B.C.’s Civil Resolution Tribunal has ruled an Okanagan woman can keep her three emotional support cats despite her strata’s ban on more than one pet.
Jennifer Schlosser and Zackary Lenius challenged their strata’s ban, saying the strata failed to meet its duty to accommodate the need under the B.C. Human Rights Code.
Lenius is the owner of the strata unit, Schlosser is described as a tenant.
It was undisputed in the case that the strata’s bylaws say an owner, tenant, or occupant may only have one cat or one dog.
The strata received a complaint of two cats in the suite and asked for Lenius to respond in November 2020.
Lenius told the strata the cats were support animals and he attached a letter from a licensed Saskatchewan social worker.
“Jennifer’s cats are a long standing and an integral part of Jennifer’s treatment plan in managing and regulating her anxiety,” the social worker wrote. “I would recommend that Jennifer continue to have her cats in her home for the ongoing emotional support they provide her.”
The strata respond saying it needed medical documentation.
Lenius and Schlosser supplied a doctor’s letter saying she had “a diagnosis of generalized anxiety disorder, and I agree with her previous health-care professional recommendations regarding her treatment. It is clear that her three cats are beneficial for her mental health, and that having to remove an animal would be significantly detrimental to her diagnosed medical condition.”
The doctor suggested the strata allow Schlosser to keep the cats.
“I would recommend that these animals be considered necessary to the above patient’s mental health therapy and that she should not be asked to remove an animal for this reason.”
A letter was also provided from a Saskatchewan family doctor who said they diagnosed Schlosser with moderately severe anxiety disorder and that Schlosser had “found therapy” with her three cats, which she had used for a long time since she was a teenager.
The strata council then denied the accommodation request, saying it did not have the expertise to evaluate whether the pets were necessary in the situation, and had “neither the expertise nor the authority to grant this accommodation.”
The council told Lenius and Schlosser to apply to the Human Rights Tribunal and that the strata had to enforce the one-pet bylaw.
In her May 3 decision, tribunal vice-chair Kate Campbell found the first doctor’s note “establishes that not having her three cats would be significantly detrimental to Ms. Schlosser’s disability.”
Partly in response to the accommodation request, the strata had put forward a special meeting resolution to amend the bylaws to allow two pets in a strata lot. It did not pass. Then, at the July 2021 annual general meeting, strata owners again voted down a similar resolution.
Campbell said the strata had used those votes to justify its stance.
“This is not a justification for refusing to accommodate a disability,” Campbell said. “The question is whether the strata must accommodate Ms. Schlosser by making an exception to its bylaws, and it is not an issue where the will of the majority is determinative.
“Also, the fact that the majority of owners wish to keep the existing pet bylaw does not establish that accommodating Ms. Schlosser would create undue hardship,” Campbell said, noting Schlosser can keep her three cats but can't get any other pets.
Vancouver lawyer Laura Track deals with such cases and said human rights law is clear that stratas and other housing providers, like landlords and co-ops, must reasonably accommodate a resident's disability-related needs.
“That means that housing providers may have to adjust or make exceptions to their pet rules to accommodate a resident’s disability,” Track said.
She said the decision highlights two important aspects of the duty to accommodate. First, the duty only arises if the resident has a genuine, disability-related need for the accommodation.
“Many people get significant mental and physical health benefits from having a pet. However, in B.C. at least, the law does not generally protect a person’s right to have a pet in their rental or strata unit. Landlords are allowed to have a no-pets policy.”
But if someone has a disability-related need for the animal, then the landlord has a duty to accommodate them, Track said.
“In this case, the medical evidence was clear that this person had been relying on her cats to support her with her mental health issues for many years, and would suffer significant detrimental impacts if the cats were removed,” Track said. “This kind of medical support is key to the success of a human rights claim.”
Second, she said, if a strata is going to refuse to accommodate someone’s disability, they have to be able to explain why.
“In legal terms, they have to show a bona fide and reasonable justification for refusing the accommodation,” the lawyer said.
“As this case shows, they cannot rely on a vote of the strata members to avoid their duty to accommodate. Nor can they shift the burden onto the resident by arguing that she knew the rules about pets before she moved in. None of those arguments shows that accommodating the resident would be an undue hardship for the strata, which is the legal threshold they must meet.”
The cases are becoming more common.
In January, a Vancouver man whose strata council refused to allow him to have an emotional support dog failed in his bid to have the B.C. Human Rights Tribunal overturn the decision.
William Lylack claimed the ban is a violation of B.C.’s Human Rights Code based on age, physical and mental disability.