Important CAT Decision Respecting Emotional Support Animals

Our readers will be aware that Service Animals, including Emotional Support Animals (ESAs), must be permitted (in Ontario) despite any “No Animals” provision in the condominium’s governing documents. But this raises an important question: What sort of conditions can a condominium corporation properly impose on a permitted ESA?

A recent decision of the CAT, in the case of Martis v. Peel Condominium Corporation No. 253, in my view provides some excellent guidance on this question.

The essential facts of the case are as follows:   PCC 253 had passed a “No Pets” Rule. As confirmed by a doctor’s note, one of the residents in the condominium needed an ESA (a support dog). PCC 253 was prepared to permit an ESA, so long as the animal did not exceed 25 pounds. The CAT decided that this was a reasonable condition for the condominium corporation to impose, particularly in light of evidence that other residents in the condominium had a fear of dogs (and a resulting need to avoid large dogs).  Here’s what the CAT said:

I accept the testimony of the PCC253 witnesses that there are those in the PCC253 who have a Code-related need to avoid dogs. I find that Mr. Martis has not demonstrated that he needs a dog which weighs more than 25 pounds. I understand that he has a strong preference for the dog he has chosen but as the OHRC Ableism Policy makes clear, PCC253 is obliged to accommodate his need; they are not obliged to accommodate his preference. In the circumstances of this case, I find that PCC253 has offered a reasonable accommodation in setting a weight limit of 25 pounds on an ESA for Mr. Martis.

To me, the important “takeaways” from the case are as follows:

  • Although ESAs must be permitted (accommodated), it is proper for the condominium corporation to impose reasonable conditions. For instance, a weight limit may (in many cases) be perfectly proper – particularly if there are other residents in the condominium who have a proven fear of animals. Other conditions may make sense as well.

  • In my view, it would be wise to include the conditions in a “Service Animal Rule”. We have a good template. In our view, such a Rule is worth considering in every case.

  • Finally, I was interested to note that the condominium corporation (in the Martis case) has a “No Pets Rule”. The point is that a “No Pets Rule” may now be enforceable! Previous law has indicated that a “No Pets” provision (to be enforceable) must be in the Declaration. But again, this may be evolving. That said, I suggest that, if you are considering a “No Pets” provision, you may wish to consider seeking legal advice on the issue.

Stay tuned to Condo Law News to keep up to date on the latest developments on emotional support animals!