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PET SEMINAR

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                                       PET SEMINAR

INTRODUCTION (5 minutes)

     In the past, pets were frequently prohibited in both rental and condo apartment buildings

     Pets were thought to be incompatible in these kinds of communities

     There have been changes in societal attitudes

     In rental apartment buildings prohibition of pets in rental agreements (i.e. leases) is
      prohibited under the Residential Tenancies Act. Condominium Act is silent on pets – there
      are no provisions that specifically prohibit or permit pets

     There is a greater appreciation for how pets fit into closely knit communities like condos

     New condo developments feature dog grooming areas as an amenity

     Pet ownership is growing

         o 2008 Ipsos Reid Survey – 56% of households in Canada have at least one dog or
           cat

     Condo ownership is growing

         o Young adults first entering the home ownership market

         o Baby boomers downsizing their homes

     With the increase in pet ownership, coupled with the increase in the number of people
      living in condos, condo corporations must face the reality that there will be an increase in
      the pet issues that will need to be dealt with

     In most cases, the pet is not the problem – it is the pet’s owner who is the problem
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BARKING UP THE WRONG TREE? – PET RESTRICTIONS IN DECLARATION V. RULES
(10 minutes)

      Managers and board members are constantly faced with the challenges of enforcing the
       pet restrictions of the corporation. As most of you are aware, these restrictions are often
       found in both the declaration and rules of the corporation. Sometimes, corporations will
       have pet restrictions in its by laws, however, these provisions are not enforceable because
       the condo act does not permit a corporation to create pet restrictions by way of by law.

      As legal counsel, we are often asked if the board MUST enforce the pet restrictions in the
       rules and declaration of the corporation because of the sentimental value that is attached
       to a persons pet. From a purely legal perspective, the short answer to this question is yes.

      Specifically, Section 17(3), Condominium Act

          o Board has a duty to enforce the declaration, by-laws and rules

          o Board has no discretion to not enforce compliance

          o Duty to enforce applies whether or not there are any complaints

      So, if a board members friendly neighbor has two pets which are not subject to any
       complaints, and the declaration only permits one pet, the board will still be obligated to
       enforce the one pet restriction even if the owner has not cause any issues at the
       corporation.

      As previously mentioned, pet restrictions can only be found in a corporation's declaration
       or rules. However, the mere fact that a pet restriction is in the declaration or rules does
       not mean that the provision is valid and enforceable. In determining the validity of pet
       restrictions or prohibitions, courts have drawn a distinction depending on the mechanism
       (or document) used to create the restriction or prohibition.

Declaration

      A pet restriction in a declaration, such as a resident is only permitted to have a maximum
       of two dogs in his or her unit, is presumed to be valid, whether or not it is reasonable

      Similarly, a blanket prohibition on pets in the declaration (otherwise known as a no pet
       building) is a valid and enforceable provision

      Often times tenants will argue that a no pet prohibition in the declaration will not apply to
       them because tenant protection legislation restricts landlords from prohibiting his or her
       tenants from having a pet. For clarity, a landlord is not permitted to include a provision in
       the lease that prohibits his or her tenants from having a pet in the unit. Now, the mere fact
       that a landlord cannot prohibit his or her tenant from having a pet does not also mean that
       the no pet prohibition in the declaration does not apply to tenants. All pet prohibitions or
       restrictions in the declaration will equally apply to tenants and owners.
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Rules

       Unlike declaration provisions, rules must be reasonable and created for the safety,
        security and welfare of the owners and the property, or for the purpose of preventing
        unreasonable interference with the use and enjoyment of the common elements and other
        units

       A blanket pet prohibition in rules is not valid, but a condo corporation can impose
        restrictions relating to pets so long as the restrictions are not inconsistent with the condo
        act and declaration or unreasonable

       Some examples of reasonable rules are as follows:

           o Prohibiting a pet where the Board, in its discretion, has deemed a pet to be a
             nuisance

           o Weight or size (e.g. animals small enough to be carried) restriction

           o Pets must be on a leash while in the common elements/or carried

           o Pets not being allowed to enter/exit from the front door

           o Prohibiting the causing of noise by pets

       Now, the Board is not obliged to hear evidence in making rules AND courts will not
        substitute their own opinions about the propriety of a rule, unless clearly unreasonable or
        contrary to the legislative scheme (Dvorchik). The court should accept the Board’s
        decision, unless it has acted capriciously or unreasonably.

