In British Columbia, the Strata Property Act, SBC 1998, c.43 (“SPA”) governs the relations between stratas, their owners or tenants and their companion animals. Pursuant to section 123 of the SPA, a person living with a companion animal at the time a pet prohibition or restriction bylaw was passed is “grandfathered.” Other than that, the SPA says very little about what a strata may or may not do in relation to pets.

One issue that often arises is whether the strata demanding the removal of a pet from a condominium is a violation of one’s human right. This issue is particularly timely given the number of people living in condominiums who have acquired a dog or cat during the COVID-19 pandemic.

Under section 121 of the SPA, a strata bylaw is unenforceable if it contravenes the Human Rights Code, RSBC 1996, c.210 (the “Code”).

Section 8 of the Code prohibits stratas from enforcing or applying their bylaws in a way that discriminates against a person based on, among things, a physical or mental disability.

It is common for people to feel that they are being discriminated against by their strata for demanding the removal of their pets. People often feel that their pet is family and an emotional support animal (“ESA”) who greatly helps their mental and physical health.

However, at what point does one’s condition become a “disability” that is recognized by the Code?

The Code does not define “disability.” In determining whether a person suffers from a disability, the BC Human Rights Tribunal (“BCHRT”) has used terms such as “a chronic condition which requires active management and, if not managed properly, could result in very serious health conditions or death” (Parent v The Owners, A Strata, 2020 BCHRT 105).

The BCHRT has also found that a person can suffer from a disability, such as depression or anxiety, even though they have not been “officially” diagnosed with the same, as long as they are experiencing symptoms consistent with these conditions (Parent). The BCHRT has also accepted that a person suffers from a disability based on a doctor’s note and a strata’s acceptance that a person suffers from a disability (Judd v Strata Plam LMS 737, 2010 BCHRT 276).

The onus is on the complainant to prove that (a) the Strata discriminated against them with respect to an accommodation customarily available to the public because of a disability, and (b) not having a companion animal would have an adverse impact on them because of their disability (Parent, Judd).

Although complainants are not required to prove that they “cannot live” without a pet (Judd), it is not enough for the doctor’s note to simply say that they are supportive of an ESA and that a companion animal would be beneficial.

Ideally, the doctor’s note should explain as much of the “who/what/when/why.” Who is the patient, what condition are they suffering from or what symptoms are they experiencing, when did the conditions/symptoms begin, and why not having that (or a) companion animal would have an adverse impact on that patient’s health/disability? The clearer the explanation is about the nexus between the disability and the adverse impact of not having a companion animal, the better.

In the bigger picture, the purpose of pet bylaws is to control pets and pet behaviour for the good of the strata community (Esfahani v. The Owners, Strata Plan BCS 2797, 2018 BCCRT 176). If a person’s companion animal is not interfering with another person’s right to use and enjoy their property, what is the harm in allowing people to live with their companion animals? Arguably, a bylaw that denies someone the right to live with their pet, can also be overly oppressive, and therefore, unenforceable (Hunt v. The Owners, Strata Plan EPS2112, 2021 BCRRT 173) — a topic for another article.