Leases With No Pets Clauses Restricting Tenants From Owning Pets Are Void With Very Few Exceptions

14 A provision in a tenancy agreement prohibiting the presence of animals in or about the residential complex is void.

76 (1) If an application based on a notice of termination under section 64, 65 or 66 is grounded on the presence, control or behaviour of an animal in or about the residential complex, the Board shall not make an order terminating the tenancy and evicting the tenant without being satisfied that the tenant is keeping an animal and that,

(a) subject to subsection (2), the past behaviour of an animal of that species has substantially interfered with the reasonable enjoyment of the residential complex for all usual purposes by the landlord or other tenants;

(b) subject to subsection (3), the presence of an animal of that species has caused the landlord or another tenant to suffer a serious allergic reaction; or

(c) the presence of an animal of that species or breed is inherently dangerous to the safety of the landlord or the other tenants.

(2) The Board shall not make an order terminating the tenancy and evicting the tenant relying on clause (1) (a) if it is satisfied that the animal kept by the tenant did not cause or contribute to the substantial interference.

(3) The Board shall not make an order terminating the tenancy and evicting the tenant relying on clause (1) (b) if it is satisfied that the animal kept by the tenant did not cause or contribute to the allergic reaction.

13  Pursuant to subsection 17(3) of the Condominium Act, a condominium corporation has a duty to “take all reasonable steps to ensure that the owners, the occupiers of units, lessees of the common elements and the agents and employees of the corporation comply with this Act, the declaration, the by-laws and the rules.” According to section 119(1) of the Act, every director, officer, employee, declarant, owner, occupier of a unit, and mortgagee shall comply with the Act and the condominium’s declaration, by-laws and rules. Also, section 119(2) requires a unit owner to take all reasonable steps to ensure that a tenant, or any other unit occupant, complies as well. Thus, the obligation to comply extends well beyond the unit owners and includes directors, employees, the developer and unit occupants. If a condominium corporation fails to do so, the corporation and the individual members of the board could be exposed to liability.

14  Although the plaintiff does appear to be the "victim" here, one has to ask what obligation, if any, was there upon the plaintiff to step up and take action to "mitigate" his damages (so to speak) by:

a.  Ousting the defendants from his unit.  Although the plaintiff had no right to seek a remedy under the Residential Tenancies Act unless the dog disturbed other tenants or damaged the premises, etc., he did have a right to seek redress against the defendants in the Superior Court, and

b.  Challenging the solicitors' accounts to condominium corporation's, which the plaintiff readily paid - upon receipt.

15  Section 134(5) of the Condominium Act, provides an extraordinary remedy to condominium corporations:  If a corporation obtains an award of damages or costs in an (compliance) order made against an owner or occupier of a unit, the damages or costs, together with any additional actual costs to the corporation in obtaining the order, shall be added to the common expenses for the unit. If  these amounts go unpaid, the condominium corporation then has a right to register a lien against the unit.

16  The purpose of Section 134(5) is to protect condominium corporations (and, indirectly, all innocent unit owners) from the high costs of litigating against the few wayward unit owners who chronically or blatantly refuse to abide by the Act and/or the terms of the condominium's declaration, by-laws, rules and agreements. Section 134(5) is intended to allow the successful condominium corporation to recoup all of its actual costs incurred in dutifully enforcing the condominium's declaration, by-laws, rules and agreements.

17  Though certainly mute at this stage in the proceedings, it is worthy to mention that before the trial of this action, Peel Condominium Corporation No. 110 was removed as a defendant - on consent. I think this was a grave error on part of the parties. The plaintiff ought to have challenged the solicitors' fees rendered to the condominium corporation. It was clear when the property manager gave evidence at trial, that as the lawyers' accounts came in, the accounts were paid without question and then passed onto the plaintiff, who again, without question, paid them.  I believe that there is an obligation on property managers to act wisely and prudently in their position of trust, with respect to paying accounts, whether it be for the plumber, the roofer and even the lawyers. In my review of the accounts rendered by the condominium corporation lawyers, I find that they were excessive and simply out of line. These accounts ought to have been challenged.

