Emotional Support Animals and the CAT

Quibbling over Semantics – MTCC 584 v. Kakish

One of the most common accommodation requests relates to emotional support animals in “no pets” buildings. Owners who have a pet(s) that are alleged to be support animals, and therefore must be permitted to reside in the Unit, often pose difficulties for the Boards to navigate.

In the case of MTCC 584 v. Kakis, the CAT was asked to determine whether an owner had to comply with a no-pet Rule.  In short – the condominium corporation wanted the Respondent’s dog, Rocky, permanently removed.  The Respondent was a 70-year-old woman who lived with her adult son, and Rocky.   She asserted that Rocky was her emotional support dog.

Importantly, the Respondent brought Rocky to live with her, after the corporation made changes to its Rules in 2019, after a period in which the corporation did not enforce its no pet provisions.  Thus – the Respondent should have been aware that Rocky was not permitted to reside in the corporation.

As is the usual course in compliance matters, once the corporation became aware that there was a dog in the Respondent’s unit – the corporation wrote to her asking her to remove the dog.  The owner’s daughter advised that Rocky was ‘vital’ to her mother’s mental health.  A request for medical documentation evidencing the mental health concern was made by the corporation’s counsel.

There were a total of four (4) letters sent to the corporation as a result of the requests for medical evidence, and upon receipt of each, the corporation took the position that the letters were not sufficient.  A brief summary of the letters is as follows:

Letter 1:

Ms. Kakish informed me she has been told she can no longer keep her dog. However, her dog is a necessary part of her life. Since you informed her of the above, she has developed anxiety and insomnia. Her dog acts as a service dog for her.

Letter 2:

…she has developed significant anxiety and depression. She has difficulty sleeping. She has difficulty carrying out her activities of daily life. The thought of losing her dog has led to a severe impact on her mental health. She has been started on medication because of the above. Medication can have side effects. It is much safer to allow her dog to remain with her. Removing her dog is significantly detrimental to her mental well-being. 

Letter 3:

Ms. Kakish suffers from anxiety and depression. Her dog is a recognized support animal which helps to decrease her anxiety and depression. Her mental health problems have been exacerbated by threats to make her give up her support animal. 

She did not require medication until she began to be harassed by the condominium board and lawyers. 

…… I have also referred her to a psychiatrist….

Letter 4:

….. a concrete stressor that she has been struggling with for a year now. She had mild existing anxiety which was alleviated by her small dog quite well for the last 3 yrs, and having to remove her pet from her premises has heightened anxiety quite a bit and has deteriorated her quality of life.

She would benefit from resolution of her stress factor - maintaining her therapeutic pet, as it has proven to stabilize her anxiety and maintain her quality of life.

At each stage the corporation maintained that the letters did not “ state that the respondent has a disability within the meaning of the Code.”

The CAT did not agree.  The CAT said:

I have considered the evidence before me and find that the Respondent is entitled to have her ESA, Rocky, live with her in her unit as an accommodation under the Code. While the case law presented by both parties is relevant to the issues in dispute, I am most persuaded by the definition of disability found in section 10 (1) of the Code. This section of the Code clearly defines what disability means when determining who is entitled to accommodation(s). While the Applicant takes the position that the medical letters provided by the Respondent do not specifically state she has a disability, I disagree. Section 10 (1) (b) and (d) state:

“disability” means,

(b)  a condition of mental impairment or a developmental disability,...

(d)  a mental disorder, or...

…

In my view, the Applicant is quibbling over semantics when asserting its position that the wording in the medical letter does not establish the Respondent’s disability. I say this because the Applicant insists that the medical evidence does not specifically state the words “disability”, “mental impairment”, or “mental disorder”, nor does it specifically prescribe Rocky as an ESA. Yet, it is a common understanding that anxiety, depression, and adjustment disorders are mental health disorders, or in the very least, mental health impairments which impact a person’s functioning.

Needless to say, the CAT was not pleased with the condo’s approach and the unit owner was permitted to keep Rocky in the unit.

Human Rights accommodation requests can be hard to navigate – however, based on this case, when medical evidence is presented, even if the wording is not precise, a corporation may be required to grant an accommodation.