BC Human Rights Tribunal considers application of new service-dog law to strata bylaws, dismisses complaint alleging discrimination in accommodation based on a disability
September 7, 2016
BY Kevin Zakreski
In an application decided in late July, the British Columbia Human Rights Tribunal had to consider the intersection of strata bylaws, the Human Rights Code, and the new Guide Dog and Service Dog Act. The tribunal dismissed a complaint of discrimination on the basis of disability, which had its foundation in a strata corporation’s enforcement of its pet bylaw.
Facts and issues
BH obo CH v Creekside Estates Strata KAS1707 and another, 2016 BCHRT 100, involved “a residential strata corporation located on Browne Road in Vernon [that] has been in existence for some 20 years.” For all this time, the strata corporation has had a bylaw restricting the number (to one) and the size (to no greater than 14 inches in height) of pets allowed.
The complainant (CH) was described as “a recovering heroin addict.” His mother (BH), who brought the complaint on CH’s behalf, has owned a strata lot in the strata corporation since 2011. She lived in the strata lot with “an elderly small dog.” “At some point,” the complainant came to live with his mother. Shortly thereafter, the complainant acquired “a Blue nosed Staffordshire” dog. In addition to being a second dog in the strata lot, this dog was “greater than 14 inches tall at the shoulder and so is prima facie in violation of the bylaw.”
Eventually, the strata council received a complaint about the complainant’s dog. This led to correspondence between the strata council and the complainant’s mother. Ultimately, the strata council set a deadline for the removal of the dog. The complainant’s mother refused to remove the dog, identifying it as a certified service dog under the Guide Dog and Service Dog Act.
After further back-and-forth correspondence, the strata council decided to advise the complainant’s mother that, if the dog were not removed, “she would be fined $100 for every seven days the bylaw was contravened.” In response, the Hs filed a complaint with the human rights tribunal, naming the strata corporation and the strata-council president as respondents.
The respondents applied to the tribunal, asking it to dismiss the complaint under section 27 of the Human Rights Code. The bulk of the tribunal’s decision consisted of a discussion of these aspects of the application:
- adding the strata-council president as a respondent in his personal capacity;
- whether the complaint had no reasonable prospect to succeed, an issue that turned on:
- whether the complainant’s dog could be considered a certified service dog; and
- whether the complainant is entitled to an exemption from the pet bylaw to accommodate his disability.
The complaint against the strata-council president acting in his personal capacity
The complainant argued that the respondent strata-council president “allowed his emotions and personal feelings toward her son and the dog to get in the way of making sound decisions on behalf of the Strata Corporation” and so should be personally named in the complaint. The tribunal rejected this argument, noting that:
I have examined all of the correspondence and any submissions made with regard to verbal exchanges and there is absolutely nothing to show, or from which it might reasonably be inferred, that in any of his actions, Mr. Shaw discriminated or acted in other than his capacity as President of the Strata representing the Strata Council and, collectively, the residents of the Strata.
The tribunal went on to make “a further observation”, which addressed the general position of strata-council members who are faced with human-rights complaints:
Members of the executive of a strata corporation are volunteers acting on behalf of all of the owners of the Strata. It is counterproductive to good governance of stratas to expose those who undertake what is often a thankless job to potential personal liability in the absence of specific allegations of acts that fall outside the scope of the office holder’s duties. No such allegations are made here. . . .
Where the accusation involves people living side-by-side as neighbours in a strata, this is especially so. The Tribunal’s experience is that complaints involving strata corporations are already some of the most intractable disputes that come before it. Claims of personal liability against the volunteers who fulfill positions on a strata council, in my view, can only add to that intractability, unless the allegations involve conduct that is outside the scope of their duties. Mere disagreement with the decisions they may make in their capacity as an officer does not do so.
The status of the complainant’s dog as a certified service dog
The tribunal noted that:
A significant part of the evidence before the Tribunal on this application was about whether Coco was a “service dog.”
The relevance of that question is that if the dog is a “service dog,” then the Strata’s bylaws would not apply to her, at least as of January 18, 2016 when the [Guide Dog and Service Dog Act] and the consequent amendments to the Strata Properties Act came into force.
