it escaped and attacked. No provocation of the dog was proven so the owners were found strictly liable under the Dog Owner's Liability Act (which abrogates scienter in that province) and also liable in negligence, with no contributory negligence by the plaintiff; the provincial Ontario Health Insurance Plan was entitled to recover the costs of the plaintiff's care from the defendants.

Judge Conant D.C.J. delivered the opinion of the court.


Opinion of the Court:

1     This is an action for damages for injuries resulting from a dog attack on the infant plaintiff Michael Morsillo. The action has been settled in all major respects by Minutes of Partial Settlement dated May 13, 1985. The outstanding issue is liability for the subrogated claim of the Ontario Hospital Insurance Plan which has been agreed to be in the amount of $2,538.23 together with such prejudgment interest as may be appropriate. The parties agreed to proceed to trial on the issue of liability for the subrogated claim, costs to be reserved to the Judge hearing the trial of the action.

The Issue

2     The subrogation rights of the Ontario Health Insurance Plan are specified in ss. 36-42 of the Health Insurance Act, R.S.O. 1980, c. 197 ("the Act"). The relevant sections with respect to this case provide as follows:

Subrogation

Subrogation

36.(1) Where, as the result of the negligence or other wrongful act or omission of another, an insured person suffers personal injuries for which he receives insured services under this Act, the Plan is subrogated to any right of the insured person to recover the cost incurred for past insured services and the cost that will probably be incurred for future insured services, and the General Manager may bring action in the name of the Plan or in the name of that person for the recovery of such costs.

Payment by Plan recoverable by insured

(2) For the purposes of subsection (1), the payment by the Plan for insured services shall not be construed to affect the right of the insured person to recover the amounts so paid in the same manner as if such amounts are paid or to be paid by the insured person.

Cost of hospital services (3) For the purposes of this section, the cost of insured services rendered to an insured person in or by a hospital or health facility shall be at the rate charged by the hospital or health facility to a person who is not an insured person. 1972, c. 91, s. 35.

Subrogated claim included in action

37.(1) Any person who commences an action to recover for loss or damages arising out of the negligence or other wrongful act of a third party, to which the injury or disability in respect of which insured services have been provided is related shall, unless otherwise advised in writing by the General Manager, include a claim on behalf of the Plan for the cost of the insured services.

Recovery paid to Ontario

(2) Where a person recovers a sum in respect of the cost of insured services, he shall forthwith pay the sum recovered to the Treasurer of Ontario. 1972, c. 91, s. 36.

Motor Vehicle Accident Claims Fund R.S.O. 1980, cc. 218, 298 38.

The Plan is not an insurer within the meaning of the Insurance Act, as referred to in section 20 of the Motor Vehicle Accident Claims Act, and may be awarded payment from the Motor Vehicle Accident Claims Fund. 1972, c. 91, s. 37.

3     Thus the Ontario Health Insurance Plan ("the Plan") is subrogated to "any right of the insured person" to recover the cost of past and future insured services which the insured person receives under the Act.

4     It has been held that "any right of the insured person" includes all rights of that person whether in contract or tort (Connolly v. Royal Ins. Co. of Can., Ont. H.C., March 21, 1985 (unreported [now reported 50 O.R. (2d) 177, 11 C.C.L.I. 1, 16 D.L.R. (4th) 763, [1985] I.L.R. 1-1900]; Dias v. Ont. Hospital Services Comm., [ 1969] 2 O.R. 447, [1969] I.L.R. 1-300, 5 D.L.R. (3d) 594). The insured services must be for personal injuries suffered as the result of "the negligence or other wrongful act or omission of another". In any action for loss or damages for "negligence or other wrongful act of a third party" the injured party who has received insured services must include a claim on behalf of the Plan for the cost of those services. Finally, for the purposes of the Motor Vehicle Accident Claims [Act], R.S.O. 1980, c. 298, the Plan is not an "insurer" within the meaning of the Insurance Act, R.S.O. 1980, c. 218. It is to benoted that by necessary implication the plan is for all other purposes an "insurer" as defined in the Insurance Act, with full rights of subrogation as stipulated in ss. 36-42 of the Health Insurance Act.

