Court Costs Bite Owners Claiming Disability to Keep Dog
In late June I wrote about a case where an owner claimed that she needed to keep an overweight dog in her unit because of a disability. The condominium refused her request because, in the board's opinion, she failed to provide sufficient evidence to substantiate her disability and the need for the dog. The condominium brought an application for an order requiring the owners to remove the dog. The condominium was successful. The court ordered that the owner permanently remove the dog from the unit and invited the parties to make submissions on costs. The condominium sought costs on a full indemnity scale of about $48,000.00. The condominium argued that it would be unfair to the other innocent unit owners to have to bear any costs of the owners' refusal to remove the dog. The owners argued that $20,000.00 would be more reasonable since they had limited financial resources. They apparently relied upon their doctor's advice that they did not have to disclose personal medical information to the condominium. The owners also sought an order that the award made included all "additional costs" for the purposes of section 134(5) of the Act. The condominium argued that the costs sought were not "additional costs". On July 13, 2015 the court released its decision on costs. The judge agreed with the condominium. At paragraph 10:
The (owners') neighbours are blameless in this matter; it is not fair or equitable for other unit owners to have to subsidize the costs of the condominium corporation in pursuing a legal proceeding against a unit owner for their breach of the condominium rules.The judge awarded the condominium costs of $47,000.00 including taxes and disbursements. If the owners do not pay the condominium within 20 days of the order the condominium may register a lien against the unit. Interest was awarded at the rate set out in the condominium's by-laws. As for section 134(5) of the Act, the judge stated that it would "not be appropriate to deal with additional costs under s.134(5) of the Act" and declined to make the order sought by the owners limiting costs under that section to those awarded. This case should serve as an important lesson to all owners: don't make claims you can't substantiate or it could cost you. It also serves as an excellent example of how a condominium should approach requests for accommodation: be reasonable, but remember there is nothing wrong in asking for evidence to substantiate the disability and the need for accommodation.