Elbaum v. York Condominium Corporation No. 67 (Ontario Superior Court)

The plaintiff owned a unit in the condominium.  While walking on the common elements, she was allegedly attacked and injured by a dog that was off-leash.  The plaintiff sued the owner of the dog, under the Dog Owners’ Liability Act.  She also sued the condominium corporation.  The condominium corporation brought a motion for dismissal of the claim against the condominium corporation, on the ground that the corporation could not possibly have any liability in the matter.  The Court refused to dismiss the claim against the condominium corporation.  The Court said that the condominium corporation might be liable in negligence.  The Court said:

Ms. Elbaum alleges that the Condominium Corporation was negligent because:  (a) it failed to take reasonable or any steps to ensure that persons are reasonably safe while on the common elements;  (b) it failed to take reasonable or any steps to ensure that dogs are kept on a leash;  (c) it failed to take reasonable or any steps to ensure that unit owners control their pets at all times while on the common elements;  (d) it failed to create and or adequately enforce rules that would require that dogs are always kept on a leash; (e) it failed to create and or adequately enforce rules that would require unit owners to control their pets at all times when on the common elements; and (f) it failed to monitor, supervise, and maintain the premises in such a manner to keep aware of dogs on the common elements that may pose a danger to persons on the common elements.

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…as I interpret the civil liability provisions of the Dog Owners’ Liability Act, if the court determines that the defendant is not the owner or harbourer of the dog, then there is no strict liability, but there is also no preclusion of a common law negligence claim or a claim under the Occupiers’ Liability Act.

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Put shortly, in the case at bar, it is not plain and obvious that the Condominium Corporation could not be found liable for a common law negligence claim or a claim under the Occupier’s Liability Act.