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ONCAT trumps NUISANCE PET REMOVAL Order by mere Rule in “absolute discretion” (unreasonable process) 2022/09/11 00:05  
Not legal advice as usual.

For - possibly amongst others - a lack of procedural reasonableness an ONCAT Ontario Condominium Authority Tribunal adjudicator has rejected an application by a condo corporation to enforce its Dec 2021 Rule-platformed EXPULSION order for an owner's dog as a deemed nuisance. Such was Ordered by the condo corporation almost 9 months ago.

Unlike in some U.S. states Ontario law does not expressly impose HEARINGS on American owners associations when laying heavy numbers on alleged violators. Those states have heard lotsa stories of mis-governance & power imbalances. Maybe no big deal : the Board next adjudicates itself ! ( check out : In 2013 the Texas Court of Appeal caught a vigilante Board demolishing an owner's home solely on the basis of a grass-cutting & cleanup By-law ! Board had next issued an $ 84 K U.S. charge-back Order ! )

But Ontario condo law at least does nominally impose a "reasonableness" criteria on governance as well as compliance with a hierarchy of enactments. )

Under circumstances arguably more indicative of dog-handler incompetence ( even bad timing ? ) than a vicious dog scenario, a condo corporation quickly ordered a dog removed after it bit another dog.

The dog who bit another happened to be an AKITA historically bred for defence. A big doggy but here arguably only a dubious menace. Not a fire-cracker pitbull if the factual finding were sound.

Arguably remiss in dog-handling that day the dog owners moved effectively to compensate the injury. And get training for the AKITA.

And to muzzle it in public. They had been immediately ordered by the municipality to muzzle the offender dog, which they are cited to be in compliance.

Arguably the biter's owners have done the correct stuff.

One suspects that an unfair or at least unproven-reasonable removal order would be DEATH SENTENCE for a large BUT DOCILE 9 year old Akita even in the countryside.

The Board - during 3 weeks before Xmas and within 3 weeks of the incident - quickly ordered the dog removed as a nuisance. That's without even hearing 4 of 5 witnesses to the incident. "Absolute discretion" or lack of proven procedural reasonableness ?

Some U.S. states require no formal Hearing before foreclosures, even for disputed fines ( ! ). And Ontario has not directly embraced compulsory Hearings by governancers.

But one can conclude here that the adjudicator found that the Board could not adequately evidence enough lesser reasonableness / procedural fairness.

( Remember the "reasonableness" stuff ? ) The Board's authority available in the ONCAT forum was a mere NUISANCE REMOVAL RULE purporting "absolute discretion" for the Board to hold and order removal of a nuisance.

( Here the parties had counsel.

And an adjudicator different from the one who in May 2022 slam-dunked an S.R.L. new dog owner who argued had been "ambushed" by a total pet prohibition change. The problem there ? : purportedly effected without Declaration change as one ONCA precedent stipulated. ( see ) In that earlier case did the S.R.L. fail to get adjudicator 's ear ? )

With respondent counsel the AKITA's owners here get the removal Order trumped. AND - food for thought : a $ 5 K partial award of costs against the condo corporation.

The latest : T.S.C.C. # 2208 v Kaissi et al 2022 ONCAT 92 issued Aug 26/22

See review of this adjudication : DHA Davidson Houle Allen LLP article Sep 7/22 by well-respected Ottawa lawyer Jim Davidson "Nuisance Removal Order not procedurally reasonable” dog/
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ONCAT trumps NUISANCE PET REMOVAL Order by mere Rule in “absolute discretion” (unreasonable process) 2022/09/11 10:12  
Not legal advice, as usual.

1 - CAFCOR topics have frequently addressed pet wars over the years. Their widely varying factuals have been somewhat a touch-zone of what authority dare be entrusted to primarily volunteer Boards.

( "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 about a different matter. 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)

Goldfish metaphor gets picked up in Ontario & BC eg Miller v. Zuchek, 1982 CanLII 238 ( BCCA) issued Feb 9/82 and more pets at Niagara North CC #125 v Kinslow 2007 canlii 49188 (ONSC) )

2 - One can conclude that the adjudicator here ( T.S.C.C. # 2208 v Kaissi et al 2022 ONCAT 92 just released ) found that the Applicant condo corporation could not adequately evidence enough lesser reasonableness / procedural fairness before issuing its expulsion order.

Remember also that arguably unsupportable expulsion of even a docile 9 year old AKITA - a large dog - could be its death sentence. Such consequence does not get cited as germane to the adjudication.

3 - The doggy outcomes vary, may not lend to clearest conclusions, and can generate personally bitter expensive legal bills.

( AND MAYBE a competent adjudicator might even legitimately dare question ? amateur ? site-level findings of fact & laws ! for dubious charge-backs from site - specific documents wielded by those same amateurs. See article below ).

4 - It's also unclear what the corporation's insurer - other insurers - may think or revise risk premiums. . . .

5 - Ottawa condo law specialist Jim Davidson reviews some corporation's costs refused in the October 1/21 CUI negligent dog-owner adjudication involving a Vacant Land condo corporation.

His earlier article about CUI : DHA Davidson Houle Allen LLP October 14/21 “Important CAT Decision in Relation to Nuisance Pets and Costs”

6 - Some Divisional appeal is theoretically possible.

But is it worth such given the facts found here ?
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