5     In this case the infant plaintiff alleges that he suffered injuries from an attack by a dog owned by the defendants. Medical services were provided in respect of those injuries by the plan and a subrogated claim on behalf of the plan has been advanced. The plaintiffs allege that the defendants are liable for the damages caused by the dog attack because they knew of the vicious propensities of their dog which had a history of dangerous behaviour. The plaintiffs also rely on s. 2 of the Dog Owners' Liability Act, R.S.O. 1980, c. 124 which imposes strict liability on owners of dogs which bite or attack other persons. In the further alternative, the plaintiffs allege that the defendants are liable in negligence for the injuries caused by the dog attack. The sole issue for determination is whether the Plan is entitled to recover its subrogated claim for insured services provided to the infant plaintiff on any or all of the bases of liability alleged by the plaintiffs.

6     In determining the facts in this case I have carefully considered the logical consistency of witnesses' testimony, their demeanor and the likelihood of the events occurring on a balance of probabilities. I find as a fact that the infant plaintiff was savagely attacked by a German shepherd dog on or about the 21st day of July, 1983. The dog was named "Tiger" and was owned by the defendants who had had the dog as a family pet for several years. The defendants acquired the dog as a puppy and trained it by themselves without recourse to any formal obedience training. Unhappily the dog was of a vicious disposition and was required to be on a leash when it was taken out of the fenced-in backyard of the defendants' home. The dog was known to bark savagely at strangers, and the neighbourhood children were frightened of it.

7     On the day of the attack the infant plaintiff and several other children, including the defendants' 10-year-old son Joseph, were playing in front of the defendants' home. The defendants' 13-year-old daughter Laurie was inside the house. Both defendants were at work. The dog was penned in the backyard which was only accessible through the house or through a gate in the fence. Neither of the defendants gave any instructions to the children regarding the manner in which the dog was to be taken care of generally while they were away, and in particular, in the event of rain. The normal practice when it rained was to remove the dog from the backyard by means of the gate on a leash and take it around the front of the house, or to take the dog through the house directly to the side garage. The dog would then be locked in the garage.

8     In the late afternoon, prior to the arrival home from work of either defendant, it began to rain. The defendants' daugher Laurie proceeded to take the dog from the backyard to the garage. The dog was first put on a leash, however, Laurie did not use a choke collar which the defendants had, and used on prior occasions to control the dog. As Laurie guided the dog in front of the house, it spotted the children playing there and suddenly started barking and lunged at the infant plaintiff. This was a full grown German shepherd, and not unnaturally Laurie was unable to hold the dog back, particularly as it did not have a choke collar on. The infant plaintiff attempted to run away but he was unsuccessful and the dog savagely bit him on the arm, back and side. The infant plaintiff was moved into the home of the defendants to await an ambulance. The dog was put back into the backyard. However, shortly after the infant plaintiff was moved into the defendants' house, the dog returned, this time from the backyard by an open door through the house, which had been left open by Laurie and attacked the infant plaintiff again. The dog snapped at the infant plaintiff's buttocks but was prevented from completing the attack by the adults surrounding the injured boy. The infant plaintiff was taken to the hospital and treated for multiple lacerations.

9     The defendants have alleged that the dog was a peaceful and obedient dog. Further, they allege that the attack was provoked by the infant plaintiff. The children in front of the house had been playing "cops and robbers" with toy plastic guns. As the dog was being led in front of the house to the garage by Laurie Migliano it is alleged that the infant plaintiff frightened the dog by firing a plastic toy gun at it. The toy gun was produced at trial and fired to determine the amount of noise it made. Having heard this, I am not persuaded that it made a noise sufficiently loud enough to provoke a calm and obedient dog. On the balance of probabilities I am satisfied that this dog had a vicious and savage temperament which was known to the defendants prior to the attack on the infant plaintiff. In drawing this conclusion I have considered the past history of this dog violently barking at neighbourhood children and indeed a few months previously had attacked and bitten another young neighbour. The vicious propensities of this dog are also illustrated by the fact that the defendants never let the dog out without a leash and were required to use a choke collar to control it.

