Category: Blog

[50]         Ms. Imer testified that within days of Ms. Karnis’ counsel’s letter of January 25th, 2022, Ms. Karnis was observed in the condominium lobby with Sophie.

[51]         Ms. Karnis testified that Sophie is a calm and well-trained service dog.

[52]         Ms. Imer referred to a February 10, 2022 Facebook post by Ms. Karnis posted in a condominium resident run group where Ms. Karnis introduced Sophie and the dog’s role to help manage her disability. Ms. Imer referred to a portion of the post that indicated that Sophie had not yet been fully trained. Ms. Karnis acknowledged writing the post. Additionally, Ms. Karnis testified that she printed and distributed notices to the other units on her floor about Sophie’s presence. I view Ms. Karnis’ actions as a transparent attempt to alert fellow residents as to why she has a dog in a “no pet” complex.

[53]         Ms. Imer testified that the board became aware that Sophie was observed leaping or jumping onto residents in the lobby. The details of these incidents, or who observed them, including the nature and frequency were not included in her evidence. Ms. Imer testified that the board also became aware of a note that Ms. Karnis wrote to another resident apologizing that her dog had “got out of the unit” and that Sophie had startled the resident. She stated that Ms. Karnis apologized in the note for her dog’s “bad manners.”

[54]         Ms. Imer testified that on February 15, 2022, the board became aware of an email complaint from another resident about “irritating” noises from Ms. Karnis’ unit in what sounded like a steel ball bouncing on hardwood floor and rolling from a pet playing with it.

[55]         In testimony, Ms. Karnis addressed the instances referred to by Ms. Imer. Ms. Karnis testified that she brought Sophie home agreeing to abide by the remainder of the AA terms and specifically that she would not allow Sophie to unreasonably bark or cause a disturbance. She testified that she has abided by these terms. She acknowledged that two weeks after bringing Sophie home, on February 16, 2022, Sophie slipped out her door and ran down the hallway as an elderly woman was opening her door. She acknowledged that the woman was startled but she was not injured. She stated that she was able to get Sophie under control immediately. She wrote to this neighbour to apologize. She states that Sophie was a five-month-old puppy in a new home at the time this incident occurred. She described this as one instance and not reflective of Sophie’s general behaviour and temperament and that Sophie continued to be trained after this incident.

[56]         Ms. Karnis also acknowledged the noise complaint and testified that the complaint was isolated to one occasion. She is not aware of any other issues with Sophie’s behaviour other than the two described. She testified that Sophie has fully completed her training. Since she brought Sophie home, she has devoted hundreds of hours to Sophie’s training to perform her duties and not be distracted by food, people or loud noises. She said that by May of 2022, Sophie achieved a success rate of 80-90% on behavioural first commands. As of October 2022, she described Sophie as being fully trained.

[57]         Ms. Imer testified that the board considered the German Shepherd breed to be dangerous and could inflict severe or fatal wounds on a resident if attacked. Additionally, the board considered the breed to be intimidating and/or menacing to residents given its breed or size. It was the Board’s view that Sophie was a very large and intimidating dog and would cause severe harm to a person if she attacked. She stated the breed is objectionable based on its size, weight, ability to frighten or intimidate residents, and ability to cause very serious harm to a person if it attacked, especially in confined areas in the condominium. Furthermore, Ms. Imer stated that Sophie is considered by the board to be an undue hardship for the corporation and its residents.

[58]         I find that Sophie has been trained specifically to perform as a service dog for Ms. Karnis. Both Ms. Baker and Ms. Karnis describe her as a well-trained dog with a gentle disposition. I find their evidence persuasive and on a balance of probability to be reliable and true. The behaviours described by Ms. Imer do not lead to a reasonable inference that Sophie is dangerous or menacing and such a conclusion is untenable and patently unreasonable. I accept that Sophie startled a neighbour soon after Ms. Karnis brought Sophie home. I accept that another neighbour complained of noise on one occasion. I have insufficient evidence to connect either of these issues specifically to the breed or weight of the dog. I find that these two incidences occurred in the very early stages of Sophie’s arrival and there is no evidence of repeated or ongoing issues. It appears that Sophie is living in reasonable harmony in the complex with the other residents.

