Pet Prohibitions in Bylaws and Rules: Are they Permitted? Comments on Chown v FCC 19

Are pet prohibitions in condominium bylaws and rules permitted? In our view, the answer is yes, in certain circumstances, so long as there is a reasonable explanation as to why a complete prohibition is needed.

In the recent case of FCC 19 v Chown, our firm successfully argued that a pet prohibition in a bylaw and rule was reasonable, and should be upheld as valid, even though the declaration did not contain the same prohibition. The difficulty, though, as some commentators have identified, is that the decision lacks some of the context required to properly understand the Tribunal’s reasoning. So, the purpose of this blog is to provide additional context in case the decision is useful to others given that, in our view, it helps clarify a question in the law that has existed for many years.

The issues respecting pet prohibitions in bylaws dates back to at least 1976, when the decision in York Condominium Corporation No. 42 v Melanson came out. While we’ve known since then that a pet prohibition in a Declaration is valid and enforceable, what has been less clear is whether a similar prohibition in a bylaw or rule could also be considered reasonable (and therefore enforceable).

In Melanson, YCC 42’s Board passed a bylaw completely prohibiting pets. While the Board had the authority to pass bylaws restricting the use of units to prevent unreasonable interferences to other residents, the Court ultimately found that this authority was limited. The Court also found that in YCC 42’s circumstances it was possible to permit certain animals in units that would not cause any unreasonable interferences, and on that basis, the complete prohibition had gone too far beyond the Board’s limited scope in governing against unreasonable interferences, and the bylaw was invalidated on that basis.

However, the difficulty with Melanson is that, in our view, it left open the question of whether there could be circumstances where a complete prohibition in a bylaw might ultimately be reasonable and valid, which was the question the CAT contemplated in Chown.

Ultimately, we took the position that a complete prohibition was, in fact, reasonable at FCC 19 given the building’s unique heritage construction and the circumstances that took place when the condo was declared. Specifically:

• FCC 19 was developed as a set of three heritage buildings constructed circa 1890-92 that were ultimately reclaimed and converted to a condominium in 1986.
• The disclosure statement prepared by the Declarant circa 1985 confirmed that FCC 19 was designed to be a pet free building. FCC 19 located two hard copies of the disclosure statement to corroborate this point (one in FCC 19’s records and one from an original purchaser).
• An original purchaser confirmed that the condominium was advertised to purchasers as a pet free building.
• It appeared that through inadvertence, FCC 19’s Declaration was registered without the pet prohibition that had been advertised to owners.
• To resolve this discrepancy, the Board passed a bylaw in 1987 that contained the pet prohibition. Notably, the Declarant still owned at least one unit when this bylaw was passed.
• The pet prohibition bylaw has been registered on title since 1987 and enforced since that time. All current owners purchased their units knowing about the prohibition.
• At least one owner has a life-threatening pet allergy and specifically relied on the pet prohibition when purchasing their unit.
• Given FCC 19’s heritage construction, the buildings lack sufficient air exchange and ventilation to prevent pet dander, odours, and allergens from transferring between units. The buildings also lack sufficient noise attenuation to prevent pet noises from transferring between units.
• The restrictive size of the interior common elements would make it difficult for residents to safely pass pets and raised a legitimate concern about the risk of encounters with pets on the property.
• The Board took a survey of owners in 2023 when the claimant (a Board member at the time) had originally raised the idea of removing the prohibition, but there was no clear interest from a majority of owners to pursue the issue. The Board ultimately declared the bylaw and rule to be reasonable and tabled the issue.

For the reasons set out above, FCC 19’s Boards over the years concluded that it was reasonable to implement and maintain a complete prohibition against pets in the bylaw and rules. The Board’s primary concerns were with respect to the safety, security, and welfare of residents and the property itself and, from the Board’s perspective, allowing pets would risk an unreasonable interference with the use and enjoyment of the property in FCC 19’s specific circumstances. The fact that other reasonable options might exist – i.e. to allow pets on certain conditions – does not necessarily mean that the bylaw and rules in question were unreasonable.

Ultimately the CAT agreed and specifically noted that the Board’s assessment of the matter was entitled to deference given that they were best positioned to understand the competing interests of all owners in this particular property. We agree. There was careful and thoughtful assessment of this specific condominium’s circumstances that ultimately lead the Board to conclude that the bylaw and rule were reasonable, and on that basis, the CAT upheld the Board’s decision confirming that there are, in fact, situations where a complete prohibition in a bylaw and rule can be considered reasonable.

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