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TRIBUNAL rules PET POLICY dispute brings RIGHTS ACCOMMODATION within jurisdiction: MARTIS v PCC 253 2021/07/09 19:18  
not legal advice,as usual.

Another "jurisdictional" self-pronouncement :

In a condo community with 1998 “NO NEW DOGS” RULE, the Applicant owner had unilaterally bought her son a “mere comfort” dog - apparently NOT a professionally-trained, certified service animal. The new pooch is cited as an "ESA" for emotional support animal.

The zinger is that such "ESA" pooch is cited expected to reach 35-45 pounds more than exempted by some sorta site-specific, extra-legal Rights accommodation “policy” to ? possibly limit even bona fide, medically-prescribed Service animals to a maximum 25 pound weight .

The Applicant's deliberate choice thus put her & her son directly at odds with the 1998 Rule & with whatever sorta extra-legal “policy”. . . . now amidst ONCAT resolution where both sides have counsel.

The parent applies to the Tribunal - under its Oct/20 expanded “pet disputes” jurisdiction - to now override the 25 pound weight mere "policied" limit.

But exactly what status has the non-Rule "pet exemption policy" ? AND can her "ESA" pooch next slam-dunk the so-called "policy" ?

Such is left to be adjudicated later, but upfront is a jurisdictional challenge from the respondent condo corporation. That such is not properly within ONCAT's jurisdiction but rather that of Ontario's Human Rights Tribunal.

Interim Outcome :

The Member rejects the condo corporation's Motion to quash the appeal as beyond ONCAT jurisdiction.

( People with beefs - where un-resolvable within their community - have many alternatives. Those include the civil justice system or a Tribunal venue with specialized authority & expertise. And hopefully producing a range of consistent outcomes issuable at any one time. That's hopefully regardless of whether or not whatever adjudicator assigned is incompetent or blindered or just pathologically lazy & defiant . . . And may the Gods protect us all ! ).

Ontario’s Human Rights Tribunal was created 2 + decades ago to address all sorts of rights claims & remedies, condo & otherwise. The accompanying legislation itself applies almost universally to most Ontario adjudicators in a wide range of venues.

But here is the "pith & substance" really about reasonable outcomes for condo pet disputes ? And genuine lawful due process within a general type of condo community - not necessarily the respondent at all - sometimes prone to voodoo ?

The stated rationale :

In a ruling also silent as to the implications of potentially conflicting outcomes from multiple Tribunal venues, the Member rules the Application sufficiently comes within ONCAT jurisdiction as relevantly addressing a condo pet ( policy ) dispute.

Other aspects will continue including what's to be done about the " accommodation dog policy". Should this sorta "policy" really require a formal Rule change limiting the scope for arbitrary unfairness ? ( One should consider that we're not talking external architectural ambiance being struggled sometimes disturbingly by a U.S. style ARC architectural review committee after some poor detached HOA homeowner merely wants a different coloured shingle for their pre-existing, lawful private shed .)

And whether still to come ? : whats' a reasonable "emotional support" entity ? Why would a pooch under 26 pounds be "supportingly-inadequate" ? Or for that matter why not a kangaroo or mini-alligator ? My John Deere gives me massive reassurance; so too the real deer. . . .

( Looking ahead : Is this jurisdictional pronouncement a potentially extricable issue of law & potentially not entitled to deference ? Wonder how far this dispute will go ? )

xcrpted :

“ . . . . Issue #4: Is this matter properly before the CAT ?

[14] PCC253 submits that this matter could be resolved entirely as a matter of the appropriate accommodation to a disability under the Code.

The issue, in PCC253’s submission, is whether the weight restriction that PCC253 proposes is reasonable.

The question of the reasonableness of the restriction is not what will determine the CAT’s jurisdiction to hear this matter.

The jurisdictional question is whether this matter is properly before the CAT.

The jurisdiction of the CAT,as noted above,extends to disputes about the rules that restrict or govern pets.

In this case the ESA Policy and the Pet Rule both purport to restrict or otherwise govern pets in the condominium.

There may be circumstances in which the CAT jurisdiction does not extend to policies.

However, where a condominium corporation may be attempting to enforce a policy, either directly or indirectly, the question of whether the policy is in reality an improperly enacted rule is a matter that is properly before the CAT.

The request for an accommodation is being made in the context of the Pet Rule and the ESA Policy.

I conclude that given the issues surrounding both the Pet Rule and the ESA Policy, this matter is properly within the jurisdiction of the CAT.” - unquote

Martis v. P.C.C. # 253 (2021) 2021 ONCAT 60issued July 7/21
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