We often come across situations where a resident of a
condominium who has a dog claims to have a disability that requires
that the dog live in their unit contrary to a pet restriction in
the condominium's documents. Is a simple claim by a resident
that he/she has a "disability" – usually backed up
by a tersely drafted doctor's note – enough? The answer
is no. More is required.
In the recent case of Simcoe Condominium Corp. No. 89 v.
Dominelli, a unit owner's fiancé, Ms. Labranche,
claimed to have a disability that required her to have a dog that
was heavier than the permitted weight in breach of the
corporation's rule that set a 25-pound weight restriction on
pets. Ms. Labranche claimed her large dog was a "service
dog". Several doctor's letters were submitted to the
corporation that stated that Ms. Labranche had a medical condition
that was mitigated by the presence of her "service
The board rejected Ms. Labranche's request to keep the dog
on the basis that no objective medical evidence was provided that
supported or identified that she had a disability as defined by the
Ontario Human Rights Code (the "Code"),
what her disability-related needs were, and how the dog was
specifically required to address those needs. The board took the
position that Ms. Labranche's doctor had only identified
symptoms such as stress, which do not in itself establish a
disability under the Code that must be accommodated.
The Court referred to Skytrain and CUPE, Local 7000
(Olsen), a labour arbitration case, and stated that:
""Stress" of itself is not a disability for the
purpose of the Code: ... In order to come under the
important protection of human rights legislation, there needs to be
a diagnosis with some specificity and substance. References to
"stress" and "psychological problems" by
themselves... do not meet that standard."
The judge said that the doctor's letters presented by Ms.
Lamarche "appeared to lack that degree of objectivity and
impartiality that I would be expect from a professional providing
an opinion that he knew, or could anticipate, would be tendered in
Court". The Court also found that despite a physician
providing confirmatory evidence that Ms. Labranche suffered from
depression and that giving up the dog would adversely affect her
mental health, there was no evidence before the Court that
depression was a "mental disorder" such that it would
render it a "disability" within the meaning of the
Code. The Court went on to find that even if Ms. Labranche
had a disability, she had not satisfied the Court that she needed a
dog weighing over 25-pounds to meet her disability-related
The corporation was entitled to adequate, objective medical
information with a diagnosis of a mental disability and information
about Ms. Labranche's disability-related needs. In this case,
Ms. Labranche refused to provide such information and was found to
have failed to cooperate in the accommodation process.
Ms. Labranche was ordered to permanently remove her dog from the
property and the owner was ordered to pay $47,000 in legal costs to
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The Ontario Court of Appeal confirmed that courts will generally support and uphold decisions of condominium directors because they are better positioned than judges to make decisions pertaining to their buildings.
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