I am regularly asked by clients to assist them with enforcement of dog restrictions (i.e. weight limits) or complete prohibitions in a condominium’s documents. Sometimes an owner will claim that he or she needs the dog because of a disability. The mere mention of the word (disability) immediately increases the anxiety felt by the board and manager. It seems many owners are aware of this anxiety-inducing affect and use the word without regard for its actual legal meaning. There was a recent case where an owner did just that, but the condominium refused to back down without adequate evidence of her disability.
Here are the facts. A woman moved into her spouse’s unit with a dog that weighed over 25 lbs. Both the woman and her spouse were aware of the 25 lb. weight restriction. Neither of them sought permission or accommodation from the condominium until they failed in their effort to keep the dog as a therapy dog for the woman’s work with autistic children. The condominium rejected their request claiming the dog had to be a service animal for a resident, not the woman’s work. The woman then obtained letters from a doctor (who was not her regular physician) that suggested that she required the therapy dog because of “emotional needs”, “struggles with stress and past abuse”, and as a better alternative to medication. The condominium asked for permission to speak with the doctor and advised the woman that according to the Human Rights Code she had an obligation to establish a disability and that the dog was required to assist with the disability-related needs. The woman refused to provide the condominium with permission to speak with the doctor. As a result, the condominium rejected her request for accommodation on the basis that there was no objective medical evidence that supported a disability, her needs, and how the dog addressed her needs. The couple refused to remove the dog.
The condominium brought an application to the Superior Court of Justice for an order requiring the couple to remove the dog from the property.
The judge found that the couple had initially acknowledged that the dog was over the 25 lbs. weight restriction, but changed their story later when the condominium rejected their request to keep the dog. The judge was satisfied that the dog weighed over 25 lbs.
The judge went on to review the Human Rights Code, and the applicable case law. The judge confirmed that there is an onus on the person seeking accommodation to establish a prima facie case of discrimination, which in this case required the couple to establish that the woman has a disability within the meaning of the Code and that the weight restriction adversely affects her because of her disability. If a prima facie case is established, the focus shifts to whether the condominium has fulfilled its duty to accommodate her to the point of undue hardship.
The judge reviewed the case law on the term “disability”, which includes mental impairment or mental disorder. However, the judge confirmed that a bare assertion of pain or anxiety is not a sufficient basis to allege a mental disability. The judge concluded that “there is no evidence before this court that [the doctor’s] generic labelling of [the woman’s] diagnosis as a ‘medical condition’ falls under the definition of a ‘disability'” within the meaning of the Code. The judge went on to say that even if the couple had established a disability, there was not satisfactory evidence to support her assertion that the dog was related to her disability-related needs. The judge also stated that although not required given his other findings, he would have found that the condominium had fulfilled its duty to accommodate the woman. The condominium asked for a release to allow it to talk to her doctor, but she refused. The woman failed to cooperate in the accommodation process and the condominium could not be blamed for her refusal.
The judge ordered the dog be permanently removed from the property and granted an order allowing the condominium to inspect the unit on 8 hours notice to ensure the dog had been removed. The costs of the matter have not been determined.
This case is a good reminder that condominiums are entitled to request evidence of the disability, the needs, and how the requested accommodation (i.e. dog) fulfills those disability-related needs. The condominium is not obliged to accept a bare assertion from an owner.