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Court cases—pets
Is the condo corporation responsible for dog bites? Maybe
One condo, two cats, two outcomes
Appeal court—cat stays
Supreme Court will not hear an appeal
Nuisance dog has to go
Some pets stay, your's must go
PCC #110's new rules bans all dogs
PCC #110 owner sues his tenant over banned dog
The cat has to leave but only after it dies or moves     (Alberta)
The cat has to leave but only after it dies or moves     (The Board appealed)
The dogs got to go, the owner pays $10,000
The declaration says no cats; the judge says the cat can stay
Over 25 lb dog has to go

Elbaum v. York Condominium Corporation No. 67
Court File No: 13-CV-478191
Before: Justice Perell
Heard: February 18, 2014

Sali Elbaum, is a unit owner at YCC #67 which is at 130 Neptune Drive In Toronto. In 2012, while she was walking on the common elements of the condominium, she was seriously injured when an unleashed dog, owned by Nathalia Gauto and Miqueias de Oliveira Silva, other residents of the condominium, allegedly attacked her causing her to fall.

Ms. Elbaum has sued the dog’s owners pursuant to the Dog Owners' Liability Act and she sues the condo for common law negligence or pursuant to the Occupiers’ Liability Act.

YCC #67 brought a motion for an order dismissing Ms. Elbaum’s action.

Background
 On 23 September 23, 2012, Ms. Elbaum, who was then 89 years old, was walking on the common elements of the condo when she was attacked by the dog (a puppy) owned by the defendants Gauto and de Oliveira Silva, who were also unit owners at the condominium. The dog was unleashed and left to run free.

Ms. Elbaum alleges that YCC #67 was negligent because:
(a)
it failed to take reasonable or any steps to ensure that persons are reasonably safe while on the common elements;
(b)
it failed to take reasonable or any steps to ensure that dogs are kept on a leash;
(c)
it failed to take reasonable or any steps to ensure that unit owners control their pets at all times while on the common elements;
(d)
it failed to create and or adequately enforce rules that would require that dogs are always kept on a leash;
(e)
it failed to create and or adequately enforce rules that would require unit owners to control their pets at all times when on the common elements; and
(f)
it failed to monitor, supervise, and maintain the premises in such a manner to keep aware of dogs on the common elements that may pose a danger to persons on the common elements.

At the time of the accident, the condo corporation had posted signs that dogs are to be leashed under its by-law 31356. The corporation’s rules provide that no pet shall be kept on any part of the common elements.

Ms. Elbaum alleges that she suffered serious injuries as a result of the dog attack. She sues the dog’s owners pursuant to the Dog Owners' Liability Act, and she sues the Condo Corporation for common law negligence or pursuant to the Occupiers’ Liability Act.

YCC #67 argued that this action should be dismissed against the corporation because they do not own the dog (Dog Owners’ Liability Act) and that it is plain and obvious that it cannot be liable at common law or under the Occupiers’ Liability Act

The judge found that it was not plain and obvious that YCC #67 could not be found liable for a common law negligence claim or a claim under the Occupiers’ Liability Act.

A a trial or a summary judgment motion is required to determine whether:
(a)
YCC #67 is a harbourer of the dog, which at this point is doubtful but not plainly and obviously not the case; or
(b)
not the owner of the dog but nevertheless liable for common law negligence or under the Occupiers’ Liability Act.

Conclusion
The judge dismissed the condo corporation’s motion. Ms. Elbaum will be awarded costs.

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A Tale of one condo & two cat owners
If a condominium rule says that you cannot have pets, that is not reasonable and the courts will side with the owner. If the Declaration says that no pets are allowed, the courts will side with the corporation. Read excerpts from these two cases from the same corporation, the same year and the same judge.

Niagara North Condominium Corporation No. 125 v.
Heather Waddington

Appeals Court
St. Catharines
Released: March 16, 2007

Ms. Heather Waddington, is the tenant of unit in this condominium. Ms. Waddington entered into a lease with the owner of the unit on May 5, 2003.  When she moved into unit 410, she brought her two cats with her.  The cats continue to live in unit 410.

The Declaration states:
No animal, livestock, fowl, fish, reptile or insect (a “Pet”) shall be permitted or kept in the building.  Any owner shall, within two (2) weeks of receipt of written notice from a Board or Manager requesting removal of any such animal, permanently remove such animal from the property.

Rule 12 states:
No pets shall be permitted in the building.

Before the building was converted to a condominium complex the occupants of the building were permitted to have pets in their apartments.  After the building was converted to a condominium complex, the persons who had pets in their apartments were permitted to keep them there until the pets either left or died.

The property manager of the appellant sent a letter to Ms. Waddington on November 24, 2003 demanding that she remove her cats from the building by December 8, 2003.

Ms. Waddington did not remove her cats from unit 410. Litigation followed. However, it was the owner of the unit and not the condominium corporation that commenced the proceedings.

The owner takes the tenant to court
On January 4, 2005, 215 Glenridge Avenue Ltd. Partnership, commenced its application against Ms. Waddington.

The first application proceeded before Justice J. W. Quinn of the Superior Court of Justice in St. Catharines on January 20, 2005.  Judgment was reserved to February 18, 2005 when Justice Quinn released a six page endorsement in which he gave his reasons for dismissing the application.

Justice Quinn found that the provisions banning pets in the Declaration and the rules of the appellant condominium corporation failed to comply with the provisions of the Condominium Act. Justice Quinn said:

[Subsection 58(1) of the Condominium Act does not authorize a condominium corporation to make a blanket rule banning all pets. Only if pets compromise “the safety, security or welfare of the [unit] owners and of the property and assets of the corporation” or if they constitute an “unreasonable interference with the use and enjoyment of the common elements, the units or the assets of the corporation may the board of directors ban or prohibit their presence.  There is no evidence that the cats of the respondent run afoul of clauses (a) or (b) of subsection 58(1).  And it cannot be said that the presence of all pets inherently constitutes a breach of those clauses.

I also think that, if any part of a declaration conflicts with subsection 58(1) it is void and unenforceable. In other words, where, pursuant to clause 7(4)(b) of the Condominium Act, a declaration contains “conditions or restrictions with respect to the occupation and use of the units or common elements,” a condominium corporation cannot go beyond that which is permitted in subsection 58(1).

Consequently, the declaration and rules of the Corporation are insufficient to prohibit the presence of the cats.

The condo takes on the fight
On September 20, 2005, seven months after the decision of Justice Quinn was released, the condo corporation issued a notice of application (“the second application”) in the Superior Court against Ms. Waddington, in which it sought the same relief as had been sought by the owner of the condominium unit in the first application, i.e. the removal of the two cats from the condominium unit.

Medical conditions
Ms. Waddington filed two affidavits in opposition to the second application.  She deposed that she suffers from a brain injury and is disabled.  She receives Ontario disability support and lives on a limited income. She deposed that she had never received any complaints about her cats.

She attached a report to her affidavit from her psychologist who opined that Ms. Waddington’s cats are an important focus in her life and that they make a significant contribution to her health and well-being. Her psychologist further said that she would suffer an unreasonable and unnecessary hardship if she were required to give up her cats.

Ms. Waddington’s family physician also provided a report in which she said that, “her cats are a vital part of her life and I know that the loss of her treasured pets would set her back considerably”.

The second application was heard by Justice Walters on January 5, 2006.  She dismissed the second application. The Respondent was entitled to costs fixed in the amount of $2,500, inclusive of GST & disbursements.

The corporation appeals
The corporation went to appeals court where they lost and had to pay another $10,000 in costs.

The key point in this case was that Ms. Waddington had medical conditions that would make her suffer if she was denied their company.

Now we have the second case. Same condo, the same judge.

Niagara North Condominium Corporation No. 125 v. Joanne Kinslow
Before: The Honourable Mr. Justice J.W. Quinn
St. Catharines
Released: November 6, 2007

After losing the above case, the corporation goes after another cat owner.

The applicant contends that the respondent is unlawfully keeping two cats in her condominium unit and it seeks their removal.

The Declaration provides, in section 7, Article II, a blanket prohibition against the keeping of all pets:

7. Pets –No animal, livestock, fowl, fish, reptile or insect (a “Pet”) shall be permitted or kept in the building. Any owner shall, within two (2) weeks of receipt of a written notice from the Board or the Manager requesting the removal of any such animal, permanently remove such animal from the property. No breeding of animals for sale shall be carried on, in or around any Unit.

The rules of the Corporation include Rule No. 12, prohibiting pets:

12. No pets shall be permitted in the building.

The tenancy agreement
On May 1, 2002, the respondent entered into a tenancy agreement with the owner of unit 1009 in the condominium complex. She has occupied that unit on a continuous basis since then. The tenancy agreement is silent as to pets and has no bearing on this application.

In January 2006, the Corporation received information that the respondent was housing two cats in her unit. The Corporation sent a letter to the owner of unit 1009, with a copy to the respondent, advising that the cats were to be removed by February 3rd and that an inspection would be conducted on February 6th.

The solicitors for the Corporation sent a letter to the respondent on April 13th, allowing her until May 5th to expel the cats, failing which legal proceedings would be commenced.

In paragraph 2 of her affidavit, filed in opposition to the application, the respondent admits that, before she moved into her unit, she was made aware of the no-pets policy and “got rid of” the one cat she owned at that time:

2. "Before I moved in I was made aware of the no cat policy of the building and got rid of my cat."

 However, upon noticing that “many people” in the condominium complex, including the superintendent, “had cats and other pets,” the respondent acquired two cats.

Grandfathering
It is likely that the pets observed by the respondent pre-dated the registration of the Declaration in 1997 and, as such, were exempted or “grandfathered” by the board of directors of the Corporation.

Medical conditions
According to the respondent, she suffers from a brain injury and is also bi-polar. No supporting medical evidence was tendered and so I do not know the extent of these conditions.

There are important factual distinctions between Waddington and the application now before the court. They are found in paragraph 2 of the respondent’s affidavit. Paragraph 2 contains material facts that were not present in Waddington.

Human Rights Code
On behalf of the respondent, it is further submitted that to enforce the no-pets Declaration would contravene her rights under of the Human Rights Code which provides that “[e]very person has a right to equal treatment with respect to the occupancy of accommodation, without discrimination because of  . . . disability . . .”

However, for me to find the discrimination necessary to defeat the Declaration, the no-pets provision must have the effect of preventing the respondent from living in her unit. That is not the situation here. There is no evidence that the respondent is unable to live without her cats.

The no-pets Rule
Rules passed by a condominium corporation must be reasonable. In this case, the no-pets Rule is unreasonable. Consequently, I find that a violation of the no-pets Rule has not been established.

The Declaration
The blanket no-pets Declaration is not a reasonable one (its current wording would ban the presence of a solitary goldfish in the condominium complex). Yet, this fact alone does not make the Declaration invalid. Thus, a declaration that is unreasonable can still be valid – as long as it is not unfair in the circumstances (with unfairness being gauged in accordance with the law and not the sensibilities of a particular respondent).

The power under clause 7(4)(b) of the Condominium Act is not unfettered: for example, “conditions or restrictions with respect to the occupation and use” of units that are illegal (such as those that violate the Human Rights Code) or are contrary to public policy or are unfair (as mentioned above), would not be enforceable.

The decision
I have been particularly influenced by paragraph 2 of the respondent’s affidavit.

