The CAT in York Condominium Corporation No. 288 v. Tamhane sheds some light on what corporations shouldn’t do when faced with concerns about an emotional support animal.
The applicant, YCC 288, is a residential condo corporation. Its governing documents prohibit all pets.
In October 2020, the respondent-tenant made an accommodation request under the Human Rights Code to have an emotional support dog. In support of his request, the respondent provided YCC 288 with two medical letters.
In November 2020, the request was approved by YCC 288, without any restrictions on the breed, size or weight of the emotional support animal. In December 2020, the respondent’s emotional support dog, Sumo, moved into YCC 288. In its approval letter, YCC 288 indicated that a “List of Conditions” was to follow within about a weeks’ time. No “List of Conditions” was provided until March 2022, approximately 1.5 years after approval.
In March 2022, YCC 288 provided the respondent with a “List of Conditions” which it unilaterally imposed on the respondent, without his consultation or any discussion. YCC 288 placed the following conditions on the respondent:
- While on the common elements, Sumo must be muzzled
- By the end of April 2022, Sumo must successfully complete the training RH (respondent) already initiated
- Entering and exiting the building with Sumo must be done via the north service corridor and north bank of elevators
- Sumo is not to be taken anywhere else on the common elements
YCC 288 brought an application before CAT seeking: (i) the removal of the respondent’s emotional support dog, Sumo; or in the alternative, (ii) an order that the respondent comply with the List of Conditions.
YCC 288 argued that Sumo posed a significant safety risk within the condo because of three alleged incidents of lunging – two of which security footage was presented by the condo – and several noise complaints (barking). YCC 288 argued that they could not accommodate Sumo any longer as he posed undue hardship.
The Tribunal found that the accommodation/Sumo did not pose any undue hardship. In evaluating the evidence, the Tribunal held that the two security videos did not establish that Sumo had acted in any aggressive manner. The Tribunal held that Sumo did not display any aggression towards any other resident or dog. Rather, the Tribunal held that, in the one instance, the other dog was the aggressor. The Tribunal did not make a finding on the third incident as there was no security footage nor witness testimony.
The Tribunal also favoured the respondent’s evidence with respect to the barking allegations. The respondent produced multiple letters from its neighbours who confirmed they either did not hear Sumo or they were not bothered by occasionally hearing Sumo bark. Additionally, the respondent provided evidence that his Furbo (a device which notifies the respondent when Sumo barks for more than 1 minute) had not notified him of any barking incidents.
The Tribunal also found that YCC 288 failed to adhere to their process for addressing serious incidents before commencing the application.
The Tribunal denied the applicant’s request for an order for Sumo’s removal.
The Tribunal also denied the applicant’s request for an order enforcing the List of Conditions. The Tribunal held that YCC 288 did not engage in discussions with the respondent about their concerns for Sumo’s behaviour. Rather, YCC 288 unilaterally imposed conditions on Sumo in response to a complaint they received. As the complaints continued, YCC 288 failed to address their concerns directly with the respondent and made the decision to seek Sumo’s removal from the building and/or enforcement of their conditions, by filing this application with the Tribunal.
The Tribunal held that YCC 288 failed to comply with its procedural duties under the Code by failing to engage the respondent in discussions about their concerns with respect to the accommodation of Sumo.
As a result of YCC 288’s unsuccessful application, the Tribunal awarded the respondent 60% of his legal fees – over $9,000.00.
Takeaways:
When evaluating a resident’s accommodation requests, condo corporations should conduct their proper due diligence, obtain advice from its legal counsel, and most importantly, ensure that there is open dialogue and discussions with the accommodation seeker and with any subsequent concerns regarding the accommodation granted.
It is important for condominiums to implement standardized policies for responding to such requests and, should concerns arise, discuss these concerns with the individuals before taking egregious enforcement steps. Entering into accommodation agreements, that are approved by both parties, is an effective way to address these concerns in a standardized manner.
