Tribunal upholds Vernon strata decision to refuse emotional support dog - InfoNews

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Tribunal upholds Vernon strata decision to refuse emotional support dog

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July 09, 2020 - 6:30 PM

A former Vernon realtor has lost a Civil Resolution Tribunal after it ruled a strata council was within its rights to refuse a prospective buyer from having an emotional support pet, causing the sale to collapse.

In the case, which appears to go against a recent Human Rights Tribunal ruling, the strata council at the Tamarack 2 apartment building in Vernon refused to allow a prospective buyer to have an emotional support dog. The sale was conditional on the pet being allowed and when the strata refused the dog, the sale fell through.

The former realtor, Kelly Carnochan, told iNFOnews.ca she was "upset" and "angry" with the decision and would be seeking further legal advice.

"We're not talking a pit bull we're talking a toy poodle weighing five pounds," she said. "It's totally wrong."

According to a July 8, Civil Resolution Tribunal, Carnochan had entered into a contract of sale with a prospective buyer for an apartment she owned in the 27 Avenue condo building. The contract was conditional upon written approval from the strata that the new owner could have their small emotional support dog live with them. In August 2019 the buyer's realtor emailed the strata council requesting that the dog be able to live in the apartment and included a doctor's note supporting the individual's need for the pet.

However, the strata council said no.

The sale then fell through and Carnochan sold the apartment months later for $148,000 to another buyer. The original purchaser had offered $154,000 for the condo.

In the ruling, the strata say its decision not to approve the potential purchaser’s request for an emotional support dog was "reasonably justified" and made in accordance with the Strata Property Act. The strata said it's not responsible for any losses that Carnochan may have occurred and requested the claim be dismissed.

Carnochan filed a Civil Resolution Tribunal case arguing for $8,386 in damages resulting from the lost sale. The figure comprised of $6,000 to cover the lower sale price, plus condo fees and two months mortgage.

The case appears to fly in the face of current discrimination laws. In May a Human Rights Tribunal ordered a strata corporation must allow a 14-year-old girl with Type 1 diabetes and mental health disabilities to have her emotional support dog. The B.C. Human Rights Code ruled the strata's bylaw banning dogs discriminated against her human rights. At the time, Condominium Home Owners Association of B.C executive director Tony Gioventu told iNFOnews.ca that the Human Rights ruling may have been the first official decision concerning emotional support pets and a strata corporation.

In the July 8 Civil Resolution Tribunal decision, vice chair J. Garth Cambrey states the strata council has to follow the Strata Property Act and the B.C. Human Rights Rights code, however, the strata is only responsible for "acting in the best interests its owners. It is not responsible to act in the best interests of anyone else, including potential purchasers."

While the strata council have their own bylaw allowing owners to have a "properly trained animal" if prescribed by a physician and approved by the Strata Council, the Tribunal rules the bylaw does not apply to potential purchasers.

"The potential purchaser’s request about the strata council permitting their dog to reside in (the apartment) was purely hypothetical. The Strata Property Act and bylaws would only apply if the potential purchaser actually purchased (the apartment) and became an owner as defined under the Strata Property Act," reads the decision.

Somewhat confusingly, the decision goes on to say there is "no evidence the potential purchaser had a disability as defined under the (Human Rights) Code, such that the strata needed to consider accommodating the potential owner" even though the decision clearly says a doctor's note was included in an email to the strata requesting they allow an emotional support dog.

The Tribunal vice-chair said the contract of purchase and sale was between Carnochan and the potential purchaser and the strata "was not party to the contract. "

The vice-chair said there was no contractual obligation for the strata to facilitate the sale of Carnochan's apartment and therefore dismissed Carnochan’s claims in the dispute.

As with Civil Resolution Tribunal rules, no fees were awarded to the strata council even though they had the case against them dismissed.

iNFOnews.ca was unable to contact the strata council by press time.


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