10     At common law the owner of a domestic animal which is normally harmless is not liable, in the absence of negligence, for an act of a vicious or mischievous kind which it is not the animal's nature usually to commit. He will be strictly liable, however, where he knows that the animal has that particular vicious or mischievous propensity; proof of this knowledge or scienter is essential. Where this knowledge exists, the owner keeps such an animal at his peril and is answerable in damages for any harm done by the animal (2 Hals. (4th ed.) 200-01). In the application of the scienter doctrine it is not accurate to say that "every dog is allowed one bite". Liability in scienter may result from known vicious or mischievous propensities (Morris v. Bally, [ 1970] 3 O.R. 386, 13 D.L.R. (3d) 150 (Ont. C.A.)). To prove scienter one must show, (a) that the animal had previously committed, or attempted to commit, at least one act that showed the particular kind of viciousness now complained of, and (b) that the defendant knew of the act or attempt (Williams, Liability for Animals (1939), pp. lxi-lxii).

11     The rationale behind imposing strict liability based on the scienter principle is succinctly stated by Cozens-Hardy M.R. in Baker v. Snell, [1908] 2 K.B. 825 at 828 (C.A.):

If a man keeps an animal whose nature is ferocious, or an animal of a class not generally ferocious, but which is known to the owner to be dangerous, is the owner of that animal liable only if he neglects his duty of keeping it safe or is negligent in the discharge of that duty, or is he bound to keep it secure at his peril? In my opinion the latter is the correct proposition of law, and I think that it is not open to the Court to decide the other way.

Cozens-Hardy M.R. then referred to the decision in Nichols v. Marsland (1876), 2 Ex. D. 1 and stated at p. 832:

If it be true, as I think it is, that it is a wrongful act for a person to keep an animal which he knows to be dangerous, that is an authority, not merely of the Court of Exchequer, but also of the Court of Appeal, that the person so keeping it is liable for the consequences of his wrongful act, even though the immediate cause of damage is the act of a third party.

12     In the same case Farwell L.J. stated at p. 833:

It appears to me to be absolutely immaterial if the keeper of a dangerous animal keeps it at his own peril in all circumstances whether the injury arises from the actual negligence of the owner or from the act of a third person. The wrong is in keeping the fierce beast, and the person who keeps it is prima facie responsible for the injury arising from his wrongful act ... .

13     Hence the owner of a dog which he knows to have a vicious or mischievous propensity keeps the animal at his peril and has a duty to control it so that it causes no harm to other persons. As Davey J.A. stated in McNeill v. Frankenfield (1963), 46 W.W.R. 257, 44 D.L.R. (2d) 132, where there is sufficient evidence to sustain the finding that the owners of a dog knew it was dangerous it was the "absolute duty" of the owners "to confine or control it so that it should not do injury to others" (at p. 257 W.W.R.). The duty is breached when "the control or restraint that one assumes a keeper will put on a vicious dog proves insufficient to prevent the dog doing injury to someone lawfully about" (at p. 258 W.W.R.). However the rule of absolute or strict liability may be rebutted by showing that the plaintiff was the author of his own misfortune in that he meddled or provoked the dog (per Lord J.A. at p. 272 W.W.R.). See also Kirk v. Trerise (1981), 4 W.W.R. 677, 28 B.C.L.R. 165, 17 C.C.L.T. 121, 122 D.L.R. (3d) 642 (B.C.C.A.), and Knott v. London County Council, [1934] 1 K.B. 126 regarding the duty imposed on owners of vicious dogs.

14     At common law the owner of a dog is also liable if the damage caused by it is attributable to negligence on the part of the owner (Kokolsky v. Caine Fur Farms Ltd., [1963] S.C.R. 315, 45 W.W.R. 86, 39 D.L.R. (2d) 134). In that case Martland J. held that liability could be founded in negligence if, in the circumstances, a duty to take care in relation to the dog existed and there had been a breach of it (at p. 135 D.L.R. (2d). His Lordship referred with approval to the judgment of Lork Atkin in Fardon v. Harcourt-Rivington, [1932] All E.R. Rep. 81, 145 L.T. 391 at 392 where it stated:

But it is also true that, quite apart from the liability imposed upon the owner of animals or the person having control of them by reason of knowledge of their propensities, there is the ordinary duty of a person to take care either that his animal or his chattel is not put to such a use as is likely to injure his neighbour -- the ordinary duty to take care in the cases put upon negligence.

