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#18244
Simcoe CC #89 v Dominelli 2015 : 'PEACHES' expelled/ disability claims shredded 2015/06/21 18:25  
( "How much trouble can be caused by a single goldfish in a bowl ?” was once quipped by Justice Rothstein during a televised Supreme Court of Canada hearing. ie "Does it go too far ?" Goldfish metaphor is quoted 1975 Ontario Court of Appeal dictum about a mere (Ontario condo) by-lawed total pet prohibition not derived from some express pet prohibition within Declaration itself : see YCC #42 v Melanson 1975 canlii 352 (ONCA) http://canlii.ca/t/g1jqc The goldfish metaphor gets picked up in Ontario & BC eg Miller v. Zuchek, 1982 CanLII 238 ( BCCA) issued Feb 9/82 http://canlii.ca/t/22t5r and more pets at Niagara North CC #125 v Kinslow 2007 canlii 49188 (ONSC) http://canlii.ca/t/1tpqz )


Simcoe CC #89 v Dominelli ( & Labranche ) 2015 :

( not about a goldfish )

Dog removal & other section 134 Orders get issued a mere 11 months after owner’s fiancée moves in with a Lab-Aussie mix PEACHES in violation only of PET WEIGHT RULES. The 57 unit Barrie Ontario complex is a trio of stratified walk-ups without elevators, said to be primarily senior-owned.

Judge has to rule PEACHES over 25 pounds in contravention of 25 pound WEIGHT LIMIT Rule without any total pet ban in Declaration, defendants seeking exemption, next failing to discharge onus of proving in sequence

1- A corresponding disability expressly from Human Rights Code, and then

2 a corresponding right of exemption / condo corp obligation to accommodate a bona fide service animal in otherwise violation to the point of undue hardship. ( We never get to find out if PEACHES really is service- certified or instead is bogus certified from the internet. Ontario reportedly has no accreditation nor inspection program anyway.


Quick textbook response included actioning defendants' requisition where owners next upheld the weight limit Rule.

Zero reference to M&A mediation & arbitration, possibly of limited value given Peaches' owners. Noteworthy is failure of (ambiguous) medical opinion/ purported legal advice by doctor, evasively short of an identified mental disability requiring not merely a service dog but one over 25 pounds as service animal rather than mere comfort or companion.

Without full trial the Application does not reach the moving target of actual certification as service animal serving at least one occupant ( moving target of evasion & defences including alleged ‘service’ to autistic individuals living elsewhere).

Costs to come : defendants will face cost-contributing buzz-saw Condo Act s 134 (5) instead of cost-limited OHRT tribunal environment. Will "costs to obtain judgment" include not only the formal legal struggle with 2 day Hearings, but also the prior defendant-generated Requisition ? Will their surprised shrieks in Barrie get media attention ?

( Did they note the problems of proving (? dubious ? ) disabilities within bona fide Rights environment : eg TAITE v CCC 91 http://ontario.cafcor.org/index.php?option=com_fireboard&Itemid=46&func=view&catid=9&id=16778#16778 & Feb 28/14 Neck-flexibility impaired Ford 150-lover; claim against condo corp is ultimately rejected Taite v Carleton CC #91 2014 HRTO 165 issued Feb 5 2014 http://canlii.ca/t/g311s )


Simcoe CC #89 v Dominelli ( & Labranche ) 2015 ONSC 3661 issued June 8 /15 http://canlii.ca/t/gjjc6
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#18246
Dog weight battle in Edmonton condo : a lot bigger than 'PEACHES' 2015/07/04 20:33  
July 2/15 “Buyer beware: large dog owner frustrated by (Edmonton) condo’s sudden enforcement of pet (weight) bylaws” by Andrea Ross
http://metronews.ca/news/edmonton/1415543/large-dog-owner-frustrated-by-condominiums-pet-bylaws/

Way bigger than Peaches : 4 year Edmonton owners Diane Kaiser & Ray Sillito pictured with Leonidas a Cane Corso 120 pds. 2 months ago got 90 day move or get rid of dog notice due to a 14 Kg weight limit at Rutherford Village condos in S Edmonton. Developer claims always a 30 pd limit starting 10 years ago.

( Leonidas may be the mildest, least aggressive dog ever. But imagine sharing an elevator with him. Some small dogs & cats may be firecrackers. But how often do they kill ? The right thing is that community is effectively being canvassed to review rules / bylaws; regularly is not a bad thing because communities change. Rules are not embalmed.

