Pet Ownership (Re: Probihition) Condo

Niagara North Condominium Corp. No. 46 v. Chassie, 1999 CanLII 15035 (ON SC)

[116] I agree with counsel for the Applicant that the residence of the Chassie’s cat in the N.N.C.C. complex is contrary to the condominium Declaration and Rules, that there is a strong presumption as to the validity of the Declaration and that the Board of Directors has a statutory obligation to enforce the Declaration and Rules. However, for the reasons set out above, I am of opinion that the pet prohibition is not a reasonable one. On the other hand, while the provision in the Declaration may not be reasonable, it is not necessarily invalid given the strong presumption in favour of the validity of Declarations. Nevertheless, I think it would not be fair to enforce it given that it is not reasonable and given the circumstances of the present case. The Chassies were put in a position of disadvantage in purchasing the unit that they would not have placed themselves in had they known, before they purchased their unit, of the cat prohibition and that an attempt to enforce it might be made. Their lack of comprehension of the situation is the fault of the Board of Directors. The Board has acquiesced in the presence of cats in the building over a number of years and has not provided any explanation to justify the delay in enforcement and leads the court to find that the equities favour the Applicant. Finally, I have found that Mrs. Chassie suffers from a handicap within the meaning of the Human Rights Code and that to enforce the Declaration would constitute discrimination against her because of her handicap. On the totality of all three grounds of defence, I find that this is a proper case in which to exercise my judicial discretion in favour of the Respondents and to dismiss the Application.