We often come across situations where a resident of a condominium who has a dog claims to have a disability that requires that the dog live in their unit contrary to a pet restriction in the condominium's documents. Is a simple claim by a resident that he/she has a "disability" – usually backed up by a tersely drafted doctor's note – enough? The answer is no. More is required.
In the recent case of Simcoe Condominium Corp. No. 89 v. Dominelli, a unit owner's fiancé, Ms. Labranche, claimed to have a disability that required her to have a dog that was heavier than the permitted weight in breach of the corporation's rule that set a 25-pound weight restriction on pets. Ms. Labranche claimed her large dog was a "service dog". Several doctor's letters were submitted to the corporation that stated that Ms. Labranche had a medical condition that was mitigated by the presence of her "service dog".
The board rejected Ms. Labranche's request to keep the dog on the basis that no objective medical evidence was provided that supported or identified that she had a disability as defined by the Ontario Human Rights Code (the "Code"), what her disability-related needs were, and how the dog was specifically required to address those needs. The board took the position that Ms. Labranche's doctor had only identified symptoms such as stress, which do not in itself establish a disability under the Code that must be accommodated.
The Court referred to Skytrain and CUPE, Local 7000 (Olsen), a labour arbitration case, and stated that:
""Stress" of itself is not a disability for the purpose of the Code: ... In order to come under the important protection of human rights legislation, there needs to be a diagnosis with some specificity and substance. References to "stress" and "psychological problems" by themselves... do not meet that standard."
The judge said that the doctor's letters presented by Ms. Lamarche "appeared to lack that degree of objectivity and impartiality that I would be expect from a professional providing an opinion that he knew, or could anticipate, would be tendered in Court". The Court also found that despite a physician providing confirmatory evidence that Ms. Labranche suffered from depression and that giving up the dog would adversely affect her mental health, there was no evidence before the Court that depression was a "mental disorder" such that it would render it a "disability" within the meaning of the Code. The Court went on to find that even if Ms. Labranche had a disability, she had not satisfied the Court that she needed a dog weighing over 25-pounds to meet her disability-related needs.
The corporation was entitled to adequate, objective medical information with a diagnosis of a mental disability and information about Ms. Labranche's disability-related needs. In this case, Ms. Labranche refused to provide such information and was found to have failed to cooperate in the accommodation process.
Ms. Labranche was ordered to permanently remove her dog from the property and the owner was ordered to pay $47,000 in legal costs to the Corporation.
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