15     In Draper v. Hoddev, [1972] 2 K.B. 556, [1972] 2 All E.R. 210 at 217, [1972] 2 Lloyd's Rep. 93, Edmund Davies L.J. stated:

That liability for negligence can arise from the keeping even of domestic animals with no known vicious propensity is now undoubted ... Liability for negligence in respect of the keeping of an animal mansuetae naturae is, in essence, no different from that in respect of the keeping of any other chattel not dangerous per se, although the fact that the former is animate and capable of spontaneous action has, of course, an important bearing on more than one facet of negligence such as whether there was any breach of duty at all, and if so whether the damage caused by the animal was such as to render its keeper liable in law.

Davies L.J. further stated at p. 219 [All E.R.]:

The defendant's knowledge of 'the nature of the beast' which is basic to 'scienter' liability is also directly relevant both to the question of whether he was negligent at all and furthermore, if he was, whether he ought reasonably to have foreseen the damage which in fact resulted therefrom. That is not, of course, the same as saying that proof of 'scienter' is indispensable in an action for negligence. As Pearson L.J. put it in Ellis v. Johnstone, [1963] 1 All E.R. 286 at 297, [1963] 2 Q.B. 8 at 29:

For the action of negligence, it is sufficient if the defendant knew, or ought to have known, of the existence of the danger, which does not necessarily arise from a vicious propensity of the animal, although perhaps some special propensity is required.

Davies L.J. went on to point [out] (at p. 215) that the meaning of "special propensity" depends upon the particular facts of each individual case.

16     In Ontario there are several cases which have found owners liable in negligence for the damages caused by their dogs. In Morris v. Bally, [1970] 3 O.R. 386, 13 D.L.R. (3d) 150 (Ont. C.A.) the plaintiff suffered a broken hip when she fell after allegedly being jumped upon by the defendant's dog. The trial Judge found that the dog had a propensity to run at people, barking, and to stop short of coming into contact with them. He further found that the defendant was aware of this propensity. The Court of Appeal unanimously held that the defendant had a duty to persons like the plaintiff to restrain the dog and that the damage which ensued when the plaintiff fell to the sidewalk was a foreseeable consequence of his failure to fulfil that duty whether or not the plaintiff's fall was caused by the dog's actually striking her or by her own apprehension and conduct occasioned by the manner of the dog's approach.

17     In Sgro v. Verbeek (1980), 28 O.R. (2d) 712, 111 D.L.R. (3d) 479 (Ont. H.C.) the defendant's dog bit the seven-year-old plaintiff while he was petting the dog on the defendant's business premises. The defendant did not warn the plaintiff about the dog and there was no evidence that the dog had previously attacked or bitten anyone. Scienter was not proven, however, the defendant was liable in negligence. The defendant admitted that his dog was not used to children. The Court drew the inference that the defendant was aware that the spontaneous action on the part of the dog was reasonably foreseeable given the close physical contact between the plaintiff and the dog. The defendant ought reasonably to have foreseen that the infant might sustain injury in the circumstances if he failed to take any preventative measures. The owner of the dog was negligent in failing to give warning to the plaintiff and his father against petting the dog and/or failing to remove the dog from a position of potential danger to the plaintiff.

18     Finally, in Moffet v. Downing; Downing v. Moffet (1981), 32 O.R. (2d) 155, 16 C.C.L.T. 313, 120 D.L.R. (3d) 560 (Ont. C.A.), the plaintiff was injured when thrown off a horse which she was rising along a shoulder of a road. The horse had reared and thrown the plaintiff because a dog ran towards her and the horse, barking and snapping at its heels. The dog was owned and kept by the defendants. The dog was an aging and good-natured Labrador retriever, and was prone to bark at horses but was not known to have any "vicious or mischievous propensity". The Court of Appeal held that the defendants were liable in negligence because they knew that horses frequently used the highway and that their dog was prone to bark at horses. They should have foreseen the possibility that an accident might occur if their dog ran into the highway and barked at horses.

19     While the scienter action and the negligence action are the primary remedies for injuries or damages caused by dogs at common law, they are not the only causes of action available. Nuisance, trespass and occupier's negligence are also available to a plaintiff suffering damages or injuries caused by a dog (see Williams, Liability for Animals at pp. 339-53).