Because the respondent has not shown that her cats are a necessity, there is no legitimate basis upon which to decline the exercise of my discretion in favour of the Corporation. The respondent has demonstrated a preference, not a need, for her cats. The rights and expectations of the unit owners should not be compromised by the mere preference of an occupant.

The cats must go. The respondent shall have 90 days to remove her cats, rather than 30 days as sought by the Corporation.

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MTCC No. 949 & Nancy Staib
Docket: C43488
Before: Cronk, Armstrong and Lang JJ.A.
25 November 2005

On appeal from the judgment of Justice Harriet Sachs of the Superior Court of Justice dated April 28, 2005.

A condo corporation’s declaration has a no pet clause but Nancy Staib had a cat in her unit for 10 years. The corporation’s maintenance men seen the cat in her apartment during those ten years and the cat was invisible to the other unit owners.

The board decided to toughen up its enforcement of its No Pets policy and ordered Nancy Staib to get rid of her cat. She refused and the board took her to court.

The judge, in his discretion, ruled that she could keep her cat. The board appealed.

The three judges decided that there was no basis upon which to interfere with the application judge’s discretionary ruling. Nancy did not challenge the validity of the “no pets” policy in the declarations of the condominium corporation. Rather, she asserted that the policy should not be enforced against her in the particular circumstances of this case. The appeals court agreed.

The owner received costs for both the original court case and the appeal hearing.

Sleeping on your rights


This successful appeal shows that when a board sleeps on its rights and allows an owner to ignore a provision of the declaration for a long period of time, then allowances may have to be made.

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After a long fight, cat in Toronto condo is legal
CBC News
06 April 2006

A Toronto woman's right to keep her elderly cat in her condominium has been upheld in a court case that the losing lawyer says has implications for countless condos.

ordered it to pay Nancy Staib's legal costs


The building's condominium board, which developed a belated interest in enforcing a no-pets provision in 2004, dragged the case through two courts and tried to take it to the Supreme Court of Canada.

But on Thursday, the Supreme Court declined to hear the board's appeal and ordered it to pay Nancy Staib's legal costs.

That means the fight is over and Staib's cat, Casey, can stay in her Queen's Quay apartment on Toronto's waterfront.

The cat, which has lived there for a dozen years, will be 14 in May, she told CBC Online.

Staib, 50, is a CBC human-resources employee. She said the battle began after the board sent warning letters to residents who had pets.

"I didn't do anything, and then they decided to take me to court."

'Sane people do not go to the Supreme Court of Canada to evict a cat'
The board's lawyer, Mark Arnold, said the case was pursued to defend a basic condition written into the condominium corporation's charter.

"This is not a cat case," he told CBC Online. "Sane people do not go to the Supreme Court of Canada to evict a cat."

Arnold stressed that the no-animals rule was not enacted by the board but was built into the legal structure of the condominium. It was meant to assure buyers who were allergic to cats, for example, that there would be none in the building, he said.

He said the outcome of the case means condo boards across Ontario will have to police all conditions of their charters energetically or lose the right to do so.

'She was aware of the "no pets" provision'
The Supreme Court's refusal to hear the case means the board must abide by decisions that went against it in 2005 in Ontario Superior Court and the Ontario Court of Appeal.

In the lower courts, the case turned partly on whether the board of Metropolitan Toronto Condominium Corporation No. 949 was blocked from enforcing the rule because of undue delay or negligence in asserting its right.

In a summary, Supreme Court officials laid out these facts:

"Staib moved into her condominium in March of 1994. At the time, she had her cat. She was aware of the 'no pets' provision when she moved in.

"However, she was never asked to remove her cat until 2004. By this time, her cat was almost 12 years old and essentially unadoptable.

"[The condo board] claimed that they first learned of the existence of the cat when their maintenance people went in to Staib's unit in 2004, yet the [Ontario Superior Court] judge found uncontradicted evidence that the maintenance people had been in her unit throughout the 10-year period."

The board was ready to bear the expense of an appeal to the highest court in the land after its case was dismissed by that judge and by a three-judge Ontario appeal panel.

As is customary, the Supreme Court gave no reasons for its decision not to hear the case.

Staib said she has yet to receive a bill from her lawyer and doesn't know how much money, if any, she'll have to pay out of her own pocket.

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York Condominium Corporation No. 26 v. Ramadani
Ontario Superior Court
File No: CV-11-420416
Date: 15 November 2011
Justice G.R. Strathy

The condo corporation made an application under the Act requiring the respondent, Daniela Ramadani, to permanently remove her dog from the condominium premises. YCC #26 also asked that certain cleaning and legal costs be charged to the respondent’s common expense account.

Conclusions
The judge found that the respondent had persistently allowed her dog on the balcony of her suite, where it barked at passers-by and relieved itself from time to time. The urine flowed off the balcony, ran down the front of the exterior wall of the balcony and fell onto the terrace of unit 109, below, and on the common elements. The urine frequently landed on the top of the gate of unit 109, directly in the area one would use to open the gate.

The judge found that the dog is a nuisance and that it has interfered with the use and enjoyment of unit 109.

The judge also found that the respondent had failed to respond appropriately to reasonable requests by YCC 26 to address this unpleasant situation. I find that the property manager, acting reasonably and in the proper exercise of his discretion, deemed the respondent’s dog to be a nuisance and ordered that the respondent remove it from her unit.

She has refused to do so and has refused to participate in the statutory procedure for mediation which might have found a sensible way of resolving the issue before each party incurred thousands of dollars of legal costs.

Here is the process the condo used to solve this dispute:

04 October 2010
The property manager wrote to the owner setting out the applicable rules of YCC 26, advising her that the dog was considered to be a nuisance and requiring that it be removed from the property within two weeks.

06 October 2010
A second letter advised the respondent that if legal proceedings were necessary, the costs would be recoverable and charged to her account. She was also directed to clean her balcony and informed that the costs of cleaning the urine from other units and from the common elements would be added to her common expenses.

The respondent failed to reply to either of these communications and failed to remove her dog.

02 November 2010
The condo’s lawyer wrote to the respondent, setting out the fact that she had failed to remove the dog and stating that the corporation was invoking the dispute resolution procedures under the Condo Act. The letter notified her that the dispute was being submitted to mandatory mediation and identified four mediators, one of whom she was entitled to select.

The respondent failed to respond to this letter and failed to appoint a mediator.

05 January 2011
The condo’s lawyer wrote her a letter saying he was initiating arbitration proceedings pursuant Condo Act and identifying three potential arbitrators. The letter concluded:

Please let us hear from you with your choice of arbitrator within ten days, failing which the matter will move forward without further notice to you.

We are sorry that arbitration is necessary in this situation but your neighbours continue to experience escalating damage, nuisance and discomfort in and around their units, the Corporation continues to incur costs to clean up after your pet. In the circumstances, your inexplicable failure to respond to this situation is both inappropriate and unfortunate.

If you have any questions about your legal rights or obligations, you are well-advised to obtain the advice of a qualified lawyer. That small investment might save you thousands of dollars in unnecessary legal costs. If you require a brief indulgence to obtain a lawyer’s advice, please ask us for a short delay. If we do not hear from you within ten days, the application to the court will be commenced without further notice.

The respondent failed to respond to this letter and failed to appoint an arbitrator.

16 February 2100
The corporation commenced this court application.

Denial
The respondent denied that her dog maked excessive noise or that he has ever urinated on the balcony.

Conclusions
The judge found that the dog was a nuisance and that it has interfered with the use and enjoyment of unit 109 and with the common elements associated with it. He also found that the respondent has failed to respond appropriately to reasonable requests to address this unpleasant situation.

The judge stated:
I find she has refused to do so and has refused to participate in the statutory procedure for mediation which might have found a sensible way of resolving the issue before each party incurred thousands of dollars of legal costs. I find that the offensive conduct has continued in spite of the requests of the property manager and in spite of these proceedings.

It is often the case that the dog is not the problem – it is the dog owner who is the problem. The respondent was the problem in this case. She showed complete indifference to the concerns of the other occupants of YCC 26. She made no adequate response to reasonable communications from the condominium corporation and its lawyers. She refused to participate in the mediation process that is designed to resolve disputes between unit owners, and between unit owners and the corporation, in an orderly and neighbourly way. She simply ignored the request. She failed to participate in arbitration.

I have given careful consideration to this matter because I realize that removing a dog from a family is a serious matter. People become understandably attached to their pets. However, people living in a condominium are required to conduct themselves in a manner that is considerate of the interests of their fellow owners and neighbours. That is part of the bargain one makes on becoming a unit owner. The respondent has indicated that she is not prepared to honour that bargain. The result, unfortunately, is that she will have to find another home for her dog.

Court order
For these reasons, the judge gave an order that:
(a)
directed the respondent to forthwith remove her dog from her unit and from the YCC 26  property; and
(b)
permitting YCC 26 to post to the common expenses attributable to the respondent’s unit the cleaning costs it has incurred in the amount of $1,384.25 and its legal costs in relation to the mediation and arbitration process in the amount of $806.65.

Costs
Daniela Ramadani had to pay the condo’s legal and cleaning costs of nearly $25,000 plus her own legal costs.

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DSCC # 187 v James A. Morton

Ontario Superior Court
File No: 75089/11
Date: 05 January 2012
Before: Justice B.A. Glass

E.K. Chan—for the Applicant
Mr. Morton—unrepresented

Introduction
The Applicant is a condo corporation in Oshawa. Mr. Morton, the owner of unit #302 in the condo corporation has two dogs, both weighing over 20 kg.

Section 117 of the Act provides that no one is to allow a condition to exist or an activity to be in place either in a unit or in the common elements if it is likely to damage the property or cause injury to a person.

The condo’s bylaws state that residents can have only one pet, the pet cannot weigh over 20 kg and the pet must be on a leash at all times. The condo’s board decides whether there has been a breach of the bylaws.

The application stated that Respondent allowed the dogs to run off-leash and at times they have jumped up at people causing them to be afraid and to file complaints with the condo’s board of directors.

The board passed a resolution finding that Mr. Morton has been in breach of the bylaws regarding pets and that the violation was likely to cause injury to people. The potential to knock over a person is an example of a likelihood to cause injury.

The Applicant provided notice to the Respondent with respect to these alleged infractions. The Respondent did nothing about the situations.

The application requests an order for the removal of the dogs from the condominium property.

Defence
The Respondent claims that many residents break by-law provisions including some members of the board of directors. He submits that there should be enforcement of the by-laws for those persons as well.

The affidavit by the property manager for the condo, acknowledged that he is aware of other owners and residents with more than one pet. However, he noted that there has only been complaining about Mr. Morton’s dogs.

Mr. Morton submitted that the dispute should have been put to mediation or arbitration; however, the judge accepted the condo’s submission that the issues here involve the Act rather than a dispute over an agreement between parties.

Notice to comply has been given to Mr. Morton and he has continued to have two dogs. He commenced leashing the dogs after an order from the court was made previously.

The issue of selective enforcement is a valid issue to consider; however, the standard of review of the decision of the board by the court is not whether or not the court would have made a different decision. Rather, the reviewing court considers the reasonableness of the decision of the board as well as whether it was a decision reached capriciously against Mr. Morton.

The condo corporation appears to be acting as many municipalities do with their by-laws. That is, they act reactively rather than proactively. With respect to the condo corporation, the board has only had complaints about Mr. Morton and his dogs.

The judge was satisfied that the board had not acted vindictively or selectively against Mr. Morton with respect to his dogs. Mr. Morton has simply ignored the by-laws and ignored requests to comply.

