Specific Legal Issues
June, 3 2022 Published by London and Area Chapter - By Kate Schoffer
CAT Case: Emotional Support Dog in Condo with Pet Prohibitions
From the CCI Review 2021/2022-4 June 2022 issue of the CCI London Chapter
CAT addresses emotional support dog in Condo with pet prohibition - Tamo v. Metropolitan Toronto Condominium Corporation No. 844 et al., 2022 ONCAT 40
Recently, the Condominium Authority Tribunal (“CAT”) addressed circumstances where an Applicant unit owner claimed that the Condo failed to enforce the pet prohibition in its Declaration and breached her right to occupancy free of discrimination by permitting another unit owner to have an emotional support dog reside at the complex. The Applicant alleged that the Condo failed to accommodate her disability of severe allergies and mental distress related to the presence of the emotional support dog. The Applicant requested that the CAT order the permanent removal of the dog from the complex.
The CAT dismissed the application and made no order with respect to costs for any party. Some key takeaways from this case include:
1. The Tribunal has accepted that the business judgment rule applies such that deference should be given to the decisions of a condo’s board of directors, provided the decision is neither unfair or unreasonable and the directors have met the standards set out in section 37 of the Act. In applying the business judgement rule, the question will be whether the Condo acted in good faith, followed a reasonable decision-making process, and made a decision that was within a range of reasonable outcomes.
2. In the search for reasonable accommodation, all parties have an obligation to engage and cooperate in the process.
3. The onus to prove undue hardship is on the party that claims undue hardship, and this must be proven with concrete evidence and not simply through general assertions. A party does not strengthen their case when they make overstatements; rather, they tend to undermine their credibility.
The CAT found that the Condo had not breached its governing documents by approving the other unit owner’s request to have an emotional support animal. While Condos are required to comply with and enforce the Condominium Act, 1998 (the “Act”), their declaration, by-laws and rules, Condos are also required to comply with the Ontario Human Rights Code, 1990 (the “Code”). Section 47 (2) of the Code states that the Code has primacy over other legislation; this includes the Act and the governing documents of the condo.
The CAT determined that in providing the exemption to the pet prohibition for the emotional support dog, the Condo acted in good faith, followed a reasonable decision-making process, and made a decision that was within a range of reasonable outcomes. The other unit owner provided sufficient medical information to the Condo to establish that she had a disability and that an emotional support animal was a required accommodation. The Condo did not automatically approve the request. It required a formal request and a doctor’s letter, and then requested clarifying information from the doctor. The Condo then reviewed the request and supporting documents before granting approval for the emotional support dog.
The CAT further concluded that the Applicant had not established that the Condo failed to accommodate her disability or that she has suffered undue hardship as a result of granting the accommodation of an emotional support dog to the other unit owner. The CAT was satisfied that the Applicant had a disability within the meaning of the Code, based on her testimony and the supporting reports from her doctors of allergies to a range of substances, including dogs. However, the CAT was satisfied that the Condo met its duty to accommodate by repeatedly requesting information from the Applicant about her needs. The Applicant did not respond to these requests and her failure to participate in the process effectively prevented the Condo from considering and meeting her accommodation needs.
The Applicant argued that the Condo’s accommodation of allowing the emotional support dog imposed undue hardship on her and that therefore, the Tribunal should conclude that the Condo’s decision was unreasonable. The CAT found that the Applicant’s statements that she had severe and life-threatening allergies to dogs was not consistent with her doctors’ reports, the doctor’s report submitted by the Condo, and other statements in the Applicant’s testimony and her correspondence with the Condo. The CAT concluded the Applicant had exaggerated her case. The onus to prove undue hardship is on the party that claims undue hardship, and this must be proven with concrete evidence and not simply through general assertions. The evidence did not establish that the Applicant experienced allergy symptoms related to the presence of the emotional support dog or that she experienced severe and life-threatening symptoms related to the dog’s presence. As a result, the CAT found that the Applicant had not proved that the dog caused undue hardship to the Applicant.
Balancing opposing accommodation requests of condo residents can be a challenging and nuanced task. If your condo is dealing with competing accommodation claims, a lawyer can assist with ensuring that the board of directors follows a fair process and considers all of the relevant principles, factors and evidence in assessing competing claims.
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.
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