In Maslek et al v. The Owners, Strata Plan LMS 2778, 2018 BCCRT 106 the owners acquired four pet ferrets. At the time they did the bylaws allowed owners to keep 1 dog or 1 cat or any other pet(s) approved in writing by the strata council. The owners never requested permission to keep the ferrets. The strata corporation eventually found out that the owners had them and, of course, took the position that the owners were in breach of the bylaws by not having received permission for their ferrets. The owners apologized for their mistake and immediately sought permission to keep the ferrets. The strata council denied their request, stating that it could not approve the ferrets. The bylaws were then amended to prohibit all pets except cats and dogs.
The issue before the CRT was whether the owners could keep their ferrets notwithstanding their breach of the bylaws. In the end, the CRT ruled they could because:
1. The ferrets were acquired before the change in the pet bylaw was passed and were thus exempt under s.123(1) of the Strata Property Act (SPA) from the provisions of the new bylaw prohibiting all pets except dogs and cats;
2. The strata corporation was incorrect in its view that it could not approve the ferrets. The bylaw in effect at the time the ferrets were acquired allowed the council to decide whether or not to allow a particular animal as a pet. The strata council could have allowed the ferrets if it wanted to.
3. It was significantly unfair under s.164 of the SPA for the strata council to deny permission to keep the ferrets.
In reaching its decision the CRT made the following observations:
21 I find that the owners’ expectation that the strata council would allow them to keep their ferrets was objectively reasonable. They apologized in writing, explained their request, and offered a compromise solution such as payment of extra fees. Because the strata council did not provide any explanation for why the owners’ request was denied (other than the incorrect assertion that they could not grant permission), I cannot find that their decision to deny the owners’ request was made on reasonable grounds. There appear to have been no grounds for the decision, other than an inaccurate interpretation of the January 2002 pet bylaw. There is no suggestion in the evidence or submissions that the ferrets caused damage, odour, or noise. While it is possible that other residents objected to them, there is no evidence or submissions before me to support that conclusion.
This decision illustrates the danger of bylaws which grant the strata council discretion to allow or disallow certain things. Many strata councils view bylaws of this nature as a blanket prohibition against a particular thing with the ability to allow an exception on the odd occasion they might be inclined to allow an exception. Based on the decision in Maslek, that is clearly not the case. Discretionary bylaws require a reason to justify a refusal to give permission. If a reason cannot be articulated then there is no basis to refuse permission.
This decision, like other CRT decisions such as Doig et al v. The Owners, Strata Plan VR 1712, 2017 BCCRT 36, emphasizes the need for the strata council to record its reasons at the time of its decision. It also emphasizes that decisions cannot be based on conjecture and speculation. There must be something verifiable to support them.
Another interesting aspect of the decision is that despite a failure to comply with the bylaw and seek permission before acquiring the pets, the owners were found to have a reasonable expectation under s.164 of the SPA that their request would be objectively assessed and determined without reference to their failure to comply with the bylaws. In other words, denial of the request as a form of punishment was not an appropriate response. (A slightly different decision was reached in Getzlaf v. The Owners, Strata Plan VR 159, 2015 BCSC 452 where the court cited a failure to comply with the bylaws as one of the grounds on which it could deny relief under s.164).
The decision in N.K. v. The Owners, Strata Plan LMS YYYY, 2018 BCCRT 108 dealt with whether or not the strata corporation was required to grant an exemption on medical grounds to its bylaw restricting pets. The strata corporation had a bylaw that restricted the weight of dogs to 25 kg. NK bought the dog and then asked his landlord, the owner of the strata lot, whether it was alright to have a dog. The owner asked the strata manager if there were any restrictions on dogs. The strata manager mistakenly said there were no restrictions. Based on that, the owner told NK he could keep the dog. NK apparently acquired the dog because he suffered from depression. When confronted with the fact that the dog violated the bylaws he claimed the dog was necessary for his ability to cope with his addiction and asked for an exemption from the bylaw. He even obtained a letter from his doctor stating that the dog had a positive impact on NK’s emotional state, and that since NK has had the dog, he had shown significant improvement and stability.
In considering whether NK should keep the dog, the CRT decided that the strata corporation was not bound by the erroneous information provided by the strata manager. This was because NK had acquired the dog before the strata manager was asked about the bylaws. More importantly, the CRT held that the tenant had signed a Form K acknowledging receipt of the bylaws. He was thus deemed to have known of the weight limitation.
The bigger issue facing the strata corporation was whether it was obligated under s.8 of the Human Rights Code to accommodate NK’s disability (being his depression) and allow him to keep the oversized dog. At paragraph 39 of its decision, the CRT identified the two issues that it must consider in that regard: First, whether living with his dog was a necessary accommodation for NK’s depression (being his disability). Second, whether the strata was reasonably justified in refusing that accommodation (i.e. not allowing him to keep the oversized dog).
With respect to the first issue, it is necessary for an owner requesting to keep a pet for medical reasons to prove there is a nexus between their disability and the need for the pet – Judd v. Strata Plan LMS 737, 2010 BCHRT 276. In other words, is it absolutely essential to the treatment of the owner’s condition that they have the pet? In most cases that question can only be answered through a medical report which provides a treatment recommendation beyond simply that it would nice or beneficial to have a pet.
The test adopted in Judd was relaxed somewhat is BH obo CH v. Creekside Estates Strata KAS1707 and another, 2016 BCHRT 100 where the Tribunal held that “in the case of a person who requires a pet for reasons related to addiction, a complainant must show that not having a pet could put the individual at significant risk of a relapse.”
This same analytical framework was applied by the CRT to NK’s situation. The CRT accepted that NK had formed a positive bond with the dog but held that was not enough to warrant an accommodation. It reached the following conclusion in that regard:
41. Further, and more significantly, there is no evidence before me as to why the tenant must keep this particular oversized dog in the strata lot or why he could not form a similar bond with another pet that complied with the strata’s bylaws. In other words, I have no evidence before me that the tenant could not obtain beneficial pet therapy by having a pet in the strata that complies with the strata’s bylaws. I find that keeping a dog that exceeds 25 pounds in the strata is not necessary to accommodate the tenant’s disability.
Just as in Judd, the medical evidence didn’t identify a nexus between the requested accommodation and the disability. There was nothing to support NK’s argument that he needed that particular pet.
What was most surprising about the decision in NK was the finding that the concerns of a large number of owners, expressed through a petition, about the dog were enough to form a reasonable justification to refuse the accommodation. The CRT held that “keeping a dog that clearly violates a mandatory bylaw that pets must not exceed 25 pounds… would cause the strata undue hardship”. That decision sets the bar fairly low with respect to what undue hardship is. It essentially allows the will of the owners to override the duty to accommodate – something which the Human Rights Tribunal has not found in its decisions. Strata corporations are routinely required to relax their bylaws to accommodate owners under the Code. The CRT seems to be setting a new standard for undue hardship – one that is fairly easy to meet.
These two cases illustrate not only how complex these situations can be but that there are different areas for concern for the strata corporation and the owners when it comes to pet bylaws. For strata councils, it is knowing and understanding their bylaws and how to properly apply them. For owners, it is that when seeking exemptions under the Code, it is to be prepared to establish a nexus between the pet and their disability. In both cases, proper advice early on can save a lot of time and effort.
This article is intended for information purposes only and should not be taken as the provision of legal advice. Shawn M. Smith is lawyer whose practice focuses on strata property law. He frequently writes and lectures for strata associations. He is a partner with the law firm of Cleveland Doan LLP and can be reached at (604)536-5002 or email@example.com.