20     In most jurisdictions, but not all, the common law as described has been modified by statute. Some statutes abolish the need to prove knowledge of a vicious propensity; other statutes impose strict liability on owners regardless of knowledge or proof of a past history of vicious behaviour. In Ontario the latter approach has been taken in the Dog Ownwers' Liability Act. The relevant provisions provide as follows:

Dog Owners' Liability Act

Interpretation

1. In this Act, '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. 1980, c. 65, s. 1.

Liability of owner

2.(1) The owner of a dog is liable for damages resulting from a bite or attack by the dog on another person.

Where more than one owner

(2) Where there is more than one owner of a dog, they are jointly and severally liable under this section.

Extent of liability

(3) The liability of the owner does not depend upon scienter or fault or negligence on the part of the owner, but the court shall reduce the damages awarded in proportion to the degree, if any, to which the fault or negligence of the plaintiff caused or contributed to the damages.

Contribution by person at fault

(4) An owner who is liable to pay damages under this section is entitled to recover contribution and indemnity from any other person in proportion to the degree to which the other person's fault or negligence caused or contributed to the damages. 1980, c. 65, s. 2.

Application of R.S.O. 1980, c. 322

3.(1) Where damage is caused by being bitten or attacked by a dog on the premises of the owner, the liability of the owner is determined under this Act and not under the Occupiers' Liability Act.

Protection of property

(2) Where a person is on premises with the intention of committing, or in the commission of, a criminal act on the premises and incurs damage caused by being bitten or attacked by a dog, the owner is not liable under section 2 was unreasonable for the purpose of the protection of persons or property. 1980, c. 65, s. 3.

21     Under these provisions a dog owner will be strictly liable for damages caused by his dog as long as it is shown that he is the true owner of the dog and that that particular dog has in fact bitten or attacked the person complaining. Liability does not depend upon scienter or fault or negligence of the owner or a person "who possesses or harbours the dog".

22     These statutory provisions clearly abrogate the doctrine of scienter. See Robinson v. Phillips (1982), 35 Nfld. & P.E.I.R. 509, 99 A.P.R. 509, 133 D.L.R. (3d) 189, where the Prince Edward Island Court of Appeal so held in construing a statute very similar to the Dog Owners' Liability Act. However, I do not interpret the Ontario statutory provisions as abolishing the common law actions of negligence, trespass, and nuisance in respect of a dog which causes damage to persons or property. The applicable principle of statutory interpretation is set out in Langan, Maxwell on Interpretation of Statutes, (12th ed., 1969) at p. 116:

It is presumed that the legislature does not intend to make any change in the existing law beyond that which is expressly stated in, or follows by necessary implication from, the language of the statute in question. It is thought to be in the highest degree improbable that Parliament would depart from the general system of law without expressing its intention with irresistible clearness, and to give any such effect to general words merely because this would be their widest, usual, natural or literal meaning would be to place on them a construction other than that which Parliament must be supposed to have intended. If the arguments on a question of interpretation are 'fairly evenly balanced, that interpretation should be chosen which involves the least alteration of the existing law.'

Further, he says at p. 251:

Statutes which encroach on the rights of the subject, whether as regards person or property, are subject to a strict construction in the same way as penal Acts. It is a recognized rule that they should be interpreted, if possible, so as to respect such rights, and if there is any ambiguity the construction which is in favour of the freedom of the individual should be adopted. ... 'If there is an ambiguity about the extent of [ the] derogation [by a statute from common law rights] , the principle is clear that it is to be resolved in favour of maintaining common law rights unless they are clearly taken away.'

See also Driedger, Construction of Statutes, (2nd ed., 1983 at pp. 211-14.

23     I can find nothing in the Dog Owners' Liability Act which purports to abolish the common law actions as described above. I do not think the provisions can be read to impliedly abolish these causes of actions. Such an interpretation would encroach upon an injured person's common law rights. Had the Legislature intended to abolish such actions it could easily have said so in explicit language.