[59]     The Applicant explained of the board’s concern that Sophie could seriously injure someone on account of her size and breed. I have no expert evidence before me on what basis the White German Shepherd breed is more dangerous than other dogs of a similar size that the board would permit. But more importantly, the evidence sways me that Sophie poses minimal risk. The board focused on the breed rather than Sophie. While it is not evident to me that the board turned its collective mind and distinguished the White German Shepherd breed from the general German Shepherd breed, it is not evident that the board turned its mind to Sophie’s personality, behaviour and training apart from the breed, but focused solely on her breed. Appropriate due diligence requires the board to consider these factors. Rather, the evidence from Ms. Imer is the bald statement that it considers Sophie dangerous given her size and breed. Given that I have found that a dog of Sophie’s size is required, I have been provided with no rationale why the board would not come to the same conclusion with another breed of similar size. The board cannot insulate itself from scrutiny when addressing accommodation requests without providing a cogent rational for its position after using reasonable diligence. I have been presented with insufficient evidence that the board took reasonable steps to fully inform itself and investigate Ms. Karnis’ request and specifically, whether Sophie posed an unreasonable risk.

[60]     I cannot conclude that Sophie generally exhibits menacing behaviour. I accept that she has been trained for a specific purpose and objectively is not an animal that has a propensity to be unsafe anymore than any other dog would. Realistically, the extensive nature of her training should provide comfort to the board. To restrict Sophie on the basis that she is presumed dangerous, or menacing based on nothing more than her breed and size is patently unreasonable.

[61]     The Applicant argues that Ms. Karnis cannot provide assurances that Sophie will not harm another person or dog. However, the Applicant also submits that any type of dog comes with risk by stating “a dog is a dog, and its good and decent behaviour cannot be assured.” This argument seemingly applies to all dogs, even a Labrador Retriever or a Poodle, which the board is prepared to accept. Asking for a guarantee is an impossible burden which Ms. Karnis is not required to meet. 

The Business Judgment Rule and the Duty to Accommodate

[62]         The Applicant relies on the business judgment rule as justification for removing Sophie. It is argued that board members are in a far better position than a court or tribunal to determine what is in the best interest of their community. It is submitted that as long as the board acts reasonably and in good faith, it should not be second guessed. Otherwise, it is submitted that the CAT runs the risk of supplanting the judgement of elected board members and managing the business affairs of the condominium. Unless patently unreasonable, it is argued that decisions of the Board should be upheld since the board is not acting judicially but rather in a policy making role. It is argued that the business judgment rule protects decisions of the board from exacting scrutiny provided they are a product of reasonable conduct of good faith judgment. It is argued that deference should be accorded to a board in enforcing its declaration and Rules where the interpretation adopted is a reasonable one and made in good faith. It is further submitted that when extending accommodation under the Code, the board has latitude under the business judgment rule to attach reasonable conditions to its accommodations in the interests of the condominium and its members as a whole. It is further argued that the board does not have to offer an evidentiary basis for adopting a particular Rule.

[63]         In Hanley v. Heritage Court Kingston Ltd, 2013 HRTO 808, The Ontario Human Rights Tribunal described both the procedural and substantive duty to accommodate:

…duty to accommodate up to the point of undue hardship consists of two elements, one is procedural and the other is substantive…The procedural element requires an individualized investigation of accommodation measures and an assessment of the applicant’s needs. The substantive element requires a consideration of the accommodation offered or a respondent’s reasons for not providing accommodation.

[64]         In Central Okanagan School District v. Renaud, 1992 CanLII 81 (SCC), at para. 984, the Supreme Court of Canada noted that the duty to accommodate requires “more than mere negligible effort.”

[65]         YCC435 was established by the declaration as a “no pets” building and the board is required to ensure that the rules are applied, and owners and residents are required to follow the rules as set out in the declaration. A blanket prohibition against pets could be discriminatory if an owner or resident has disability-related needs and requires an animal because of those needs.

[66]         The Act and its governing documents are subject to the rights accorded owners and occupants of condominium units under the Code. Those rights and entitlements to accommodation are not limitless or unfettered. Accommodation must reasonably meet disability needs and must not result in undue hardship to the Applicant. These are well settled principles.

[67]         In part, the Applicant argues there is no basis for Sophie to remain in the unit under the Code. Essentially, the Applicant argues that the White German Shepherd is Ms. Karnis’ preferred breed. The Applicant frames the issue as whether any other permitted breed exists other than a White German Shepherd that is reasonably capable of meeting Ms. Karnis’ accommodation needs. The Applicant argues that an accepted breed such as the Labrador Retriever could accommodate Ms. Karnis’.

