Hearing Impaired Person’s Signal Dog v. "No Pet" Condominium Regulation #292

By Gerry Neely
B.A., LL.B.

Dogs can be trained to assist the visually or hearing impaired and to warn epileptics of an impending seizure. A recent Ontario case asked the question of whether a dog capable of providing assistance to the hearing impaired was exempted from a "no pet" condominium regulation.

An owner, who agreed at the time of purchase in 1989 to obey the bylaws, rented the condominium until 1996, when she decided to occupy it. She advised the strata council that her mother, who was deaf and had a dog that she required for assistance, would be moving in with her. Although her request for an amendment to the "no pet" clause was denied, she, her mother and the dog moved in.

The evidence was that the mother was 85 years old, had been deaf for many years and was entirely dependent upon her dog to function on her own. The dog acted as her ears, alerting her to the telephone, the intercom, heat and smoke alarms. With the dog’s help she did not need the assistance of another human being. The dog was taken in and out of the building in a tote bag to avoid infringing upon the prohibition in public areas.

The argument on behalf of the strata council was that the "no pet" restriction was reasonable. The judge did not disagree with this argument. However, he said that enforcing the bylaw would result in discrimination against the mother because of her handicap. Accordingly, the application of the strata corporation was rejected.

The Ontario Human Rights Code defines "handicapped" to include "deafness or hearing impediment." The British Columbia Human Rights Code prohibits discrimination based upon "physical or mental disability." While the BC Code does not define either disability, there is no doubt that deafness would be included. This decision is an interesting precedent for the exemption of dogs trained to assist people with other disabilities.¹

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An owner, registered with others as a joint tenant or tenants in common of property, who wishes to sell over the objections of the others, will find a remedy in the Partition of Property Act. This Act gives the owner who wants to sell the power to compel the partition or sale of the property or part of it. Some highlights of the Act follow.

If the land can be partitioned amongst the owners the court will do so, unless owners having at least a 50 per cent interest in the property want the land to be sold and the proceeds to be divided amongst them. Unless the court sees a good reason to the contrary, the sale and division of the proceeds must be ordered.

The court may decline to make an order for the following reasons: a want of good faith; malice in commencing the proceedings; wrongful intent or conduct on the part of the owner bringing the proceedings; or the facts and circumstances of a particular case make it unjust to grant the order for partition and sale.

The last reason is illustrated by a case where a 17-year marriage was terminated by the wife, who sought partition and sale. The home, which was specifically adapted to the husband’s interests, was built largely from money he had set aside for his retirement. The proceeds from a forced sale would be insufficient to provide him with similar accommodation. He had a bad heart and, at age 70, was not in a position to start over. The wife’s order was refused.

Similarly, where a spouse remains in the family home, particularly with young children, the court is reluctant to force a sale on the other spouse’s request.

While the cases indicate that the court has jurisdiction to order a sale with only the joint owners having the right to participate, a public sale open to all bidders is preferable to ensure that justice is done to all owners by obtaining the highest price.

The court cannot order a sale of the property and distribution of the proceeds, instead of a division of the property, where any one of the joint owners undertakes to purchase the interest of the owner requesting a sale. In that event the court will order that the interest of the owner requesting partition or sale be valued in such a manner as the court deems proper.

The courts also look at the commercial implications of the alternatives of partition or sale taking into account, for example, the potential negative tax consequences for a joint owner who is unwilling to sell.

1.

Waterloo North Condominium Corporation No. 198 v. Donner, 15 R.P.R. (3d), p. 134.

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