In an interesting (and surprising) decision, the Condo Tribunal reversed a board’s decision to deem a dog a nuisance and to have it evicted after it attacked another dog on common elements.
This case raises very important questions on who (between condo boards and the Condo Tribunal) should ultimately decide whether a dog is too dangerous to stay at the condo and what steps a board can take to avoid having the Condo Tribunal second-guess their decision when it comes to these questions.
You can read the full decision here.
Facts of this case
On December 2, 2021, a 90-pound Akita dog (named Stan) attacked and injured a Bichon Frise dog (named Charlotte). The attack took place on common elements, in an alcove between the main entrance and the elevators. At the time of the attack, three owners were chatting in the alcove, each with two small dogs. One of these dogs was not on a leash and another was on an extended one. Stan’s owner was returning from a walk.
Stan, apparently startled by the other dogs when he turned the corner, grabbed Charlotte. Some of the witnesses testified that Stan’s owner could not control him. She screamed “stop stop” and Stan eventually released Charlotte. The attack only lasted a couple of seconds but Charlotte sustained numerous puncture wounds, a broken rib and bruising. Following the attack she has experienced seizure, which required ongoing medication. Stan’s owners paid the medical bills.
The City of Toronto Animal Services investigated the incident and issued a “Dangerous Dog Order”. The order required Stan to be muzzled at all times when not on his owner’s premises and restricted his access to dog parks. Stan was also required to take socialization/obedience training (which he did) and the owner had to display a “dangerous dog” notice on their unit door.
Following this, the board of directors deemed the dog to be a nuisance because of its aggressive nature and ordered that Stan be permanently removed from the condo within 3 weeks. When the owner refused to remove the dog, the condo corporation applied to the Condo Authority Tribunal.
Question before the CAT
The Condo Tribunal determined that the ultimate question it had to decide on was whether the corporation was justified in declaring the dog a nuisance and ordering its removal pursuant to the condo rules.
The rules at this condo
Rule 9.7 at this condo provided as follows:
The Board or the Property Manager has the absolute discretion to determine that any pet is a nuisance and, if this decision is made, the Corporation may order that such pet be permanently removed from the condominium property within two (2) weeks.
Sections 12 and 16 of the condo declaration provide:
… no condition shall be permitted to exist and no activity shall be carried on in the Common Elements that is likely to damage the property or that will unreasonably interfere with the use or enjoyment by other Owners of the Common Elements and the other Units…
No Unit shall be occupied or used by any one in such a manner as is likely to damage the property or that will unreasonably interfere with the use or enjoyment by other Owners of the Common Elements.
Section 117 of the Condo Act provides:
117 (1) No person shall… cause a condition to exist or an activity to take place in … the common elements… if the condition or the activity… is likely to damage the property or the assets or to cause an injury or an illness to an individual.
The board’s decision
To support its decision to deem the dog dangerous and have it evicted, the condo corporation relied on:
- the attack on the other dog;
- its rules and declaration; and,
- the Dangerous Dog Order issued by the City.
The dog owner took the position that the board did not act reasonably, did not conduct an independent investigation of what took place and failed to enforced its own pet rules (as one of the smaller dogs was not on a leash).
The Condo Tribunal acknowledged that it must show great deference and should not second guess a board’s decision provided that the board acted reasonably and not in a capricious manner.
So ultimately, that was the question to be answered: Did the board act reasonably when it decided to evict the dog?
The CAT reversed the board’s decision
The CAT ultimately ruled that the board had not acted reasonably. It then reversed the board’s decision to evict the dog. It based this decision on the following:
- No representatives of the condo corporation testified at the hearing;
- There was no evidence of what information the board considered when it decided to deem the dog a nuisance;
- There was no security camera footage of the incident (despite the fact that everyone acknowledges that it occurred and the injuries); and,
- The owners present during the attack were not contacted about the incident.
Ultimately, the CAT concluded that there was no evidence indicating that a thorough investigation had been conducted prior to the dog being deemed a nuisance and being evicted.
Should the dog be removed?
Having decided that the board did not do a proper investigation, the CAT took it upon itself to then determine whether the dog should be removed.
The CAT then considered evidence, some of which was not before the board when the board made its decision. Namely, the CAT considered the following:
- The dog had recently travelled from abroad and was adjusting to an unfamiliar environment;
- The dog owner voluntarily decided to muzzle Stan (even before being ordered to do so);
- They paid for the medical bills;
- Stan is muzzled at all time, they are using a different side door and Stan’s owners is fully compliant;
- Stan successfully took the obedience training and was found to be “docile” and “good with people”;
- With a muzzle Stan did not pose a risk to dogs or children; and,
- There were no other complaints.
Considering all of this, the CAT concluded that it was not necessary to remove Stan.
Problems with this decision
Respectfully, there are numerous problems with this decision:
- The condo rule is clear that the board is granted absolute discretion to deem a dog a nuisance and to evict it;
- Toronto Animal Services investigated the incident and had issued a “Dangerous Dog Order”;
- The Dog Owners Liability Act imposes strict liability on dog owners when they attack someone or a pet or when they cause damage. This means that a pet owner’s efforts and steps taken to mitigate the risk are not relevant to the determination of liability;
- The board has a duty at law to manage the common elements and to take reasonable steps to ensure the reasonable safety of those on the common elements. They are also duty bound to apply their rules;
- In my most respectful view, the CAT did not grant the board’s decision the full deference it was entitled to and decided to retry de novo the matter;
- The CAT, very respectfully, ought not to second guess a decision of a board in applying its rules and governing documents, provided that the decision is within the range of what is reasonable. This decision to evict a dog which attacked and injured another dog is clearly within the bounds of a reasonable decision. In our view, it is not up to the CAT to substitute its own decision;
- The condo board is not an administrative tribunal and the CAT should not hold it to a standard that does not apply;
- The CAT considered evidence that was not before the board when the board made its decision. It ought not to have done so. When a appellate body looks at the reasonableness of a lower court decision, it limits its review to the same evidence and information that was before the first decision maker. You cannot second guess someone’s decision, in retrospect, with additional evidence. The question ought to be: was it reasonable to deem a dog a nuisance based on the information that existed at the time (namely, the existence of the attack and the Dangerous Dog Order)? The answer, in my view, is “yes”.
This decision is sending the wrong signal to condo owners who have had their pet deemed a nuisance and ordered evicted. The message that is being sent is that the CAT will now act as the court of appeal of board decisions. These owners will inevitably try to get their second kick at the can.
I hope I get to blog about an appeal decision…. If you know what I mean.