       (explained dvorchik case)

       The threshold for overturning a board’s rules reasonably made in the interests of the unit
        owners is a high one

       Because of this high threshold, some condo corporations will pass rules despite legal
        advice that the rule may not be enforceable. They prefer to take their chances and wait
        until someone challenges the rule.

Status Certificates

       To avoid new residents from claiming they werent aware of any pet restriction or
        prohibition, some corporations will disclose these provisions in the status certificate.
        There is no obligation for a corporation to do this, however, by disclosing this info in the
        status certificate, corporations may avoid future headaches with respect to the
        enforcement of these particular provisions. Purchasers often will not pay their lawyer to
        review the condo documents, but the lawyer will typically review the status certificate.
        Considering the high number of cases that have been reported dealing with pets, we do
        not think it can hurt a corporation if it discloses this info in the status certificate.
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   (describe weidner case) In the Weidner case where the owner was not allowed to keep the
    dog, the judge noted that the pet prohibition was specifically mentioned

Options Open to the Corporation

       o Board members will often come to us and ask how the corporation can revise or
         repeal a pet prohibition or restriction (typically relating to the number of pets an
         owner is permitted to have) that is in the corporation's declaration or rules

       o To add or delete a pet prohibition or amend the pet provisions in the declaration,
         the corporation will require the written consent of 80% of the owners

       o Before doing this, we recommend that the Board send a survey to the owners to
         determine if there is an appetite for change. We also recommend advising non-
         compliant owners that there is a delay in enforcement pending the outcome of the
         survey and proposed amendment, if any

       o If adding a pet prohibition to the declaration, existing pets must be grandfathered
         to avoid an oppression claim. We will touch upon this in further detail a bit later
         in this seminar

       o An oppression claim is also possible where a condominium changes the
         declaration so that a no-pet building becomes one that allows pets

   Can also amend the Rules – Once again, a survey beforehand is worthwhile, since pets
    are a controversial topic. If a corporation is not enforcing its rules, it should amend them
    to reflect the practice
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THE SCOOP ON PROBLEM PETS – NUISANCE PETS & DANGEROUS PETS (10 minutes)

      Most rules and many declarations state that any dog deemed by the Board to be either a
       nuisance animal or a danger must be removed within two weeks

      This would override any other provision that would otherwise permit pets

      Examples of nuisance animals:

          o Excessive barking, whining, etc.

          o Where owner does not pick up after his animal

          o Running unleashed on the common elements

          o Urinating/defecating on balcony

      Ramadani case

          o Owner allowed dog to bark and pee on the balcony

          o After ignoring the compliance letters sent by the Corporation and refusing to
            participate in arbitration and mediation, the court ordered that the owner was
            required to permanently remove her dog and also pay $1,384 cleaning costs and
            $806 legal costs relating to the mediation and arbitration process

          o The court refused the owner’s request for an order prohibiting the dog on the
            balcony. This kind of order would require ongoing enforcement and the judge had
            no confidence that the owner would comply based on the past course of conduct

Dangerous Animals

      Section 117 – No person shall permit a condition to exist or carry on an activity in a unit
       or in the common elements if the condition or activity is likely to damage the property or
       cause injury to an individual

      For example:

          o dogs that bite

          o aggressive dogs

          o Some declarations and rules also specifically prohibit some breeds of dogs that
            are perceived to be dangerous or aggressive e.g. rottweilers, dobermans, German
            shepherds. No case decisions as to whether this prohibition of certain breeds is
            enforceable if contained in the rules
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      Where the Board does not take action to have a dangerous dog removed, and that dog
       injures a person or damages property, the Corporation could be liable for damages

      Korelekh case

             o Owner who deliberately used her Rottweiler to intimidate neighbours was ordered
               to permanently remove her dog

