Duty to accommodate predicated on disability
By AdvocateDaily.com Staff
It's a growing trend in Ontario for condo residents to try to circumvent pet bans by claiming their dog is an emotional support animal, but there are many misunderstandings around the legalities of the issue, says Toronto condominium lawyer Warren Kleiner.
A recently publicized case from British Columbia probably added to the confusion, says Kleiner, partner with Shibley Righton LLP.
In the B.C. case, a woman suffering from severe anxiety is fighting to have her dog recognized as a service animal that she requires to live with her.
But Ontario and B.C. laws differ in their approach to this question, Kleiner tells AdvocateDaily.com.
“In Ontario, it has nothing to do with the animal — whether it’s a service or emotional support animal is irrelevant,” he says. “I often have a condo manager say, ‘We have a tenant with an animal, and they gave us a copy of the certificate showing her dog’s a trained support dog.’ But it’s not about the dog — it always has to do with the individual.”
Kleiner advises condo boards and managers in this situation that the Ontario Human Rights Code, with its provision of a duty to accommodate people with disabilities, takes precedence over everything else.
So regardless of a dog’s certification as a service animal or the rules and bylaws of a condo building, the overriding factor is whether the owner can show he or she has a medically recognized disability and requires the dog in relation to that disability, he says.
“The first thing we’re going to do is ask for medical documentation to evidence the fact the individual has a recognized disability,” Kleiner explains. “We don’t need the diagnosis — in fact, we don’t have the right to ask what it is. A doctor must say this person has a disability — which for a mental health disability must be one that's recognized under the DSM5 (Diagnostic and Statistical Manual V) and requires that animal as part of their treatment for the disability.”
However, there are complications, he says, as Ontario courts have occasionally made rulings that drill a little deeper into whether a support dog is essential to the person’s ability to live in their condo.
In one case, everything turned on what the resident would do if not allowed to keep her dog and the evidence was that she would not move but would visit her dog every day,” Kleiner says.
“The resident was not allowed to keep her dog. Had that person said, ‘I’d have to move from the unit’ they likely would have been able to keep the dog.”
But Kleiner says, at the Human Rights Tribunal, it is expected that the tribunal would more likely focus on whether the animal provides a medical benefit to the person.
“It doesn’t necessarily have to rise to the level of whether or not they have to move from the unit,” he says.
In this conflicting set of circumstances, each case must stand on its own merits, Kleiner says.
“But ultimately what’s really important is that condo corporations absolutely have a duty to accommodate people with disabilities,” he says.
Kleiner advises condo boards dealing with questions around exceptions to pet bans to engage in a respectful dialogue with the resident and request medical documentation. While they should not pick apart the medical information, they would be justified in questioning a doctor’s letter that was too vague or came from a walk-in clinic, he says.
Another difficulty is keeping medical information private when other condo residents are up in arms about the animal, Kleiner says.
“It’s tough because other residents will ask why a dog has been allowed in the building,” he says. “Management must be very careful to protect the person’s privacy, and not say that a person has a disability.”