Nor did the judge find that the Applicant has conducted itself either in a vendetta towards Mr. Morton or selectively against him without cause.

Conclusion
There will be an order that Mr. Morton remove his two dogs permanently from the corporation’s premises within ten days.

Costs
The judge set costs in favour of the condo corporation at $10,000.

What happened next
Here is E.K. Chan's opinion on this case.
You will be very interested in what happened next.

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PCC No. 110 and John Carli and Anna Carli
Superior Court—Brampton
Court File No. CV-10-1951-00
Justice Patrick W. Dunn
 09 November 2010

Background
In March 2001, in response to complaints concerning dogs living in the corporation, the the board of the condo apartment tower at 1535 Lakeshore Ave in Mississauga passed a new set of pet rules called the Replacement Pet Rules. The new rules banned dogs from the corporation's property.

The complaints included some owners not cleaning up after their dogs resulting in excrement being left in the common elements, excessive dog barking, incidents of dogs snarling, barking and growling and one incident of a dog biting a resident in the elevator.

These new rules were ratified by a majority of owners at an AGM in
April 2001.

The existing dogs were grandfathered in but no new dogs were allowed on the condominium property, including dogs that were just visiting.

The respondents
John, Anna Carli with their two children and their dog moved in to Unit # 909 as tenants in April 2010. Ruben Carreiro was the owner of the unit. They bought another unit in the building and were renting Unit # 909 while their unit was being renovated.

On 07 April 2010 the property manager sent Ruben Carreiro a letter, with a copy to John and Anna Carli, stating that the corporation was aware that there is a dog living in his unit and that it had to be removed from the unit by 16 April 2010 and that if the dog wasn’t gone, the corporation would take action to have the dog removed and all costs would be charged back to Mr. Carreiro.

In response, Larry Novelski, the corporation’s manager, received a fax from the Carli’s lawyers, McBride Wallace Laurent & Cord LLP stating that:

“Section 58 of the Condominium Act, 1998 does not authorize the condominium corporation to make a blanket rule banning all pets. A complete prohibition against all pets can only be valid if it is contained in the declaration of the condominium corporation. We therefore submit that your pet rule dated March 8, 2001 is unenforceable and our clients will resist any attempt to have their dog removed from their rented premises without proper authority in the declaration or court order.”

The condo’s lawyer responds
On 26 April 2010, Bora Nam, an associate with Deacon, Spears Fedson + Montizambert, wrote a response to the Carli’s lawyer stating that Section 58 of the Act allows a condo corporation to make rules and that Section 119 of the Act requires that their clients comply with the Act, declaration and the rules of PCC #110.

The letter goes on to say:
“We disagree with your statement that a prohibition of pets is only valid if contained in the declaration, and there is good case law supporting our position. In the past, we have successfully obtained court orders requiring the removal of a pet that is in breach of a condominium corporation’s rules.”

The letter goes on to say that if the dog doesn’t go, the corporation would commence court action and any costs which are ordered to be paid by the Carli’s will be added to Mr. Carreiro’s common expenses and may be secured by a lien against the unit. There is also the warning that:

“Section 134(5) of the Act also provides that in addition to the costs awarded by a court in the proceeding, the condominium corporation is entitled to recover its “additional actual costs” incurred in obtaining the compliance order. In our experience, these costs can easily exceed $10,000…”

A petition
On 04 May 2010, the Carli’s distributed a letter to all the unit owners stating that on May 06, they will canvas the building to request the residents to sign a petition to the board to allow them to keep their nine-year-old dog.

In response, Bora Nam prepared a letter that was distributed to all the unit owners stating:
1.
The Carli’s will be going door to door on 06 May asking the residents to sign a petition in support of them being allowed to keep their dog.
2.
A reminder that the majority of owners at 03 April 2001 AGM passed the new pet rules.
3.
Last year, requisition by a group of owners to amend the pet rules failed.
4.
The current pet rules are valid.
5.
The board of directors cannot stop the Carli’s from circulating this petition nor can it stop residents from signing it.
6.
The petition does not legally bind the corporation in any way and it does not prevent to corporation from enforcing the rules.

The application
On 27 May 2010, the corporation made an application for:
(a)
A declaration that the Respondents were in breach of the Act, the declaration and rules of PCC #110.
(b)
An order that the dog had to be permanently removed from the unit.
(c)
An order that the respondents will obey the Act, the declaration, bylaws and rules of PCC #110.
(d)
The respondents pay the applicant’s costs on a substantial indemnity scale.

Settlement
On 19 October 2010, the parties came to an agreement that was signed by Michael Spears from DSFM for the corporation and Jonathan Fine of Fine & Deo for John and Anna Carli.

Judgment
1.
The dog had to permanently remove the dog by no later than
15 March 2011.
2.
In the interim, the dog is never to be left alone in the unit, and that whenever the dog is on the common elements it will be carried at all times.
3.
The respondents forthwith pay to the applicant its costs fixed in the amount of $2,000, inclusive of disbursements and GST/HST.

Puzzling case
This is a puzzling case because PCC #110’s declaration does not ban dogs and dogs were allowed in the condo from the corporation’s inception in 1976 until April 2001 when the board passed new rules, which banned all new dogs.

Legal opinions
Some condominium lawyers state that a condo corporation’s rules must be reasonable and banning all dogs is not reasonable and that only declarations may be unreasonable. For example Gerry Hyman has stated this several times in his newspaper column. Here is one example:

Legality of pet ban depends on where it’s spelled out
Gerry Hyman: Restrictions in Condo Act declarations are the most solid
By: Gerry Hyman Condo Law Columnist
Toronto Star
15 November 2013
Question:
My friend rents a condo and wants to take my cats. She has been advised that a tenant is not permitted to have pets. Is that correct?

Answer
You should determine where the prohibition is located. A prohibition in your friend’s lease prohibiting pets is not valid pursuant to the Residential Tenancies Act, 2006. That act would not override an otherwise valid pet restriction in the condominium corporation’s declaration or rules.
The Condominium Act permits declaration restrictions with respect to the occupation of units and the restrictions need not be reasonable. A court may determine, nonetheless, that a declaration pet restriction must apply to the occupation of all units and that the act does not authorize a restriction applicable only to the occupation of units by tenants.
The courts have held that a prohibition of domestic pets in a rule is unreasonable and as a result is unenforceable. The courts have upheld rules limiting the number or size of pets in a unit. Those cases have dealt with highrise condos in which the size and number of dogs can be relevant in regard to the use of hallways and elevators or to the use of stairwells in an emergency. Those factors would not appear to apply to cats particularly in a townhouse condominium and such restrictions could be ruled unreasonable.

(This does not answer the question whether a condo corporation can ban dogs by passing a rule. Editor.)

Why not change the declaration?
To make changes to a condo corporation’s declaration, 80% of all owners must sign a resolution ratifying the change for it to be approved. That may be almost impossible to get that number of owners to agree to ban dogs.

However, it takes only three owners, the majority of a five-person board, to pass a change in the rules. (Subject to a possible requisition of owners for a meeting to vote to rescind or amend the rule change.)

Why sue the tenants?
I wonder why the corporation sued the tenants and not the owner of the unit. The tenants were pretty defiant but the corporation’s lawyer made it clear that the owner/landlord was the one who would be stuck with the costs and it was the owner’s responsibility to insure his tenants followed all the condo’s rules.

Was a precedent set?
The Replacement Pet Rules banning all dogs was not tested in court in this case as a settlement was reached between the parties and the judgment reflects that settlement.

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Ruben Carriero vs John Carli and Anna Carli
Small Claims Court  Brampton
Court file No. SC-11-002106-00
Date: April 8, 2013

This is a small claims case where the unit owner (mentioned in the case above) sued his tenants for costs. The tenants ignored the condominium's rule banning dogs because a ban was not stated in the corporation's declaration. However, it was the unit owner—their landlord—who had a lien put on his unit and had to pay the condo's legal bills.

The judgment states:
Par 4: In a letter dated April 13, 2010 from the defendants' lawyer to the property manager, the property management company was advised that under section 58 of the Condominium Act, S.O. 1998, C. 19, the condominium corporation had no right "to make a blanket rule banning all pets." Additionally, the lawyer indicated that: "A complete prohibition against all pets can only be valid if it is contained in the declaration of a condominium corporation." Therefore, the defendants took the position that the "no pet rule" was unenforceable and the dog would not be removed."

That is exactly what most condominium lawyers say.

Par 8: It was not until after a ridiculously high amount of legal fees were expended by all parties, and after a Superior Court of Justice application at Brampton, brought by the condominium corporation against the defendants, when judgment was rendered, on consent, on November 9, 2010, wherein the dog was ordered to be removed and the defendants were ordered to pay $2,000 in costs.

The superior court judge did not make a decision on this application because the judgment was rendered, on consent, on 09 November 2010.

Important questions
If the declaration is silent about pets, then does the board has the right to create rules banning dogs? If so, then it is obvious that anyone who owns a dog or plans to buy a dog, or even babysit one for a period of time, should only purchase a unit in a condo where the declaration states that dogs are allowed.

Did the corporation get their way only because they had deeper pockets?
These are extremely important questions for all owners, and all potential
buyers to know.

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Condominium Plan No. 762 1302 v Stebbing
Court of Queen’s Bench of Alberta
Registry: Edmonton
Docket: 1303 11384
W.S. Schlosser
Date: 11 August 2014

Reasons for Judgment
Rhonda Stebbing and her two cats moved into The Saskatchewan condominium complex in September, 2010. The Saskatchewan was a ‘pet-friendly’ building. The bylaws provided for Board consent to keep cats. The bylaws also provided for withdrawal of consent.

Ms. Stebbing’s cats were important to her, as pets are to many. Ms. Stebbing made Board approval for her two cats a condition of the purchase of her new home. Although the Board was not a party to her real estate contract, the realtor conveyed that approval had been obtained. Ms.Stebbing withdrew the condition and moved in.

The evidence shows that the Board was aware of Ms. Stebbing’s cats but written consent was never granted. Things went smoothly for over two years. Then the trouble began.

There were many pets in the building. Some had written permission. Others did not. There appeared to be no criteria for obtaining written permission. It seems to have been a formality. An owner would make a request. The Board would convey formal consent with a letter or by reference to a motion made at a Board meeting. But not everyone made a formal request.

The bylaws are silent about the approval process or the form of approval, other than to say that the consent is to be in writing and that it can be withdrawn if the pet is “deemed a nuisance or causing an annoyance to others”. A later bylaw, specifically referring to animals, indicates that the Board may withhold approval arbitrarily and that it may withdraw approval ‘at any time on 15 days’ notice’.

The bylaws tell us that approval is necessary and that approval may be withheld arbitrarily. Consent is to be in writing. Approval may be withdrawn on 15 days’ notice. The Board may request removal of pets that are a nuisance or annoyance; in which case an owner must remove the animal forthwith.

There were three recorded complaints about pets in the building. One complaint came from an owner on the fourth floor. He complained of cat hair in and around the washers and dryers in the common laundry area. He wished his concern to be communicated to cat owners in the building so that they would be more considerate of others when using the common facilities.

An owner on the fifth floor made a similar complaint. Both said they had allergies.

Finally, an owner on the eighth floor complained that he was extremely allergic to cats and that not only did his next door neighbour own a cat but that this cat had been wandering around in the common hallways and it came into his unit on one occasion.[1] He said he was suffering extreme discomfort as a result.

