B.C. woman whose face was bitten by roommate’s dog awarded $2,531

A dog's teeth are seen in an undated Shutterstock image.

A B.C. woman who was injured in two separate incidents involving her roommate’s dog – including one in which she was bitten on the face, and required stitches on her eyelid – has been awarded $2,531 in damages.

Grace Nzibonera filed a claim against Kelsey Ogston through the province’s Civil Resolution Tribunal, seeking $5,000 in compensation for the two incidents, both of which happened shortly after she started subletting part of a rental home from Ogston in July 2023.

Nzibonera also argued her former roommate should cover her last month’s rent, which she never paid.

Tribunal member David Jiang found Ogston liable, but only for the second incident involving her dog – citing the legal doctrine of scienter, which relates to the intent or knowledge of wrongdoing, and is sometimes summed up in animal attack cases as the “one free bite” rule.

Jiang’s decision, which was handed down last week, does not specify the breed of the dog.

One bitten, twice injured

The CRT heard Nzibonera met Ogston’s dog once before moving into the home on July 1, and that the animal had jumped on her, but didn’t hurt her.

“Ms. Ogston assured Ms. Nzibonera the dog would not be an issue once it adapted to her presence,” Jiang wrote.

The dog went on to bite Nzibonera on July 2.

The animal ran at Nzibonera while she was sitting outside and bit her face, without provocation, according to a witness whose account was not contested by the dog’s owner.

On top of needing stitches to her eyelid, Nzibonera suffered injuries to her chin during that attack, the tribunal heard.

The second incident happened just three days later, on July 5. Nzibonera said she was sitting outside the rental again when she saw Ogston taking the dog out, and decided to head inside to avoid the animal.

But the dog “escaped Ms. Ogston’s grasp and ran towards Ms. Nzibonera,” who tried to flee and fell, fracturing her wrist, according to Jiang’s decision. A medical imaging report indicated Nzibonera had to wear a cast for weeks.

Animal control seized Ogston’s dog that night, and later euthanized it.

Nzibonera didn’t pay her $900 rent for August, and was evicted by Ogston before the end of the month.

Nzibonera had told Ogston she would have difficulty paying August’s rent in a text message on July 6 – the day after she was injured the second time – and asked Ogston for compensation. Jiang said Ogston replied to her “immediately,” writing: “I’m not compensating you… You can find another place to live. I will refund you.”

Ogston did return a $450 damage deposit to her former roommate, the CRT heard.

Dog owner only liable for 2nd incident

Jiang noted there are three ways a dog owner can be liable for an attack: scienter, negligence, and occupier’s liability. He found Ogston liable for the first two.

For the legal doctrine of scienter to apply, Jiang wrote, Nzibonera had to prove that “at the time of the attack, Ms. Ogston owned the dog, the dog had shown an inclination or tendency to cause the type of harm that happened, and Ms. Ogston knew of that tendency.”

While the tribunal member said no evidence was presented that Ogston’s dog had aggressive tendencies prior to the July 2 attack, he found that was the animal’s “one free bite,” and she was liable for the second.

For negligence to apply, Jiang said Nzibonera had to prove that “Ms. Ogston knew, or ought to have known, that the dog was likely to create a risk of injury to Nzibonera, and Ms. Ogston failed to take reasonable care to prevent such injury.”

Taking reasonable care, in light of the first attack, would have included “ensuring that the dog did not escape her grip,” he wrote.

“I find the potential gravity of the harm was high and the cost to prevent the harm was modest. I find that by failing to secure the dog, she breached her duty to take reasonable care to keep Ms. Nzibonera reasonably safe,” Jiang added.

“Given my conclusion, I need not consider occupier’s liability.”

Damages awarded

In her filing, Nzibonera sought $5,000 - the maximum allowed at the small claims tribunal – for financial losses. She also told the tribunal she suffered both physical and mental pain.

Jian said the financial losses were largely unsupported by evidence, but found Nzibonera was entitled to $29 reimbursement for a wrist brace, $2,500 in non-pecuniary damages for her injuries, and $2 in pre-judgment interest.

Ogston said Nzibonera still owed her $900 in rent for August 2023, but Jiang noted she did not “file a counterclaim or pay the necessary fee to do so,” so he did not make a decision on the matter.

“If I had, Ms. Ogston would have limited success given that she evicted Ms. Nzibonera,” he added.