Claudia Baha with her dogs Rylie and Murphy. Ontario Divisional Court has upheld a ruling that awarded Ms. Baha $15,000 after her condo board tried to enforce its one-dog-only bylaw.Alicia Wynter/The Globe and Mail
A pet-friendly decision by an Ontario court has upheld an earlier tribunal ruling that provided a clear warning to condominium managers and governors: be careful how you deal with disputes around service animals, otherwise it could cost you.
Nearly 10 months after the Condominium Authority Tribunal awarded Claudia Baha $15,000 in costs related to an attempt by her condominium board to enforce a one-pet-only rule, a three-justice panel of Divisional Court of the Superior Court of Justice in Ontario dismissed all three legal issues raised in an appeal brought by the condo corporation’s lawyers. With the divisional court weighing in to affirm the original findings, future Condominium Authority Tribunal (CAT) decisions will now be guided by the precedent.
“Now we have two precedents … which confirm that the CAT can award damages in favour of an owner and against a condo when the condo fails to properly accommodate human rights issues and causes actual [psychological] harm to a unit owner as a result, or in this case, the owner moves out of the unit and suffers the loss of use of their home,” said Bradley Chaplick, partner with Levitt Di Lella Duggan and Chaplick LLP. Moreover, Mr. Chaplick believes this affirms the CAT’s ability to order costs for any owner responding to “failed/ill-advised enforcement” actions brought by overzealous condo corporations.
“All I wanted was to enjoy my first property, and it turned into an absolute nightmare,” said Ms. Baha, owner of the condo apartment at the centre of the dispute. “As I said many times in court, I am not fighting just for me, I’m fighting for any other resident. Most people just acquiesce. We just didn’t.”
Tribunal sides with service dogs in scrap with Waterloo condo
Ms. Baha’s case began in 2023 when she moved into a condo she purchased in the 176-unit building at 225 Harvard Place in Waterloo, Ont., known legally as Waterloo North Condominium Corporation No. 37 (WNCC 37). Coming with her was her own service dog, Murphy, and her partner, Joe Murphy, who also had a service dog, Rylie.
While the condominium had a “one-pet-only” bylaw, Ms. Baha sought an accommodation for the couple’s two animals under the Ontario Human Rights Code. Soon, they faced a separate complaint about pet noise from a neighbour– who also happened to be the president of the condominium’s board of directors – on the floor below.
The condominium corporation sought an order to remove one of the animals on the grounds that Ms. Baha and Mr. Murphy hadn’t provided the board with adequate medical reasons why both animals were required. But the CAT, and now the Divisional Court, ruled that was an inappropriate request.
“Where opinions provided by qualified medical professionals support the position that the particular animal is the appropriate accommodation, it is not appropriate for the condominium’s board or counsel, or the Tribunal, to disregard those opinions and assume that some other animal would suffice,” read the ruling from CAT vice-chair Patricia McQuaid. The Divisional court opinion, authored by Justice Nancy Backhouse, also noted: “It is also a violation of the Code to require a person with a mental disability to divulge private medical information as a condition of maintaining his or her accommodation.”
While the decision is a clear victory for those seeking accommodation for their service animals, experts in condo law have a quibble: The bar to prove a service animal is necessary is remarkably low.
“I come at this from a very skeptical place,” said Mr. Chaplick. “The problem with service animals in condos is that most of them are fake.
“Condo lawyers will exchange stories about specific websites where people go online and get fake doctors’ letters; we’ve all seen these letters,” he said. “I see fake claims constantly. Mr. Chaplick did concede that not all the claims are untrue. “Every once in a while, you have a real one, and you have to reset your thinking.”
Animal disputes form a significant part of conflicts that condo lawyers are called on to send legal letters about, or even initiate court actions over. Some condos have rules about the size of dogs, others have rules about how many are allowed. Condo corporations have a legal duty to apply their rules.
“The board still has to do its due diligence, and the corporation has to enforce its governing documents,” said Natalia Polis, partner with Lash Condo Law.
If a board failed to enforce its pet policies, a unit owner could bring an application to the CAT that they weren’t performing their duties. Boards in contravention of CAT orders could face a contempt order from a Superior Court. In that instance, the condo board directors could be individually liable for damages for failing to perform their duties as fiduciaries of the corporation.
The new ruling will make it more difficult for boards to avoid accommodation requests.
“When we do have boards that don’t want to provide the accommodation, we can say we have [this precedent],” Ms. Polis said, and recalcitrant boards would have to comply or face fines and sanctions.