The relationship between pet owners and their pets is strong and sacred. For this reason, it is essential that condominium corporations structure their governing provisions regarding pets in a clear, straightforward manner, and that those provisions are clearly communicated to all owners before they purchase their condominium unit.
Provisions regarding pet ownership are found in various places, from the Condominium Act, to the documents created by the condominium corporation itself: the declaration, by-laws and rules.
Declaration
A condominium corporation's declaration sets its framework; it is the equivalent of its constitution. It may also specify other restrictions and obligations on the corporation and unit owners – this is the basis under which declarations contain provisions prohibiting or restricting pets.
Rules
Subsections 58(1)(a) and (b) of the Condominium Act allow a corporation to make rules to promote the safety, security or welfare of the unit owners and the property and assets of the corporation, or to prevent unreasonable interference with the use and enjoyment of the common elements, the units or the assets of the corporation. While a provision restricting pet ownership in a declaration need not be reasonable, any such provisions in the rules must be.
The Courts
Although there are many decisions in which pet restrictions in declarations and rules have been upheld by the courts, there are a few decisions that are of note, as they reflect the willingness of the courts in Ontario to look beyond the strict provisions of the Condominium Act and to be flexible in allowing pet owners to keep their pets in the face of rules and/or declarations to the contrary. In York Condominium Corp. No. 382 v. Dvorchik1, the trial judge struck down a condominium rule that prohibited dogs weighing more than 25 pounds from being in the condominium. While the condominium corporation had enacted other valid rules dealing with dogs that were a nuisance, the rule in question was one of general application and would, obviously, result in the exclusion of perfectly well-behaved large dogs, solely because of their size. The trial judge found the rule to be invalid because the condominium corporation presented no evidence that large dogs unreasonably interfered with the use and enjoyment of the common elements. This decision was reversed on appeal. The Court of Appeal cautioned against "judicialization" of the function of the board and held that a court should not substitute its own opinion about the propriety of a rule unless the rule is, "clearly unreasonable or contrary to the legislative scheme."
In the Waddington2 decision, the landlord sought an order for the removal of Waddington's two cats. The condominium's rules provided that, "no pet shall be permitted in the building." The Court found that the corporation was not authorized to make a blanket rule banning all pets because it was not a "reasonable" rule and the rule was therefore not enforceable.
The Court went on to hold that where a declaration contains, "conditions or restrictions with respect to the occupation and use of the units or common elements," a condominium corporation cannot enforce the restrictions if it goes beyond that which is permitted in subsection 58(1).The court's decision in Waddington, insofar as it deals with declarations, is contrary to the Condominium Act. The court imposed a reasonableness requirement for declarations where the Act contains no such requirement. This decision may have serious implications which extend far beyond the issue of pet restrictions.
In the Staib3 case, a provision in the declaration absolutely prohibiting any pets was held by the trial judge to be unenforceable for equitable reasons. The Ontario Court of Appeal upheld the decision and leave to appeal to the Supreme Court of Canada was refused. In this case, the tenant moved into the unit with her cat, having full knowledge of the "no pet" provision in the declaration. The Court found that the condominium corporation failed to enforce the no pet policy for ten years, despite having knowledge of the cat's presence.
The trial judge refused to enforce the declaration due to the length of time the condo corporation had allowed the cat to remain, the age of the cat (making it "unadoptable"), and the tenant's attachment to the cat. The trial judge made it clear that he was not commenting on the reasonableness of the declaration provision; rather, he was exercising his discretion not to enforce it against the tenant in this particular instance. The Court of Appeal found no basis upon which to interfere with the application judge's discretion and, in fact, confirmed that it would have been inequitable to make the required compliance order under the circumstances. This is a noteworthy decision because it allows equitable defences to operate against provisions in the declaration that are clear and unambiguous.
Summary
What does all of this mean for condominium corporations and unit owners?
For condominium corporations, it means that they should think carefully about exactly what types of pets should be prohibited from living in the building, if any. If a blanket "no pets" provision is appropriate, such a provision must be included in the declaration. A less restrictive provision, which is borne of reasonable considerations, may be included in the rules or the declaration.
Whatever provisions are in force, the condominium must be consistent in clearly informing all owners and potential owners of those provisions, and it must consistently and regularly enforce them. Failure to do either of these things puts the condominium corporation at risk of having a court strike down its pet restrictions.
With respect to a condo owner or potential owner, it is essential that they be aware of any pet restrictions that may be contained in the declaration or the rules. If they own a pet or plan on doing so in the future, owners should not rely on their real estate agents, but should ask their lawyer to confirm the absence of pet restrictions in the declaration and rules, before purchasing any condominium unit.
If condominium corporations and unit owners follow these simple steps, much time, energy and heartache can be avoided.
Footnotes
1 [1992] O.J. No. 1152 (Gen. Div.); reversed on appeal at [1997] O.J. No. 378 (Ont. C.A.)
2 215 Glenridge Ave. Ltd. Partnership v. Waddington (2005), 29 R.P.R. (4th) 218 (S.C.J.)
3 Metropolitan Toronto Condominium Corp. No. 949 v. Staib, [2005] O.J. No. 5265 (S.C.J.); affirmed at [2005] O.J. No. 5131 (Ont. C.A.); leave to appeal refused at [2006] S.C.C.A. No. 24
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