[68]         The Applicant refers me to the Ontario Court of Appeal decision 3716724 Canada Inc. v. Carleton Condominium Corporation No. 375, 2016 ONCA 650, in reference to the business judgment rule. In this matter, the Respondent condominium board refused to approve changes for an owner who wanted to rent out his commercial parking spots on an hourly versus monthly basis unless the owner provided 24-hour security because trespassers could more easily enter the building. The court indicated that the jurisprudence has occasionally recognized that decisions rendered by boards of condominium corporations should be shown some deference, however the topic had not been addressed in great detail:  

As representatives elected by the unit owners, the directors of these corporations are better placed to make judgments about their interests and to balance the competing interests engaged than are the courts. For instance, in this case the security concerns arose in part as a result of the condominium’s location, and the Board members’ knowledge of that area is clearly an advantage that they enjoy over any court subsequently reviewing their decision.

[69]         The Court went on to explain:

the first question for a court reviewing a condominium board’s decision is whether the directors acted honestly and in good faith and exercised the care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances. If they did, then the board’s balancing of the interests of a complainant under s. 135 of the Act against competing concerns should be accorded deference. The question in such circumstances is not whether a reviewing court would have reached the same decision as the board. Rather, it is whether the board reached a decision that was within a range of reasonable choices. If it did, then it cannot be said to have unfairly disregarded the interests of a complainant.

[70]         Ultimately, the Court concluded the Board acted in good faith, was transparent as to the nature of its concerns, concluding that the condominium was in a high crime area and its decision was reasonable.

[71]        The Applicant also referred me to the Tribunal decisions Martis v. Peel Condominium Corporation No. 253, 2021 ONCAT 60, and Simcoe Condominium Corporation No. 89 v. Dominelli, 2015 ONSC 3661), where it was found there was no evidence that the resident medically required a dog in excess of the condominium’s weight restriction for pets. I find these cases of limited value as I have concluded based on Ms. Baker’s evidence that Ms. Karnis requires a dog that weighs in the 60-pound range. The Applicant further refers to Martis and the Tribunal’s finding that in extending accommodation to a resident under the Code, the board has latitude under the business judgment rule to attach reasonable conditions to its accommodation in the interests of the condominium and its members as a whole.

[72]        The first question I am to answer in reviewing the board’s decision is whether the Board acted honestly and in good faith and exercised the care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances. There may have been an element of skepticism when Ms. Karnis first approached the board; but, I have no evidence of bad faith when the board investigated Ms. Karnis’ need for a service animal. However, I conclude that the board did not exercise the care, diligence and skill that a reasonable board would exercise in comparable circumstances before rejecting Sophie.

[73]        Unlike in 3716724 Canada Inc. v. Carleton Condominium Corporation No. 375, a commercial matter where an owner desired the board to amend its Rules so that the owner could use parking spots more profitably, Ms. Karnis’ has requested accommodation in accordance with the Code based on the principles of dignity, individualization, integration and full participation. The extent to which the board is required to exercise its care, diligence and skill needs to reflect the importance of these principles. Accommodation is necessary to ensure that people with disabilities have equal opportunities. Responding to and investigating Ms. Karnis’ request to reside in the condominium complex safely requires a degree of due diligence and skill that reflects the weighty nature of this request. Generally, the more at stake requires a higher level of due diligence and skill by the board.

[74]        The nature of Ms. Karnis’ request is individual to her. Her request was straightforward: She asked to house a White German Shepperd who weighs approximately 60 pounds and had been trained specifically for her condition. When balancing the needs of the condominium with that of Ms. Karnis, the board must weigh all relevant factors. It has a positive duty to seek out and consider relevant information. Ms. Karnis asked if it was possible to meet with the board to discuss her request. This was denied. The board did not take the opportunity to explore the White German Shepherd breed with Ms. Baker or why Ms. Baker recommended Sophie. Ms. Imer provided testimony that suggests the board took insufficient steps to investigate if Sophie posed a real danger. I find that the board took only negligible steps.

[75]        The board was aware by at least January 8^th, 2022, that Ms. Karnis had been made to pay large amounts of money monthly for the dog’s maintenance and training. When balancing the needs of Ms. Karnis and the condominium, it had an obligation to exercise a higher level of diligence. 

[76]         YCC435’s rationale for rejecting Sophie is essentially the following:

·       The Board considers the breed dangerous

·       It considers Sophie menacing and dangerous and capable of causing serious harm if Sophie attacked someone

·       It considers Sophie a preference and that other less dangerous dogs are capable of meeting Ms. Karnis needs.

