Maturing CAT Confirms Owners Have Duties Too In Human Rights Requests
What is a condominium corporation supposed to do when one resident’s human rights come into conflict with another resident’s human rights? As cities in Ontario get denser and denser with people living in closer and closer proximity to each other, this question becomes all the more important as we try to figure out how to get along. Especially with the COVID-19 pandemic forcing many to work-from-home, we have seen a significant number of these types of communal living conflicts. Many of these conflicts will undoubtedly end up in the online Condominium Authority Tribunal of Ontario (the “CAT”) for some sort of resolution.
Often, a condominium is stuck between a rock and a hard place; especially in noise and nuisance cases (which as of January 1st 2022, the CAT now has jurisdiction over), where one resident says X happened while the other resident says X did not happen at all. In such a he-said-she-said scenario without any “objective” evidence to support either version of events, the condominium is forced to either take a side or not take any side at all; and as we all know, neither side is usually happy with a condominium refusing to leave its neutral ground.
The owners/residents who suffer due to a particular person’s violation of the communal rules are often nameless, faceless individuals who merely form part of the condominium community’s overall collective; after all, it is the condominium corporation that is responsible to take “all reasonable steps” to enforce its own governing documents against a violator, not the aggrieved owner/resident, under Section 17(3) of the Condominium Act, 1998 (the “Act”). The condominium corporation takes up the aggrieved party’s complaint, and then enforces against the particular violator on behalf of the community. The condominium corporation itself might not even be aware of the full scope of all the parties who are affected by the violation, since not everyone has the time, energy, or resources to file a formal complaint and pursue it further. Some residents may simply live with the garbage left in the hallway, the noises disturbing their sleep, or the smoke odours penetrating into their unit – without ever filing a single complaint to the condominium corporation.
But in the recent case of Tamo v. Metropolitan Toronto Condominium Corporation No. 844 et al., 2022 ONCAT 40 (“Tamo”), the CAT was faced with a particular unit owner who felt aggrieved by her condominium corporation’s granting of a human rights accommodation request, which allowed another unit owner to keep an Emotional Support Animal (“ESA”) – specifically, a Bernedoodle named Murphy – despite her alleged allergies to such a dog.
The aggrieved unit owner (“Dr. Tamo”) was not only unafraid to come forward with her complaint, but she hired a condominium lawyer to pursue her grievance in the CAT against both the condominium corporation (“MTCC 744”) and the other unit owner who was accommodated (“Ms. Clancy”). MTCC 744 and Ms. Clancy turned to lawyers of their own, and a three-way CAT fight was born.
The CAT, like so many condominium corporations throughout Ontario every day, was forced to come down on one side or the other.
Human Rights Showdown: Emotional Support Animal vs. Allergies To Pets
In Tamo, the CAT noted that MTCC 744’s Declaration had an explicit no-pets prohibition, and that Dr. Tamo had deliberately chosen to live at this no-pets building over the past 30 years because she suffers from numerous allergies, including allergies to dogs and cats.
In May 2020, Ms. Clancy submitted a formal request to MTCC 744 for permission to have an ESA as an accommodation for her disability. MTCC 744 approved her request for accommodation pursuant to the Ontario Human Rights Code (the “Code”), and Ms. Clancy brought Murphy to live with her in October 2020.
In January 2021, Dr. Tamo complained in writing to MTCC 544 about the presence of Murphy on-site, asserted that Murphy was not a “service dog” under the Accessibility for Ontarians with Disabilities Act, 2005 (the “AODA”), and claimed that she had serious allergies to cats, dogs, dust, and dander. MTCC 744’s legal counsel advised Dr. Tamo that Murphy was an accommodation request granted by MTCC 744 under the Code, and asked Dr. Tamo for medical information about her purported allergies.
Dr. Tamo did not provide any supporting medical documentation to demonstrate her purported allergies, despite repeated requests from MTCC 744’s counsel to do so. Instead, she commenced her CAT Application against MTCC 744 and Ms. Clancy.
At the CAT Stage 3 Hearing, Dr. Tamo produced 3 medical reports; from her family physician, her psychiatrist, and a specialist in allergies and clinical immunology who had been treating her for a number of years. In response, MTCC 744 produced medical evidence from an expert who was the Head of the Division of Allergy and Clinical Immunology at St. Michael’s Hospital, the Medical Director of its Regional Anaphylaxis Clinic, and an Associate Professor of Medicine at the University of Toronto.
Upon reviewing the evidence, the CAT ultimately preferred the evidence of MTCC 744’s expert, and ruled that Dr. Tamo had overstated her allergy symptoms and exaggerated her concerns in relation to Murphy. At para. 94 of her Decision, CAT Member Webster held:
“The medical reports from the Applicant’s doctors establish that she experiences allergy symptoms related to dogs. The evidence has not, however, proven in a clear and convincing way that the Applicant is experiencing allergy symptoms related to the presence of Murphy or that she is experiencing severe and life-threatening symptoms related to his presence. Consequently, I do not find that the accommodation of Ms. Clancy’s disability by MTCC 744 has caused undue hardship to the Applicant.”
