Emotional Support Dog Evicted After Condo Tribunal Hearing

October 27th, 2021 by Maggie Fleming

Emotional support animals can provide vital supports to those living with disabilities. We have explored this subject in previous blog posts, which can be found here: “Service animals for mental health” & “Could Air Canada’s ban on emotional support animals be challenged?”

We were interested to read a recent case, Halton Standard Condominium Corporation No.490 v Paikin 2021, in which the Ontario Condo Authority Tribunal (CAT) issued a decision to evict an emotional support dog from a condo in Oakville.

The owner had consistently allowed the dog to urinate and defecate on the second-floor balcony, which dripped down onto the patio below. There was extensive evidence, including photos, of this behaviour. The condo had not tried to resolve the issue directly with the owner, and instead sent the matter to the condo’s lawyer to deal with. After the lawyer sent an initial warning letter to the owner, the condo board declared the dog a nuisance and the lawyer sent a subsequent letter giving the owner two weeks to remove the dog. The CAT decision‑maker decided that the behaviour was sufficiently severe enough to require removal of the dog, only after the condo board “considered communicating” with the owner to come to a resolution.

Emotional Support Pets and Owners Required to Follow Condo Rules

The owner claimed the dog was an emotional support dog, and it appears as though the owner was seeking an accommodation based on a disability requiring the emotional support dog. The owner’s social worker provided a letter, indicating that they had been treating the owner for a medical condition for which the owner was also receiving psychiatric treatment. The social worker stated in the letter that the owner required reasonable accommodation from the condo regarding her emotional support dog. The letter also indicated that the owner had certain limitations related to her ability to care for herself and live independently. Unfortunately, the owner did not participate in the hearing process, and the CAT decision‑maker was unable to assess the owner’s ability to care for the animal or determine whether an obligation under the Human Rights Code was triggered. As mentioned above, the CAT still decided in favour of the board.

This case reinforces condo boards’ ability to determine that a pet is a nuisance and order the eviction of the animal (if the condo rules allow for it). The fact that the dog was for emotional support related to a disability did not preclude the board from evicting the animal, as emotional support pets and their owners are still required to follow the condo rules. In cases like these, boards should strongly consider documenting the breaches in detail, so that the evidence can be used at hearings such as this one.

Boards Should Always Try for Resolution Directly with Owner

While the CAT allowed for the eviction, the decision‑maker provided a warning to condos: “a condominium should make good faith attempts to resolve a dispute with an owner before involving counsel with associated legal costs”.

In response to the condo’s lack of communication with the owner, part of the CAT order included the condition that the board “consider communicating” with the owner and “try to better understand her situation, clarify some of the related issues, and avoid escalation of conflict”. If the board determined that further communication was not appropriate, or if after communicating with the owner the board still considered the dog a nuisance, the board could give the owner 30 days notice to remove the dog. While it is unclear what “consider communicating” entails, the decision reflects a push for boards to address issues proactively and directly with owners before escalating the situation and involving a lawyer.

Of note, the CAT decision‑maker also did not find there to be sufficiently exceptional circumstances to warrant an order for legal costs in favour of the condo. Yet another reason to try to resolve issues directly with owners of emotional support animals before incurring any legal fees.

If you’re a housing provider with an emotional support animal situation that cannot be resolved directly with the dog‑owner, Iler Campbell is here to help.

Filed in: Housing, Human Rights

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