Ms. Stebbing’s unit is on the seventh floor and there was never any specific complaint about her cats (though now there is only one). There is no evidence of the kind of cat Ms. Stebbing owns; whether it is an indoor, or an outdoor cat, whether Ms. Stebbing uses the common laundry facilities, or whether her cat has in any way been an annoyance to others.

Although this is not strictly in evidence, there are apparently 80 units in The Saskatchewan. Eight of these are penthouse units. They have their own laundry facilities. Washers (and, presumably, dryers) are not permitted in the other units because of plumbing problems. One of the Board members in attendance at the hearing in court indicated that there was one common laundry area for these 72 units.

The Board decided to enforce the bylaws strictly. They knew that Ms. Stebbing had a cat and that it did not have written consent – at least there was no record of any written consent from the Board. They sent a 15-day notice.

Ms. Stebbing refused and retained counsel. The Board did too. The Board’s position became entrenched. Instead of considering whether Ms.Stebbing’s pet ownership could be regularized by written consent, they dug in their heels.

Their lawyer said:
The Board of Directors has ascertained that there is no evidence of any kind of approval of your client’s 2 cats. There are a number of people in the building who are allergic to cats and the failure to obtain approval under the circumstances is of serious concern to both the Board and other owners.

As you know from the Bylaws and the Board’s approval or non-approval is a discretionary matter and even where approval is given the Board is entitled to withdraw that approval. Your client has been notified to remove the cats and whether that is treated as a demand in circumstances of initial non-approval or in circumstances of withdrawal of an approval previously given should not make any difference. Your client should remove the 2 cats from her residence and this letter is to advise you that if that has not happened within the next 10 days we expect to be instructed to bring an application to court to require removal of the 2 cats and costs and damages may be claimed.

So the matter ended up in court.

Improper conduct
Section 67(1)(a) of the Condominium Property Act, RSA 2000 c-22, provides:
67(1)(a) In this section, “improper conduct” means
(i)
non-compliance with this Act, the regulations or the by laws by a developer, a corporation, an employee of a corporation, a member of a board or an owner,
(ii)
The conduct of the business affairs of a corporation in a manner that is oppressive or unfairly prejudicial to or that unfairly disregards the interests of an interested party,
(iii)
The exercise of the powers of the board in a manner that is oppressive or unfairly prejudicial to or that unfairly disregards the interests of an interested party
(iv)
the conduct of the business affairs of a developer in a manner that is oppressive or unfairly prejudicial to or that unfairly disregards the interests of an interested party or a purchaser or a prospective purchaser of a unit, or
(v)
the exercise of the powers of the board by a developer in a manner that is oppressive or unfairly prejudicial to or that unfairly disregards the interests of an interested party or a purchaser or a prospective purchaser of a unit.
Section 67(2) provides a wide range of remedies.

An oppression remedy is well established in a company law setting, though it goes without saying that the remedy in that context protects a narrower range of interests than those that might be found in a condominium setting.

Oppression remedy
The learned authors of the Condominium Law and Administration, Carswell, vol. 2, identify British Columbia as the pioneering jurisdiction for an oppression remedy in the condominium context. Mr. Rotenberg notes five general principles that apply in this setting:
(a)
It is a broad remedy, broadly applied; attempts to narrow its impact and effectiveness should therefore be resisted.
(b)
The purpose of the oppression remedy is to protect the objectively reasonable expectation that caused the relationship to begin or continue.
(c)
Either the cumulative results of the conduct complained of or a specific egregious act ultimately determines whether there is an actionable wrong.
(d)
The court must balance the competing interests of the minority, who are to be treated fairly, with the rights of majority to govern. Only if the minority’s interest is unfairly treated will the courts intervene.
(e)
The selection of a remedy must be sufficient to achieve the desired result. Remedies should not be narrowly limited, and may be granted against individuals in appropriate cases.
The source of the remedy is the recognition that there are different, sometimes competing, interests within any group. Not every interest can prevail, so the law requires due consideration and fair treatment of the various stakeholders.

In this case the Board drew an arbitrary line between pets with written consent and pets without it. They were cracking down on Ms.Stebbing’s cat, not because it had caused any trouble, or had been the subject of any particular complaint, but because her pet lacked written consent.

It is not a case of an owner flaunting an absolute prohibition. Lack of written consent appears to have arisen from a misunderstanding on her part.

Other pets had been allowed to stay in the building. There is no evidence of any consideration of whether written approval could be granted to Ms. Stebbing’s cat to regularize this technical breach of the bylaws, only a firm and arbitrary line. In Ms. Stebbing’s case the situation had been allowed to exist for over two years, and, for others, possibly longer.

Allowed the situation to exist
This case may not be about murder or millions (though a cat’s life may hang in the balance) but it does have wide importance.

Withdrawal of informal consent, or withdrawal of tacit approval of pet ownership in a ‘pet-friendly’ building is subject to Section 67 of the Act, partly because the Board allowed the situation to exist for a period of time and then decided to change their position.

It is surprising how often this situation comes up.

Pets are not simply chattels. [2] Compliance with Section 67 of the Act in this case requires balancing the inconvenience and discomfort suffered by other residents with depriving another of the comfort and companionship a pet affords its owner. It is not simply a case of the Board always siding with an owner with allergies.

Duty to act fairly
In my view, this imparts a duty to act fairly in making a decision that affects the ‘rights, privileges or interests’ of an owner. A page (or a chapter) might be taken from the book of administrative law. The jurisprudence in this area is well established (see The Principles of Administrative Law, Jones and de Villars, Carswell, 5th edition, Chapter 8). The learned authors of that text sum up, saying (at p 238):

The factors which determine whether the procedure was fair include (but are not limited to):
(i)
the nature of the decision and the process following in making it;
(ii)
the nature of the statutory scheme;
(iii)
the importance of the decision to the individual affected (or, in other words, the effect of the decision on the individual’s rights);
(iv)
the legitimate expectations of the person challenging the decision; and
(v)
the choices of procedure made by the tribunal itself.

Because different judges may answer the question of whether a certain procedure was fair differently, it will often be difficult to advise either clients or administrators on whether a procedure used was fair. However, this approach is totally consistent with the policy underlying the historical judicial power to review procedures for breaches of natural justice – to ensure that justice is not only done, but manifestly and undoubtedly perceived to be done. The courts’ recognition of the duty to be fair has been welcomed by everyone concerned with administrative law.

I appreciate this applies in the present context only by analogy because Condominium Boards are not governed by administrative law. An appeal to the court of a decision of a Condominium Board is not by way of judicial review. But the administrative law resource is a deep well to draw upon.

15-day provision
The 15-day provision in the bylaw should be reserved for extreme cases. It may be difficult to place a pet. If a new home cannot be found, this would, at the very least, impose a burden on the Edmonton Humane Society. I take notice of the fact that all too often it amounts to a death sentence, as pets who are not placed by the Edmonton Human Society are euthanized.

The impact on the pet owner is significant. In Ms. Stebbing’s case it was important enough to her to be made a condition of her purchase of this condominium unit. I expect that her position has not changed and that if she is not allowed to have this pet, she may wish to move.

There is another, more general point. Some condominium corporations assert a right to make fines and penalties for non-compliance an interest in land, giving themselves the power to do so in their bylaws. There is conflicting authority about whether this is ultra vires the corporation and the issue has not been resolved by a higher court. This can have significant consequences. It could lead to foreclosure proceedings for something as trivial as an unpaid bill or an unpaid fine.

Claiming this power puts a particular emphasis on a Board’s duty to act properly and with a kind of due process. It is no answer to say that the Board members are volunteers and that, implicitly, they should be held to a lower standard.

After both sides had ‘lawyered up’, there were several applications in regular chambers, including a direction that this matter be heard as a Special, lengthy materials and cross-examinations on affidavits. This court is not to act as a substitute for the failure of a Board to perform what, in many circumstances, is close to a quasi-judicial function.

Finally, once the parties retain counsel, the economic consequences are significant, not just from their own lawyers’ bills but because in many circumstances the Board will claim their lawyers’ costs pursuant to the bylaws. I note in this case that the Board is claiming only party-party costs on Column 1, Schedule C, but double costs for the application because there was apparently a formal offer.

Judgment
Sometimes cases that appear straightforward turn out not to be. The strict and narrow outcome would be to dismiss the Board’s application based on a breach of Section 67 of the Act. However, the practical result, in an attempt to avoid having this matter returned (barring appeals), would be to issue a declaration that Ms. Stebbing’s cat is in breach of bylaw 46(c) for lack of written consent but to stay its enforcement until the cat either dies of natural causes or is relocated.

Costs
Each side will bear its own costs.  
 
W.S. Schlosser
M.C.C.Q.B.A.

Notes
[1] This type of problem is not new: See, for example, Mitten v Faudrye, 1625, Popham 161 at 162 per Dodderidge J.

[2] at least not ordinary chattels.
One needn’t go back to the time of Pharoahs, as some have done, to find first principles (eg. Bizon v Bizon, 2014 ABCA 174 (CanLII), 2014 ABCA 174 at para 37 per Wakeling JA). Animals were first treated as a species of property by the common law, which, in the western tradition is probably biblical, (eg. Genesis 1:26). Then there was the modification of the common law by ‘enacted law’; a process evident in what Holdsworth describes as the ‘Age of Reform (1835-1875)’ in England, (A History of English Law, Sir William Holdsworth vol. XV) and which continued after confederation in Canada.

An overview of the transition is thoughtfully set out in the dissenting judgment of Fraser CJ in Reese v Edmonton (City), 2011 ABCA 238 (CanLII), 2011 ABCA 238.

Animals might not yet have rights in the conventional sense, or standing to intervene, but the very least that can be said is that their status is evolving. And given the dissent of no less a voice than the Chief Justice of Alberta, their status remains, as some have said, a gray area, and a large one at that.


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Condominium Plan No. 762 1302 v Stebbing
Court of Queen’s Bench of Alberta
Registry: Edmonton
Docket: 1303 11384
Honourable Mr. Justice L.R.A. Ackerl
Date: 07 April 2015

Appeal from the Judgment
by W.S. Schlosser, Master in Chambers

Introduction
Master Schlosser issued a written judgment on Aug. 11, 2014 and concluded at para 26:
Sometimes cases that appear straightforward turn out not to be. The strict and narrow outcome would be to dismiss the Board’s application based on a breach of Section 67 of the Act. However, the practical result, in an attempt to avoid having this matter returned (barring appeals), would be to issue a declaration that Ms. Stebbing’s cat is in breach of bylaw 46(c) for lack of written consent but to stay its enforcement until the cat either dies of natural causes or is relocated.

Each party would bear its own court costs

The Board appealed Master Schlosser’s decision and argued that Master Schlosser did not accord the Board an appropriate degree of deference and:
... should not have substituted his views on whether Ms. Stebbing’s pet should be allowed to remain in the Saskatchewan for the decision of the Board.”


Standard of Review
In its written brief the Appellant argued that the standard of review of a decision of a Master of the Court of Queen’s Bench is that findings of fact should not be disturbed unless they disclose a palpable and overriding error, while issues of law are reviewed on a correctness standard.

This is not the correct standard of review. That judgment was subsequently overruled ...the standard of review on appeal from a Master to a judge, on all issues, is still correctness.

I conclude Master Schlosser’s decision shall be reviewed in its entirety on a standard of correctness.