Instead, the complainant chose an informal certification process, involving registration via an American website. The tribunal was withering in its appraisal of this approach to certifying a service dog:
The Hs chose another route: registering “Coco” with an American online organization calling itself Service Dogs America. However, there is nothing in the [Guide Dog and Service Dog Act] that could lead to a conclusion that registering a dog with that organization as a service dog makes it a service dog in British Columbia. To be a service dog in British Columbia and thereby exempted from pet restrictions contained a strata’s bylaws, a dog would and its owners would have to meet the requirements of the [Guide Dog and Service Dog Act]. There is no evidence that the Hs have done so or even that they have tried or are in the process of doing so.
Moreover, it is highly improbable that the registration of the dog with Service Dogs America would carry any weight with the Tribunal hearing this matter as to it being a recognized, legitimate aide to a person with a disability.
First, it is an American website with no apparent application to Canada.
Second, even a casual review of the website would almost certainly lead the Tribunal to conclude that it is little more than a cynical attempt to allow people to get around restrictions on pets in restaurants, in buildings, on airplanes or the like. The site’s approach to disability and service dogs undermines and devalues the necessary accommodation people with disabilities may require from service dogs to the point of ludicrousness when it says: “most every person in America may have some form of disability. Most persons rely on their dog to assist them in many different ways.” In my view, there is no reasonable likelihood that the Tribunal would attach any weight to the “certification” issued by Service Dogs America.
Entitlement to exemption from the bylaw to accommodate a disability
The tribunal began by observing that “[i]t cannot seriously be disputed that drug addiction is a disability.” The tribunal noted that, when the complaint is looked at broadly, a case could be made for sending this issue to a hearing:
In my view, the materials submitted here, while sparse and lacking the imprimatur of a medical or addictions specialist, lead me to conclude it would be open to the Tribunal to find at a hearing that not having a pet could put Mr. H at significant risk of an adverse impact, in that it could either lead to relapse or at a minimum put Mr. H at significantly greater risk of relapsing. Based on the materials provided, it would be open to the Tribunal to find that Mr. H needs a dog, not as a lifestyle choice as was the case in Judd [2010 BCHRT 276], but as therapeutic assistance to successfully address his drug addiction and to remain in remission.
Were that the only issue, I would have no hesitation in allowing this complaint to go to hearing.
But the complainant failed to provide evidence relating to the specific criteria in the bylaw, namely that “in order to accommodate his illness, Mr. H required a dog that is taller than 14 inches at the shoulder, or even a second dog in the H unit.” As the tribunal explained at length, this omission would prove to be “fatal” at a hearing:
If the object of pet therapy in drug rehabilitation is to assist in helping the recovering addict to deal with the difficulties of rehabilitation, to motivate, to teach responsibility and making right choices, as the Hs suggest, it is far from self-evident and is not apparent based on the materials provided that an elderly small dog could not be appropriate.
Most lacking in the materials, however, is that even if Ms. H’s existing elderly dog could be shown not to serve the therapeutic purpose, the materials do not even attempt to demonstrate why Mr. H required a dog taller than 14 inches at the shoulder. I note that this was put at issue in the application to dismiss and yet the Hs did not provide any explanation.
It is significant in this case that Coco was acquired approximately three weeks before Ms. H was asked about the dog. The Hs’ comments that in that short time the dog had “become a member of the family” are unconvincing. Had Mr. H arrived to live with his mother with a dog he already had owned for some time, the result may have been different. That was not the case here.
The Hs did not attempt, either at the time or even now, to explain why they did not just acquire a second dog that conformed with the Strata’s bylaw with regard to size. Instead, they acquired a dog not in conformity with the bylaw and one that they had to know would raise legitimate concerns from other residents.
In my view, that omission is fatal to the Hs’ complaint. They have not established or even attempted to establish why Mr. H, because of his disability, required any exemption to the bylaw, whether with regard to a second dog or, and most particularly, with regard to one that was taller than 14 inches at the shoulder.
In the result, the complaints against the strata-council president and the strata corporation were dismissed.