Toronto often ranks amongst the dog-friendliest cities in the world. Sadly, this sentiment does not necessarily apply to condos in the city. Through its governing docs, condos can impose an outright prohibition on dogs from entering the premises; it can also impose weight, size or breed-related prohibitions. However, these prohibitions do not take precedence over a valid disability-related accommodation request under the Human Rights Code.

The CAT’s recent decision in YCC  435 v. Karnis et. al. (here) highlights common positions many condos take when responding to accommodation requests. The important facts of this case are summarized below:

• YCC 435 had a strict “no dogs” rule (the “Rule”). Ms. Karnis and YCC 435 agreed that Ms. Karnis had a disability-related need for a service dog and would therefore exempt her from the Rule.
• A medical note from her doctor confirmed that she “required a service dog is large enough for mobility work, specifically steadying her when she feels dizzy or is experiencing vertigo”.
• Before exempting Ms. Karnis from the Rule, YCC 435 insisted she enter into an “accommodation agreement” for such. The “accommodation agreement” sought to prohibit German Shepherds and dogs over 25 lbs.
• While the “accommodation agreement” was being negotiated, Ms. Karnis obtained Sophie, a White German Shepherd. Sophie was obtained from an organization specializing in breeding and training dogs for those with disabilities. She paid over $15,000 to obtain and train Sophie as a service dog.
• YCC 435 refused to exempt Sophie from the Rule as “it did not accept German Shepherds” and there was “no evidence that a service animal of a different breed couldn’t satisfy [Ms. Karnis’] request for accommodation”.
• As things usually go with these impasses, Ms. Karnis would not remove Sophie and YCC 435 began a compliance application at the CAT to enforce the Rule.

As discussed below, YCC 435’s positions can be lumped into three main categories, all of which the CAT rejected. Sophie presumably remains with Ms. Karnis and it appears Round 2 of this bout will take place at the Human Rights Tribunal.

A. ACCOMMODATION UNNECESSARY: ALTERNATE DOG BREED WOULD SUFFICE

The draft “accommodation agreement” intended to prohibit German Shepherds (which is technically distinct from a White German Shepherd) and dogs over 25 lbs. As such, YCC 435 questioned why Ms. Karnis required Sophie as opposed to a different breed weighing under 25 lbs. YCC 435 noted that Ms. Karnis’ doctor’s note did not specify that a particular size or breed was required to meet her needs.

I pause to refer to Ontario’s Human Rights Commission’s “Policy on Ableism and Discrimination based on Disability” (the “Policy”, specifically s. 8.7) though it was not considered in this decision. The Policy outlines what can/cannot be requested in responding to an accommodation request. Generally , a person seeking accommodation should be able to provide a medical document that (a) is issued by a qualified health care professional (i.e. a doctor), (b) confirms the person has a disability and (c) confirms the requested accommodation addresses their disability. The OHRC’s guidance on the last point is crucial:

Organizations are not expected to diagnose illness or “second-guess” the health status of a person with a disability. An accommodation provider is not entitled to substitute its own opinion for that of medical documentation provided by a doctor. Similarly, an organization must not ask for more confidential medical information than necessary because it doubts the person’s disclosure of their disability based on its own impressionistic view of what a specific disability should “look like”.

Ms. Karnis’ doctor opined Ms. Karnis “required a service dog that is large enough for mobility work, specifically steadying her when she feels dizzy or experiencing vertigo”. Though the doctor’s note did not comment on specific breeds or sizes, the CAT acknowledged this is beyond a doctor’s expertise.

In any event, Sophie’s breeder and trainer – with over 20 years of experience with service dogs – also testified that Sophie was the right size, dexterity and temperament to address Ms. Karnis’ needs. Conversely, YCC 435 provided no experts who could comment on the appropriateness of an alternate breed.

Tony’s Takeaway – “Agree to Disagree”: I question whether the “accommodation agreement” was necessary, let alone appropriate in this case. If Ms. Karnis is legally entitled to have Sophie, she does not have to sign an agreement to validate this – it is enough that she meets the requirements of the Code.YCC 435 relied on two cases to support its position that a condo can impose reasonable conditions in the accommodation process but it is not clear how these cases support this view.

Tony’s Takeaway – “Doctor knows best”: I’ve seenpeople seeking disability-related accommodations do everything they can to keep their pets with them, short of providing a proper medical note. They’ll usually throw a reflective vest with a SERVICE DOG patch on their dog or buy a “certificate” on the internet “registering” their pet as a service animal with all sorts of meaningless organizations. I completely understand the skepticism a board might have when they receive an accommodation request.

But that is precisely what the accommodation process is for: the person seeking accommodation needs to provide medical evidence supporting their request. Faced with a medical note that says an animal is “required”, “necessary” or “indispensable” to accommodating a person’s disability, it is inappropriate for an accommodation provider to suggest any alternatives. This language is unambiguous: the person must have the requested accommodation – whether there may be suitable alternatives is irrelevant.