Facts
This matter was advanced on affidavit evidence alone, which I summarize as follows:
1.
Until 2012 The Saskatchewan permitted residents to keep pets.
2.
Due to plumbing issues only penthouse condominiums had their own clothes washers and driers. Regular condominium owners used communal washers and driers.
3.
The Saskatchewan’s Bylaws include two provisions relating to pets:
46. Owner’s Usage
An owner shall not:
(c) keep or harbour in the Building any animal, bird, domestic or household pet without written consent of the Board provided that the Board may at any time in writing revoke such consent or request the removal of any domestic or household pet, animal or bird, which is deemed a nuisance or causing an annoyance to others, whereupon such animal or pet shall be removed forthwith from the Building. No Owner shall feed pigeons, gulls or other birds from the windows of their unit, or anywhere in close proximity to the Building.

58. Animals
No animal, livestock, fowl or pet of any kind shall be kept in any unit unless approved by the Board, which approval the Board may arbitrarily withhold and may, if given, withdraw at any time on fifteen days’ notice. Any and all approved animals which may bear a leash will be required to wear one when on the common property in any event.

In the period up to 2012 the Board provided written permission for a condominium owner to have one or two cats, or a bird. There were a number of cats in the building. Formal permission had been obtained from the Board for some cats. Others were present but their owners had not taken that step.

Ms. Stebbing in Aug. 28, 2010 offered to purchase unit 704 of the Saskatchewan. One of the conditions of that purchase offer was “Board approval for cats (2) by Sept. 7, 2010”.

Ms. Stebbing’s realtor informed her the Board approval condition had been met, and the condominium purchase closed. She moved into her condominium on Sept. 28, 2010.

During Ms. Stebbing’s first week in The Saskatchewan she spoke to a Board member who knew she had cats and indicated she was required to have written permission from the Board.

Bruce Kirkland was the president of the Board at the time Ms. Stebbing moved in.

Complaints concerning cats began in 2012. Two condominium owners complained to the Board that they were allergic to cat hair and there was cat hair in the laundry facility. Another condominium owner with cat allergies complained that a neighbor had a cat who wandered in common areas and had entered his condominium.

Mr. Kirkland in cross examination is explicit that the Board considered this development a “major complaint”, and “started to move” on this issue by a review of “all cats, not just one cat, but all cats in the building.”

In response, the Board, in late 2012, decided to eliminate cats from The Saskatchewan. This policy objective would be met by refusing to permit residents introduce any new cats, and by ordering the removal of all cats whose owners had not obtained written permission from the Board. Cats which had received written Board permission were ‘grandfathered’ and permitted to stay in The Saskatchewan until they died.

The Board sent letters to cat owners who did not have written permission to keep cats. Several were voluntarily removed. In August 30, 2013 the Board obtained a court order to remove another cat in a different condominium.

Ms. Stebbing’s cats were identified on Dec. 17, 2012 when Mr. Kirkland responded to a plumbing issue reported by Ms. Stebbing. Mr. Kirkland told Ms. Stebbing she did not have permission to have cats. Ms. Stebbing disagreed.

The Board on Dec. 17 2012 and March 5, 2013 issued written notices for Ms. Stebbing to remove her cats.

Ms. Stebbing’s cats had not led to specific complaints.

The Board investigated to determine whether Ms. Stebbing had written permission to have her cats, and concluded she did not. It ordered she remove the cats. Ms. Stebbing disagreed, noting the condition of her purchasing the condominium. Both parties retained legal counsel.

The Board filed an originating application on Aug. 12, 2013 for an order to remove Ms. Stebbing’s cat. Ms. Stebbing on May 1, 2014 applied to this Court for a declaration that the Board had acted in a manner that was oppressive, unfairly prejudicial, or disregarded the interests of Ms. Stebbing.

A second issue that I raised before counsel was whether or not the Board disputed the point at which it became aware Ms. Stebbing had cats, and that Ms. Stebbing had not obtained written permission for her pets. This potential fact in dispute arose from Mr. Kirkland’s statement he was unaware that Ms. Stebbing’s cats existed until he saw them on Dec. 17, 2012. However, an April 9, 2013 email between Board members indicates that, in 2010, an unidentified Board member told Ms. Stebbing she needed Board approval for her pets. Mr. Kirkland does not dispute this during cross-examination.

Ms. Stebbing argued this affidavit evidence meant the Board was aware of the cats from the date she moved into The Saskatchewan. This would appear to be contrary to the position taken in the Board’s reply brief at paras 4-6, which is why I raised this potential disputed fact at the hearing. Counsel for the Board stated the date on which the Board became aware of Ms. Stebbing’s cats is irrelevant and did not take a position contrary to Ms. Stebbing.

I therefore conclude the parties do not dispute the Board knew Ms. Stebbing had cats when she arrived at The Saskatchewan in Sept. 2000. In effect, the Board forgot about that fact until Mr. Kirkland ‘re-discovered’ the cats on Dec. 17, 2012.

The Parties Submissions
The Board
The Board argues Master Schlosser did not provide the Board’s decision with an appropriate degree of deference, but instead substituted his own decision for that of the Board. This is an error of law. In court, counsel for the Board stressed that Master Schlosser’s reasons are a serious and anomalous divergent precedent requiring court response.

A further error was the Master’s conclusion that the methodology adopted by the Board was arbitrary in the way it distinguished between pets which had received written consent, and those that had not. The Board, like all condominium boards, has an obligation to enforce their Bylaws. That was the intent of the Board’s order that Ms. Stebbing remove her cats, and it was a good faith decision. Courts have recognized a need for condominium boards to control the presence of animals in their facilities.

The Board also criticizes the Master for concluding that the lives of animals have significant worth, and that it is relevant that removal of a cat in these circumstances may lead to euthanization. This was an error of law, “... generated by Master Schlosser’s moral or social consciousness rather than from the law.” In any case, even if the Ms. Stebbing had received some form of permission in 2010 that was revoked by the Board’s 2012 order that she remove her cats.

The Board’s position is that the time at which a limitations period would come into play is when the Board had both knowledge that Ms. Stebbing had cats and that she was not going to seek written permission. That occurred when the cats were ‘re-discovered’ in 2012, not 2010.

The stay of enforcement should therefore be nullified, the Court should order Ms. Stebbing immediately remove her cat, and the Board should receive its costs.

Ms. Stebbing
Ms. Stebbing argues that this court should dismiss the Board’s application and award costs for all steps in this litigation.

First, the Board was aware of Ms. Stebbing’s cats and did nothing for two years and two months. It therefore acquiesced to the cats, and waived its right to enforce the Bylaws under the doctrine of laches. It was unfair after that period for the Board to strictly apply the Bylaws pet formal written permission requirement. This situation is analogous to that of the pet owner in Niagara North Condominium Corp No 46 v Chassie, 1999. In that case, a condominium board rule that excluded the pet was potentially reasonable, but the manner in which it was enforced unfairly affected the particular condominium owner. That Court noted the board had not enforced its policy for an extended time period.

Second, the Board’s different treatment of certain cat owners was unequal and unfair. The Board had permitted a Bylaw infraction to occur over extended time. This created a reasonable belief that the pet Bylaws would not be enforced. The Board is estopped from now withdrawing its tacit consent via a strict enforcement of Bylaws 46(c) and 58.

Here, while the Board had a broad discretion, it acted in an unreasonable manner. The Bylaw 58 claim to have “arbitrary” authority does not extinguish court supervision. Ms. Stebbing had not been provided a meaningful opportunity to seek written approval and Master Schlosser was correct to conclude her breach was technical, rather than substantial. It is unfair for the Board to cotton onto this defect after having acquiesced to her cats for over two years without action.

Ms. Stebbing argues that principles of equity should apply, and cites Justice Veit in Condominium Plan No 822 2909 v 837023 Alberta Ltd, 2010 who concluded the doctrine of laches may apply to dated breaches of condominium bylaws. Justice Veit also found delay in enforcing a bylaw may constitute waiver where it is unfair on a balance of justice to enforce a bylaw given that delay. Here the breach was minor, it was also innocent as Ms. Stebbing had tried to conform to The Saskatchewan’s Bylaws, and the Board had sat on its hands. That meant the Board had either acquiesced to, or given tacit approval to Ms. Stebbing housing her cats.

Last, the Respondent argues Condominium Plan No 822 2909 v 837023 Alberta Ltd provides a second basis to test whether the Board has waited too long to act. It became aware of the cats and their lack of written permission in late Sept. or early Oct. 2010. It did not issue a written removal order until Dec. 17, 2012. Justice Veit in Condominium Plan No 822 2909 v 837023 Alberta Ltd observed at paragraph 50 it is unfair for a condominium board to pursue bylaw enforcement outside the statutory limitation period. The same should be true for Ms. Stebbing.

Ms. Stebbing also complains that the Board’s actions in relation to her cats is symptomatic of a larger pattern of Board misconduct.

The Law
Condominium Property Act, RSA 2000, [the “CPA”] permits petition to the Alberta Court of Queen’s Bench for trial of an issue. Where “improper conduct” has taken place the Court has a broad discretion to order whatever remedy it sees fit. “Improper conduct” is defined by CPA.

In this section,
(a) “improper conduct” means
...
(iii) the exercise of the powers of the board in a manner that is oppressive or unfairly prejudicial to or that unfairly disregards the interests of an interested party,
...
(v) the exercise of the powers of the board by a developer in a manner that is oppressive or unfairly prejudicial to or that unfairly disregards the interests of an interested party or a purchaser or a prospective purchaser of a unit;

Chrumka J in 934859 Alberta Inc v Condominium Corporation No 0312180, 2007 ABQB 640 (CanLII) at paras 93-95, 434 AR 41 defines these three categories:
93
Oppression or oppressive conduct has been defined ... to be conduct that is burdensome, harsh or wrongful or which lacks probity or fair dealing.
94
The term "unfairly prejudicial" has been defined to mean acts that are unjustly or inequitably detrimental.
95
The term "unfairly disregards" may be defined as unjust and inequitable. Unfairly itself has been defined as "in an unfair manner, inequitably, unjustly". Fair has been defined as "just, equitable, free of bias or prejudice, impartial". Prejudice means " injury, detriment or damage caused to a person by judgment or action in which the person's rights are disregarded: hence injury, detriment or damage to a person or a thing likely to be the consequence of some action". Prejudicial means "causing prejudice; detrimental damaging "to rights, interests, etc."
    
Section 67(1)(b) defines an “interested party” as “an owner, a corporation, a member of the board, a registered mortgagee or any other person who has a registered interest in a unit”.

Here, Ms. Stebbing argues that she, as an interested party, has been the subject of exercise of the Board’s power that is oppressive, unfairly prejudicial, or that unfairly disregards her interest.

The nature of this review has been the subject of significant judicial commentary, which consistently emphasizes that the decisions of a condominium board are due considerable deference. This is true for both when a board enacts a rule (York Condominium Corp No 382 v Dvorchik (1997), and the manner in which a condominium board exercises its discretion (Maverick Equities Inc v Owners: Condominium Plan 942 2336, 2008 ABCA 221 (CanLII) at para 13, 16 ACWS (3d) 852).

Justice Veit in Maverick Equities Inc v Condominium Plan No 942 2336, 2010 ABQB 179 (CanLII) at paras 48-50, 34 Alta LR (5th) 147 draws a parallel between the approach a court should take in a CPA, ss 66-67 review and the principles applied in judicial review to test reasonableness of a board’s decision. She concludes (para 50):
A condo board is not a traditional administrative tribunal; yet, its decisions should be treated with an analogous deference. As between individual owners and the condo board itself, it must be emphasized that a condo board embodies, in addition to the notions of a tribunal, the notions appropriate to an elected body. Therefore, the decisions of a condo board are entitled to respect.

