Is a “No Dog” Rule Now Enforceable?
In the case of Decoste v. HCC 134, the condominium corporation had passed a new Rule prohibiting dogs. The Rule included an exception for “dogs reported and kept in the building before February 1, 2022”.
Prior to February 1, 2022, one of the owners had agreed to purchase a dog from a breeder and had put down a deposit of $300 to secure the dog. The dog was to be available for pick-up in June 2022 (after the passage of the Rule). So in summary, the owner had made a significant commitment towards the acquisition of a dog, before the Rule was passed. [This is the sort of commitment that might trigger some sort of legacy right or privilege.] But the legacy exception in the Rule clearly did not apply to the dog, because the dog would not arrive in the building until after the passage of the Rule.
The condominium corporation carefully considered the owner’s special request for a legacy exemption (grandfathering) for the particular dog; and the Board denied the request.
The Tribunal confirmed the corporation’s decision. The Tribunal said:
While I am sympathetic to Ms. Decoste’s situation and acknowledge that the timing of the rule change is unfortunate, there is no evidence before me to suggest that HCC 134’s decision to deny Ms. Decoste an exemption is unreasonable.
I also accept that the board took the time to hear and discuss Ms. Decoste’s situation, concerns, and request for an exemption with her, and although they ultimately decided that an exemption could not be granted, I find that the board made its decision on how to apply the rule in good faith and with due diligence.
The case provides helpful guidance about legacy exemptions. In particular, the Tribunal’s message is that it’s up to the Board to decide whether or not a legacy exemption is to be granted in a given case, as long as the Board comes to the decision in good faith and with due diligence (in other words, in accordance with “business judgment” principles now expressed in a number of condominium cases).
I think that the case is also notable for another reason: Until recently, the prevailing view in the Ontario condominium industry has been that “no dogs” provisions – to be enforceable – must be contained in the condominium’s Declaration. But this case tells us that the law has perhaps evolved on this point. In particular, it seems that the CAT is now prepared to enforce a “no dogs” RULE.
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