IT FOLLOWED ME HOME

IT FOLLOWED ME HOME... CAN I KEEP IT? A BRIEF LOOK AT PETS IN CONDOMINIUMS.

The subject of pets is at or near the top of the list of divisive issues within strata corporations. There are likely a number of reasons for this. One of them may be that people tend toward strong views one or way or the other. When the owners proceed to address the issue of pets, they will need to decide a number of things from whether or not to permit pets, to how to regulate them. This article will hopefully provide some “food for thought” when considering these issues.

The Strata Property Act address pets in only two places; a grandfathering provision in section 123(1) and Standard Bylaws 3(3) and (4). (Regulation 17.12 addresses the application of Standard Bylaw 3(4) when it came into effect. In particular, it grandfathered any pets which are not permitted by that bylaw but which resided in a strata lot as of January 1, 2002).

Standard Bylaw 3(4) provides:

(4) An owner, tenant or occupant must not keep any pets on a strata lot other than one or more of the following:

(a) a reasonable number of fish or other small aquarium animals;

(b) a reasonable number of small caged mammals;

(d) one dog or one cat.

This is supplemented by Standard Bylaw 3(3) which provides:

(3) An owner, tenant, occupant or visitor must ensure that all animals are leashed or otherwise secured when on the common property or on land that is a common asset.

As of January 1, 2002 these two bylaws became bylaws of every strata corporation unless a contrary bylaw was already filed in the Land Title Office. Strata corporations could also amend or replace it in a subsequent bylaw amendment package. These bylaws address the basic issue which should be covered in any pet bylaw should, namely the number and type of pets permitted and the pet owner’s responsibility for the conduct of their pet.

When drafting a pet bylaw it is best to decide what type and quantity of pets are to be permitted. (Rules cannot deal with pets, as they do not govern conduct in strata lots). The bylaw, as is the case with Standard Bylaw 3(4), should be drafted to state what pets are permitted. Everything else would, as a matter of course, not be permitted. There is no need in that situation to prohibit “exotic pets” (a term which might be vague enough to be unenforceable), reptiles, etc. The danger with creating a list of “prohibited pets” is that if one misses a certain type of animal in the list, then it is obviously permissible to keep that type of animal. The terms “domestic animals “ and “household pets” should also be avoided, as they are vague.

The conduct of pets and the responsibility of the pet’s owner for the same are also key issues to be addressed in any pet bylaw. Strata corporations will need to decide if pets need to be leashed, whether they are to be carried while in the hallways, etc. While it seems obvious, there should also be a bylaw making a pet’s owner responsible to clean up any mess made by the pet on the common property. This then permits the strata corporation to charge the cost of cleaning up such a mess back to the pet’s owner under section 133 of the Strata Property Act.

Noisy pets are also an issue of concern. Noise issues are broadly dealt with by the provisions of Standard Bylaw 3(1) (or its equivalent if different bylaws are filed in the Land Title Office). However, many strata corporations pass bylaws which require an owner to remove a pet which the council deems to be “nuisance”. While practical, such a bylaw does open itself up for abuse by a council. Such bylaws should always include a provision that the strata council must act reasonably in so deciding (certainly the court would impose such a condition when reviewing the actions of the strata council in ordering a pet removed as it did in Strata Plan No. NW 498 v. McNeilly [1989] BCJ No. 859 Vancouver Registry BCSC).

When dealing with pet bylaws, strata councils should keep in mind their duty under section 26 of the Strata Property Act to enforce the bylaws. This means that the council cannot grant exemptions from or make exceptions to a no pet rule (unless the bylaw itself grants it the discretion to do so). Prospective purchasers, as is often the case, cannot get permission in advance to have a pet where the strata corporation’s bylaws prohibit pets. As well, the council must be prompt in enforcing the pet bylaw. In Metropolitan Toronto Condominium Corp. No. 601 v. Hadbavny (2001), 48 RPR (3d) 159, the court held that the strata corporation’s widespread and general failure to enforce a pet bylaw was reason enough to permit Mr. Hadbavny to have a pet despite the existence of a bylaw prohibiting pets.

The protection of the right to have a pet is a key concern whenever a pet bylaw is either introduced or amended. Section 123(1) of the Strata Property Act provides such “grand fathering” and states that:

(1) A bylaw that prohibits a pet does not apply to a pet living with an owner, tenant or occupant at the time the bylaw is passed and which continues to live there after the bylaw is passed.