The Board cites Devlin v Owners: Condominium Plan No 9612647, 2002 ABQB 358 (CanLII), 318 AR 386 to illustrate that a condominium board’s decisions are due deference. That decision at paras 2-3 also offers a second principle: the board has an obligation to enforce its bylaws:
2     Condominium corporations are created to manage the assets of a condominium which is owned collectively by its unit holders. The condominium corporation incorporates a system whereby the majority rules and the unit holders may decide how they want their condominium to run subject to any restrictions contained in the condominium bylaws which are not contrary to the Condominium Property Act. It is trite law to say that once the rules have been established a unit owner is expected to abide by them and the condominium corporation is obliged to enforce them.
3     Bylaws are in place for a good reason and should be enforced, and a message will be sent by the Court that where the Board acts reasonably in carrying out its duty to enforce the bylaws and restrictive covenants, the Board will be supported by the Court, however when the bylaw and restrictive covenant are clearly prohibited under the Condominium Property Act then the Court will intervene.

I agree with Ms. Stebbing that the Bylaw 58 invocation of “arbitrary” decision making jurisdiction cannot immunize the Board from scrutiny by this Court: Condominium Plan No 772 1806 v Gobeil, at para 11.

Analysis
A. The Board’s Decision to Eliminate Cats
A useful first step is to evaluate the Board’s response to a growing controversy in The Saskatchewan over the presence of cats in that condominium. The agreed evidence is that in 2012 a concern arose in The Saskatchewan on the health implications of cats for certain residents in that property. In response the Board made three related decisions:
1.
that the health issues associated with the cats were of a kind that meant the Board should change its policy of permitting pets and eliminate cats from the building;
2.
that removing cats would be a two-stage process:
a) cats which did not have written permission to remain would be purged immediately by strict enforcement of The Saskatchewan’s Bylaws, and

b) cats which had received written permission to live in The Saskatchewan would be permitted to remain until they died; and
3.
no new cats would be permitted in The Saskatchewan.

Counsel for the Board stressed that these decisions are due a high degree of deference, and that the Court should only rarely interfere where a condominium board makes what is essentially a policy decision.

Decisions of this kind are obviously subject to review under CPA, ss 66-67. Returning to the approach taken by Justice Veit in Maverick Equities Inc v Condominium Plan No 942 2336, I conclude the Board’s decisions are reasonable where “...the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law ...”: at para 49, citing Dunsmuir v New Brunswick, 2008 SCC 9 (CanLII) at para 47, [2008] 1 SCR 190.

Viewed in this manner, several of the Board’s decisions are reasonable. Some condominium owners had apparently significant health consequences or potential consequences which flowed from the cats owned by other residents in The Saskatchewan. One possible method to address this conflict of interests was to eliminate cats from the condominium building. The Bylaws clearly made this a potential step; pets only may reside in The Saskatchewan with the Board’s permission. I therefore conclude several of the decisions are reasonable:
1.
the strategic policy choice to make The Saskatchewan a ‘cat free’ zone,
2.
the decision to not permit any new cats in The Saskatchewan, and
3.
the decision to permit condominium owners who already had permission to keep those cats.
These three decisions exhibit a balancing of competing interests, and are responsive to them.

The last decision, however, is different. There is a logic to treating condominium owners who had not followed the formal requirements of the Bylaws in a different manner. However, the presence of cats already in The Saskatchewan in 2012 when the Board started strict enforcement of its bylaws was a consequence of the Board not meeting its obligation to enforce condominium Bylaws upon becoming aware of a breach. It did not do that. That changes the factors in play.

B.  Did the Board’s Actions Constitute Improper Conduct?
1.  The Board Permitted Ms. Stebbing’s Cats

Ms. Stebbing and the real estate agent involved in the purchase of her condominium believed the Board had granted written permission for Ms. Stebbing to keep her cats in The Saskatchewan. The real estate records indicate that. The Board says no permission was granted, that it has searched its records and found nothing concerning Ms. Stebbing’s cats.

I infer from the undisputed evidence that the probable explanation for this scenario is the Board approved Ms. Stebbing having her cats in writing but subsequently either forgot that occurred or lost any associated documentation. This is clearly not the only possible explanation for the apparent disconnect between what Ms. Stebbing believed had occurred and the Board’s records.

For example, the Board’s counsel speculated it is possible that the person who sold the condominium to Ms. Stebbing lied about obtaining Board permission in writing and provided a forged supporting document. No supporting admissible evidence exists.

However, multiple grounds exist to conclude the Board did authorize Ms. Stebbing to have cats in the Saskatchewan.

First, it is implausible that a real estate professional would not have taken necessary steps to ensure Board approval for Ms. Stebbing’s cats had been obtained. It is clear that Ms. Stebbing and her real estate agent were very well aware of that specific bylaw requirement. Ms. Stebbing intended to comply with it. It was one of two buyer’s conditions for the purchase, and the last one to be removed. I conclude the real estate agent involved received communication from the Board (or Board member) prior to removing that condition.

Second, there is very strong evidence that in 2010 the Board was not operating carefully in relation to pets. On one hand the Board’s emails indicates a Board member was aware of Ms. Stebbing’s cats in 2010. However, no record or memory identifies that person. Mr. Kirkland offered no specifics but assumes the entire Board was told about the unauthorized animals. One possible explanation is that in 2010, an identified Bylaw breach was not important enough to document. By Dec. 12, 2012 Mr. Kirkland was apparently entirely unaware Ms. Stebbing’s cats existed until he saw them while visiting Ms. Stebbing’s condominium.

There is an alternative and I believe more likely explanation for the Board’s apparent disinterest in its own rules. The reason no follow-up occurred in 2010 is because the Board had already granted permission. This possibility is supported by a third factor. The Board’s documentary record of pet permissions display clear regression. The early documents are formal letters including quoted passages from Board minutes, reproduce relevant bylaws. They provide explicit limitations for permissions granted on a per-pet basis, and cite instructions on proper disposal of kitty litter and laundry facility use. However, as time moved, documentation became increasingly casual. In 2003, the only written documentation of a Board approval is an annotation on the bottom of an extremely brief letter by a resident asking permission to keep a cat. That annotation reads: “Nov 20 "passed" Pierre to respond.” A 2007 approval letter states only “The Board would like to welcome the newest addition to the Saskatchewan and wishes you much happiness with your new kittie.”

There is also evidence of at least one other missing Board cat approval document. The Aug. 1997 record where the Board approved two cats owned by Ms. Shekhter indicates these cats were returning and had previously been approved in 1994. The Shekhter letter and a written annotation of a Board member, “Jay”, indicate a previous 1994 Board approval with specific and apparently previously documented conditions. Although the Board produced records concerning cat residence approvals from 1994 those do not include any relating to Ms. Shekhter’s cats. The logical inference is these records were lost.

I therefore infer, on a balance of probabilities, that a member of the Board communicated in writing that Ms. Stebbing’s cats had been approved. This led to Ms. Stebbing ultimately residing in The Saskatchewan with the honest belief that she had received formal approval to live there with her cats. At the time the Board did not consider permission to keep cats as a serious topical issue, and the Board either never documented that fact or lost the record.

This is a first independent basis on which I conclude the Board’s decision to not ‘grandfather’ Ms. Stebbing’s cat was oppressive and unfair and must be overturned. The Board’s own negligence or poor internal communications are responsible. Ms. Stebbing made all reasonable efforts to conform to The Saskatchewan’s bylaws. It is entirely unfair to her that she and her cat have been penalized by the Board’s error(s).

In the event I am incorrect and the Board never granted Ms. Stebbing permission to keep her cats, I will continue my analysis to evaluate whether the Board’s conduct warrants CPA, ss 66-67 intervention.

2. The Board Did Not Permit Ms. Stebbing’s Cats
 Several key facts relating to the change in policy from minimal to strict bylaw enforcement backdrop my alternative analysis:
1.
the Board was aware of Ms. Stebbing’s cats in 2010 and the cats did not have written permission to reside in The Saskatchewan;
2.
the Board chose not to take steps to either have those cats removed or notify Ms. Stebbing of her breach of the Bylaws;
3.
Ms. Stebbing reasonably believed she had the Board’s permission to have her cats stay with her; and
4.
Ms. Stebbing would not have chosen to live in The Saskatchewan without her cats.
I also find as fact that, over time, pets were generally permitted in The Saskatchewan. Written Board permission devolved into little more than a formality. Master Schlosser also came to that conclusion. The record supports this conclusion. I also note the Board has not challenged the Master’s finding of fact.

I therefore conclude that if Ms. Stebbing had been informed in 2010 by the Board that it was aware she had not received permission to have her cats, Ms. Stebbing and the Board would have investigated who misled Ms. Stebbing and her real estate agent. Ms. Stebbing clearly wanted to conform to The Saskatchewan’s Bylaws and respected the Board’s authority. She would have immediately requested written permission, since her cats were very important to her. Board permission would have followed as the health-related allergy concerns had not yet emerged. As Mr. Kirkland acknowledged, cats were a non-issue at that time.

Master Schlosser considered whether pets are associated with a special personal interest and value. Chrumka J in 934859 Alberta Inc v Condominium Corporation No 0312180, at paras 88-90 cites British Columbia jurisprudence that a court may intervene where a condominium board’s actions have an effect on a condominium owner that is “… more than mere prejudice or trifling unfairness ...”. Removing a pet from its owner, especially in these circumstances, easily meets that threshold.

a.  The Doctrine of Laches
In this alternative analysis I presume Ms. Stebbing did not obtain written permission for her cats, and the Board knew about the cats in 2010 but did nothing until 2012. Ms. Stebbing argues the Board acted unfairly when it then ordered her to remove her remaining cat. The doctrine of laches should apply; the Board through inaction waived the requirement that Ms. Stebbing have written permission to keep her cats. I agree.

In this case, the following relevant factors are engaged:
1.
there was a substantial delay (if not disinterest) by the Board in enforcing the condominium Bylaws to formally document Board permission to have cats;
2.
Ms. Stebbing had a valid basis to believe she not only would be permitted to keep her cats, but had already conformed to The Saskatchewan’s Bylaws;
3.
if the Board had not failed to enforce its Bylaws then Ms. Stebbing would have applied for and received written permission in 2010 to keep her pets;
4.
Ms. Stebbing’s cats had not caused any complaints; and
5.
the Board’s 2012 conclusion was that health issues did not require an absolute and immediate purge of all cats. Instead, a gradual phased approach would eventually make The Saskatchewan cat-free.
       
Last, I note an issue identified by Justice Veit in Condominium Plan No 822 2909 v 837023 Alberta Ltd at para 78. The passage of time inhibits the condominium owner’s ability to respond to complaints. That is certainly the case here. Mr. Kirkland now cannot explain what exactly happened in 2010 when a Board member saw Ms. Stebbing’s cats. He can only assume what transpired. The same is true for the unidentified party who misled Ms. Stebbing and her real estate agent into falsely believing the Board had provided written permission for Ms. Stebbing to have cats. Neither party to this dispute has suggested what actually happened because, presumably, at this late date they cannot find out.