24     I turn now to the question of whether the causes of action in this case have been established by the evidence presented at trial. Since the cause of action based on scienter has been abrogated, there remain only the statutory cause of action based on the Dog Owners' Liability Act and the cause of action based on negligence. With respect to the first, there is no question that the defendants were the owners of the dog "Tiger" and that the dog attacked the infant plaintiff causing severe injuries. I am not persuaded that the infant plaintiff provoked or aggravated this dog which had a prior history of vicious behaviour. The defendants are therefore strictly liable for the damages caused by their dog.

25     With respect to negligence, I am also of the view that the defendants are liable on this basis. The defendants knew that this dog was prone to barking at people and to lunging at them. The dog was penned in the fenced-in yard for that reason. Further, the defendants knew that children often played in and about the house and that the dog had attempted to attack children on other occasions and indeed did earlier attack another boy. They knew or ought to have known that if the dog got loose with children about, it would likely attack some child. The defendants ought reasonably to have foreseen that a child might sustain injuries in the circumstances if preventative measures were not taken. The defendants took insufficient measures. They gave no warning to their daughter about moving the dog in general, and in particular, in the event of rain. They gave her no instructions as to keeping the dog away from other children or as to use of the choke collar when the dog was on the leash. They took no steps to remove the dog from a position of potential danger to the children playing in and about the house. In my opinion the defendants had a duty to persons like the infant plaintiff to ensure that the dog was firstly, restrained and secondly, properly handled when it was to go out of the yard, especially when there were no adults at home. The damage caused to the infant plaintiff was a foreseeable consequence of the defendants' failure to fulfil that duty. I can find no evidence that the infant plaintiff was contributorily negligent in the attack as he did not provoke or aggravate the dog. In the result I find the defendants were negligent in controlling this dog.

26     Having found the defendants liable in negligence, I am of the view that the Plan is entitled to recover the costs of medical services provided to the infant plaintiff from the defendants under s. 36 of the Ontario Health Insurance Act. The infant plaintiff suffered personal injuries as a result of the negligence of the defendants. Insured services were provided by the Plan in respect of those injuries according to the provisions of that Act. The Plan is, in my view, then entitled to recover its costs in subrogation.

27     The more difficult issue is whether the Plan can recover in subrogation where the defendants are found liable under a statute which creates a strict liability cause of action. Counsel for the defendant argues that the Plan is not entitled to recover because s. 36 of the Health Insurance Act requires that the insured person must suffer his injuries "as the result of the negligence or other wrongful act or omission" of the defendants. He argues that strict liability under the Dog Owners' Liability Act does not fall into the categories of negligence or wrongful act or omission, and therefore the Plan has no right of subrogation. In support of this position, counsel relies on the decision of McKinlay J. in Slusarchuk v. Da Cunha, Ont. H.C., March 26, 1984 (unreported). That case concerned a dog attack on the plaintiff in the public streets. The defendant was found strictly liable under the Dog Owners' Liability Act. There was no evidence that the defendant was negligent or that the plaintiff was contributorily negligent. McKinlay J. held that the Plan was not entitled to recover its costs for medical services provided to the plaintiff. Her Ladyship referred to the requirement of s. 36(1) that the personal injuries must be the result of "negligence or other wrongful act or omission of another" and stated at p. 10:

However, the liability of the defendant under the Dog Owners' Liability Act is a strict liability, in no way related to the negligence or wrongful act or omission of the owners. I find that the dog had not previously attacked anyone, and was in fact being held on a lead at the time of the occurrence. Therefore there was no negligence, or wrongful act or omission on the part of the statutory owners, and there is no right which the plaintiff has against the defendants which would give rise to the statutory subrogation in subsection 52(5) [now s. 36(1)] of the Act.

28     With respect, I query such Her Ladyship's over-all conclusion; I believe that such an approach may restrict the language of s. 36(1) of the Act and inappropriately merge the concept of "negligence" with the concept of "wrongful act". It is to be noted that s. 36(1) is worded as follows: "as the result of the negligence or other wrongful act or omission of another". The use of the words or other ... clearly implies that "wrongful act" is something different from "negligence". "Wrongful act" may include negligent acts but it also includes more. It would, for example, include intentional torts for which liability has been imposed.

29     In my view, the phrases "negligence" and "wrongful act", as technical words, must be interpreted in their technical legal meaning. See Driedger, Construction of Statutes at pp. 8-9 and Langan, Maxwell on Interpretation of Statutes at pp. 81-85. For the purposes here, the definition of negligence contained in Fleming, The Law of Torts (5th ed., 1977) at p. 106 is adequate:

Negligence is conduct falling below the standard established for the protection of others against unreasonable risk of harm.

