Legal

November 9, 2021 Published by Toronto and Area Chapter - By Julia Lurye, Paneet Bhandal

Decisions From the Courts

From the Fall 2021 issue of CCI Toronto Condovoice Magazine, Volume 26, Issue Number 1

C.A.T. Decisions on Pet Disputes: In October of 2020, the Condominium Authority Tribunal (The "CAT") Expanded Its Jurisdiction Into the Area of Pet Disputes

In October of 2020, the Condominium Authority Tribunal (the "CAT") expanded its jurisdiction into the area of pet disputes. Since then, a number of favourable decisions for condominium corporations have been released on this subject.

Reid v. Ottawa-Carleton Standard Condominium Corporation No. 878, 2021 ONCAT 39

In Reid v. Ottawa-Carleton Standard Condominium Corporation No. 878, CAT was asked to determine the validity of a rule that restricts the common element ingress and egress pathways available to pets.

In 2017, Ottawa-Carleton Standard Condominium Corporation No. 878 (the "Corporation") passed a rule prohibiting pets from using the front lobby to enter and exit the building (the "Pet Rule") in response to owners not picking up their dogs' waste, disposing of poop bags in the front lobby garbage bin, and the smell of urine lingering around the front entrance. Despite enforcement efforts, the problems persisted.

The applicant owner, Mr. Reid, brought an application for an order repealing the Pet Rule on the basis that it was inconsistent with Article 4.1 of the Corporation's declaration, which provided that, Subject to the provisions of the Act, the Declaration, the by-laws and the rules, each owner has the full use, occupancy and enjoyment of the whole or any part of the common elements, except as herein otherwise provided.

In addition, Mr. Reid claimed that the Pet Rule was unreasonable pursuant to subsection 58(2) of the Condominium Act, 1998.

CAT was first required to deal with the preliminary issue of which version of the Pet Rule was in force and effect. In 2019, the Corporation amended its Pet Rule to a less stringent version, prohibiting pets in the front lobby during certain times and suspending the rule in the event of a fire or emergency evacuation (the "2019 Rule Amendment").

CAT found that the 2019 Rule Amendment was null and void because notice of the amendment was neither given to owners nor was the rule amended at a meeting of owners called for the purposes, as required by sections 58(5) and 58(6) o f the Condominium Act, 1998. Although in this case there were no major consequences from failing to ensure that the 2019 Rule Amendment properly passed, CAT noted that the Corporation exposed itself to potential challenges to enforce the Pet Rule.

With respect to claiming that the Pet Rule was inconsistent, Mr. Reid argued that Article 4.25 of the Corporation's declaration only required pets to be on a leash when on the common elements, and as such, a rule restricting his use of the common elements would be inconsistent with the declaration.

CAT found that Mr. Reid overlooked the wording "subject to the provisions of…. the rules", which wording contemplated that rules might limit the full use aspect so long as the rule was not in conflict with the Condominium Act, 1998 and the Corporation's declaration and by-laws.

Further, CAT found that a rule prohibiting pets from being on specific parts of the common elements was not in conflict with the requirement that the pet(s) be on a leash. To this end, CAT noted that the effect of the leash requirement is that dogs be leashed when on the common elements as permitted by the rules. Ultimately, no inconsistency was found.

With respect to claiming that the Pet Rule was unreasonable, Mr. Reid argued that the rule was uncommon among condominium corporations in the community – none of the neighbouring buildings contained a rule similar to the Pet Rule. CAT was not compelled by this argument, finding that a rule being uncommon does not make it unreasonable.

Mr. Reid also claimed that the Pet Rule created safety concerns for owners with dogs as they were forced to use the back entrance, which exposed them to safety hazards not experienced at the front entrance as the front entrance is staffed by a 24/7 concierge and is a direct exit. The Corporation's representative testified that the Corporation had spent approximately $100,000.00 to upgrade and improve the route to the back entrance, which included additional security cameras and outdoor lighting.

After taking into consideration the purpose of the Pet Rule and the improvements made by the Corporation, CAT found that the Pet Rule was reasonable and dismissed the application. No costs were awarded.

Metropolitan Toronto Condominium Corporation No. 1195 v. Solomon, 2021 ONCAT 20

In Metropolitan Toronto Condominium Corporation No. 1195 v. Solomon, Metropolitan Toronto Condominium Corporation No. 1195 ("MTCC 1195") brought an application to enforce compliance with its pet rules shortly after the respondent unit owner, Ms. Solomon filed an application with the Ontario Human Rights Tribunal ("HRTO").

