Condominium’s Potential Liability for Dog Attack on Common Elements

In the recent Ontario Superior Court of Justice decision of Elbaum v. York Condominium Corporation No. 67, the Court dealt with a motion by the condominium corporation for an order dismissing an action started against it by the Plaintiff, Sali Elbaum.

Ms. Elbaum’s claim against the corporation was for damages associated with injuries she sustained as a result of an alleged dog attack, which occurred on the condominium corporation’s common elements. Ms. Elbaum sued the corporation based on its alleged liability under Ontario’s Occupiers’ Liability Act. The corporation brought its motion for dismissal on the basis that the Dog Owners’ Liability Act was the applicable legislation, and the corporation could not possibly have any liability in the matter under that Act, as the corporation was not the owner of the dog.

Ultimately, the Court refused to grant the relief sought by the condominium corporation. Although the Court did not generally feel that the corporation was liable under the Dog Owner’s Liability Act, the Court felt that the condominium corporation was otherwise potentially liable on the basis of negligence.

Accordingly, the claim was not dismissed, and the corporation will be required to proceed with its defence to trial, unless the matter is otherwise resolved in the meantime.

A final trial decision on this issue would be helpful for the purpose of establishing the particular liability of a condominium corporation with respect to incidents that occur on common elements that result in damages to a unit owner. However, in the meantime, the decision from this motion certainly suggests that a condominium corporation could be liable in such cases, even where the corporation was not the direct cause of the damage alleged to have been sustained.