18  In the Toronto Superior Court of Justice case of Metropolitan Toronto Condominium Corporation No. 744 v. Michael Bazilinsky and Margarita Bazilinsky, [2012] O.J. No. 731, the Bazilinskys, who were the owners of a condo unit, were contacted in November 2010 by their condominium corporation demanding that they remove a parrot they had in their unit, being in breach of a no pet rule. Ultimately, a $3,330 lien was placed on the for legal fees incurred in attempting to evict the bird.

19  The corporation then brought a court application alleging that the Bazilinskys were in violation of the “no pet” provision of the corporation’s declaration and rules. The condominium asked the court for an order forcing the Bazilinskys to comply with its declaration and rules, as well awarding its legal costs of over $16,000. The court only allowed $3,000 for the legal fees.

20  Ultimately, the Bazilinskys consented to the removal of the bird, but disputed the amount of the legal costs claimed by the condo corporation, which, less than six months later had escalated to a whopping $41,599.45. The Bazilinskys finally brought the case back to court seeking a discharge of the lien and the removal of any claim for legal costs beyond the $3,000 previously ordered.

21  The condominium board based its claim on section 134(5) of the Condominium Act which entitles the corporation to recover legal costs of obtaining a compliance order against an owner.

22  Justice Nancy Backhouse ruled: "Section 134(5) is not an invitation to counsel to aggressively work a file or unreasonably build up costs... This was a simple application, the substance of which was consented to before the court date. In my opinion, the value of legal work performed on a solicitor and client basis is no more than $6500 (inclusive of the $3000 costs award of August 17, 2011)."

23  Justice Backhouse awarded $5,000 in costs against the condominium corporation, ordered the lien discharged and ruled that the owners did not have to pay interest on the outstanding common expenses which the condo board refused to accept. In the end, the condo corporation actually owed the Bazilinskys $1,800 in legal fees.

24  This case really has little to do with parrots, since the principles could have applied equally to the enforcement of any provisions of a condominium’s declaration, bylaws or rules.  The real issue is the extent to which condominium boards can recover their legal costs against unit owners.  There are other cases that surmount to a warning to condominium managers and their boards that they can’t undertake litigation so recklessly and/or aggressively, and then expecting the courts to bless their tactics which attract unreasonable and disproportionate legal bills.

25  Another point worth mentioning, concerns subsection Section 132(4) of the Condominium Act which states:

Disagreements between corporation and owners

(4)  Every declaration shall be deemed to contain a provision that the corporation and the owners agree to submit a disagreement between the parties with respect to the declaration, by-laws or rules to mediation and arbitration in accordance with clauses (1) (a) and (b) respectively.

Interestingly, I heard no evidence in this case that this procedure was attempted or followed.

26  There is no question that all of this (as stated by the plaintiff's agent) would have ended in April 2010, had the defendants complied with the demand for the removal of the dog. Had that happened, both litigants would have saved themselves countless hours of aggravation and thousands of dollars in legal fees.

27  The plaintiff seeks indemnification and places the blame squarely on the defendants. He is right and he ought to be compensated. However, as referred to above, there has to be some responsibility placed upon the plaintiff to mitigate in these circumstances. Aside from the fact that he took no action to remove the defendants from his premises, he never objected to these "overly aggressive" lawyers' fees.  It appears that he did not seek legal advice until October of 2010.  Had he done so sooner, those fees may very well have been drastically reduced.  Therefore, although I am placing fault on the defendants, I am not going to place the full brunt of the liability upon them, and am therefore ordering, indirectly, that the plaintiff share in part of the "burden."

28  Again, I express my concern that the condominium corporation was removed as a party to these proceedings, for as in Bazilinsky, I would not have had any issue with drastically reducing the condominium's recovery on its legal fees.