Pet Ownership (Re: Probihition) Condo

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-11-24
CLNP Page ID:	1124
Page Categories:	[Condominium Law], [Interference of Reasonable Enjoyment (LTB)]
Citation:	Pet Ownership (Re: Probihition) Condo, CLNP 1124, <https://rvt.link/65>, retrieved on 2024-11-24
Editor:	Sharvey
Last Updated:	2023/05/29

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Condominium Act, 1998, S.O. 1998, c. 19

56 (1) The board may, by resolution, make, amend or repeal by-laws under this section,

...

(k) to restrict the use and enjoyment that persons other than occupants of the units may make of the common elements and assets of the corporation, subject to any agreement made by the corporation with respect to the use and enjoyment of its common elements and assets that it shares with another person;

(l) to govern the management of the property;

...

(m) to govern the use and management of the assets of the corporation;

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(p) to govern the conduct generally of the affairs of the corporation; or

(q) for any other prescribed purpose. 1998, c. 19, s. 56 (1); 2015, c. 28, Sched. 1, s. 52 (1-4, 10).

Re York Condominium Corp. No. 42 and Melanson, 1975 CanLII 352 (ON CA)

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HOWLAND, J.A.:-- This is an appeal by Bruce Melanson (Melanson) from an order of Pennell, J., dated September 26, 1974, made pursuant to s. 23 of the Condominium Act, R.S.O. 1970, c. 77 (the Act), requiring Melanson to remove from his condominium unit the dog being kept therein within ninety (90) days of service of the order upon him.

York Condominium Corporation No. 42 (the Corporation) was created on August 18, 1971, by the registration of a declaration and description pursuant to s. 9 of the Act. Under s. 3(2) of the Act a declaration may contain:

(c) provisions respecting the occupation and use of the units and common elements;

Paragraph (a) of art. XII of the declaration provided:

No unit shall be occupied by more than a single family and shall be used only as a residence for such single family and for no other purpose.

On August 18, 1971, the Corporation enacted By-law Number One. Section 11(1) [since am. 1974, c. 133, s. 8] of the Act provides:

11(1) The by-laws may provide for the making of rules by the owners respecting the use of the common elements for the purpose of preventing unreasonable interference with the use and enjoyment of the units and common elements.

...

By-law Number One was duly registered and became effective on August 18, 1971.

On August 19, 1971, By-law Number Two was enacted by the Corporation. It included the following provision:

The following rules and regulations shall be observed by the owners and the term owner shall include the owner or any other person occupying the unit with the owner's approval:

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14. No animal shall be allowed upon or kept in or about the property.

Paragraph 14 is hereafter referred to as the "prohibitive paragraph".

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In Re R. v. Napier, 1940 CanLII 106 (ON SC), [1941] O.R. 30, [1941] 1 D.L.R. 528, 75 C.C.C. 191, the statute authorized the passing of by-laws "For licensing, regulating and governing bill posters ...". A by-law had been passed prohibiting the distributing of bills by leaving them in or on parked motor-cars or by handing them to persons on the street. Hogg, J., concluded at p. 34 O.R., pp. 531-2 D.L.R., that:

... the prevention of such activities in connection with this trade or calling is not of such a degree that it can be said to be practically a prohibition of the entire business or trade of bill distributors. There is still left to them the large field, which seems to constitute the greater part -- or at least as great a part -- of this business, namely, of leaving bills at the residences and other buildings in the municipality.

Here the power of the Corporation is to make by-laws "governing the use of units" and "governing the use of the common elements". In this appeal, the prohibitive paragraph as to allowing animals upon or keeping them in or about the units or common elements, is only a partial prohibition of the use of the units or the common elements. It would properly fall within the power to regulate the use of the units and common elements. In my view the word "governing" in s. 10(1)(b) is broad enough to include the restriction respecting animals in the prohibitive paragraph. It would be quite different if the power in s. 10(1)(b) and (c) of the Act had been to make by-laws governing the allowing or keeping of animals on the units or the common elements. In that event the prohibitive clause would have been ultra vires of the Corporation as it would have been a prohibition rather than a regulation.

It should be pointed out that the power to make by-laws under s. 10(1)(b) and under s. 10(1)(c) is with respect to "the use" of units and the common elements, whereas s. 3(2) (c) stipulates that the declaration may contain provisions respecting "the occupation and use" of the units and common elements.

As Lord Radcliffe pointed out in Arbuckle Smith & Co., Ltd. v. Greenock Corp., [1960] 1 All E.R. 568 at p. 574:

"Use" is not a word of precise meaning, but in general it conveys the idea of enjoyment derived by the user from the corpus of the object enjoyed.

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Paragraph 14 of By-law Number Two is, in my view, beyond the powers of the Corporation in its entirety. It is not necessary to express any view as to the validity of the remaining provisions of By-law Number Two as para. 14 is severable from the remaining provisions of the by-law.

The appeal should be allowed, the order of Pennell, J., set aside and in its place there should be an order dismissing the application brought by the applicant by its notice of motion dated August 27, 1974. The appellant should have his costs of this appeal and of the application before Pennell, J.

Appeal allowed.

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.