Although the Standard Bylaws under the Strata Property Act (SPA) permit owners, tenants and occupants to keep certain pets (a reasonable number of fish, small aquarium animals and small caged mammals, up to 2 caged birds and one dog or one cat) in their strata lot, those bylaws can be amended. Some strata corporations allow more. Some allow less. Some prohibit pets entirely. Some prohibit only certain pets, such as dogs.
Despite those prohibitions, owners, tenants and occupants can, under certain circumstances, have a pet where that pet is needed for medical reasons. Medical exemptions to a pet bylaw arise in one of two ways; under the Guide Dog and Service Dog Act (GDSA) or pursuant to the strata corporation’s obligations under the Human Rights Code (the “Code”). Non medical exemptions arise only if the bylaw itself permits a discretionary exemption. Strata councils cannot otherwise waive compliance with a bylaw.
S.123(1.01) of the SPA recognizes the exemption under the GDSA. It provides:
A bylaw that prohibits a pet or other animal or that restricts the access of a pet or other animal to a strata lot or common property does not apply to
(a) a guide dog or service dog, or
(b) a dog that is a member of a retired guide or service dog team if the person who is a member of the team is an owner, tenant or occupant.
Owners, tenants, occupants and visitors with a certified guide or service dog are exempt from any prohibitions on the type, number or size of pet. That same exemption applies to retired guide and service dogs remaining with their owner.
There are two types of dogs certified under the GDSA. Guide dogs assist those who are blind. Service dogs are “trained to perform specific tasks to assist a person with a disability”. Dogs which do not perform those tasks, do not fall within the scope of the GDSA.
In order to qualify for an exemption under the GDSA, the dog must be certified as a guide or service dog. That certification comes from the Province, not the various organizations which purport to “certify” therapy and service dogs. (A dog need not be certified in any way in order to qualify as an assistance animal under the Code - Devine v. David Burr Ltd. and others (No. 2), 2010 BCHRT 37).
Most pet exemptions, however, arise under the Code; particularly s.8 which deals with the provision of “accommodations, services and facilities”. It is well established that the Code applies to strata corporations and they have a duty under the Code to accommodate persons with a disability. Strata corporations have been deemed to be providing a service to owners, which thereby invokes the provisions of Section 8 of the Code – see Konieczna v. The Owners, Strata Plan NW2489 2003 BCHRT 38. The strata corporation is obligated to accommodate a person with a disability to the point of undue hardship – see Mahoney obo Holowaychuk v. The Owners, Strata Plan NW332 et al 2008 BCHRT 274.
Where an owner requests accommodation on medical grounds, they must establish a nexus (or direct connection) between their disability and the requested accommodation – see Judd v. Strata Plan LMS737 2010 BCHRT 276. Where triggered, the duty to accommodate is a joint duty in which the person requesting the accommodation must do his or her part as well – see Renaud v. Central Okanagan School Districts #23 , 2 SCR 970.
The issues faced by strata corporations when dealing with a request for a “therapy” pet were illustrated in N.K. v. The Owners, Strata Plan LMS YYYY, 2018 BCCRT 108. In that case the strata corporation had a bylaw that restricted the weight of dogs to 25 lbs NK acquired a dog that was over 25 lbs. He claimed to need the dog because he suffered from depression. 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 acquired the dog, he had shown significant improvement and stability.
The question before the CRT was whether the strata corporation was obligated under s.8 of the Code to accommodate NK’s disability (being his depression) and allow him to keep the oversized dog. The CRT identified the two issues that it must consider in that regard: First, whether NK living with his dog was a necessary accommodation for his depression (disability). Second, whether the strata was reasonably justified in refusing his request 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 disability 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.” In UL obo SL v. Strata Plan LMS 4555 and others, 2014 BCHRT 66 the HRT set the test as whether refusing the pet “would likely lead to adverse consequences” for their particular medical condition. However, in Burkhardt v. Rygiel et al, 2019 BCCRT 919 the CRT held that the general emotional distress that would arise from having to get rid of a pet doesn’t trigger a duty to accommodate.
This same analytical framework was applied by the CRT to NK’s situation. Just as in Judd, the medical evidence didn’t identify a nexus between the requested accommodation and the disability. 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.
The CRT also gave considerable weight in its decision to 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 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.
Misunderstanding or not knowing the growth height of the dog is not a reason to accommodate a larger dog -The Owners, Strata Plan XX 1234 v D.N. and P.J., 2019 BCCRT 284. Along similar lines, a pet which is poorly behaving and creates a nuisance for other residents need not be accommodated - Devine v. David Burr Ltd. and others (No. 2), 2010 BCHRT 37.
While most requests come from owner and tenants, strata corporations are obliged under s.9 of the Code to consider a purchaser’s request, made as part of their offer, for accommodation. In Jones v. The Owners Strata Plan 1571 and others, 2008 BCHRT 20 the strata corporation was found to have breached the Code by refusing to approve a purchaser’s request for an assistance dog.
Navigating a request for an accommodation can be a difficult task. Legal advice with respect to making, and assessing, a request can make it that much easier.
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 firstname.lastname@example.org. He can be followed on Twitter @stratashawn.