[1]               Rhonda Stebbing and her two cats moved into The Saskatchewan condominium complex in September, 2010. The Saskatchewan was a ‘pet-friendly’ building. The bylaws provided for Board consent to keep cats. The bylaws also provided for withdrawal of consent.

[2]               Ms. Stebbing’s cats were important to her, as pets are to many. Ms. Stebbing made Board approval for her two cats a condition of the purchase of her new home. Although the Board was not a party to her real estate contract, the realtor conveyed that approval had been obtained. Ms. Stebbing withdrew the condition and moved in.

[3]               The evidence shows that the Board was aware of Ms. Stebbing’s cats but written consent was never granted. Things went smoothly for over two years. Then the trouble began.

[4]               There were many pets in the building. Some had written permission. Others did not. There appeared to be no criteria for obtaining written permission. It seems to have been a formality. An owner would make a request. The Board would convey formal consent with a letter or by reference to a motion made at a Board meeting. But not everyone made a formal request.

[5]               The bylaws are silent about the approval process or the form of approval, other than to say that the consent is to be in writing and that it can be withdrawn if the pet is “deemed a nuisance or causing an annoyance to others”. A later bylaw, specifically referring to animals, indicates that the Board may withhold approval arbitrarily and that it may withdraw approval ‘at any time on 15 days’ notice’.

[6]               The bylaws specifically provided:

[7]               In other words, the bylaws tell us that approval is necessary and that approval may be withheld arbitrarily (bylaw 58). Consent is to be in writing (bylaw 46(c)). Approval may be withdrawn on 15 days’ notice (bylaw 58). The Board may request removal of pets that are a nuisance or annoyance; in which case an owner must remove the animal forthwith (bylaw 46(c)).

[8]               There were three recorded complaints about pets in the building. One complaint came from an owner on the fourth floor. He complained of cat hair in and around the washers and dryers in the common laundry area. He wished his concern to be communicated to cat owners in the building so that they would be more considerate of others when using the common facilities. An owner on the fifth floor made a similar complaint. Both said they had allergies. Finally, an owner on the eighth floor complained that he was extremely allergic to cats and that not only did his next door neighbour own a cat but that this cat had been wandering around in the common hallways and it came into his unit on one occasion.[1] He said he was suffering extreme discomfort as a result.

[9]               Ms. Stebbing’s unit is on the seventh floor and there was never any specific complaint about her cats (though now there is only one). There is no evidence of the kind of cat Ms. Stebbing owns; whether it is an indoor, or an outdoor cat, whether Ms. Stebbing uses the common laundry facilities, or whether her cat has in any way been an annoyance to others.

[10]           Although this is not strictly in evidence, there are apparently 80 units in The Saskatchewan. Eight of these are penthouse units. They have their own laundry facilities. Washers (and, presumably, dryers) are not permitted in the other units because of plumbing problems. One of the Board members in attendance at the hearing in court indicated that there was one common laundry area for these 72 units.  

[11]           The Board decided to enforce Bylaws 46 and 58 strictly. They knew that Ms. Stebbing had a cat and that it did not have written consent – at least there was no record of any written consent from the Board. They sent a 15-day notice.

[12]           Ms. Stebbing refused and retained counsel. The Board did too. The Board’s position became entrenched. Instead of considering whether Ms. Stebbing’s pet ownership could be regularized by written consent, they dug in their heels. Their lawyer said:

[13]           Section 67(1)(a) of the Condominium Property Act, RSA 2000 c-22, provides:

[14]           The law relating to Section 67 can be summarized as follows (from Leeson v Condo Plan No. 9925923, 2014 ABQB 20):

[15]  Subsections 67(1)(a)(ii) - (v) use the words ‘oppressive or unfairly prejudicial [conduct]’. An oppression remedy is well established in a company law setting, though it goes without saying that the remedy in that context protects a narrower range of interests than those that might be found in a condominium setting.

