The CAT issued another decision leading to the eviction of a pet who was allowed to urinate and defecate on a balcony (with waste dripping/falling on the patio below). Of interest, the dog in question was claimed to be an emotional service dog and the owner appeared to seek an accommodation based on a disability requiring the dog and possibly demonstrating her inability to care for the dog properly. A difficult balancing act.
Ms. Paikin, who lives on the second floor of a condo complex, allowed her dog to urinate and defecate on her balcony. Dog excrement would fall and urine would drip onto the patio area below on a regular and frequent basis. This was supported by pictures, which showed a significant amount of excrement on the balcony and urine stained walls. A strong odor of waste also emanated from the balcony above.
The condo and manager appeared not to have attempted to resolve the issue directly with Ms. Paikin but, instead, immediately escalated the matter to their lawyer (this will become important). The condo lawyer advised Ms. Paikin that this was unacceptable and warned her that if it continued, the dog could be deemed to be a nuisance and the board could order the dog to be removed.
The owner did no resolve the situation and, as such, the board did declare the dog to be a nuisance. This was minuted at a board meeting. The condo lawyer wrote to Ms. Paikin again and gave her 2 weeks to remove the dog.
Ms. Paikin retained a lawyer who advised of two things. First, that the situation had now been resolved and that the dog was no longer urinating or defecating on the balcony. Regrettably the evidence showed that this was not correct.
Second, and perhaps most importantly, Ms. Paikin’s lawyer indicated that the dog was a support animal. The lawyer provided a letter from a social worker confirming that Ms. Paikin was being treated for a medical condition for which she was receiving psychiatrist treatment. The social worker had “prescribed an emotional support animal” and requested a reasonable accommodation for Ms. Paikin to be accompanied by her dog. The letter also indicated that Ms. Paikin had certain limitations related to her ability to care for herself as well as to live independently. This, according to the CAT, suggested that the issue with the dog excrements may not have entirely been due to negligence but perhaps to another underlying issue.
The condo rules
The condo corporation had numerous rules pertaining to pets, which included the following:
- Pet owners are required to immediately clean any part of the common elements soiled by their pet;
- No owner shall use their balcony in a way which annoys or interferes with the rights of other owners; and,
- The board has the authority to deem a pet to be a nuisance and to demand its removal.
The CAT process
Ms. Paikin initially responded to the CAT process but did not participate in the mandatory mediation nor did she appear or make submissions in Stage 3 of the proceeding (the actual hearing). Ms. Paikin was well aware of the proceeding and was warned that the CAT could make a decision in her absence.
The CAT opined that it was unfortunate that the condo corporation had not first attempted to better understand the situation and to explore solutions other than the removal of the dog. The CAT also regretted that Ms. Paikin chose not to participate in the CAT process. As a result of this, it was not possible to understand whether Ms. Paikin was capable of caring for her dog; or whether any rights and obligations under the Human Rights Code were triggered.
The only thing that was clear is that Ms. Paikin had allowed her dog to defecate and urinate on her balcony, that she has not cleaned up the resulting mess, and that this had a significant impact on the neighbour below. The CAT concluded that this was unacceptable and had to be remedied. The CAT reminded that condo corporations have a duty to ensure that owners follow the rules as set out in the governing documents and that owners are obliged to follow those rules.
The CAT recognized that:
… an order requiring a person to remove a pet against their will is a serious matter. Most people have a strong emotional attachment to their pets and an order breaking that attachment can result in emotional trauma. This is especially true if there are underlying mental health issues. It is nevertheless necessary in some cases because of flagrant violation of the condominium’s rules.
Despite the letter from the social worker indicating that the dog was an emotional support dog and flagging that Ms. Paikin had an underlying medical condition for which she sought an accommodation, the CAT ruled that:
- the board’s decision to deem the animal a nuisance was reasonable; and,
- the board was entitled to order the dog to be removed.
The condo should have discussed this with the owner
The CAT concluded however that the condo corporation should have first considered whether there may have been other ways to resolve the issue with Ms. Paikin without escalating the matter to the point of having the dog removed. For this reason, prior to removing the dog, the CAT ordered the corporation to first “consider communicating with [Ms. Paikin] to try to better understand her situation, clarify some of the related issues and avoid escalation of conflict”. [As sad as the situation is for Ms. Paikin and for her dog, I’m not sure what such communications could have accomplished and I’m not sure what “considering to communicate” really entails.]
The CAT also ordered that, if the board still determines that further communication would not be appropriate or if, despite such communications, the board was satisfied that the dog remained a nuisance, then the board could evict the dog but by giving at least 30 days notice to the owner to make arrangements to remove the dog.
- Condos should always try to resolve compliance matters directly with the owner and only resort to escalating consequences when required;
- Boards can deem a pet a nuisance and can order their eviction (if you have in place adequate rules);
- You should properly document (with pictures and affidavits) evidence of breaches to the rules;
- The existence of a disability requiring an accommodation does not exempt service dogs (and their owners) from the obligation to abide by other existing rules.
You can read the full decision here.