Unit Owner Must Cooperate With Condo’s Requests for Medical Information
With regards to Dr. Tamo’s allegation that MTCC 744 was, in turn, failing to accommodate her disability (namely, her purported allergies to dogs), the CAT emphasized that Dr. Tamo had failed to produce medical documentation to demonstrate her purported allergies when MTCC 744’s counsel repeatedly asked for her to do so. The CAT consequently ruled that MTCC 744 had not failed to accommodate Dr. Tamo’s disability under the Code.
As this author noted in our previous article published on February 23rd 2021, under the Code, a unit owner who is requesting accommodation must provide the condominium corporation with sufficient medical evidence to support their disability-related needs, pursuant to Waterloo North Condominium Corp. No. 186 v. Weidner, 2003 CanLII 44549 (“Weidner”) and Simcoe Condominium Corporation No. 89 v. Dominelli, 2015 ONSC 3661 (“Dominelli”).
Instead of relying on the Superior Court precedents set out in Weidner and Dominelli however, the CAT went back to first principles and cited Central Okanagan School District No. 23 v. Renaud,  2 SCR 970 (“Renaud”), for the general proposition that the person seeking human rights accommodation must cooperate in the search for a reasonable accommodation. At para. 59 of her Decision, CAT Member Webster held:
“… in the search for reasonable accommodation, all parties have an obligation to engage and cooperate. This means that the Applicant has a duty to participate in the process by, for example, responding to reasonable requests for information to show their accommodation needs and taking part in developing accommodation solutions.”
Because MTCC 744 had repeatedly requested medical information from Dr. Tamo about her disability-related needs, but Dr. Tamo did not cooperate, the CAT was satisfied that MTCC 744 fulfilled its duty to accommodate Dr. Tamo under the Code.
Conversely, the CAT ruled that Ms. Clancy had properly cooperated with MTCC 744’s requests for medical information about her disability and why she required Murphy as an ESA. The CAT held that the MTCC 744 Board took reasonable steps to consider and approve Ms. Clancy’s request for a human rights exemption from the no-pet prohibition. At para. 41, the CAT held:
“… The board did not automatically approve the exemption in response to Ms. Clancy’s first inquiry. Instead, it required a formal request and a doctor’s letter, and then requested clarifying information from Ms. Clancy’s doctor. Once Ms. Clancy provided further information, the board reviewed her request and supporting documents and then granted approval for the emotional support dog as an accommodation, subject to a series of conditions. I find that this decision was made in good faith and with due diligence within the standards set out in section 37 of the Act.”
As such, the CAT also affirmed in Tamo that a condominium corporation can ask follow-up questions of the doctor who wrote the initial medical note for the unit owner seeking accommodation. In addition to Weidner and Dominelli, the CAT’s ruling in Tamo serves as a useful reminder that the person seeking an exemption must cooperate with the condominium corporation’s inquiry into their request.
If Condo Properly Engages in Human Rights Accommodation, then Board is Given Deference
Dr. Tamo also alleged that MTCC 744’s granting of Ms. Clancy’s request for accommodation was a violation of the Board’s statutory duty of care as directors. In Dr. Tamo’s view, Ms. Clancy did not sufficiently prove that she suffered from a disability which required Murphy as an ESA.
The CAT held that Ms. Clancy was not required to prove her disability to the satisfaction of Dr. Tamo, but rather, Ms. Clancy was only required to provide sufficient information to the satisfaction of MTCC 744’s Board. The CAT affirmed that a Board’s decision-making in trying to carefully balance between the competing interests of different unit owners is owed deference by an outside adjudicator; as per the Ontario Court of Appeal’s ruling in 3716724 Canada Inc. v. Carleton Condominium Corporation No. 375, 2016 ONCA 650.
At paras. 51, 54, and 55 of Tamo, the CAT held:
“It is evident that the Applicant does not like or agree with the board’s decision to permit Ms. Clancy to have a dog, and that she has good reasons for her disagreement in that she intentionally chose a pet free building in order to avoid dog and cat allergens. Her disagreement with the board’s decision does not, however, make the decision unreasonable or contrary to the board’s obligations under section 37 of the Act.
… I am not persuaded by the Applicant’s argument that the Board has failed to exercise its due diligence because Murphy is not a service dog. It is immaterial to the issue of accommodation whether Murphy is a service animal within the meaning of the revoked AODA regulations or a guide dog within the meaning of section 10(1)(a) of the Code. Ms. Clancy has provided documentation to support the requirement for an emotional support animal as an accommodation of her disability that was sufficient for the board to conclude that it had a duty to accommodate.
… MTCC 744 engaged in a reasonable decision-making process and acted in good faith when it decided to exempt [Ms. Clancy] from the pet prohibition.”
As such, the CAT’s ruling in Tamo reflects the longstanding principle in condominium law that where a Board has acted reasonably in carrying out its duties to balance between the competing interests of its community members, the Board can expect that its decision will be supported by the adjudicator.
If Condos Must be Referees, then Costs Should be Recoverable
Given how complex the neighbour-vs-neighbour dispute was in Tamo, with all of the competing human rights and conflicting medical evidence, it was not surprising to see each of the 3 parties “lawyer up” with their own experienced legal counsel. Indeed, when faced with a request for human rights accommodation under the Code, a condominium corporation should consult with its legal counsel for advice and guidance. Not only are the requirements of condominium law’s intersection with human rights law constantly evolving, but the condominium corporation must also be careful not to be seen as having “reprised” against the person who is seeking human rights accommodation.
Unfortunately, as reflected in the CAT’s decision in Tamo not to award any of the parties with any of their legal costs whatsoever, a condominium corporation may not be able to recover its legal costs incurred in trying to defend a unit owner from another unit owner’s accusations of not really needing human rights accommodation. Although the CAT does appear to be overall maturing in its adjudicative Decisions after the nearly 5 years it has been in existence, the CAT’s default presumption against awarding even the successful party with its legal costs is still undermining condominium corporations’ willingness to step into the fray between disputing neighbours.
Instead, condominium corporations are letting uncertainty and havoc rule the day, and praying that an aggrieved party does not actually have the time, energy, or resources to pursue their complaints against the condominium – or that the aggrieved party merely names the condominium corporation as an Intervenor, instead of a Respondent, to their CAT Application against their neighbour. But even then, in a neighbour-vs-neighbour Stage 3 Hearing, it remains to be seen whether the CAT will be looking towards the 3rd party condominium corporation to take on the blame and responsibility for the feuding residents. For example, the CAT may wonder why the condominium did not intervene as a “referee” between the 2 owners earlier, before the dispute reached the Tribunal.
Condominiums are not well-resourced, well-oiled machines of the state like Crown prosecutors with a 24/7 taxpayer-funded police force at its disposal; condominium corporations are almost all non-profit entities, and many of them do not have 24/7 on-site Security or Management. Nevertheless, it is all too easy for an adjudicator to look at the relatively-bigger “institution” of the condominium corporation, and say that the condominium ought to have taken on a more active role in deciding between the Hatfields and the McCoys.
Certainly, as the CAT grows and develops, the online Tribunal will be wrestling with the difficult conflicts between competing rights that condominium Boards, Managers, and lawyers have been dealing with for decades.
But if the CAT wants condominiums to get off the sidelines and help deal with these feuds on the ground before they overwhelm the Tribunal’s limited number of CAT Members, then a condominium ought to be able to recover its legal costs from the side that was ultimately unsuccessful at the Stage 3 Hearing. Otherwise, the condominium corporation will be reluctant to actually get involved unless and until it absolutely has to, due to the irrecoverable financial costs of intervening and the typical he-said-she-said nature of such feuds.
 The Respondent condominium corporation in Tamo is MTCC 744 in Toronto, but the reported Decision’s neutral citation names it as MTCC 844 instead, which is an entirely different condominium corporation in Scarborough.
 We also noted that Dominelli was subsequently cited with approval by the Human Rights Tribunal of Ontario (the “HRTO”) in Bottiglia v. Ottawa Catholic School Board, 2015 HRTO 1178 (“Bottiglia”), which itself was affirmed on appeal by a unanimous panel of the Divisional Court of Ontario (2017 ONSC 2517).
 Section 37(1) of the Act sets out the statutory duties of condominium Board members; namely that each director must exercise their powers and duties honestly and in good faith, and with the care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances.
 The corollary to this principle is that if the owner or resident who is seeking accommodation refuses to cooperate with that reasonable inquiry, then the condominium corporation can refuse to grant the sought accommodation.
 Generally speaking, a condominium corporation should not be charging back its legal costs for involving counsel in reviewing or responding to a legitimate request for accommodation from a unit owner/resident, given the condominium corporation’s existing obligation to properly investigate a request for accommodation under the Code. However, here in Tamo, the condominium corporation was not only required to investigate Dr. Tamo’s overexaggerated claims of severe pet allergies, but also had to defend against Dr. Tamo’s CAT Application against it; which the condominium corporation was ultimately successful in doing. This author would not be surprised if the condominium’s “pre-CAT” costs of investigating Dr. Tamo’s allergy claims was only a few thousand dollars, while the condominium’s “in-CAT” costs of successfully defending against the CAT Application was in the several tens of thousands of dollars – which the CAT held were not recoverable.
All of the information contained in this article is of a general nature for informational purposes only and is not intended to represent the definitive opinion of the firm of Elia Associates on any particular matter. Although every effort is made to ensure that the information contained in this article is accurate and up-to-date, the reader should not act upon it without obtaining appropriate professional advice and assistance.