The definition of "wrongful act" is, however, not so clear. I have found only one case specifically considering the phrase in a statute: Belisle v. Min. of Tpt., [1967] 2 Ex. C.R. 141. Although this was an admiralty action, it may be applicable to this case by analogy. In that case the Exchequer Court, on appeal, considered s. 588 of the Canada Shipping Act, R.S.C. 1952, c. 29 which provided that the certificate of a seaman could be cancelled where loss or damage to any ship, or loss of life, was "caused by his wrongful act or default ... ." Noel J. for the Court considered the meaning of "wrongful act or default" and stated at p. 149:

The wrongful act or default so involved does not necessarily have to be of a criminal or quasi criminal nature. It has been said that it can be a breach of legal duty of any degree which causes or contributes to the casualty under investigation (cf. The Princess Victoria [(1953) W. L1. L.R. 619] at p. 627).

30     By this definition "wrongful act" has a very broad meaning indeed and would include any tortious liability. The best known definition of "tort" is that of Winfield & Jolowicz, On Torts, (19th ed., 1971) at p. 11:

Tortious liability arises from the breach of a duty primarily fixed by the law: this duty is towards persons generally and its breach is redressible by an action for unliquidated damages.

Fleming, supra, at p. 1 defines tort as "a civil wrong, other than a breach of contract, which the law will redress by an award of damages".

31     Can it be said then that a statutory cause of action imposing strict liability is not a tort? As we have seen at common law the scienter action imposed strict liability on owners' of dogs for damages caused by their dog where the owners' had knowledge of their dog's vicious propensities and where the dog had attacked or attempted to attack another person in the past. The rationale of imposing strict liability in such situations was that there was a duty upon owners' of dangerous things to control them and to prevent harm being caused to one's neighbours. The mere keeping of such a dangerous thing is a breach of one's duty to one's neighbour. The dangerous animal can be said to be kept at one's peril and thus to give rise to strict liability without fault. The principle is entrenched in modern tort law in other contexts by the combined decisions of Rylands v. Fletcher (1868), L.R. 3 H.L. 330, [1861-73] All E.R. Rep. 1, and M'Alister (Donoghue) v. Stevenson, [1932] A.C. 562, [1932] All E.R. Rep 1 (sub nom Donoghue (McAlister) v. Stevenson) (H.L.).

32     In my opinion the same rationale underlies the statutory cause of action created by the Dog Owners' Liability Act and, in fact, the duty to control one's dog is expanded to apply to all owners' of dogs, not just those who keep dogs known to have dangerous propensities. This statute recognizes that all dogs have the potential to become dangerous. An owner keeps it at his peril and has a duty to properly control his dog and to prevent it from harming others. Where the dog does cause harm, the owner is strictly liable regardless of fault because a duty has been breached. In reaching this conclusion I am mindful of the arguments that the rationale of strict liability is to allocate losses associated with lawful activities which entail extraordinary riskes to others, either in the seriousness or the frequency of the harm threatened (See Fleming, supra, at pp. 315-17). While this applies to the strict liability cause of action under the Dog Owners' Liability Act, I am also of the opinion that the policy underlying that statute imports a duty of care on owners' of dogs akin to the duty (but wider) underlying the scienter cause of action at common law. I conclude, therefore, that when a dog causes harm, as herein, a statutory tort has been committed which constitutes a "wrongful act".

33     The Plan is therefore entitled to recover its costs for medical services provided to the infant plaintiff because his injuries were the result of a "wrongful act" or tort. In my reading of s. 36(1) of the Ontario Hospital Insurance Act, that provision provides rights of subrogation to the Plan where an insured person suffers personal injuries as the result of any tort.

34     I find support for this conclusion by considering the subrogation provisions of health insurance legislation prior to the enactment [c. 91, s. 53(1)] of the Health Insurance Act in 19792. The subrogation provisions have not changed since enactment in 1972.

