InSite to Condos - Fall 2019

by Melissa L. Stappler, Willis Law

The question of whether or not a resident is permitted to keep an animal in their unit is a matter usually determined according to the condominium corporation’s Bylaws.

But what happens when a condominium resident claims that they need an exemption from the Bylaws because they require a therapy or emotional support animal?

In general terms, therapy or emotional support animals provide companionship and emotional support for people diagnosed with a psychological disorder or disability. Therapy animals are different from service dogs as defined by Alberta’s Service Dogs Act: the most obvious difference is that there is no legislative framework in Alberta that specifically addresses or recognizes therapy animals. This may present a challenge for a condominium corporation when it receives a request from a resident for an (otherwise prohibited) animal to reside in a unit: it can be difficult to discern what the corporation’s responsibilities are in dealing with such a request.

When a condominium corporation receives a request for accommodation of a therapy animal, the corporation must be mindful of its obligations under the Alberta Human Rights Act. This legislation protects individuals from discrimination on the basis of certain “protected grounds,” including “mental disability” and “physical disability.” What this means is that if a condominium corporation denies a a request for a therapy or other non-registered service animal without having sufficient regard to its responsibilities under the Alberta Human Rights Act, the individual seeking accommodation may have grounds to pursue a complaint against the condominium corporation.

There have been a couple of reported Canadian Court and Human Rights Tribunal cases that have wrestled with the issue of therapy animals and non-registered service animals in the condominium context:

1. Simcoe Condominium Corporation No. 89 v. Dominelli, 2015 ONSC 3661 - Ms. Labranche moved into a condominium complex with a dog that exceeded the 25-pound pet weight restriction set out in the corporation’s Bylaws. When the corporation demanded that the dog be removed from the complex, Ms. Labranche claimed that the dog was a service or therapy animal. However, she failed to provide any documentation confirming that she had a mental disability requiring her to have a therapy animal.

Ultimately, the Court confirmed that Ms. Labranche had the responsibility (or onus) to prove that she had a mental disability and found that she had failed to do so. The Court ordered that the dog be removed from the condominium complex.

2. Jones v. The Owners Strata Plan 1571 and others, 2008 BCHRT 200 - Mr. Jones was legally blind. He had a Labrador retriever named Chloe, and though she was not a certified service dog, Chloe had provided assistance to Mr. Jones for several years. Mr. Jones wanted to buy a townhouse condominium, but the condominium Bylaws only allowed animals that were no more than 15kg and Chloe was heavier than 15kg. Mr. Jones asked the condominium corporation for an exemption, but his request was denied. Mr. Jones subsequently filed a human rights complaint against the condominium corporation. The matter proceeded to a hearing and the British Columbia Human Rights Tribunal held that, while Chloe was not a registered guide dog, the evidence established that Mr. Jones had come to rely upon Chloe to safely navigate his day-to-day routine. The Tribunal determined that the corporation had failed to adequately explain why it could not accommodate Mr. Jones by accepting Chloe and it agreed that Mr. Jones’ complaint was justified. The Tribunal ordered the condominium corporation to pay $12,000 to Mr. Jones as compensation for injuries to his dignity and self-respect.

We can take a number of key points from these cases:

• It is not necessary that an animal be a registered service animal under the Service Dogs Act to trigger certain duties and obligations set out in the Alberta Human Rights Act.

• The person seeking accommodation for a therapy animal or other non-registered service animal has the burden (or onus) of proving that an exemption from the Bylaw prohibiting such animal is required due to a physical or mental disability.

• If a condominium corporation denies a resident’s request for accommodation for a therapy animal or other non-registered service animal, it must provide written reasons for its denial.

• In the event a condominium corporation is unsuccessful in defending its decision to deny a resident’s request for accommodation before a Human Rights Tribunal, the Tribunal has the ability to award significant sums in damages against the corporation.

If a condominium corporation has received a request for an exemption from a Bylaw in order to accommodate a therapy or other non-registered service animal, it is recommended that the corporation consider seeking legal counsel.