[77]         I find the board failed to reasonably investigate and consider Ms. Karnis’s individualized request to house Sophie and whether doing so would cause undue hardship.

[78]         Respondent’s counsel argues that a new service dog would take years to obtain and come at a significant cost given that $15,000 was spent on training Sophie. While it is not exactly clear how long the delay would be, I agree that the delay would be significant and come at considerable cost.

[79]         Given the lack of diligence and given that Sophie poses minimal threat, I do consider it patently unreasonable to order her removal.

[80]         Human rights case law makes it clear that the purpose of the Code is to accommodate a person’s needs, not their preferences. Based on Ms. Baker’s testimony, I find that a dog weighing approximately 60 pounds is a need. Also based on her testimony that the White German Shepherd breed is the recommended and best breed for Ms. Karnis’ condition, I find that this breed is also a need. Ms. Baker provided persuasive rationale why the White German Shepherd breed was superior to the Poodle and Labrador Retriever breeds, two breeds that the Applicant argued could have accommodated Ms. Karnis.   

Undue Hardship

[81]         The Applicant has a duty to accommodate, unless it would result in undue hardship. Section 17(2) of the Code places the onus on the Applicant to show that accommodation would cause undue hardship.

[82]         The Applicant refers me again to the business judgment rule. The Applicant argues that the board’s opinion on what is an undue hardship should be given substantial weight.

[83]         While the Applicant has argued undue hardship, no evidence or persuasive argument has been put forth to substantiate undue hardship. There is no evidence that Sophie’s presence creates a financial/cost hardship, requires outside sources of funding or requires any health and safety requirements. I accept that some residents may be leery or even afraid of dogs generally, and perhaps more so with large dogs. I appreciate that some residents may have decided to live at this condominium because of its” no pets” status. I find that that these considerations in of themselves do not rise to undue hardship.

Remedy Requested

[84]         YCC435 asks that Sophie be removed. If I find that Sophie is not to be removed, the Applicant alternatively requests that the Respondent enter into the AA consistent with the version supplied on January 28, 2022, modified to provide for a White German Shepherd dog weighing 60 pounds. Ms. Karnis’ counsel submitted that his client is willing to negotiate an AA but submits that only if the parties come to an impasse in this negotiation, should the CAT become involved in the dispute. This, of course, would require a new Application.

[85]         I do not order the parties to enter into an AA. It shall not be a condition of accommodation. However, I encourage the parties to be considerate and cooperative. Ms. Karnis’ counsel has stated she is willing to enter into an AA. I expect that if the Applicant makes reasonable requests, she will endeavour to cooperate, as she has been doing. Regardless of whether the parties enter into an AA, I order that Sophie shall, at all times while on the common elements, wear a service animal vest to help ensure that other residents are aware of the reason for the exemption allowing her to reside in the condominium. 

Costs

[86]         The Tribunal’s Rule 48.1 provides:

If a Case is not resolved by Settlement Agreement or Consent Order and a CAT member makes a final Decision, the unsuccessful Party will be required to pay the successful Party’s CAT fees unless the CAT member decides otherwise.

[87]         The Applicant was not successful in obtaining the order it desired, so it is not entitled to its incurred fees of this application.

[88]         Both Parties requested costs.

[89]         Rule 48.2, provides:

The CAT generally will not order one Party to reimburse another Party for legal fees or disbursements (“costs”) incurred in the course of the proceeding. However, where appropriate, the CAT may order a Party to pay to another Party all or part of their costs, including costs that were directly related to a Party’s behavior that was unreasonable, undertaken for an improper purpose, or that caused a delay or additional expense.

[90]         I find that none of the parties’ behaviour during the course of the hearing was unreasonable, undertaken for an improper purpose, and did not cause any delay or additional expense. I award no costs.

[91]         Costs for the period before the Application was filed may be awarded where the declaration and/or rules provide for indemnification of such costs. The declaration in this case includes a general indemnification provision. The Applicant seeks those costs; however, given I have found that Sophie can remain, I award no indemnification costs.

D.     ORDER

[92]          The Tribunal orders:

1.           Ms. Karnis may keep Sophie with her on the condominium property as a manner of accommodation in relation to her disability.

2.           Ms. Karnis shall ensure Sophie shall at all times wears a service animal vest while on the condominium’s common elements.

Released on: November 28, 2023