35     The Act had its source in the Hospital Services Commission Act, R.S.O. 1970, c. 209 and the Health Services Insurance Act, R.S.O. 1970, c. 200. Under the first Act the Hospital Commission was empowered by s. 20(1)(h) to make regulations:

subrogating the Commission to any right of recovery of past hospital expenses and future hospital expenses by an insured person ... in respect of any injury or disability, ... .

The Commission accordingly enacted Reg. 443, R.R.0 1970 which provided in part:

s. 55(4) An insured person, who commences an action to recover for loss or damages arising out of the negligence or other wrongful act of a third party to which the injury or disability in respect of which insured services have been provided is related, shall include a claim on behalf of Commission for the cost of the insured services.

Under the second Act the Lieutenant Governor in Council was empowered by s. 32(n) to make regulations:

subrogating the Health Services Insurance Division to any rights of recovery by an insured person in respect of payments for insured health services paid by the Division ... .

Reg. 388, R.R.O. 1970 was duly enacted and provided in part:

s. 21(2) The Division is subrogated to any right of an insured person to recover all of part of the cost of health services insurance from any other person, including future costs, and the Division may bring action in the name of the insured person to enforce such rights.

. . . . .

(4) An insured person who commences an action to recover for loss or damages arising out of the negligence or other wrongful act of a third party to which the injury or disability in respect of which health services insurance has been provided is related, shall include a claim on behalf of the Division for the cost of the health services insurance.

It is to be noted that both regulations refer to loss or damages "arising out of the negligence or other wrongful act of a third party". In contrast, the current Act uses the phrase "as a result of the negligence or other wrongful act or omission of another" (emphasis added). The addition of "or omission" clearly reflects a legislative intent to widen the scope of subrogated recovery to include recovery for expenses for personal injuries caused by torts of omission, in keeping with the evolution of general tort law. In my view, s. 36(1) of the Health Insurance Act should accordingly be interpreted broadly to include strict liability torts to effect the intention of the legislature.

36     Equally, a broad interpretation is required to effect the purpose of the subrogation provisions. The purpose of subrogation rights inequity is admirably stated by Chancellor Boyd in Nat. Fire Ins. Co. v. McLaren (1886), 12 O.R. 682 at 687 (cited with approval in Ledingham v. Ont. Hosp. Services Comm., [1975] 1 S.C.R. 332 at 337, 46 D.L.R. (3d) 699, 2 N.R. 32 (sub nom. Ledingham v. Min. of Tpt.):

The doctrine of subrogation is a creature of equity not founded in contract, but arising out of the relations of the parties. In cases of insurance where a third party is liable to make good the loss, the right of subrogation depends upon and is regulated by the broad underlying principle of securing full indemnity to the insured, on the one hand, and on the other of holding him accountable as trustee for any advantage he may obtain over and above compensation for his loss. Being an equitable right, it partakes of all the ordinary incidents of such rights, one of which is that in administering relief the Court will regard not so much the form as the substance of the transaction. The primary consideration is to see that the insured gets full compensation for the property destroyed and the expenses incurred in making good his loss. The next thing is to see that he holds any surplus for the benefit of the insurance company.

Although the Plan's subrogation rights are prescribed by statute and limited to some extent, I can find nothing in ss. 36-42 of the Health Insurance Act which makes the principle quoted above inapplicable. In this case the plaintiffs are entitled to be fully indemnified under the Dog Owners' Liability Act by the defendants. The Plan, as the contractual indemnifier of the infant plaintiff by virtue of statute, is entitled to recover its costs paid for medical statute, is entitled to recover its costs paid for medical services for the infant plaintiff. I do not think this principle is altered simply because we are dealing with a strict liability cause of action or tort. Any other rule would mean that the defendants are relieved of making good the full loss for which they are responsible under the Dog Owners' Liability Act. This is neither just nor fair and I do not believe the subrogation provisions under the Health Insurance Act were intended to have that effect.

37     For the foregoing reasons, in this trial on the issue of liability for the subrogated claim as in para. 5 of the minutes of settlement, agreed to be heard, I find for the plaintiff the claim of the Ontario Hospital Plan. Judgment to plaintiff for $2,538.23 together with prejudgment interest from February 21, 1984 in accordance with the Courts of Justice Act, S.O. 1984, c. 11. Judgment also for all other matters in the minutes of settlement as agreed.

Order accordingly.

 

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