The key aspect of s.123(1) is that it grand fathers a particular pet, not the right to have a pet. In other words, if an owner had a dog and the strata corporation passed a bylaw prohibiting dogs, that owner could keep that particular dog until it dies notwithstanding the passage of the bylaw. The owner could not, however, buy a new dog. It makes no difference in that scenario whether the owner is an original purchaser or not. It is the pet itself which is grand fathered. (There is nothing, however, that keeps the strata corporation from putting broader grand fathering provisions in the bylaw itself).

Owners will often assert that the outright prohibition of pets is not legal. With respect, the writer disagrees. If that were the case, the Strata Property Act would not contain the provisions of s.123(1) but rather a clear prohibition against bylaws which prohibit pets entirely. There are, however, exceptions to a “no pet bylaw”. The first of these applies to guide animals. They are exempted from such a bylaw under the provisions of the Guide Animal Act. The second, which I will discuss in more detail below, is for persons with disabilities (provided that they can prove that such a bylaw is discriminatory under the provisions of the Human Rights Code).

The following sections of the Human Rights Code (which I have abbreviated) are relevant to the discussion at hand:

Discrimination in accommodation, service and facility

8 (1) A person must not, without a bona fide and reasonable justification,

(a) deny to a person... any accommodation, service or facility customarily available to the public, or

(b) discriminate against a person ... regarding any accommodation, service or facility customarily available to the public

because of ... physical or mental disability... of that person

Discrimination in purchase of property

9 A person must not

(c) discriminate against a person... regarding... the purchase or other acquisition of a... dwelling unit, land or interest in land

because of the ... physical or mental disability... of that person.

Discrimination in tenancy premises

10 (1) A person must not

(b) discriminate against a person... regarding a term or condition of the tenancy of the space,

because of the... physical or mental disability... of that person.

In Konieczna v. The Owners Strata Plan NW2489 2003 BCHRT 38 it was clearly held that the provisions of the Human Rights Code are applicable to strata corporations. Broadly speaking then, if an owner or tenant who has a disability (which the jurisprudence surrounding the Human Rights Code defines quite broadly) were able to prove that having a pet (other than a guide animal) was critical to the treatment of their disability, then a bylaw which prevented them from having a pet may be considered to be discriminatory. I say “may” because the law in British Columbia does not seem clearly settled on this point.

The courts in Ontario have considered this issue in some detail in the past. There are a number of cases dealing with the topic. The issue of pet bylaws and disabilities appears to have come to head in the late-1990's with the decision in Niagra North Condominium Corp. No. 46 v. Chassie (1999) 173 DLR (4^th) 524 wherein the court held not only that a prohibition on pets (in this case a cat) was unreasonable but also a violation of the Ontario Human Rights Code given that Mrs. Chassie suffered from depression (a disability) and her cat was therapeutic for her. However, in a more recent case, Waterloo North Condominium Corp. No. 186 v. Weidner (2003) 65 O.R. (3d) 108, the court in Ontario began to back away from the approach taken in Chassie. Nonetheless Chassie appears to remain good law in Ontario.

The only reported case in British Columbia that touches on this particular issue is Strata Plan NW498 v. Pederson (1999), 124 BCAC 282 (BCCA) wherein the court held that the fact that the owner in question suffered from several ailments and benefited “considerably from having the pet” was not sufficient to prevent the enforcement of a no pet bylaw.

The issue of “companion animals” and the benefits they provide was considered by the B.C. Human Rights Tribunal in Strumecki v. Capital Regional Housing Corp. 2005 BCHRT 386. Although in the context of a housing corporation, it is still instructive for strata corporations. Mr. Strumecki suffered from a number of medical conditions, but mainly fybromyalgia. Prior to moving into the CRHC accommodation Mr. Strumecki had two dogs which were very important to him. CRHC did not permit dogs in its housing units. His doctors had suggested that he would benefit from having the dogs, but unlike Chassie there was no evidence that the dogs were necessary to his recovery and treatment. On this basis the Tribunal dismissed Mr. Strumecki’s complaint. This case, however, illustrates that the reasoning in Chassie will be applied in the right set of circumstances. It also illustrates that proper medical evidence, including an opinion that the pet is necessary for medical treatment, will be required for a claim for exemption under the Human Rights Code can be made and properly considered.

Both strata corporations and owners should seek legal advice when considering and addressing some of these difficult issues surrounding pets.

Shawn M. Smith is a partner with the law firm of Cleveland Doan LLP located in White Rock and may be reached at 536-5002. This article is intended for information purposes only and nothing contained in it should be viewed as the provision of legal advice.