By David Lu
Some condominium corporations have a full prohibition on animals in their Declaration. This means that individuals are generally not allowed to bring animals (pets) into that specific condominium. Of course, this prohibition is subject to human rights legislation in Ontario. Therefore, a condominium corporation may be required (in some instances) to “accommodate” someone’s human rights needs, or in other words to exempt an individual from such a prohibition on human rights grounds.
However, what would happen if there were competing human rights at play? There are members within our society that have serious medical conditions that require them to avoid certain animals (such as dogs). We are increasingly seeing instances where individuals (who have such medical conditions) specifically choose to live at condominiums that have animal prohibitions to have a better peace of mind when they go about their lives. [These individuals also have a right to be accommodated.] What should a condominium do if they have a resident who medically needs a dog, and a resident who medically must avoid a dog living in the same building?
This was the situation in Tamo v Metropolitan Toronto Condominium No. 844 (“Tamo”). In Tamo, the condominium corporation had a prohibition on animals in its declaration. An owner asked for an exemption on medical grounds due to a need for an emotional support dog. When the condominium received sufficient information (including medical documents), the condominium approved the request.
However, the condominium later learned that another owner had a serious medical condition requiring them to avoid dogs and that the person had specifically chosen this Toronto condominium because of the existence of the prohibition on animals. This person, Tamo, subsequently commenced a proceeding at the Condominium Authority Tribunal (“CAT”) arguing that the condominium had failed to accommodate her disability as a result of approving the dog owner’s medical exemption request.
I encourage anyone who is interested in this issue to read the full decision (which can be found online). On the facts before it, the CAT agreed with the condominium corporation (that the dog had to be permitted).
The principles that I took from this decision and from our office’s own experiences in dealing with this difficult issue, are as follows: (a) If not created already, condominium’s should develop a process to deal with human rights accommodation requests; (b) As part of this process, receiving sufficient information (which often includes clear medical information) is critical; and (c) In a situation where there appears to be competing human rights interests/requirements (such as what happened in the Tamo case) the key is to explore, as much as possible, the specific needs of each individual requiring accommodation. The goal in each case will be to do everything possible to try to find a way to accommodate both residents.
What appears to be inherently incompatible human rights needs may actually be not so incompatible if sufficient inquiries are made and creative solutions are considered. It may also require the opposing parties to compromise (for example limiting the size of the emotional support animal) in order to achieve a common goal.
These are difficult issues, and the solution will likely differ for each situation. With more of us living in condominiums each year, I expect that these types of disputes will also become more prevalent. So, it is important for condominiums to make sure that they have the processes in place to address these challenges when they arise.
David Lu is an Associate at Davidson Houle Allen LLP, a boutique Condominium Law firm serving Eastern Ontario.