Condominium Authority Tribunal Declines to Order Removal of Dog
In the case of Toronto Standard Condominium Corporation No. 2208 v. Kaissi, a dog had attacked and injured another dog in the building. The Board subsequently determined that the attacking dog was a nuisance and therefore sent a letter to the dog owners, demanding that the dog be permanently removed from the property. This decision was made pursuant to a Rule of the condominium corporation, which gave the Board “absolute discretion” to determine that any pet is a nuisance and, if such a determination is made, to order that the pet be permanently removed from the property.
The dog was not removed, and the condominium corporation therefore applied to the CAT for an order requiring the dog’s removal.
The CAT confirmed that “deference should be shown to the decisions of a condominium corporation’s board.”
However, the CAT held that the Board’s decision was not a “reasoned and reasonable” decision because the decision was made without a proper investigation of the particular incident. For that reason, the CAT held that deference to the Board’s decision was not required in this case.
Among other things, the CAT held as follows:
- Even though the municipality had issued a “Dangerous Dog Order” (in relation to the attacking dog), this was not definitive evidence that the dog was a nuisance. The dog owners had decided not to appeal that Order. Instead, they had decided to simply accept the Order (by muzzling the dog at all times when the dog is outside of the unit and by having the dog undergo training).
- The attack was an isolated incident. There had been no other similar incidents.
- At the time of the incident, the attacking dog may have been “surprised” by the presence of two other dogs (one of which was attacked). One of those dogs was also off leash.
- The Board had failed to interview all of witnesses involved in the incident.
- The condominium corporation had arguably contributed to the problem by failing to enforce its other Rules in relation to pets (by allowing some dogs to be off leash).
- The attacking dog had recently completed a lengthy travel and was adjusting to a new home. Therefore, the attacking dog was perhaps unsettled or tense at the time.
- The attacking dog had subsequently undergone training and proved to be “very calm.”
By way of overall summary, the CAT held as follows:
A decision to remove an owner’s pet is a serious and sensitive matter and should be based on consideration of all available information….
There is no evidence before me to indicate that a thorough investigation was conducted before the board made its December 17, 2021 decision to order the removal of the Respondents’ dog and therefore, I cannot conclude that decision was “reasoned and reasonable” as Counsel for the Applicant submits.
The CAT also ordered the condominium corporation to pay partial legal costs of $5,000 to the dog owners (in relation to the CAT hearing). This was based primarily upon the condominium corporation’s failure to attempt to resolve the dispute in advance of the hearing (including through mediation). Specifically, the CAT stated as follows:
The evidence in this case is that TSCC 2208 made no effort to attempt to resolve this issue before filing its application with the Tribunal. This case might have been avoided had the board of TSCC 2208 sought out and considered all of the facts before determining the Respondents’ dog to be a nuisance and ordering its removal based solely on the December 2, 2022 incident and a summary of the characteristics of the Akita breed. Notwithstanding that there were five adult witnesses to that incident, the four witnesses who testified at this hearing each stated that the corporation did not contact them to provide their accounts. Ms. Kaissi also testified that the Respondents were surprised by the December 23, 2021 letter demanding Stan’s removal because, after hearing rumours that the board was considering this, she contacted the condominium manager and received assurance that this would not happen. The case might also have been shortened had both parties actively participated in the Stage 2—Mediation. I note that a portion of the legal costs incurred by the Respondents was for preparation for that mediation but the Stage 2 Summary and Order prepared by the Mediator in this matter states “During Stage 2, the Applicant stated its position in the case through counsel but did not indicate any willingness to engage in mediation.”
The bottom line is that a Tribunal or Court will show deference to, and therefore enforce, a decision made by a condominium board – such as a determination that a pet is a nuisance – provided the Tribunal is satisfied that the board has arrived at the decision after following a fair and reasoned process (including full and fair consideration of all of the surrounding circumstances) and provided the decision is within a range of reasonable options.
In this case, the CAT felt that the board’s decision wasn’t the result of a fair and reasoned process.
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