[16]  The learned authors of the Condominium Law and Administration, Carswell, vol. 2, (Looseleaf) Ch. 23 (T. Rotenberg), identify British Columbia as the pioneering jurisdiction for an oppression remedy in the condominium context. Mr. Rotenberg notes five general principles that apply in this setting:

[17]           This case may not be about murder or millions (though a cat’s life may hang in the balance) but it does have wide importance. Withdrawal of informal consent, or withdrawal of tacit approval of pet ownership in a ‘pet-friendly’ building is subject to Section 67 of the Act, partly because the Board allowed the situation to exist for a period of time and then decided to change their position. (Note:  Niagra North Condominium Corp No. 46 v Chassie, 1999 CanLII 15035 (ONSC).) It is surprising how often this situation comes up.

[18]           Pets are not simply chattels.[2] Compliance with Section 67 of the Act in this case requires balancing the inconvenience and discomfort suffered by other residents with depriving another of the comfort and companionship a pet affords its owner. It is not simply a case of the Board always siding with an owner with allergies.

[19]           In my view, this imparts a duty to act fairly in making a decision that affects the ‘rights, privileges or interests’ of an owner. A page (or a chapter) might be taken from the book of administrative law. The jurisprudence in this area is well established (see The Principles of Administrative Law, Jones and de Villars, Carswell, 5^th edition, Chapter 8). The learned authors of that text sum up, saying (at p 238):

[20]           I appreciate this applies in the present context only by analogy because Condominium Boards are not governed by administrative law. An appeal to the court of a decision of a Condominium Board is not by way of judicial review. But the administrative law resource is a deep well to draw upon.

[21]           The 15-day provision in the bylaw should be reserved for extreme cases. It may be difficult to place a pet. If a new home cannot be found, this would, at the very least, impose a burden on the Edmonton Humane Society. I take notice of the fact that all too often it amounts to a death sentence, as pets who are not placed by the Edmonton Human Society are euthanized.

[22]           The impact on the pet owner is significant. In Ms. Stebbing’s case it was important enough to her to be made a condition of her purchase of this condominium unit. I expect that her position has not changed and that if she is not allowed to have this pet, she may wish to move.

[23]           There is another, more general point. Some condominium corporations assert a right to make fines and penalties for non-compliance an interest in land, giving themselves the power to do so in their bylaws. There is conflicting authority about whether this is ultra vires the corporation and the issue has not been resolved by a higher court. (See, for example, Condominium Plan No. 8210034 v King, 2012 ABQB 127 per Prowse, M, and the cases cited there.) This can have significant consequences. It could lead to foreclosure proceedings for something as trivial as an unpaid bill or an unpaid fine (See, most recently: Bank of Montreal v Rajakaruna, 2014 ABQB 415, per Dario J.) Claiming this power puts a particular emphasis on a Board’s duty to act properly and with a kind of due process. It is no answer to say that the Board members are volunteers and that, implicitly, they should be held to a lower standard.

[24]           After both sides had ‘lawyered up’, there were several applications in regular chambers, including a direction that this matter be heard as a Special, lengthy materials and cross-examinations on affidavits. This court is not to act as a substitute for the failure of a Board to perform what, in many circumstances, is close to a quasi-judicial function.  

[25]           Finally, once the parties retain counsel, the economic consequences are significant, not just from their own lawyers’ bills but because in many circumstances the Board will claim their lawyers’ costs pursuant to the bylaws. I note in this case that the Board is claiming only party-party costs on Column 1, Schedule C, but double costs for the application because there was apparently a formal offer.

[26]           Sometimes cases that appear straightforward turn out not to be. The strict and narrow outcome would be to dismiss the Board’s application based on a breach of Section 67 of the Act. However, the practical result, in an attempt to avoid having this matter returned (barring appeals), would be to issue a declaration that Ms. Stebbing’s cat is in breach of bylaw 46(c) for lack of written consent but to stay its enforcement until the cat either dies of natural causes or is relocated.

[27]           Each side will bear its own costs.