A few years ago there was a lot of talk of a Superior Court case involving a woman and her dog. There was a 25 lb weight restriction. Her dog was well over 25 lbs. The woman initially claimed she needed the dog for her work with autistic children, but later claimed she needed the dog because of her own disability. She obtained a doctor’s note that indicated she required the dog for “emotional needs”. The condominium asked for permission to talk to the woman’s physician, but she refused so the condominium rejected her request for accommodation and initiated an application for an order requiring her to remove the dog from the property. The judge found there was insufficient evidence of a disability or any medical reason for the dog to reside in the unit. The judge also stated that the condominium fulfilled its obligation and that it could not be blamed for her refusal to cooperate in the process. The judge ordered the dog removed and awarded costs of $47,000 to the condominium.
The case was hailed by some as the solution to the generic one-sentence doctor’s notes (i.e. ones from a walk-in clinic or other physician who has spent only a few minutes with the person; ones that do not describe the disability or how the dog is required to accommodate the disability). Others were more cautious about the applicability of the case to other situations. You can read a previous post about the case here: https://ontcondolaw.com/2015/06/24/dog-restrictions-and-disabilities/
Does a recent Human Rights Tribunal decision indicate that the pendulum is swinging away from the case?
The facts of the two cases are similar. The tenant has a dog that is over the weight restriction. She claims to need the dog due to a disability.
The member found the reasoning in the Court case described above to be “inconsistent with the [Human Rights Commission’s Policy on ableism and discrimination based on disability] and the overall thrust of the Tribunal’s case law. The member stated:
Once a person seeking an accommodation makes the need for accommodation known, the person from whom the accommodation is requested is under a duty to consider the request. As the Policy states, a person making a request does not have to meet an onerous standard for initially communicating that a disability exists, whether it is a mental disability or a physical disability. The applicant produced a medical note and offered to produce documentation that established that she was in receipt of ODSP.
As a result, the member made an interim decision removing the personal respondents named (a director and the condominium’s lawyer) and allowing the application to continue against the condominium. This means we have to wait for a final decision on this matter.
While it appears that the Court and Tribunal came to two very different conclusions (at least based on the member’s interim decision), there are facts that distinguish the two cases. For one, the woman in the Court case was not cooperative, whereas the woman in the Tribunal case was more cooperative. The first refused to provide more than a generic doctor’s note from a physician who was not her regular physician. The second provided a note that was apparently more detailed and she also offered to provide documentation to support that she was in receipt of ODSP. The first woman also changed her story when questioned about her dog’s weight, while the second appears to have had the same story from the beginning. Simply put, the woman in the second case appears to be more credible.
To be honest, I’m not sure either case really changed the landscape like some may suggest. Requests for accommodation are so fact-specific that it is hard to apply a previous case to a new set of facts. In any event, when faced with a request for accommodation, the advice is the same: both parties should act reasonably. The owner making the request and the condominium should cooperate with each other to find a solution. Some of the best accommodations that I have ever seen have been a result of creative problem-solving. It may be that there is a way to accommodate the person without disrupting or interfering with the rights of the other owners.