Niagara North Condominium Corporation No. 125 v. Joanne Kinslow (Superior Court of Justice - Ontario)

The condominium corporation made application for removal of the owner’s two cats.  The condominium corporation relied on “no pets” provisions contained in both the Declaration and the Rules of the condominium. 

The Court held as follows: 

• A “no pets” Rule is not enforceable, because condominium Rules must be “reasonable” and a complete prohibition of all pets is not reasonable.

• However, a condominium Declaration is not subject to the requirement that it be reasonable, and the “no pets” provision in the Declaration was accordingly enforceable.  The Court said:

Thus, a declaration that is unreasonable can still be valid – as long as it is not unfair in the circumstances (with unfairness being gauged in accordance with the law and not the sensibilities of a particular respondent). 

• Requiring the removal of the cats would not amount to discrimination under the Human Rights Code, in this case.  The Court said: 

However, for me to find the discrimination necessary to defeat the Declaration, the no-pets provision must have the effect of preventing the respondent from living in her unit (as in Waterloo North Condominium Corporation No. 198 v. Donner, supra, where it was held that barring an occupant’s “hearing-ear dog” from being kept in a condominium unit would prohibit the occupant from residing in her unit, because the dog was necessary for her to function independently).    That is not the situation here.  There is no evidence that the respondent is unable to live without her cats.  Certainly, they are a comfort to her and, no doubt, her preference is to live with them rather than without them, but the evidence does not support a finding that she is so physically, emotionally or otherwise medically dependent upon them that she cannot live without them. 

• The Court noted that applying the Declaration is always within the Court’s discretion, but said: 

Because the respondent has not shown that her cats are a necessity, there is no legitimate basis upon which to decline the exercise of my discretion in favour of the Corporation. 

Note that this was the SAME Judge who had allowed two other cats to stay in the SAME condominium.  [See previous decisions involving the same condominium and another resident, Waddington, in Condo Cases Across Canada, parts 10 (May 2005), 13 (February 2006), 14 (May 2006) and 18 (May 2007).]  In this case, the resident, Joanne Kinslow, referred to that previous decision and asserted that, in light of that decision, the condominium corporation’s proceeding against her constituted an “abuse of process”.  To this, the Court said: 

There are important factual distinctions between Waddington and the application now before the court.   They are found in paragraph 2 of the respondent’s affidavit.  Paragraph 2 contains material facts that were not present in Waddington, thereby rendering inapplicable the doctrine of abuse of process.  …..in her affidavit, at paragraph 2 set out above, she deposes that, before she moved into the condominium complex, she “got rid of” the one cat she had then, because she was made aware that pets were not allowed.  In other words, at that time she was both willing and able to occupy her unit without a pet; today she may be unwilling, but she still is able, to do so. 

The Court accordingly ordered that the two cats be removed. 

[Editorial Notes:  1.  To begin, I note that there was no suggestion of mandatory mediation and arbitration in this case.  The Court apparently accepted that the Corporation had the right to proceed by way of Court application under Section 134 of the Act…perhaps because there was no disagreement about the presence of the cats or about the fact that the Declaration indeed contained a “no pets” provision.  In other words, there arguably was no “disagreement respecting the Declaration”. 

2.  I’m not sure how to interpret the Court’s discussion about “fairness” in the context of the Declaration.  I believe that the Courts have previously been very clear in stating that there is no requirement that a condominium Declaration be “fair”.  The requirement is that the application of the Declaration not result in discrimination within the meaning of the Human Rights Code – but fairness is otherwise not an issue.  Having said the foregoing, as I read the Court’s conclusions in this case, perhaps the Court is really not saying anything different.  In other words, the Court seems to equate “fairness” with the human rights issues. 

3.  The distinction drawn between this case and the Waddington case is most interesting.  I wonder:  Is the Court saying that Waddington was decided differently simply because, in the Waddington case, the cats really were “necessary” to the resident?  If so, that would seem to me to be important new information about the Waddington case.]