01/02/2023 – Jurisdiction Ontario
Part 81 published on 01/03/2023
Resident permitted to keep dog as a service animal. Conditions (imposed on dog) also not reasonable.
The condominium corporation had “no pets” provisions in the Declaration and Rules. The corporation had nevertheless permitted a dog as a service animal (i.e., an accommodation of a human rights need).
The dog had been involved in some alleged “lunging incidents.” As a result, the condominium corporation felt that the dog was a safety risk and sought an order for the dog’s removal. The condominium corporation had also imposed certain conditions upon the dog, and sought to enforce those conditions (as an alternative remedy). The conditions dealt with muzzling and training as well as restrictions upon the dog’s travels through the common elements. The conditions had been prepared without any consultation or discussion with the dog owner.
The Tribunal reviewed the evidence about the lunging incidents and determined that there was in fact no safety risk and therefore no “undue hardship” to the condominium community. The Tribunal therefore declined to order the dog’s removal.
The Tribunal also determined that the condominium corporation’s conditions were not enforceable because the Board had not prepared the conditions in a fair and reasonable manner. The Tribunal said:
While I agree with YCC 288 that deference should be to the decisions of a condominium board, such deference shall not be given when a decision is either unfair or unreasonable.
…
Given YCC 288 never engaged the Respondent in discussions regarding their concerns for Sumo’s (the dog’s) behaviour, I find their decision to unilaterally impose conditions on Sumo was unreasonable, not in good faith and lacked the exercise of due diligence. In contrast, a reasonable decision, made in good faith and with due diligence is one made after gathering all the relevant information, including that from all affected parties, which in this matter should have included the Respondent.
Further, in keeping with the provisions of the Ontario Human Rights Commission’s Policy on ableism and discrimination based on disability, section 8.6, states that the accommodation process is a shared responsibility; everyone involved should co-operatively engage in the process, share information, and consider potential accommodation solutions. In my view, this obligation extends to problem solving when issues arise that are related to an approved accommodation. As previously noted in this decision, YCC 288’s witnesses confirmed that YCC 288 did not engage in conversations with the Respondent about conditions for Sumo’s behaviour in the condominium building. In this regard, I agree with the Respondent that YCC 288 breached their procedural duty under the Code by failing to engage the Respondent in discussions about their concerns with respect to his accommodation of Sumo living in the building
York Condominium Corporation No. 288 v. Tamhane, 2023 ONCAT 16