That said, big dogs belong in lowest density digs. Expensive idea to defy if enforcement occurs. Is it worth defying ? Do you blame the enforcement ?

Q - Who is Diane Whipple ? A - resident killed in a San Francisco hallway in 2001 by 2 large undercontrolled Presa Canario dogs .
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#18247
Edmonton debates DOG WEIGHT RULE 2015/07/05 11:24  
Worthwhile commenting - including from Ontario - CONDO DOG WEIGHT restrictions.

Now joined in dogfight : original developer (explaining his view of the rationale )and one of the dog's owners

Developer :

" . . . As regards my having arbitrarily set the weight limit, we deliberated the largest dog size that can be comfortably housed within a 640 square foot condo while being considerate of their neighbours' and their dog's needs; and in such a small area, we deemed that a medium-sized dog, like a Cocker Spaniel, would be the best fit.

Rather than being arbitrary, we did our best to allow the biggest possible range of choices for our residents, versus making the arbitrary decision to completely disallow pets as many other condo corporations have done, and have the right to do, in this city.

Keep in mind that this condo bylaw on pet size has been there since day one . . . ."

Dog Owner replies :

" . . . This dog issue isn't the only thing wrong with these bylaws and we ALL feel they need to be reviewed and changed. I have yet to get an answer about what the real issue is with large dogs."
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#18249
rescuer's gruesome death : weight limits have merit in multistorey condos 2015/07/11 11:09  
The gruesome March 2015 death of a non-condo Pennsylvania rescuer - a Good Samaritan instinctive rescuer known to the large dog involved - is a strong indicator why weight limits make sense.

Or why they are a valid choice for valid by-law consideration.

The dog reportedly has now been shipped out of state.

( I love dogs. But like many other Building Scheme owners here, I give my elderly 50 pound Porty her own 3 acres and unleashed forest runs. She does NOT share any elevators nor shed onto owners at any close quarters. Ontario prohibited new pitpulls etc if anyone can identify such. )

DogsBite.org ( “Some dogs don’t let go” ):

‘Pit Bull Kills Man Trying to Save Heart Attack Victim in Wheeling (Pennsylvania)

http://blog.dogsbite.org/2015/03/2015-dog-bite-fatality-pit-bull-kills-man-saving-heart-attack- victim.html


March 3 2015 : Death by Dog Bite Injury

. . . On Friday, Wheeling Police Chief Shawn Schwertfeger said that a preliminary autopsy report shows that a man who was attacked by a pit bull on Sunday in East Wheeling died as a direct result of the injuries he sustained during the attack.

The dog attacked Roy Higgenbotham, 62, as he tried to assist his roommate David Wallace, 63, who had suffered a fatal heart attack. The dog bite injuries severed Higgenbotham's radial artery near his left wrist directly causing his death.

. . . The Washington Post reports new information, including that it was a few “revival” slaps to the face by Roy Higginbotham that launched the dog into attack mode.

Apparently, Higginbotham did not even have a chance to administer CPR to his roommate David Wallace before Wallace’s pit bull attacked him.

After kicking in the door to the home, police arrived to Higginbotham screaming for help as the dog attacked him and a woman hiding from the dog on the roof of the home

. . . ( Deputy police Chief) Kimball said they believe the same pit bull may have attacked a pedestrian several weeks ago on the street, though he added no further details.

Wheeling has an ordinance that classifies pit bulls and several other close breeds as “vicious.” The owners are required to carry a $100,000 liability insurance policy and keep the dog properly confined.

This fatal attack, however, occurred inside of a home and the pit bull attacked a man well known to it who also lived in the home."
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#18253
$47 K costs awarded to Simcoe CC #89 against scofflaw dog owners 2015/08/11 00:01  
Simcoe CC #89 v Dominelli (& Labranche ) 2015 ONSC 4474 issued July 13 /15 http://canlii.ca/t/gk47x

Awards costs at ‘FULL INDEMNITY: Costs [13] Accordingly, this court orders that the respondents shall pay the applicant $47,000 in costs including HST and disbursements within 20 days of the date of this Order.


Lawyer Bob Aaron ToStar Aug 8/15 articles the judgment. He estimates Peaches' owners own legal costs will match the $47 K in condo costs also awarded against them.