Poo Prints

      Method used in the U.S. to track down owners that do not pick up after their dog

Common Responses by Non-Compliant Owners to Enforcement Proceedings

      Complete denial of all allegations

      Obtain letters of support from neighbours saying no problem with the pet

      Collect signatures on a petition

      Suggest amendment of declaration or rules. Not a “slam dunk” as many owners are
       content with the status quo

      Will hide the pet when an inspection is made

   
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IT’S A DOG EAT DOG WORLD – ENFORCEMENT OF PET RESTRICTIONS (20 minutes)

Discretion of Courts

      Section 134

           o This section gives the court jurisdiction to make a compliance order

           o While the Board has no discretion to not enforce the declaration and rules, the
             Court has this discretion

           o Courts will exercise the discretion not to enforce the declaration or rules if:

                      Delay in enforcement

                      Acquiescence

                      Selective enforcement

      Chassie case

           o Owner allowed to keep 2 cats as the Corporation did not enforce the no pets
             provision in the declaration

           o “The condo corporation could not sleep on its rights and then enforce them
             against people who relied on the non-enforcement to put themselves into a
             position of disadvantage that they would not have put themselves in had the
             provisions been enforced in a timely manner.”

           o Note – owner also suffered from a mental disorder (depression), which the court
             said was a handicap under the Human Rights Code

      Hadvany case

           o The Board had a one pet restriction that was never enforced

           o The Board had, in the past, only acted on complaints about a pet’s behavior and
             now tried to enforce the one dog rule

           o The court determined that it was not the rule itself that was unreasonable, but the
             attempted selective enforcement after years of non-enforcement was
             unreasonable. The owner relied on this non-enforcement in making the decision to
             get two dogs

           o Owner allowed to keep both dogs, but judge specifically commented that this did
             not exempt the owner from the provisions re nuisance pets

Laches & Acquiescence
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      In deciding whether a pet restriction should be enforced after non-enforcement by the
       Corporation, the court will take into account:

          o Length of delay

          o Nature of acts done in the interval which might affect either party and cause a
            balance of justice or injustice e.g. someone acquires a pet because they see other
            pets openly in the condominium

      An owner cannot use a lack of enforcement of pet restriction rules to justify non-
       compliance with declaration

          o e.g. Corporation has a one pet limit in the declaration and 25 pound limit in the
            rules

          o If the Board has allowed larger dogs in contravention of the rules, that would
            constitute acquiescence to the presence of large dogs, but not justify a breach of
            the one-pet rule in the declaration

Enforcement Letters by Management

      Provide the unit owner with a warning letter that will outline the breach and require the
       unit owner to rectify the breach or, where applicable, permanently remove the pet from
       the property within two weeks.

      If the unit owner fails or refuses to do so within the time specified, an additional, more
       forceful, warning letter should be sent. The additional warning letter will advise the unit
       owner that, among other things:

          o the unit owner has failed to rectify the breach;

          o the unit owner has a final opportunity to comply within such additional period of
            time as the board may determine, in its sole discretion, acting reasonably;

          o if the breach is not rectified by the time specified in the additional warning letter,
            the Corporation may, in its sole discretion, seek advice from or refer the matter to
            its solicitors; and

          o The legal costs incurred by the Corporation arising from referring the matter to
            the Corporation’s solicitors will be borne by such unit owner in accordance with
            the indemnification provisions in the Corporation’s declaration.

      Where the pet owner is a tenant, compliance letters should be sent to both the tenant and
       the unit owner. It is the obligation of the unit owner to enforce compliance against the
       tenant.

      Corporations should be aware that if they are seeking to enforce compliance with rules of
       questionable validity, the Unit Owner may challenge this rule.
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Letter from Legal Counsel Demanding Compliance

      If the unit owner has still not complied, the next step would be to refer the matter to legal
       counsel. The letter from legal counsel would be similar to the last letter sent by the
       Property Manager, but will include more exact estimates of the legal fees associated with
       compliance proceedings. Often, the receipt of a letter from a law firm is a key component
       to securing compliance. The letter from legal counsel will warn the unit owner that the
       legal expenses incurred by the Corporation to ensure compliance will be charged back
       against the unit owner by registering a lien against title.

