Joy Mathews Partner Rutherford & Mathews
Benjamin Rutherford Partner Rutherford & Mathews
Case Law Update
Decisions From the Courts Toronto Standard Condominium Corporation NO. 2208 v Kaissi et al. 2022 ONCAT 92 Summary: Dangerous Dog Orders without additional evidence are not sufficient to remove dogs from condominiums. A few whiskers have been raised from the recent CAT decision with respect to a dog which was classified as a “dangerous dog” by the municipality being permitted to stay in a condominium. In Toronto Standard Condominium Corporation No. 2208 v Kaissi et al. 2022 ONCAT 92, the condominium corporation commenced an application against an owner seeking the permanent removal of its dog on the basis that it was a nuisance and a municipal order being issued determining it was a “dangerous dog”. The CAT found in favour of the owner and the application was dismissed. Adding more “bite” to the story, the owner also successfully obtained costs in the amount of $5,000.00 against the condominium which were ordered as a credit towards the common expenses attributable to the unit. Doggy-related cases are becoming common at the CAT – as of the date of drafting this article, there are 17 pet cases on the CAT’s website and, somewhat noteworthy, is that this is the only case where the corporation had to pay costs (usually the owner pays or there are no costs awarded).
Lots of issues here, but let’s stick with the big three. ISSUE #1 – No more Section 117(1) attempts at the CAT – give it up, ‘ain’t going to happen… The CAT has repeatedly stated that Section 117(1) of the Condominium Act, 1998 (the “Act”) is not within its jurisdiction, specifically section 1(3) of the Regulation 179/17 prohibits the CAT from dealing with applications where the issues in dispute relate to section 117(1) of the Act. These disputes are related to conditions or activities that may cause someone injury or damage to the condominium corporation’s property. Any disputes that primarily relate to injury, violence, or damage, will appear to be outside of the CAT’s jurisdiction. The CAT stated that the condominium corporation in this case attempted to rely on the wording of section 117 of the Act without naming it and responded as follows: “[n]otwithstanding that the parties introduced evidence in this case about the Dangerous Dog Order issued by the City of Toronto, the sole focus of this case is whether the Applicant is justified in declaring the Respondents’ dog a nuisance and ordering its removal…”. ISSUE #2 – Dangerous Dog Order DOES NOT mean automatic removal of dog Before considering the issue of nuisance, we should first clarify what indeed is a “dangerous dog order”. A dangerous dog order will be issued in accordance with
chapter 349-15B (2) of the Toronto Municipal Code. The order includes the following: • dog must be muzzled except when on the owner’s premises • a warning sign must be posted on the owner’s premises • dog is prohibited from using the City’s leash-free dog parks • owner must obtain a dangerous dog tag • dog must be microchipped • City keeps a photo of the dog on file • dog owner must ensure the dog receives socialization/obedience training within 90 days of issuance of the order. Dangerous Dog Orders can be appealed to the “doggy tribunal” (otherwise known as 5-member board called the Dangerous Dog Review Tribunal). Here is when things get interesting: despite the dangerous dog order being issued, and the corporation’s reliance upon same as evidence of its allegations of nuisance, the CAT found that the owner’s actions immediately upon receipt of order mitigated some, if not all, the concerns which resulted in the order. The tribunal accepted the owner’s evidence that she immediately complied with the obedience training within 14days instead of the 90-days, the statements from an expert veterinarian who confirmed that the dog is no longer a threat, and the fact that this was the only violent incident involving this dog in the condominium. CONDOVOICE WINTER 2022
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ILLUSTRATION BY JASON SCHNEIDER
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Luis Hernandez Partner Rutherford & Mathews
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2022-12-29 12:05 PM