A Tale of an Emotional Support Animal in a No Pets Condo With Another Owner With Severe Allergies – What’s a Condominium To Do?
The CAT recently released an interesting decision about pets and how condominiums must balance the competing interests of the owners.
The application was started by an owner against her condominium and another owner in response to the condominium granting the second owner an exemption from the “no pets” provisions in the declaration and rules. The owner alleged that the condominium failed to enforce its pet prohibition by allowing the second owner to have a dog on the property and the condominium failed to accommodate her disability of severe allergies and mental distress in relation to the dog.
The condominium argued that it had enforced the pets prohibition in a consistent, fair, and reasonable manner. The condominium argued it had a duty to accommodate the other owner’s disability, so it provided her an exemption from the pets prohibition. This decision was reasonable and is entitled to deference, said the condominium.
The CAT addressed four issues:
- Was the condominium in breach of its governing documents by exempting the owner from the pets prohibition?
- Did the condominium fail to accommodate the owner’s disability by permitting the other owner to have a dog in her unit and on the common elements?
- Has the condominium’s decision to accommodate the second owner imposed an undue hardship on the first owner?
- Should the CAT award costs?
The CAT found that the board’s decision to exempt the owner from the pets prohibition was within the range of reasonable outcomes and was entitled to deference. The owner alleged that the second owner was required to prove her disability to the CAT, but the CAT disagreed. The owner was only required to provide sufficient information about the disability to satisfy the board of its obligations under the Human Rights Code. The board carefully considered her request, required further information from her doctor after the initial note was received, and imposed conditions on its approval of the exemption. The owner also challenged the condominium’s enforcement of the conditions, but the CAT was satisfied the decision not to enforce some of the conditions was reasonable in the circumstances.
The owner also argued that the condominium did not have an obligation to accommodate the owner by exempting her because the dog was not “a genuine service dog” but was an emotional support animal. The owner argued the dog was not a service dog within the Human Rights Code or the Accessibility for Ontarians with Disabilities Act, 2005. It is worth noting that the owner relied upon a definition of service animal that was repealed in 2016. Fortunately, the CAT provided much needed clarity to this issue as many in condominiums believe that service dogs require accommodation but emotional support animals do not. The CAT confirmed that the duty to accommodate a disability under the Human Rights Code includes more than physical disabilities and includes accommodation for mental health disabilities, including with an emotional support animal.
The CAT also considered the owner’s competing interests, namely her severe allergies and the mental distress caused by the presence of a dog on the property. The CAT was convinced that the owner had allergies but was not convinced that the owner’s description of the severity of her allergies was accurate as it appeared to conflict with the evidence of her own doctors. It also conflicted with the expert evidence presented by the second owner and the condominium. Furthermore, the owner refused to participate in the accommodation process with the condominium, despite repeated requests, so the condominium could not be faulted for not accommodating her allergies. Notwithstanding such, the CAT encouraged the parties to work together to find solutions that would reconcile their competing rights and obligations as both owners would presumably continue to live in the condominium.
The CAT declined to order costs. The applicant owner was not successful in her application, so she was not entitled to costs. The condominium and responding owner were not entitled to their costs because there were no special circumstances suggesting it was appropriate. The parties acted reasonably throughout the proceeding and the issues were pursued by each for the proper purpose of ensuring the competing human rights considerations were addressed.
For those interested, the full case is available on CanLii here: