CAT Orders Removal of Dog with Big-Cat Name

In a recent Decision, the Condominium Authority Tribunal of Ontario (the “CAT”) ordered the permanent removal of a unit owner’s dog with one of the most famous big-cat names of all: Simba.

Like the well-known Disney character, Simba was the pride and joy of his household.  But the Pride Lands where he inhabited was governed by a condominium Declaration that, from the condominium’s very inception back in 1978, explicitly prohibited the keeping of dogs on the premises.  In fact, the unit owner even admitted that he was aware of the longstanding no-pets clause in the Declaration when he brought Simba to live in his unit.

Neighbours submitted complaints about the barking dog being kept in the owner’s unit, and despite multiple compliance letters from Management and a legal enforcement letter from the condominium’s counsel (our office), the owner refused to remove Simba.  Instead, he argued that he should be able to keep the dog, despite the Declaration’s no-pets prohibition, because Simba was a “de facto” emotional support animal and some other units also had dogs of their own.  The condominium corporation was consequently forced to bring the dispute to the CAT for resolution.

In Peel Condominium Corporation No. 166 v. Sithamparanathan, 2022 ONCAT 130 (“Sithamparanathan”), the CAT ruled that while Simba may have provided emotional support and companionship to the owner and his family, the owner must permanently remove the dog within 6 weeks and pay $200 to the condominium corporation.  The CAT found that the owner failed to establish a disability-related need under the Ontario Human Rights Code (the “Code”) for the dog to remain, and the owner failed to establish that there was such rampant non-compliance with the no-pets prohibition at the building that Simba should be allowed to stay.

Emotional Support is Not Necessarily a Disability-Related Need

As we wrote about in a previous article (here), the CAT has confirmed that unit owners who are seeking human rights accommodation from a condominium corporation must provide sufficient medical documentation to the condominium, in order for the condominium to properly assess their request for accommodation.  If a unit owner refuses to do so, then the condominium may dismiss the owner’s request for accommodation due to the owner’s failure to uphold their procedural duty to cooperate with the assessment.

This was reiterated again in Sithamparanathan, where the CAT held:

“... under the Code, if a person with a disability has disability-related needs, those needs must be accommodated unless accommodation would result in undue hardship. A letter from a treating physician is usually required to support a request for accommodation because of disability.”

Here, although Simba may have provided emotional support to the family members who resided in the unit and it may be emotionally difficult for the owner’s family if Simba is not permitted to stay, the CAT held that those facts in and of themselves were insufficient to establish that the owner can continue to keep Simba in his unit, in contravention of the no-pets clause, as a human rights accommodation.

In the owner’s initial letter to the condominium corporation,[1] he explicitly admitted that his family purchased Simba in January 2022 in remembrance of his father who had unfortunately passed away 2 years prior.  In his letter, the owner did not raise or refer to any disability or disability-related need for him or any of his family members to keep Simba in the unit.

Even after the CAT Member – in the midst of the Stage 3 Hearing – gave the unit owner and his legal counsel an explicit opportunity to submit a human rights accommodation request to the condominium corporation for the owner’s mother to keep Simba as a disability-related need, no such request for accommodation was submitted and no medical evidence was ever produced by the owner or his family members.

Accordingly, the CAT was forced to rule that the unit owner had not produced sufficient evidence to demonstrate a disability or disability-related need to keep Simba in the unit.

In line with the Ontario Superior Court of Justice’s rulings in Waterloo North Condominium Corp. No. 186 v. Weidner, 2003 CanLII 44549 (“Weidner”) and Simcoe Condominium Corporation No. 89 v. Dominelli, 2015 ONSC 3661 (“Dominelli”),[2] the CAT found that the Code definition of a “disability” does not include all negative emotions that a person experiences.

In Dominelli, the Superior Court ruled that stress by itself is not a disability under the Code.  Instead, in order to establish a “mental disability” under the Code, “a diagnosis of some recognized mental disability, or at least a “working diagnosis or articulation of clinically-significant symptoms” that has “specificity and substance” is required.”

In Weidner, the Superior Court found that although the unit owner loved her dog and removing it would adversely affect her mental health because the dog’s removal would add to the stressors that she suffered which related to her depression, there was no evidence that the owner was “dependent on the dog or needs the dog to be able to live in the unit”.  The Court in Weidner also found that there was no evidence that depression is a “mental disorder” which would qualify as a “disability” under the Code.

Along those same lines, the CAT ruled in Sithamparanathan that:

“[20]    While [there] is a broad definition of disability [under the Code], it does not include all emotional issues a person experiences. The experience of sadness, loneliness and depression that the Respondent’s mother experienced after the death of her husband might be a “mental disorder” and therefore be a disability within the definition, but this is not clear from the evidence I have been presented with.

[21]      This condominium was established by the declaration as a “no pets” building and the board is required to ensure that the rules are applied and owners and residents are required to follow the rules as set out in the declaration.  A blanket prohibition against pets could be discriminatory if an owner or resident has disability-related needs and requires an animal because of those needs. The evidence indicates that this condominium has allowed people to have dogs as an accommodation under the Code. However, allowing people to keep dogs who have not established they have a disability under the Code would be contrary to the no pets provision of the declaration. This could lead to many residents acquiring pets in what is supposed to be a no-pets building. It appears that this occurred in the past, leading to the legacy approach.

[22]      Most pet owners benefit from having a pet. The reasons include companionship and emotional support. However, there are people who do not like other people’s pets and others who may have medical reasons for limiting contact with animals. These people may prefer to live in condominiums with “no pets” rules, subject to obligations under the Code.

