In Nigro v Luciano, 2026 ONCA 283, the Ontario Court of Appeal dismissed a dog‑walker’s claim for serious injuries sustained in a dog attack—on the basis that she herself was considered an “owner” of the dog for the purposes of the Dog Owners’ Liability Act (“DOLA”). The dog was named Forrest Gump, which turns out to be an unintentionally apt detail.
Much like Forrest Gump, this case is not memorable for its facts, but for its message. Liability did not turn on who had title to the dog or who gave instructions. Instead, it turned on principles of accountability and responsibility. As the familiar “life is like a box of chocolates” line from the film suggests, events can be unpredictable; however, sympathies are shaped by the nature of one’s reactions. That principle has a familiar echo for co-estate trustees.
Nigro v Luciano and Joint and Several Liability
Turning to the facts of Nigro v Luciano, a dog-walker was preparing dogs for their routine, daily walk. Since the ground conditions were muddy and one of the dogs was susceptible to infection, she attempted to put protective booties on the dog in accordance with the owners’ instructions. The dog unexpectedly attacked her, causing serious injuries. The walker sued the owners, her claim was dismissed, and she appealed.
In dismissing the appeal, the Court of Appeal confirmed the dog-walker was an “owner” under the DOLA and, in turn, jointly and severally liable for her own injuries. Although the dog-walker argued that she was merely following instructions and lacked true ownership, the Court did not sympathize with her. Passive compliance did not negate her responsibilities, and following instructions did not insulate the dog-walker from liability.
The decision resonates with estate trustees who at once assumed they bore no responsibility for the acts of their co‑trustee, only to later discover that assumption was misplaced. They too hold joint and several liability.
A Familiar Estate Administration Scenario
Estate trustees often divide responsibilities based on relative strengths. That division is usually practical and efficient. Trustees then rely on one another’s competence and responsibilities. However, sometimes they do so quite heavily and without active oversight over the other’s actions, or even the actions they have been instructed to carry out by their counterpart(s).
Although raised in a different context, Nigro v Luciano offers a useful reminder that such reliance does not amount to immunity and will not gain the sympathy of the courts.
Passive Reliance and Section 35(1) of the Trustee Act
Under section 35(1) of the Trustee Act, trustees may seek relief from joint and several liability where they have acted honestly and reasonably. However, reasonableness in this context typically requires active engagement. Trustees are expected to make sufficient inquiries and take certain steps where circumstances call for them.
As with the dog walker in Nigro, merely “following instructions” from a co‑trustee without thought to action will not necessarily meet that standard. Courts are generally unsympathetic to the trustee who had the ability to make inquiries, intervene, or question a course of action and did not do so. Cahill v Cahill, 2016 ONCA 962, provides one illustration—where the estate trustee accepted responsibility for the administration, the Court was reluctant to excuse inaction, indifference, and unquestioning reliance.
The Takeaway and the Forrest Gump Parallel
Forrest Gump was met with life’s cruelty on many occasions, and people sympathized with him for the character he upheld in the face of that cruelty.
In Nigro v Luciano, the dog-walker was met with a reactive dog, and the law did not sympathize with her response and attached consequences to her conduct.
Co-estate trustees face similar unpredictability, whether from beneficiaries, creditors, estranged family members, or, more importantly, the courts. Displacing blame is no good way to react. If an estate trustee wishes to gain the sympathies of the court when seeking relief under section 35 of the Trustee Act, one thing is certain: they should come to court able to argue that they took an active role and that their actions (or inactions) held accountability and responsibility at the forefront.
The key takeaways here are:
- dividing labour does not divide liability;
- the fiduciary nature of an executor’s job requires an active approach on all fronts; and
- joint and several liability can be displaced if a court sympathizes with a co-estate trustee and finds section 35 relief should be awarded.
Thanks for reading!
By Jordyn Sanford