B Aaron concludes Rights claimants have to bring forward a disability recognized by OHRCode; stress is not such. Fighting condo corp is pricey.
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#18254
award revised to $45, 750 - the 'PEACHES' expulsion 2015/08/15 08:37  
Costs & disbursements (against dog scofflaws ) is reduced procedurally to $45,750. ( http://canlii.ca/t/gkmsc )
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#18395
Legal COSTS issues Simcoe CC #89 v Dominelli 2015 ('PEACHES') 2015/12/23 22:49  
Lawyer Jocelyn Duquette discusses legal costs with reference not only to the Peaches outcome, but to a potentially major change for owner plaintiffs under Ontario's condo law reform.

Violation accusations need to be taken seriously, not just by alleged scofflaw owners.

Dec 22 2015 ``Dog in Breach of Rules Ends up Costing a Lot to Its Owner`` http://condoadviser.ca/2015/12/dog-in-breach-of-rules-ends-up-costing-a-lot-to-its-owner/


by Jocelyn Duquette LLB (Gowling Lafleur Henderson LLP - Ottawa )
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#18873
In 2018 is Rights Tribunal challenging the 2015 DOG - PUNTING 2015 Dominelli court decisions ? 2018/06/06 21:12  
"How much trouble can be caused by a single goldfish in a bowl ?”

June 6/18 - lawyer Michelle Kelly ( Robson Carpenter LLP ) ponders a Tribunal counterattack on the 2015 Dominelli court decisions https://ontcondolaw.com/2018/06/06/disability-dogs-has-the-pendulum-swung-back/

( In the interim decision unnamed in Ms Kelly's article ) the Tribunal Adjudicator opines that the Tribunal’s disability-accommodating policy is contravened by the Dominelli legal judgments ( and purportedly will be challenged ).

The objected management response seems to be demand for a specific diagnosis. ( apparently a management reply generally such as "Please give us a written & specific medical opinion stating what your condition is and why it medically requires a dog so far above the prohibited weight limit. " )

That text is : Collins v. Essex CC # 35 2018 HRTO 333 issued March 15 http://canlii.ca/t/hr6p4

quote : . . . [21] The applicant provided a letter from a physician which reads as follows :

“ . . . requires her dog to live with her due to a medical condition. Please let this note serve as notification that her dog is a necessity to her daily functioning for medical purposes both physical and emotional. “

[22] The applicant was not prepared to provide further medical notes or a diagnosis to the corporate respondent.

She offered to provide documentation that she was in receipt of Ontario Disability Support Program (“ODSP”) payments to support her claim to having a disability.

[24] She advised the corporate respondent of this and she was asked to provide medical information that involved identifying the nature of her disability. She did not want to disclose her disability but did provide a medical note.

[25] Dominelli is a decision of the Superior Court of Ontario that involves similar facts as those in this Application. . . .

[26] In Dominelli the Superior Court of Ontario stated that when dealing with a mental disability, “a diagnosis of some recognized mental disability, or at least a ‘working diagnosis or articulation of clinically–significant symptoms’ that has ‘specificity and substance’ is required”.

[27] The Ontario Human Rights Commission’s Policy on ableism and discrimination based on disability (“the Policy”) provides guidance on the scope of medical information that should be requested of a person requesting an accommodation on the basis of disability. Paragraph 8.7 reads as follows:

8.7 Medical information to be provided

. . . . the accommodation provider is required to take requests for accommodation in good faith. A person with a disability does not have to meet an onerous standard for initially communicating that a disability exists to trigger the organization’s duty to accommodate. . . .

The type of information that accommodation seekers may generally be expected to provide to support an accommodation includes:

• that the person has a disability
• the limitations or needs associated with the disability
• whether the person can perform the essential duties or requirements of the job, of being a tenant, or of being a service user, with or without accommodation
• the type of accommodation(s) that may be needed to allow the person to fulfill the essential duties or requirements of the job, of being a tenant, or of being a service user, etc.
• in employment, regular updates about when the person expects to come back to work, if they are on leave.

[28] The requirement of providing a diagnosis put forward in Dominelli is inconsistent with the Policy and the overall thrust of the Tribunal’s case law.

Once a person seeking an accommodation makes the need for accommodation known, the person from whom the accommodation is requested is under a duty to consider the request.

As the Policy states, a person making a request does not have to meet an onerous standard for initially communicating that a disability exists, whether it is a mental disability or a physical disability.
The applicant produced a medical note and offered to produce documentation that established that she was in receipt of ODSP.

[29] The scope of the applicant’s duty to provide information, and the other issues in dispute, are matters which will require evidence at a merits hearing where the application of the Policy and Dominelli can be considered. . . ." unquote
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