Legal

March 30, 2022 Published by London and Area Chapter - By Kate Schoffer

CAT vs Dog—What Conditions Can a Condo Impose on an Emotional Support Animal?

From the CCI Review 2021/2022-3 March 2022 issue of the CCI London Chapter

In 2021, the Condominium Authority Tribunal (“CAT”) heard and decided the case of Martis v. Peel Condominium Corporation No. 253, 2021 ONCAT 110, which addressed the Condo Corporation’s attempt to restrict the weight of an emotional support dog on the property. The key takeaways from this case are as follows:

1. Policies and Rules are different. Rules are a prescriptive set of restrictions made to govern behavior. Policies provide a consistent and reliable framework to guide the Corporation’s conduct and conclusions in a decision-making process. A Corporation cannot bypass the statutory requirements set out in section 58 of the Condominium Act, 1998 (the “Act”) for enacting a rule by enacting a policy. Where a policy contains a restriction that is in essence a rule, such a policy is invalid and unenforceable; and

2. The CAT does have the jurisdiction to consider requests for accommodation under the Human Rights Code, 1990 (the “Code”). The purpose of the Code is to accommodate a person’s needs, not their preferences. Weight restrictions on emotional support animals (“ESAs”) may be imposed, within reason, particularly where other residents have a Code-related need to avoid dogs and there is not a demonstrated need for an ESA to be a certain size. Whether weight restrictions on ESAs and/or service animals are acceptable is dependent upon the circumstances of each case.

In this case, the Condo Corporation sought to restrict the weight of a resident’s ESA. The Corporation had a No Pets Rule in place since 1998. The only exception to this rule was for legacy dogs that were on the property prior to the rule. Prior to the passage of the No Pets Rule, dogs were permitted at the property if they weighed no more than 20 pounds.

Hariette Martis was a unit owner, whose son resided with her at the Condo. The son, Mr. Martis, had a medical requirement for an ESA due to a disability, which was recognized under the Code. Mr. Martis sought an exemption from the Corporation from the No Pets Rule for his intended ESA, a young Labrador dog, which would weigh between 60 and 70 pounds when fully grown. Following Mr. Martis’ inquiry regarding accommodation, the Corporation introduced a Service Animal Policy, which placed a weight restriction of 25 pounds on ESAs. The Corporation ultimately denied Mr. Martis’ exemption request on the basis that the Labrador would weigh more than 25 pounds. Ms. Martis applied to the CAT for an order permitting her son to keep a larger dog.

The CAT found that the Corporation could not use its existing No Pets Rule to impose a weight restriction on Mr. Martis’ choice of an ESA because, similar to the Service Animal Policy, the “exemption procedure” was an improperly amended rule, and therefore invalid and unenforceable.

While the Corporation could not use its existing No Pet Rule or Service Animal Policy to restrict the weight of an ESA, the CAT concluded that the Corporation was entitled to impose reasonable conditions on an ESA as an accommodation under the Code. Despite the fact that the process by which the weight limit was chosen lacked transparency, the CAT found that the weight limit itself was not unreasonable in the circumstances for several reasons:

1. The restriction was consistent with the 20-pound limit on dogs which the Corporation had previously used;

2. The restriction appeared to be a legitimate attempt to balance the needs of all of the residents. There was evidence before the adjudicator that some of the needs of the other residents were themselves Code-based; and

3. The unit owner did not produce any persuasive evidence that her son’s disability required an ESA that weighed more than 25 pounds. Human rights case law makes it clear that the purpose of the Code is to accommodate a person’s needs, not their preferences.

Accordingly, the CAT found that the Corporation had offered reasonable accommodation and dismissed Ms. Martis’ application. The Corporation did not seek any costs from Ms. Martis. No costs were ordered.

In reviewing the CAT’s decision, it is important to note that the Corporation presented evidence that the weight restriction imposed was consistent with its prior practice and that the Corporation was taking into consideration the Code-related needs of other residents. When appearing at the CAT, Condo Corporations should ensure that all relevant evidence is presented to the adjudicator and demonstrate all of the interests that the Corporation must consider.

Kate Schoffer is an associate lawyer with Cohen Highley LLP. She who practices in their administrative law group, focusing on condominiums, human rights, residential tenancies, property tax exemptions and regulatory compliance issues. Kate provides risk management and compliance advice to landlords, condominium corporations, property managers and unit owners. She works exclusively with housing providers and landlords with respect to all lease issues.