As published in the Winter 2009 edition of the CondoVoice Magazine.
As a director, you are no doubt aware that the unit owners and residents in your condominium corporation love their pets. Unfortunately, this also means that they are likely to challenge any attempt to “interfere” with their pets and that such challenges could be fierce. Therefore, before passing any pet rule, a board should carefully consider the purpose of the rule and whether it is appropriately drafted to avoid or at least minimize potential challenges.
Potential challenges could come from three fronts, namely:
a. that the rule is not consistent with the requirements of Section 58 of the Condominium Act, 1998 (the “Act”);
b. that the rule is unreasonable; and
c. that the rule is contrary to the Ontario Human Rights Code.
Let us look closer at the potential challenges and how they may be addressed.
The requirements of Section 58(1) of the Act
Fundamentally, rules are not valid unless they are passed for a purpose that is consistent with the requirements of Sub-section 58(1) of the Condominium Act, 1998 (the “Act”), being either:
a. to promote the safety, security or welfare of the owners and of the property and assets of the corporation; or
b. to prevent unreasonable interference with the use and enjoyment of the common elements, the units or the assets of the corporation.
If the purpose of the proposed rule does not appear to fall under either of these two categories, then the rule is invalid. For example, if the board is considering a complete ban on dogs because the board considers that a dog-free building would be more desirable from a lifestyle or property values perspective, then it should not pass a rule for this purpose. Such a ban may still be imposed, but only by way of amending the declaration and with appropriate grandfathering provisions. If the corporation already has a no-pets rule, then a board should be aware of the vulnerability of the rule to legal challenges and should consider inserting the no-pets provision in its declaration.
Even if the proposed pet rule falls under one of the two above-mentioned categories, pursuant to Sub-section 58(2) of the Act, the rule must also be reasonable.
How exactly does a board ensure that the proposed rule is “reasonable”? Unfortunately, whether a rule is reasonable or not is ultimately determined by the judge or arbitrator reviewing the rule (if the rule is legally challenged). However, a general guideline is that a rule must address a specific problem with a specific solution that is rational, fair and neither too broad nor too restrictive.
For example, if a board is contemplating a pet rule because it is concerned about dogs soiling the common element areas, then a rule containing a blanket ban of dogs would be considered too broad and intrusive, as not all dog owners allow their dogs to soil the common element areas. Amore reasonable rule would require the residents to clean up after their pets and permit the corporation to do it at their cost if they fail to do so. This rule could be coupled with a rule that would allow a board or property manager to deem a dog to be a nuisance and require its permanent removal from the premises, in the event that the dog owner persistently allows his or her dog to soil the common elements.
As well, for example, if a board is contemplating a pet rule because of problems with large dogs intimidating or threatening residents, then a rule banning all dogs would likely be considered too broad and intrusive. However, a rule requiring dogs to be leashed and supervised at all times when on the common elements, coupled with a weight restriction on the dogs, may be considered reasonable (the court has already considered a 25 pound weight limit to be reasonable).
Generally speaking, any attempt to deal with problems caused by certain types of pets by way of a blanket ban of those types of pets would likely be considered unreasonable (unless a board can actually satisfy the judge or arbitrator, as the case may be, that the ban was the only way to address that particular problem).
The Ontario Human Rights Code
Even if the proposed pet rule meets the requirements of the Act, it may still not be enforceable against certain unit owners and residents in the corporation. The corporation has a duty pursuant to the Ontario Human Rights Code (the “Code”) to accommodate the needs of handicapped residents and the Code defines the term “handicap” very broadly to include any degree of disability, mental or physical. A board, therefore, must be careful in both the drafting of the rule (to avoid direct or indirect discrimination) and the enforcement of the rule (to avoid indirect discrimination).
With respect to enforcement, a board should be aware that some people keep pets for therapeutic purposes, meaning that the pets are prescribed or intended to be used in aid of a disability. There have been a number of cases where unit owners challenged pet bans on the basis that they had mental disabilities and their respective pets were required for medical purposes. Although each case was dealt with on its own merits, it appears that the courts are prepared to exercise discretion and refuse to enforce a “no pets” rule in circumstances where enforcing it would result in real harm to the pet owner.
In one case, the court accepted that clinical depression can constitute a “mental disorder” (which is a handicap within the Code) and that a part of the owner’s treatment was the emotional support provided by her cat. As a result, the court concluded that the cat was a “therapy utility animal” and that its removal would constitute discrimination against the owner because of a handicap.
Even in the absence of a “mental disorder”, the courts appear to bend backwards to assist owners if they are very ill. In one case, the court accepted the evidence that the owner was quite ill, and although there was no evidence that the owner suffered from depression or that her dog was a “therapy utility animal”, the court nonetheless considered that this was an “extraordinary case” that called for the exercise of discretion in not enforcing the rule against the owner. That said, in other cases where an owner suffered some depression but not severe depression, the courts have been less inclined to exercise discretion in favour of the owner. The problem, however, is that it is not clear where the courts draw the line.
A board, therefore, should be sensitive to the potential effects of a pet rule on owners who rely on their pets as part of a therapeutical program. This does not mean that a board should automatically decide not to enforce the rule against those owners or residents who claim that their respective pets are needed for therapeutic purposes. A board has the duty to enforce the corporation’s rules and therefore should carefully exercise its discretion not to enforce a particular rule. This means, among other things, that a board should assess the medical evidence presented and seek legal advice, if necessary, before deciding how to proceed.
Many consider their pets to be special and accordingly, there is always a high risk that freshly passed pet rules may be fiercely challenged. A board must be sensitive to that and should avoid descending into the gladiator pit with unit owners and residents over their pets unless it is well armed and ready to do battle.