29/04/2022 – Jurisdiction Ontario
Part 78 published on 01/06/2022
Condominium corporation’s decision to permit a service dog was reasonable
The condominium corporation’s governing documents prohibited animals. The condominium corporation nevertheless permitted a dog as a service animal (for one of the owners). Another owner applied for an order to remove the dog on the grounds that the dog’s presence violated her human rights (because of her severe allergy to dogs and mental distress caused by dogs).
The Tribunal held that the condominium corporation had properly permitted the dog. The Tribunal also held that the presence of the dog would not impose an undue hardship upon the Applicant. The Tribunal said:
I am satisfied that Ms. Clancy provided sufficient medical information to the board to establish that she had a disability and that an emotional support animal was a required accommodation, and that the board took reasonable steps to consider and approve her request for an exemption from the pet prohibition. The board did not automatically approve the exemption in response to Ms. Clancy’s first inquiry. Instead, it required a formal request and a doctor’s letter, and then requested clarifying information from Ms. Clancy’s doctor. Once Ms. Clancy provided further information, the board reviewed her request and supporting documents and then granted approval for the emotional support dog as an accommodation, subject to a series of conditions. I find that this decision was made in good faith and with due diligence within the standards set out in section 37 of the Act.
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Although the Applicant argues that she requires accommodation of her disability from MTCC 744, she has not participated in the accommodation process. I am satisfied that MTCC 744 met its duty to accommodate by repeatedly requesting information from the applicant about her needs. The Applicant, unfortunately, did not respond to these requests and her failure to participate in the process has effectively prevented MTCC 744 from considering and meeting her accommodation needs.
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The medical reports from the Applicant’s doctors establish that she experiences allergy symptoms related to dogs. The evidence has not, however, proven in a clear and convincing way that the Applicant is experiencing allergy symptoms related to the presence of Murphy or that she is experiencing severe and life-threatening symptoms related to his presence. Consequently, I do not find that the accommodation of Ms. Clancy’s disability by MTCC 744 has caused undue hardship to the Applicant.
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Despite my findings in this matter, I am, nonetheless, mindful of the context of this dispute, being that the Applicant and Ms. Clancy continue to live in MTCC 744 and that this decision will not resolve the ongoing conflict relating to their competing human rights. The Preamble to the Human Rights Code reflects the following key principles: to recognize the dignity and worth of every person; to provide for equal rights and opportunities without discrimination that is contrary to the law; and to create a climate of understanding and mutual respect. Bearing in mind these principles, I encourage all parties, the board, the Applicant and Ms. Clancy, to work together to engage in a dialogue about reasonable accommodation approaches that would reconcile their competing rights and obligations. In particular, I draw their attention to the OHRC’s Policy on competing human rights and the following excerpt from the policy with a view to guiding them in their ongoing relationship:
Case law dealing with competing human rights claims has been developing slowly in Canada. The courts have said we must go through a process on a case-by-case basis to search for solutions to reconcile competing rights and accommodate individual and groups, to the greatest extent possible. This search can be challenging, controversial, and sometimes dissatisfying to one side or the other. But it is a shared responsibility and will be made easier when we better understand the nature of one another’s rights and obligations and show mutual respect for the dignity and worth of everyone involved. Finding the best solution for maximizing enjoyment of rights takes dialogue and even debate.
Editorial Note: I think this is an excellent example of the factors at play in the case of “competing human rights”.