Implementation of Enforcement Policy

      Board can implement and amend a policy without approval of owners

      Advise owners of the enforcement policy

Compliance Order under Section 134

      Section 134

          o The Corporation can apply to the Superior Court of Justice for an order enforcing
            compliance with any provision of the declaration or the rules or the Act

          o The court can also make an order for payment of damages incurred by the
            applicant as a result of non-compliance and the costs incurred by the applicant in
            obtaining the order

          o The court can also terminate a lease

          o A person is not entitled to apply for a compliance order unless the mediation and
            arbitration process has been exhausted, if available

      Section 132

          o Every declaration shall be deemed to contain a provision that the Corporation and
            the owners agree to submit a disagreement between the parties with respect to the
            declaration or the rules to mediation and arbitration

          o Mediation and arbitration is not required with respect to a breach of the Act

          o Korelekh case
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LET SLEEPING DOGS LIE – GRANDFATHERING PETS (15 minutes total for this topic and
Human Rights)

      Allows a pet to remain even though it is in contravention of the rules, and occasionally
       the declaration, if there has been acquiescence in the past

      Situations where grandfathering occurs:

          o Where new rules are implemented, pets residing in the condo before the new rules
            should be grandfathered (e.g. size restriction)

          o Where the Corporation now wishes to enforce rules that were not previously
            enforced

      To be grandfathered, owners of non-compliant pets are required to register with
       management and/or enter into a grandfathering agreement within a specified time period
       only

      Terms of grandfathering

          o Personal to the owner/resident at the time of the grandfathering, not to the unit

          o When the grandfathered pet dies, it cannot be replaced with a pet not in
            compliance

          o Usually a specified window of opportunity to register

      Where a condominium amends its declaration to prohibit pets when previously pets were
       permitted, grandfathering only existing pets will probably not be sufficient to avoid an
       oppression claim – would need to grandfather the owners as long as they continue to be a
       resident owner in the condominium

      A corporation’s failure to grandfather could result in an owner commencing court
       proceedings to seek an oppression remedy

      Hadvany – The Corporation cold not request that the owner pay the Corporation’s legal
       fees as a precondition to grandfathering the pet (As discussed previously owner was
       allowed to keep a second dog after ten years of non-enforcement by the Corporation of
       the one-pet rule

      Where a Corporation has grandfathered pets it is important for the Corporation to
       mention pet restrictions in the status certificate to ensure that purchasers do not
       mistakenly assume that pets are permit on the basis that the saw pets on the property
       without knowing that they were seeing grandfathered pets, being the only pets permitted.
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HUMAN RIGHTS AND THERAPY ANIMALS

     Section 2(1) Human Rights Code

         o Every person has a right to equal treatment with respect to occupancy of
           accommodations without discrimination because of handicap

         o Human Rights Code prevails over Condominium Act

     A therapy animal is more than just the physical reliance on an animal as in the case of a
      blind or deaf person

     Donner case

         o Court found that by barring a hearing-ear dog, that would prohibit the occupant
           from residing in her unit as the dog was necessary for her to function
           independently

         o Human Rights Code precludes enforcement of the declaration if it would result in
           discrimination of a resident because of a handicap

         o No obligation on the resident to exhaust every other means of assistance before
           being entitled to the protection of the Human Rights Code

     Types of Therapy Animals:

         o Seeing-eye dogs and hearing-ear dogs

         o Dog warns of epilepsy attacks

         o Assistance to autistic children

         o Emotional support for a person suffering a mental disorder

     Heenan Blaikie Cases

         o Heathwood Co-op

                    Boyfriend with cancer had a therapy pet which was grandfathered, and
                     then the boyfriend moved out

                    Owner’s daughter had Crohn’s disease, which is aggravated by stress

                    Mother and daughter each owned a unit in a corporation, one had a cat and
                     the other a parrot. Both claimed the pets were medically necessary, (not
                     physical conditions)

     How many therapy animals are permitted for one disable person
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        What to do when a unit owner claims that a pet is required for medical reasons:

              o Obtain letter from health professional supporting owner’s position that the pet is
                necessary for medical reasons. Note: for privacy reasons, the doctor does not need
                to reveal any personal medical information about the owner

              o The Board can ask for a doctor’s letter annually to confirm that the pet continues
                to be necessary




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