In a recent decision, the Alberta Court of Queen’s Bench ruled that a couple would be required to relocate their dog out of their condominium unit. This case raises some interesting questions on the enforcement of pet provisions in condominium by-laws and rules, and on the need for service animals to be trained and certified.
The case involved an elderly couple, the Claytons, who had been residing in a condominium property for over 17 years and who had owned three different dogs over this period. When the Claytons first moved into their unit in 2002, the condominium corporation already had a provision in its by-laws prohibiting owners from keeping animals in the units or in the building’s common elements (other than birds, fish or small animals restrained at all times inside the Unit). However, it appears that the condominium corporation did not enforce the by-law in a strict manner, and the Claytons were assured, at the time, that their dog would be allowed in the building.
When the dog died in 2008, the Claytons acquired a second dog, and had it registered with the building’s property management. Nine years later, the Claytons’ second dog was diagnosed with cancer and, unfortunately, also passed. The couple then welcomed a third dog (in September of 2017). This time, however, the Claytons did not register the animal, nor did they seek to obtain the Board’s permission before bringing the dog into the building.
In 2015, while the Claytons’ second dog was still with them, the condominium corporation adopted a policy (in addition to the already existing by-law) prohibiting dogs in the building. The policy confirmed that only dogs that were previously living in the building and that had been registered before July 1, 2015 were grandfathered.
The Claytons were advised in June 2018 that their dog had to be relocated as it had not been registered prior to the July 1, 2015 date. The couple challenged the policy by arguing that the condominium corporation had always adopted a relaxed approach to pet ownership and had never sought to enforce the policy in a strict manner until 2015. In response, the condominium corporation brought an application before the court to have the dog relocated.
The Alberta Court of Queen’s Bench granted the application. The Court found that the Claytons had been aware of the pet by-law since the very beginning (as evidenced by the fact that they had taken steps to register their second dog with property management in 2008), and of the pet policy since 2015. The Court held that, given that the couple did not register the third dog (as it had done with the second dog), and because it did not take any steps to obtain authorization from the Board before moving the dog into the building, the condominium corporation’s decision to enforce the pet policy and pursue the dog’s removal was reasonable in the circumstances. In the Court’s words:
To permit the Claytons to keep their dog in these circumstances would be unfair to other residents who follow the bylaws and policies of the Condominium Corporation and who are entitled to expect the Condominium Corporation to enforce them, as required under the Condominium Property Act. It could also impair or limit the Condominium Corporation’s ability to enforce the rules of the complex in the future.
The Court is very sympathetic to the Claytons’ situation. It is apparent that their dog is a cherished member of their family. But that is not a sufficient reason to dismiss the application of the Condominium Corporation in the circumstances.
In its reasoning, the Court notably looked at the Ontario Superior Court’s decision in Niagara North Condominium Corporation No. 46 v. Chassie. In Chassie, the Superior Court had refused to enforce a no-pet provision in a condominium’s rules on the basis that a total prohibition on animals contained in the by-laws and rules was unreasonable and that a condominium’s by-laws and rules had to display some degree of flexibility to accommodate the needs of different unit owners (although, in the same case, the Court held that there was no such requirement of reasonableness for a prohibition on animals contained in a Declaration). In Clayton, the Alberta Court of Queen’s Bench ultimately declined to follow the Ontario court’s comments in Chassie, finding that:
The role of the Court in this application is to consider whether the relief sought by the Condominium Corporation is appropriate in these particular circumstances.
This is not a case of the board of the Condominium Corporation taking a casual approach to the enforcement of its rules and regulations, or unreasonably enforcing them. It is a case of a couple who misunderstood the rules and in the throes of personal tragedy, purchased a new dog without getting the requisite approval of the board, or registering the dog.
Another important point the Court considered was the Claytons ’contention that their dog was a support/service animal. The Court ultimately rejected this argument on the basis that that the dog had not been registered as a qualified service dog with an organization accredited under Alberta’s Service Dogs Act, 2007. The Act defines a service dog as a “dog trained as a guide for disabled persons and having the qualifications prescribed by the regulations”, and allows the government to issue, on application, an identification card that serves as proof of the service dog being “qualified” under the Act. Furthermore, the Service Dogs Qualifications Regulations require the dog to successfully complete a training program that is delivered by an accredited institution or that is part of the “Qualified List” designated by the government, in order to be qualified as a service dog.
Our readers may find it interesting to note that no similar registration or training/certification requirements currently exist for service animals in Ontario. Under current Ontario legislation, notably Regulation 429/07 under the Accessibility for Ontarians with Disabilities Act (AODA), an animal is considered a service animal if it
(1) is readily apparent that the animal is being used by a person for reasons relating to his or her disability; or
(2) if the person provides a letter from a physician or nurse confirming that the person requires the animal for reasons relating to the disability.
Moreover, previous decisions from the Ontario Superior Court and the Human Rights Tribunal have confirmed that, while an owner must provide sufficient medical information for the condominium corporation to consider a request regarding a service animal, there is no requirement for an animal to be trained or certified in order to meet the definition of a “service animal” under the Human Rights Code of Ontario (see notably Allarie v. Rouble and Simcoe Condominium Corporation No. 89 v. Dominelli) .
The Clayton decision raises some interesting questions regarding the enforcement of pet provisions in condominium by-laws and rules. The decision also reveals contrasting approaches adopted by Ontario and Alberta regarding training and certification for service/support animals.
In the absence of any training and certification requirements, uncertainty remains in Ontario on how to regulate the presence of pets in condominiums that are claimed as service animals. As things stand, the most effective solution for many condominiums may be to pass a rule to govern requests for service animals – a rule that will, in turn, have to comply with the principles outlined in Chassie and with human rights legislation overall.
Consequently, in light of the Clayton decision, and considering the lack of similar clarity in Ontario, we feel it may be helpful for the Ontario legislature to intervene and to provide some additional clarity on issues relating to pet provisions and the criteria for service animals in the condominium context.
Stay tuned to Condo Law News to keep up to date on the latest developments in condominium law!