Balancing Competing Human Rights – A Recent Decision From the CAT Shows the Struggles Condominiums Can Face

As our readers may know, condominium corporations can have a prohibition on animals within their declaration; but any such prohibition is nonetheless subject to human rights legislation in Ontario. This means that, in some instances, a condominium corporation may be required to exempt an owner/resident from such a prohibition and permit a service animal on human rights grounds. Corporations have a duty to accommodate up to the point of undue hardship.

What happens though if there are competing human rights at play?

For instance, some people have serious medical conditions (including allergies or phobias) that require them to avoid certain animals. These individuals may seek to live at condominiums that have an explicit prohibition on animals in order to have better peace of mind when they go about their lives. What does a condominium corporation do when faced (at least on the surface) with incompatible human rights needs?

This was the situation in Tamo v Metropolitan Toronto Condominium No. 844 (“Tamo”). In Tamo, the condominium corporation had a prohibition on animals in its declaration. An owner applied to be accommodated due to a medical condition requiring the need for an emotional support animal (a dog). Upon receipt of sufficient information (including from the owner’s medical doctor), the condominium corporation granted the request.

However, another resident in the condominium applied for an order to remove the dog. The Applicant argued that the condominium corporation:

1. was in breach of its governing documents by providing the exemption;
2. had failed to accommodate her disability (a severe allergy to dogs) by granting the exemption for the particular dog; and
3. also imposed an undue hardship on her by allowing the dog onto the property.

The CAT disagreed with the Applicant on all three points. I summarize the main points below.

1. On point one, the CAT concluded that:
   • Deference should be given to a decision of a Board of Directors as long as the Board has reached the decision honestly and in good faith, through a reasonable decision-making process, and provided the decision is within a range of reasonable outcomes.
   • The Board at the condominium followed a set process, requested and received the required information, only agreed to the accommodation when it was satisfied with the information received, and imposed a set of conditions in order to allow the dog into the condominium.
2. On point two, the CAT found that, despite numerous requests, the Applicant did not provide particulars with respect to her own disability (and therefore had not fully participated in her own accommodation process). For these reasons, the CAT found that there was no failure to accommodate the Applicant.
3. On point three, the CAT concluded (on the basis of the evidence before it) that the Applicant had not established that the allergy symptoms were severe and life-threatening (and therefore amounting to an undue hardship).

I encourage everyone who has an interest in this topic to read the full decision.

In our view, this case is a very nice summary of what we feel are the main principles at play when dealing with these sorts of “competing human rights”:

• If an accommodation request is received, a careful process should be followed (for consideration of the request).

• As part of the process, receiving sufficient information to make an informed decision is key. [It is therefore perfectly proper – and in most cases necessary – to ask for relevant details which will assist the Board in its decision-making.]

• A situation where there are competing human rights needs that appear (on the surface) to be completely incompatible can happen. However, the key is to search for common ground that might accommodate both needs. With some creative thinking and proper engagement, solutions (in the vast majority of situations) can be found.

• A condominium can impose certain restrictions on an animal that is exempted from a prohibition. [For instance, in this case the condominium corporation imposed a size/weight limit for the emotional support dog, which was accepted by the CAT. The CAT has previously expressed support for such size/weight limits in appropriate circumstances (see our blog of December 3, 2021).]

Stay tuned to Condo Law News to keep up to date on the latest developments in condominium law. We have an exciting line up of new content coming this year.