Ms. Solomon then brought a motion to defer consideration of the CAT application pending the conclusion of the HRTO proceeding. CAT acknowledged that multiple proceedings on the same matter should not run concurrently, otherwise there is a risk of inconsistent decisions, but also noted that deferral is not automatic.

In this case, despite the HRTO application being filed first, both proceedings were still in their early stages. CAT noted that the HRTO does not have exclusive jurisdiction over the interpretation and application of the Ontario Human Rights Code (the "Code"). Since CAT has jurisdiction over disputes regarding provisions of a condominium corporation's declaration, by-laws and rules governing pets, it has the authority to apply the Code where human rights issues arise within the context of a case before it.

The dispute arose when MTCC 1195, although agreeing to Ms. Reid's request for an exemption to its rule restricting the size of dogs, required Ms. Solomon's dog to wear a muzzle while on the common elements. CAT determined that the central issue in dispute is the application and exemption of the Corporation's rules governing pets. As such, CAT has exclusive jurisdiction.

Ms. Solomon's motion was denied and the CAT application was ordered to proceed.

Peel Condominium Corporation
No. 96 v. Psofimis, 2021 ONCAT 48

In Peel Condominium Corporation No. 96 v. Psofimis, 2021 ONCAT 48, Peel Condominium Corporation No. 96 (the "PCC 96") had a rule that restricted the weight of household pets to 40 pounds (the "Pet Rule").

The respondent owner, Mr. Psofimis, used to have a dog in the unit that weighed in excess of 40 pounds. It appears that the Corporation was not aware of this dog. When this dog passed away, Mr. Psofimis got another dog also weighing over 40 pounds. When the Corporation found out about the second dog, the Corporation and Mr. Psofimis entered into an agreement which provided that once this dog passed away, Mr. Psofimis would not keep any further pets in his unit in contravention of the 40 pound Pet Rule.

However, Mr. Psofimis disregarded the agreement. Following the passing of his second dog, Mr. Psofimis got a third dog also weighing more than 40 pounds. The Corporation engaged its legal counsel to communicate with Mr. Psofimis and require the removal of the dog. Mr. Psofimis failed to comply.

The Corporation was forced to commence a CAT proceeding for an order requiring the immediate removal of the dog and requested all costs associated with trying to enforce compliance and legal fees. CAT found that Mr. Psofimis was in breach of the Pet Rule. Despite being given many opportunities to voluntarily comply with the Pet Rule, Mr. Psofimis failed or refused to do so.

CAT also found that Mr. Psofimis had an obligation under the Condominium Act, 1998 to comply with the Pet Rule and that PCC 96 was statutorily mandated to enforce the Pet Rule, which in this case meant pursuing an order to remove the dog. As such, CAT ordered Mr. Psofimis to remove his dog from PCC 96's premises within 30 days of the date of the order, pursuant to section 144(1)2 of the Condominium Act, 1998, which empowers CAT to make an order either prohibiting or requiring a party to the proceeding to take a particular action.

CAT did not, however, make an order restricting Mr. Psofimis from obtaining and residing with any new pets exceeding the 40-pound limit in the Pet Rule because the rules already prohibit this.

CAT also ordered Mr. Psofomis to pay $536.00 to PCC 96 for the costs of the enforcement letter sent by the corporation's legal counsel, pursuant to section 144(1)3 of the Condominium Act, 1998 which section authorizes CAT to make an order directing a party to the proceeding to pay compensation for damages incurred by another party to the proceeding as a result of an act of non-compliance up to the greater of $25,000 or any prescribed amount. Given PCC 96's success on the application, CAT also ordered Mr. Psofomis to pay $200 to PCC 96 for its filing fees, pursuant to CAT's Rule 45.1.

With respect to the $3,926.75 requested by PCC 96 for legal fees, CAT noted that although Rule 46.1 does not generally allow for the awarding of legal fees, there were exceptional reasons to do so in this case. Mr. Psofimis deliberately and repeatedly ignored PCC 96's numerous attempts to request his voluntary compliance, including disregarding the agreement. As such, CAT found that awarding legal fees in the amount of $3,926.75 was warranted.