[23]      I accept that having to remove the dog will result in emotional distress for the family but that does not establish a right to accommodation or provide a legal basis to allow the dog to stay.” [emphasis added]

The CAT also noted in Sithamparanathan that the condominium corporation had already let 3 dogs be kept on the premises as human rights accommodations for other owners under the Code.  So it was not a matter of the condominium corporation blanketly prohibiting all dogs without any exceptions whatsoever – the condominium obviously recognized that the Code is quasi-constitutional legislation, and prevails over the no-pets clause in the Declaration when it applies.

The CAT properly drew a line in the sand and held that while the Code does require the condominium to accommodate a unit owner with demonstrated disabilities, a unit owner needs to produce more evidence than merely asserting that the dog is a “de facto” emotional support animal or that the dog’s removal would inflict sadness, loneliness, and depression on an individual.

False Human Rights Claims Hurt Everyone

In Sithamparanathan, the CAT Member found that a single paragraph in the condominium lawyer’s enforcement letter was problematic, and he therefore refused to award the condominium with its pre-CAT enforcement costs of $710 (excluding HST) even though the particular quantum of costs “seems reasonable”.  The problematic paragraph was on the final page of the letter,[3] and it stated:

“Please be aware that our office, on behalf of the Corporation, may contact the author(s) of your submitted documentation to verify its authenticity and require further, potentially personal and/or intimate details from the author(s) about the person requesting accommodation, so that the Corporation may properly assess the request for accommodation.” [emphasis added]

In our practice, we often deal with unit owners who submit requests for accommodation without fully understanding that they have a procedural duty under the Code to comply with the condominium’s investigation into their request for accommodation, if they want their request to be granted.  Particularly with emotional support animals, we often receive a single-line, insufficient medical note from the individual’s family physician that does not adequately state “a diagnosis of some recognized mental disability, or at least a working diagnosis or articulation of clinically-significant symptoms that has specificity and substance”.  It is then a surprise to the unit owner to be told that the condominium requires further medical documentation about what could be their personal and/or intimate details – otherwise, the condominium can reject the owner’s request for accommodation, as the initial medical note was insufficient to establish a disability.

This author also has, unfortunately, come across situations where a unit owner will submit false, fraudulent, or forged documents in a legal proceeding that were not actually authored by the purported signatories on said documentation.

As such, the impugned paragraph in the enforcement letter was intended to put the unit owner on notice, in advance, that the condominium corporation may be checking the authenticity of their documentation and potentially requiring further details to be disclosed.  If so, then the medical professional who is contacted would then, in the normal course of their medical practice, ask their patient for their consent to disclose further details to the outside party; and if the patient refused, then their request for accommodation can be rejected by the condominium if the medical documentation submitted to date was insufficient.

The impugned paragraph was not intended to circumvent the medical profession’s requirements for patient consent and confidentiality.  Contrary to the CAT Member’s assertions, the impugned paragraph was not meant to suggest that the condominium’s counsel would be obtaining “personal and/or intimate details” without the consent of the person seeking the accommodation.

Instead, the paragraph was intended to proactively prevent a prolonged back-and-forth debate with the unit owner or their doctor about what level of detail the condominium requires, in order to properly assess the accommodation request; i.e. to avoid the heated exchange of correspondence between the doctor and the condominium’s lawyer that was reproduced as Appendices in Dominelli, which the Court characterized as unnecessarily "partisan and argumentative" medical note-writing by the doctor.  In fact, the Court in Dominelli explicitly rejected the owner's argument that her patient privacy concerns prevented her from obtaining the required medical evidence needed to establish her disability.

Unfortunately, the CAT Member did not raise this impugned paragraph in the legal enforcement letter – or any of the content of the legal enforcement letter whatsoever – as an issue in the Stage 3 Hearing of Sithamparanathan.  Accordingly, neither side was able to make any submissions or provide any explanation about the paragraph in question, as neither side was aware that it was in dispute.

The COVID-19 pandemic made the need for proper investigation into medical documentation when human rights accommodation is claimed, even clearer; as people were alleging that they could not breathe while wearing a face mask, and the medical profession itself was not immune to problematic doctor’s notes being issued.  While there may have been some legitimate exceptions for certain individuals during the pandemic, even politicians may have been overly zealous in clamoring for personal exemptions to the rules.

Moreover, by the time that the legal enforcement letter with the impugned paragraph was issued on April 26^th 2022, the owner’s letter dated March 3^rd 2022 had already indicated that there was no disability-related need for Simba to be kept in contravention of the no-pets clause. 

Even if, as the CAT Member asserted, the impugned paragraph’s “suggestion … created an unfair and inappropriate barrier impacting the Respondent and his family’s rights under the Code”, the CAT Member explicitly created a weeks-long pause in the middle of the Stage 3 Hearing for the unit owner and his legal counsel to dispel that “barrier” and pursue their rights under the Code.

As this CAT proceeding ultimately bore out, there was no disability-related reason for Simba to stay in the unit after all.

With the proliferation of online forums and services through which a unit owner can easily claim that their pet is an “emotional support animal”, this author does not expect the number of insufficiently-supported requests to keep a pet in a no-pets building to decrease in the near future.  Such false or insufficient human rights claims not only end up costing the condominium corporation financially in unanticipated legal fees, but they also undermine other people’s legitimate requests for accommodation – or at least, make the condominium corporation more skeptical of such claims going forward. 

By crying wolf, the exact opposite of hakuna matata is spread throughout the community.