This is a second independent basis on which I conclude the Board engaged in improper conduct when it ordered Ms. Stebbing remove her cats.

b.  The Limitations Act
Ms. Stebbing also argues the Board is statute barred from ordering removal of her cats. In particular, the Board did not act for over two years and two months after first discovering the cats. That is outside the two year limitations period set by the Limitations Act, RSA 2000 c L-12.

I reject the Board’s argument that the threshold knowledge triggering the limitations period is their knowledge Ms. Stebbing had cats and refused to seek written permission for those pets. A Board member knew about Ms. Stebbing’s cats in 2010 when she moved in. At that time, the Board, according to its then president, had a protocol to evaluate a request to keep a pet. While Mr. Kirkland did not remember whether this situation of a pet without permission was brought to the Board’s attention, he assumed that had occurred.

The Board had a duty to enforce The Saskatchewan’s Bylaws. It was aware of Ms. Stebbing’s failure to obtain written permission, but did nothing. To argue their formal refusal would be the only knowledge point for awareness of her breach is an artificial distinction, particularly in light of the Board’s duties.

Justice Veit in Condominium Plan No 822 2909 v 837023 Alberta Ltd at para 78 observed:
... it will be recalled that if a person who is involved in a motor vehicle accident doesn't file a statement of claim within two years of the accident, that person loses their cause of action. It would be inconceivable that such a different rule would apply to alleged breaches of condominium by-laws. ...

I do not interpret that passage to mean the Limitations Act literally applies to non-litigation steps taken by a condominium board. Rather, Justice Veit is indicating the two year limitation period is a marker for when inaction on a minor breach of bylaws should be presumptively viewed as “improper conduct” under the CPA.

I think this is a reasonable approach. Taking into account the factors identified in the laches analysis, I conclude this represents a third independent basis to find the Board’s actions are unfair, oppressive, and prejudicial, and require Court response.

c.  Mistake of Fact
A fourth basis on which I conclude the Board’s actions were oppressive and unfairly prejudicial is that Ms. Stebbing had a mistake of fact defence for her actions.

The nature of this defence was explained by Thomas J in R v Gauchier; R v Legrande, 2013 ABQB 30 (CanLII) at para 6, 549 AR 354, affirmed 2014 ABCA 192 (CanLII), 575 AR 355, leave denied [2014] SCCA No 367:
A person who is aware of the factual limits of a legal prohibition and factually exceeds those limits has potentially made a mistake of fact.

Ms. Stebbing says that she knew exactly what the Bylaw requirements were, and to the best of her knowledge had complied with them. That is a mistake of fact. As the Supreme Court of Canada observed in R v Sault Ste Marie (City), 1978 CanLII 11 (SCC), [1978], the mistake of fact defence ... will be available if the accused reasonably believed in a mistaken set of facts which, if true, would render the act or omission innocent.

The Aug. 28, 2010 purchase offer clearly indicates that Ms. Stebbing and her real estate agent had reviewed The Saskatchewan’s Bylaws and were aware of clause 46(c) and its general prohibition against pets. She knew the rules. It is also obvious from the real estate documentation that Ms. Stebbing intended to follow those rules. If she could not live with her cats then she would not move into The Saskatchewan.

The remaining question is whether Ms. Stebbing had a reasonable belief that she had adhered to those rules. I conclude she did. She received notification from her real estate agent that the condition had been satisfied. Ms. Stebbing had no reason to doubt that information. When she moved into her condominium a Board member noted her cats and mentioned she needed written permission. Ms. Stebbing had a reasonable basis to conclude that requirement had been satisfied because:
1.
she had been already informed that Board permission had been obtained, and
2.
the Board took no further steps in relation to the cats.
It was entirely logical for Ms. Stebbing to conclude the Board member who noted her cats had subsequently checked to confirm written approval had been obtained. Instead, the Board was silent until Dec. 17, 2012 when she unexpectedly learned the Board believed she had not obtained permission for her pets.

I have previously indicated the Board’s decision to eliminate cats from The Saskatchewan or its methodology for treating ‘grandfathered’ cats is not “improper conduct” as defined by the CPA. However, its decision to treat Ms. Stebbing’s cats differently from the other ‘grandfathered’ pets was not “fair dealing” and instead was unjust and inequitable. Ms. Stebbing had a legally valid defence to breaches of any regulation or legislation, including strict liability offences. That same defence is relevant to the Board’s actions. The Board chose a fault-based methodology to determine which cats stayed, and which cats were purged. It then chose to demand Ms. Stebbing remove her cats even though her actions were innocent. That is improper conduct.

C.  Exercise of Board Authority to Revoke or Arbitrarily Refuse Permission for Ms. Stebbing to Keep Her Cat

[Counsel for the Board argues that ultimately it does not matter what the Board may or may not have done prior to ordering Ms. Stebbing remove her cats in 2012. The Board is authorized under Bylaw 46(c) to revoke consent for a pet to be resident, or under Bylaw 58 to “arbitrarily withhold ... or withdraw” permission to have a pet in The Saskatchewan. It has done so on a valid basis, and that ends the matter.

I disagree. The Board cannot engage in misconduct and then wallpaper over its errors with a new and perhaps technically correct step. Past misconduct taints subsequent Board action. Judicial determination of improper conduct requires review of the totality of circumstances. Here the Board has unfairly treated Ms. Stebbing, especially by disregarding the fact that she attempted to conform with the Bylaws of The Saskatchewan. It was unacceptable and unfair that the Board treated, and continues to treat, Ms. Stebbing differently from other residents of The Saskatchewan who also attempted to follow the Bylaws for their cats.

I therefore reject this additional argument of the Board.

Conclusion
I order that Ms. Stebbing’s cat is permitted to continue to reside at The Saskatchewan as a ‘grandfathered’ pet, in the same manner as those cats granted formal written approval by the Board.

It is obvious that the Board’s choice to eliminate cats from The Saskatchewan and this litigation has caused ongoing conflict in that community. It may be helpful to explicitly state my reasons have a quite limited scope. This judgment has no effect on the 2012 policy decisions of the Board. This decision does not mean pets may reside in The Saskatchewan without Board approval, but only that Ms. Stebbing may continue to keep her cat through the remainder of its life. She may not acquire another cat or a replacement cat, unless the Board changes its policies towards pets.

Ms. Stebbing was entirely successful at this hearing and is therefore presumptively entitled to costs on a party-and-party basis.

Ms. Stebbing clearly has taken exception to the manner in which the Board has managed this matter, and as my reasons indicate she had a strong basis to do so. She was not treated fairly.

I further note that the Board’s conduct to Ms. Stebbing has been problematic in relation to alleged damage to common areas in The Saskatchewan. The Board disregarded Mr. Kirkland’s agreement that future communications with Ms. Stebbing be conducted through her lawyer.

The Saskatchewan’s management company improperly threatened to file a property interest against Ms. Stebbing’s condominium and communicated that to her mortgage lender. To its credit the Board subsequently acknowledged and corrected this misconduct. However, the Board’s actions as a whole reveal systematic improper conduct.

The additional Board misconduct that I have identified occurred during the litigation process and per Polar Ice Express Inc v Arctic Glacier Inc, 2009 ABCA 20 (CanLII) at para 21, 446 AR 295 is therefore a potential basis for an elevated cost award.

Under all the circumstances, I order double party-and-party costs. The parties may return within 30 days if they require assistance in calculating that amount.


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YRSCC No. 1113 v. Antonelli
Superior Court of Justice—Ontario
Brampton
Court File No: CV-14-1259-00
Before: Justice Emery
Date of Release: 22 August 2014

The condo corporation which obtained a judgment on 02 May 2014 ordering Alessandro Antonelli to immediately and permanently remove his two dogs from his unit.

Mr. Antonelli did not remove the dogs and that they continue to reside with him in his unit contrary to Justice Daley’s judgment.

YRSCC #1113 seeks a finding of contempt and an order permitting the corporation to engage a contractor to enter unit to permanently remove the dogs.

Mr. Antonelli was not present when Justice Daley heard the application and gave judgment. He has brought a motion to set aside Justice Daley’s judgment and to allow for his motion to be heard next year.

His request is denied. Without prejudice to any evidence he files on the set aside motion or submissions he makes when it is heard on 04 February 2015, the condo corporation is entitled to the disposition of its motion.

The law is clear: a judgment or order of the court must be followed. An order, which includes a judgment, remains effective and binding unless and until it is either set aside or reversed on appeal. Neither event has occurred here.

Therefore, the dogs must go. Mr. Antonelli was found in contempt and the corporation can hire a contractor to enter the unit and remove the dogs.

Costs
Costs of today’s motion are hereby granted to the YRSCC #1113 fixed in the amount of $10,000 all-inclusive and payable by the respondent within 30 days.

Note:
Mr. Antonelli did not appear at the first court hearing and he was self-represented at this one. I contend that it would have been wise if he had obtained legal advice from a lawyer experienced in condominium law when he first received a written notice from the condo corporation.

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Niagara North Condominium Corp. No. 46 v. Chassie

Ontario Supreme Court—St. Catharines
Court File No: 40,448/98
Before: Justice E.I. MacDonald
Date: 07 April 1999

Niagara North Condominium Corporation No. 46 (the Condominium), applied to this Court for an order directing the Respondents, Raymond and Muriel Chassie, to remove their cat from their Unit, being Unit 203 of the condominium building, within 30 days of the Order. In other words, the Condominium seeks to evict Mineau, a 16-year-old Siamese cat, from her home with the Chassies in the condominium complex, which is located at 3 Towering Heights Boulevard in St. Catharines.

The position of the Applicant is that the Respondents should be required to remove the cat from the premises because the residence of the cat in the Respondents’ unit is contrary to the Declaration and Rules and Regulations of the Condominium

Counsel for the Applicant submitted that the prohibition is contained in the condominium Declaration as well as in the Rules, both of which are binding on the unit owners, and that there is a strong presumption as to the validity of the Declaration. Further, the Board of Directors of a condominium corporation has a statutory obligation to enforce the Declaration and Rules.

Also, contrary to her assertions, Mrs. Chassie was not misled about the pet prohibition in view of the fact that she signed a form acknowledging receipt of the Rules. While he acknowledged that the Human Rights Code relied on by the Chassies is a quasi-constitutional law, he submitted that the Code should not be applied herein. He argued that, for the Code to apply, there must be a physical reliance on an animal, as in the case of a blind or deaf person. The mere emotional attachment to a companion animal is not sufficient to evoke the Code, he said.

The judge summarize the defence of the Respondents, who appeared in person, as being lack of reasonableness, acquiescence by the Board in respect of the presence of pets and delay in the enforcement of the Declaration and Rules and Human Rights Code considerations.

Secondly, the Respondents took the position that the condominium Board “has knowingly set a precedent by not enforcing the no pet by-law for 8 years” and has now singled them out for enforcement with “no attempt to apply the no pet by-law fairly”. They submitted that they were not notified of the no pet rules before presenting an Offer to Purchase and, indeed, saw cats in several windows and units at various times during their visits to the premises.

The judge found that there have been cats in the building to the knowledge of the Board of Directors for a number of years, that they have delayed in enforcing the no pet provisions of the Declaration and Rules and, in so doing, have implicitly acquiesced in the presence of cats in the building.

While there was not a long delay in the attempted enforcement of the Declaration in respect of the Chassies after they moved into the complex, the prior long delay and obvious acquiescence as to the presence of cats in the building led the Chassies to put themselves in a position they would not otherwise have put themselves in, namely, buy the unit.

