Legal

September 7, 2022 Published by London and Area Chapter - By Kevin A. Kok, BA (Hons), MA, JD

Ontario CAT Case: The Importance of Pleadings

From the CCI Review 2022/2023-1 September 2022 issue of the CCI London Chapter

Pet CAT cases, especially those about the CAT and dogs, are an all-too-common topic of discussion amongst condo lawyers. I’ll spoil it now: Decoste v Halton Condominium Corporation No. 134, 2022 ONCAT 51 (“Decoste”) is another pet CAT case, but it is more concerned with pleadings than pets.

The facts of Decoste are unfortunate. The applicant, Ms. Decoste, is an owner in Halton Condominium Corporation No. 134 (“HCC 134”) and wanted to buy a dog. She made this decision when HCC 134’s rules allowed dogs in the building provided they were smaller than twenty pounds, and found a breeder of Dachshunds in Manitoba in November 2021. Ms. Decoste proceeded to put a deposit on that dog in her browser window, and in early December of 2021 arranged a flight to Manitoba to pick up her pup in June of 2022.

In late December of 2021, ostensibly in response to ongoing compliance issues with dogs in the building, HCC 134 passed a rule prohibiting all dogs from the building. The rule contained a “legacy exemption” that could apply to “dogs reported and kept in the building before February 1, 2022.” The Board sent out a Notice to all owners regarding the puppy prohibition and informed them of their right to requisition a meeting to vote on the rule. In short, HCC 134 met its procedural obligations.

Instead of requisitioning a meeting, Ms. Decoste tried to negotiate her way into a legacy exemption. This culminated in a meeting on January 31, 2022 between the parties – the last possible day for a dog to be granted a legacy exemption per the new rule. HCC 134 declined to grant Ms. Decoste an exemption, and Ms. Decoste asked the CAT to order HCC 134 to grant her one. The CAT dismissed Ms. Decoste’s application without costs for either party.

Ms. Decoste did not challenge the reasonableness of the no dog rule, nor did she attempt to requisition a meeting regarding a vote on the rule. Instead, she took the path of least resistance and tried to cordially negotiate with HCC 134. As such, the CAT did not have occasion to address the reasonableness of the no dog rule, as “both parties agree[d] that the rule itself [was] not in dispute.” Instead, the CAT was tasked with interpreting whether the Board’s interpretation of its rule was reasonable, and, unsurprisingly, it was. HCC 134’s interpretation of the rule accorded with its plain language, and Ms. Decoste’s argument that she owned her dog was moot because ownership was not referenced in the rule – possession was. As Ms. Decoste did not have her Dachshund in her unit before February 1, her new furry friend was out of the running for a legacy exemption.

While the CAT’s decision was the correct one, it leaves a bad taste in the reader’s mouth. Ms. Decoste clearly tried to resolve a contentious matter amicably and failed. When she brought her grievance before the CAT, Ms. Decoste did not seek to have the rule declared unreasonable; she argued against the Board’s interpretation and enforcement of its rule, which, to the drafter’s credit, was clear and unambiguous. The CAT did not address the Board’s authority to make rules, or the need for rules to be reasonable, because this was not brought up in Ms. Decoste’s pleadings. She pursued a losing argument, and the CAT let her lose accordingly.

What is the alternative, though? Few readers would fail to feel sympathy for Ms. Decoste and the Dachshund that, in all likelihood, would have had a happy home with her in HCC 134. The CAT even awarded no costs to either party in what reads like a clear show of sympathy for the disappointed Ms. Decoste. While the Condominium Act is consumer protection legislation, it does not follow that the CAT must make owners’ legal arguments for them, or do so in effect by litigating a claim of unreasonable or ultra vires rulemaking that never was.

Kevin A. Kok, BA (Hons), MA, JD is an Associate Lawyer at Cohen Highley LLP. His practice focuses on administrative law, including but not limited to landlord and tenant and condominium matters. Prior to his call to the Bar, Kevin completed his articles at Cohen Highley, where he gained experience in a wide variety of practice areas.

Kevin obtained his Bachelor of Arts from King’s University College with an Honours Specialization in Philosophy and a Minor in History in 2014, his Master of Arts in Philosophy from KU Leuven in 2016, and his Juris Doctor from Western Law in 2021. During his time in law school, he worked with the Runnymede Society, the Canadian Civil Liberties Association, and the Christian Legal Fellowship. He was called to the Ontario Bar in 2022.

Outside the firm, Kevin enjoys writing and playing music on bass guitar and drums and spending time with friends and family.