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Court cases—pets
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.
top
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.
top
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.
top
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.
top
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.
top
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 fiancé. 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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