For clarity, this is not a bulletproof loophole to obtain any accommodation request under the sun. Even with documentation this clear, a condo would not be obligated to accommodate a resident if the condo would suffer “undue hardship” in process. Which leads us to YCC 435’s next argument…

B. THERE IS UNDUE HARDSHIP: GERMAN SHEPHERDS ARE DANGEROUS

YCC 435 argued that Sophie was a dangerous and menacing dog: the condo would suffer undue hardship if it had to accommodate Sophie in the complex. It claimed Sophie leapt onto other residents and there were complaints about noise Sophie created when playing with a toy. However, this was raised in testimony from YCC 435’s director. YCC 435 submitted no evidence nor investigated these allegations.

Ms. Karnis indicated these were isolated incidents when Sophie was a puppy. Since this time, Ms. Karnis spent hundreds of hours on training. Sophie successfully learned to perform her duties without distraction. Sophie was otherwise living in reasonable harmony with other residents.

Tony’s Takeaway – “The Proof is in the Puppy”: This is the weakest and most speculative of YCC 435’s positions. Beyond YCC 435’s failure to provide enough evidence of Sophie’s “danger”, the Policy is clear that the hardship must be more than merely speculative:

Anticipated hardships caused by proposed accommodations should not be sustained if based only on speculative or unsubstantiated concern that certain adverse consequences “might” or “could” result if the person is accommodated.

In other words: prove it or lose it.

C. YCC 435 ENTITLED TO DEFERENCE UNDER BUSINESS JUDGMENT RULE

YCC 435 invoked the “business judgment rule” (“BJR”) as a “catch-all position” to defend its decision to demand Sophie’s removal. Condo boards are not held to a standard of perfection and are afforded significant deference for their business decisions asthey are in a better position than a court or tribunal to determine what is best for their condo community. YCC 435 argued its decision to reject Sophie was entitled to deference as it deemed (a) White German Shepherds to be dangerous, (b) Sophie menacing and dangerous, capable of causing serious harm if she attacked someone and (c) a preference and that other less dangerous dogs were suitable alternatives.

But, as YCC 435 argued, the BJR is limited to “protecting decisions that are a product of reasonable conduct of good faith judgment”. The CAT rejected the Board’s reliance on the BJR for this very reason. It did not exercise the care, diligence and skill that a reasonable board in comparable circumstances would have before rejecting Sophie:

The board cannot insulate itself from scrutiny when addressing accommodation requests without providing a cogent rational for its position after using reasonable diligence. I have been presented with insufficient evidence that the board took reasonable steps to fully inform itself and investigate Ms. Karnis’ request and specifically, whether Sophie posed an unreasonable risk.

COSTS REQUIRES MORE CLARITY

For all of my past criticisms of the CAT, this case was overall rather detailed and clear. This decision reflects a thorough analysis of the key legal issues and parties’ submissions. The public can reasonably understand how the CAT came to this decision…for the most part.

Unfortunately, the discussion on costs is a defining example of my previous criticisms. As I read through this decision I expected the CAT to award Ms. Karnis, her costs on a partial basis at the very least. Despite being entirely successful in defending this application, the CAT declined to award costs to either party as neither party behaved unreasonably, improperly or caused delay/expense. This was all in a short three-line paragraph. Where the CAT went into great detail on all the challenges Ms. Karnis was put through – ultimately succeeding in the end – I struggle to see how it came to this decision.

TONY’S FINAL TAKEAWAY – “REASONABLENESS AND GOOD FAITH STILL TOP DOG”

Time and time again, I go back to my #1 Takeaway: be reasonable and act in good faith. Failure and refusal to follow this principle is the root of virtually every condo dispute I have seen. This is profoundly important when dealing with accommodation requests. The CAT sums this up best:

Ms. Karnis’ has requested accommodation in accordance with the Code based on the principles of dignity, individualization, integration and full participation. The extent to which the board is required to exercise its care, diligence and skill needs to reflect the importance of these principles. Accommodation is necessary to ensure that people with disabilities have equal opportunities. Responding to and investigating Ms. Karnis’ request to reside in the condominium complex safely requires a degree of due diligence and skill that reflects the weighty nature of this request. Generally, the more at stake requires a higher level of due diligence and skill by the board.

The nature of Ms. Karnis’ request is individual to her… When balancing the needs of the condominium with that of Ms. Karnis, the board must weigh all relevant factors… The board did not take the opportunity to explore the White German Shepherd breed with Ms. Baker or why Ms. Baker recommended Sophie. Ms. Imer provided testimony that suggests the board took insufficient steps to investigate if Sophie posed a real danger. I find that the board took only negligible steps.

I find the board failed to reasonably investigate and consider Ms. Karnis’s individualized request to house Sophie and whether doing so would cause undue hardship.