CAT Case: Emotional Support Dog in Condo with Pet Prohibitions
2. In the search for reasonable
CAT addresses emotional support dog in Condo with pet prohibition - Tamo v. Metropolitan Toronto Condominium Corporation No. 844 et al. , 2022 ONCAT 40 Recently, the Condominium Authority Tribunal (“ CAT ”) addressed circumstances where an Applicant unit owner claimed that the Condo failed to enforce the pet prohibition in its Declaration and breached her right to occupancy free of discrimination by permitting another unit owner to have an emotional support dog reside at the complex. The Applicant alleged that the Condo failed to accommodate her disability of severe allergies and mental distress related to the presence of the emotional support dog. The Applicant requested that the CAT order the permanent removal of the dog from the complex. The CAT dismissed the application and made no order with respect to costs for any party. Some key takeaways from this case include: 1. The Tribunal has accepted that the business judgment rule applies such that deference should be given to the decisions of a condo ’ s board of directors, provided the decision is neither unfair or unreasonable and the directors have met the standards set out in section 37 of the Act. In applying the business judgement rule, the question will be whether the Condo acted in good faith, followed a reasonable decision - making process, and made a decision that was within a range of reasonable outcomes.
accommodation, all parties have an obligation to engage and cooperate in the process. 3. The onus to prove undue hardship is on the party that claims undue hardship, and this must be proven with concrete evidence and not simply through general assertions. A party does not strengthen their case when they make overstatements; rather, they tend to undermine their credibility. The CAT found that the Condo had not breached its governing documents by approving the other unit owner ’ s request to have an emotional support animal. While Condos are required to comply with and enforce the Condominium Act , 1998 (the “ Act ”), their declaration, by - laws and rules, Condos are also required to comply with the Ontario Human Rights Code , 1990 (the “ Code ”). Section 47 (2) of the Code states that the Code has primacy over other legislation; this includes the Act and the governing documents of the condo. The CAT determined that in providing the exemption to the pet prohibition for the emotional support dog, the Condo acted in good faith, followed a reasonable decision - making process, and made a decision that was within a range of reasonable outcomes. The other unit owner provided sufficient medical information to the Condo to establish that she had a disability and that an emotional support animal was a required accommodation. The Condo did not automatically approve the request. It required a formal request and a doctor ’ s letter, and then requested clarifying information from the doctor. The Condo then reviewed
Kate Schoffer is an associate lawyer with Cohen Highley LLP. She who practices in their administrative law group, focusing on condominiums, human rights, residential tenancies, property tax exemptions and regulatory compliance issues. Kate provides risk management and compliance advice to landlords, condominium corporations, property managers and unit owners. She works exclusively with housing providers and landlords with respect to all lease issues.
CCI Review 2021/2022 – 4 —May 2022 Page 7
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