Condo Corp 7621302 v Stebbing (“Stebbing”) has been a barrier to the enforcement of pet evictions in condominiums since 2015. However, SVR’s own Grace Kim and Corey Critch were able to successfully distinguish Stebbing in the recent case of The Owners Condominium Corporation No. 0211096 v Clayton (“Clayton”). This ruling provides firm basis for the successful eviction of pets moving forward.
In Stebbing, the Condominium tried to ban cats as pets in the condominium, while permitting existing ones to be grandfathered in. Mrs. Stebbing did not have her cat approved, however an attempt to evict it was blocked by the Court due to the Boards’ inconsistent enforcement strategy and poor communication.
The factual basis of Clayton was very much the same as in Stebbing. The condominium enacted a pet policy in 2015 (the “Pet Policy”) which banned dogs but allowed existing ones to be grandfathered in as long as they were registered with the property management company. The Claytons had purchased a dog in 2008 and validly registered it with the property management company. The dog passed away, after the pet policy was enacted, and in early 2018 the Claytons purchased another one, however did not attempt to register it. The Board received notice of the dog in May 2018 and issued a notice to the Claytons to remove the dog in June 2018.
While the Claytons argued that the condominium had taken a relaxed approach to the enforcement of the Pet Policy, and they believed the Pet Policy grandfathered in owners rather than dogs, the court was not convinced. Citing evidence showing the Board had acted on complaints of non-compliant activity since the Pet Policy’s inception and the policy was clearly communicated to owners, the court upheld the eviction. In support of this, the judgment noted that if the Board can show clear communication, and timely and consistent enforcement, a misunderstanding of the policy by an owner is not their responsibility. In upholding the eviction, the court emphasized that in light of the condominium’s consistent enforcement of the Pet Policy, allowing the Claytons to keep their dog would not only be unfair to those residents who follow the Bylaws and policies, it would undermine the condominium’s ability to enforce Bylaws and policies in the future.
Notably, Stebbing was distinguished from this case on the basis that, unlike in Stebbing, in Clayton, the condominium was clear in bringing the Pet Policy to the attention of owners and had been enforcing it.
The Claytons also attempted to argue their dog should be permitted to stay on the basis of it being a support dog. To support this, they registered it with the Assistance Dogs of America organization. The court rejected this position, stating that the Assistance Dogs of America is not an accredited organization for support dogs under the Service Dogs Act; the Claytons conceded the dog did not qualify as a service dog under Alberta legislation. While the court did not dispute that the dog was important to the family and played a role in emotionally supporting Mrs. Clayton, this did not change the fact that the dog’s presence was in breach of the Pet Policy. Notably, the court left the door open to the dog being permitted to stay as a support dog, provided that the Claytons obtain the dog’s designation as a service animal under Alberta legislation by the date of its eviction. If such certification was obtained, it could be submitted to the board for their consideration to exclude the animal from the Pet Policy.
While pet evictions have historically been a difficult issue to enforce, and more so since Stebbing, this ruling shows that while a relaxed, or casual approach to pet regulation may restrict a condo’s ability to subsequently enforce such Bylaws, a consistent and clear enforcement can be upheld. This further underscores the importance of effective communication and record-keeping for condo boards.
For more information on condominium pet policies and enforcement or to discuss a specific claim, please contact John McDougall, Dionne Levesque or Kate Kozowyk.