The judge agreed with the conclusion of Justice Breckinridge in Mosseau that a condominium corporation cannot sleep on its rights and then enforce them against people who have relied on the non-enforcement to put themselves in a position of disadvantage they would not have put themselves in had the provisions been enforced uniformly and in a timely manner.

Human Rights Considerations
The third and last ground for dismissal raised by the Respondents is the question of the application to this case of the Ontario Human Rights Code. They submitted that to require them to give up their cat would be cruel and inhumane because Mrs. Chassie suffers from mental and physical health problems and the removal of her cat would be deleterious to her health, particularly in respect of her problems with depression and high blood pressure. Her submissions are supported by her medical doctors.

The Human Rights Code provides:
Every person has a right to equal treatment with respect to the occupancy of accommodation, without discrimination because of… handicap…

If Mrs. Chassie suffers from any handicap within the meaning of the Code, it is that of a mental disorder. The question is whether her depression can be considered to be a mental disorder within the meaning of the Code. The Code does not define mental disorder and no evidence was introduced as to the meaning of the expression. It is relatively easier to determine whether a person suffers a physical handicap as “handicap” is defined, in part, as meaning “any degree of physical disability, infirmity, malformation or disfigurement” and includes such disabilities as blindness and deafness.

Speaking of the current situation, her present doctor, Dr. Henry, stated that to force her to abandon her cat would cause her “severe emotional and physical detriment”. He also said that “the emotional well being she gets from her cat are [sic] an important component of her treatment” and that the “emotional trauma caused by the legal proceedings surrounding her cat have precipitated a worsening of her depression”.

Her former doctor, Dr. Richards, agreed that removing the cat could “precipitate a relapse of her depression”.

The last question to be answered is whether the Applicant, by bringing this Application, is discriminating against Mrs. Chassie with respect to the occupancy of accommodation within the meaning of the Code.

The enforcement would have an “adverse effect” on her within the broad concept of adverse effects discrimination. It would effectively prohibit her from living in the building because her cat is essential to her well being and “an important part of her treatment”.

Further, the argument that the cat is merely a companion comfort animal providing emotional support, and not a therapy utility animal like a seeing eye dog, does not stand. Her handicap is mental not physical. In the broad sense, as set out above under the heading The Therapeutic Value of Pets, there is a growing awareness of the extent to which animals improve the mental and physical well being of people. It has been said that therapy dogs have been shown to lower blood pressure, another medical problem of Mrs. Chassie, and help people relax.

In the specific circumstances of this case, a part of Mrs. Chassie’s treatment for her mental disorder, depression, is the emotional support provided by her cat. I would, therefore, say that the cat is a therapy utility animal and that its ouster would constitute discrimination against Mrs. Chassie because of her handicap.

Conclusions
I agree with counsel for the Applicant that the residence of the Chassie’s cat in the Condominium complex is contrary to the condominium Declaration and Rules, that there is a strong presumption as to the validity of the Declaration and that the Board of Directors has a statutory obligation to enforce the Declaration and Rules.

However, for the reasons set out above, I am of opinion that the pet prohibition is not a reasonable one. On the other hand, while the provision in the Declaration may not be reasonable, it is not necessarily invalid given the strong presumption in favour of the validity of Declarations. Nevertheless, I think it would not be fair to enforce it given that it is not reasonable and given the circumstances of the present case.

The Chassies were put in a position of disadvantage in purchasing the unit that they would not have placed themselves in had they known, before they purchased their unit, of the cat prohibition and that an attempt to enforce it might be made.

Their lack of comprehension of the situation is the fault of the Board of Directors. The Board has acquiesced in the presence of cats in the building over a number of years and has not provided any explanation to justify the delay in enforcement and leads the court to find that the equities favour the Applicant.

Finally, I have found that Mrs. Chassie suffers from a handicap within the meaning of the Human Rights Code and that to enforce the Declaration would constitute discrimination against her because of her handicap. On the totality of all three grounds of defence, I find that this is a proper case in which to exercise my judicial discretion in favour of the Respondents and to dismiss the Application.

Since the Respondents were self-represented, and given the nature of the case and my decision, I do not think that this is a proper case for an award of costs.

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A
Simcoe Condominium Corporation No. 89 v. Dominelli, 2015
Superior Court of Justice
Barrie Court File: No: 14-1387
Justice Quinlan
Date: 08 June 2015

A woman moved into a condo to live with her fiancÚ. She brought a dog that weighs over 25 pounds with her. She was aware that the condominium has a 25-pound weight restriction on pets. The Rule setting the 25-pound weight restriction on dogs and cats was implemented by the applicant in 2005 to address safety concerns.

The couple sought no permission or accommodation from the condo corporation until they failed to have the dog remain as a therapy dog for the woman's work with autistic children.

When the property manager advised the couple that the dog had to be a service dog for a resident of their unit in order for the 25 pound weight restriction to be overridden, the woman obtained letters from a doctor that supported the notion that the dog is a therapy dog for her.

The issue before the judge was  whether the couple had established that the woman has a disability within the meaning of the Human Rights Code and that she requires a dog of over 25 pounds to meet her disability-related needs. If so, had the condo fulfilled its duty to accommodate?

On August 22, 2014, the condo’s property manager sent the couple a letter advising them that they had to remove the dog from the unit within two weeks because it weighed over 25 pounds, and was in violation of the applicant’s Rules.

On September 10, 2014, the condo was informed that the dog was a therapy dog for her work with autistic children. The applicant’s property manager advised the couple that the rule would be enforced, and on September 19, 2014, sent the couple a final notice advising them to remove the dog.

On September 20, 2014, the owner asked how to call a meeting of the owners and confirmed that the dog was being placed in a kennel. On September 22, 2014, the applicant’s property manager received a requisition for an Owner’s Meeting to vote on removing the 25-pound weight restriction in the Rules. The requisition was initiated by the couple as they wanted to change the 25-pound rule.

On September 29, 2014, the applicant’s property manager emailed the respondents that the dog had to be removed from the premises unless it serviced a resident of that unit.

An Owner’s Meeting was held on October 27, 2014, and the majority of owners (29 to 10) voted against removing the 25-pound weight restriction in the Rules.

By letter dated November 26, 2014, the Board denied the respondents’ request for accommodation on the basis that there was no objective medical evidence that supported or identified that the woman had a disability under the Code; what her disability-related needs were; and how the dog is specifically required to address her disability-related needs. The Board’s Decision stated that her doctor had not provided any clear diagnosis or identified any disability which would require accommodation and the limitations or needs associated with that disability, but had only identified symptoms such as stress, which do not in itself establish a disability under the Code which must be accommodated.

The Decision further stated that the Board found that there was no indication that the woman required a dog that was more than 25 pounds to address any need. The Decision noted the Board’s concerns about whether the request for accommodation had been made in good faith given the history of events.

The letter set out the consequences of the Board’s Decision: the respondents were to permanently remove the dog by December 1, 2014 and an inspection of their unit would take place to ensure compliance.

The couple advised the applicant’s property manager on November 27, 2014, that they would remove the dog by December 1, 2014, but would not confirm that they would permanently remove the dog. They also advised that they would not allow an inspection of their unit. The couple removed the dog by December 1, 2014, but returned the dog to the unit on January 17, 2015, without the condo’s permission. The dog remains in the unit. At her cross-examination, the woman testified that she will not permanently remove the dog without a court order.

The condo corporation applied for orders requiring the respondents to permanently remove the dog from their unit and the common elements of the condo and permitting the corporation to inspect the unit.

Issues
Does the dog weigh more than 25 pounds?

If so, has the woman established that she has a disability within the meaning of the Code and that she requires a dog weighing more than 25 pounds due to disability-related needs? “Stress” of itself is not a disability for the purposes of the Code:

If so, has the condo fulfilled its duty to accommodate?

Conclusion
The judge granted:

1.  An order under s. 134 of the Condominium Act, 1998 requiring the respondents, the owner and occupant of Unit 134, to comply with their obligations under section 119 of the Condominium Act, 1998, Part XIII (2) of the Declaration and Rule 42 of Simcoe Condominium Corporation No. 89 and to permanently remove the dog  from the unit and the common elements of Simcoe Condominium Corporation No. 89, as the dog weighs more than 25 pounds.

2. An order under s. 134 of the Condominium Act, 1998 prohibiting the respondents or any owners or occupants of Unit 134 from keeping in the unit or on the common elements of Simcoe Condominium Corporation No. 89, either permanently or temporarily, any household pet that does not comply with their obligations under section 119 of the Condominium Act, 1998 and the Declaration and Rules of Simcoe Condominium Corporation No. 89.

3. An order that the applicant be permitted to enter Unit 134 on eight hours’ notice which can be given by e-mail, in writing or by telephone to inspect the unit to ensure that the respondents are complying with the provisions in the Declaration and Rules of Simcoe Condominium Corporation No. 89.

4. A Declaration that the respondents are in breach of,
    i) Section 119 of the Condominium Act, 1998;
    ii) Part XIII(2) of the Declaration of Simcoe Condominium Corporation
        No. 89; and
   iii) Section 42 of the Rules of Simcoe Condominium Corporation No. 89.

5. A Declaration that Simcoe Condominium Corporation No. 89 has not discriminated against the respondents in violation of the Human Rights Code, R.S.O. 1990, C.H. 19 or breached any provision of the Human Rights Code by requiring the respondents to comply with their obligations under the Condominium Act, and the Declaration and Rules of Simcoe Condominium Corporation No. 89.

Costs
The condo corporation was entirely successful. As such, it is presumptively entitled to its costs. The corporation asked for $$48,430.41 inclusive of HST and disbursements.

The jusge stated that respondents were warned early on in the proceedings of the costs consequences should they be unsuccessful. The respondents refused the condo’s offer to take a reduction in costs if they would consent to early judgment. Ms. Labranche’s position that she would not remove the dog without a court order was unreasonable. The respondents’ evidence was far from sufficient to support their claim of discrimination. There is no evidence before me as to the financial resources of the respondents.

Courts have addressed the scale of costs on a condominium application and accepted that full indemnity costs in cases such as this are appropriate. The respondents’ neighbours are blameless in this matter; it is not fair or equitable for other unit owners to have to subsidize the costs of the condominium corporation in pursuing a legal proceeding against a unit owner for their breach of the condominium rules.

The judge thoroughly reviewed the applicant’s counsel’s dockets and found that the costs are not so disproportionately high as to be manifestly unreasonable. The applicant’s counsel has fairly indicated areas where she reduced costs due to duplication with another proceeding. The only duplication of time by the applicant was in the repetition of submissions on the second day of the application, which resulted in at most three hours of additional time, for which there will be some reduction in the costs awarded. The judge found it would not be appropriate to deal with additional costs under s. 134(5) of the Act.

Accordingly, the court ordered that the respondents shall pay the condo corporation $47,000 in costs including HST and disbursements within 20 days of the date of this Order.

This court orders that pursuant to s. 85 and s. 134(5) of the Condominium Act, 1988 the costs so fixed and unpaid by the respondents within that time shall be added to the common expense charges for the subject unit and shall be a lien and charge upon the subject unit owned by the respondents.

Costs reduced
The respondents’ submitted that the condo exceeded the page limit that the judgment call for. The judge agreed that this would have a bearing on the costs in preparing the reply submissions and that the costs awarded to the condo corporation for its reply submissions should be reduced.

Accordingly, the court ordered that the respondents shall pay the condo $45,750 in costs, including HST and disbursements within twenty days of the date of this order.  


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