CONDOMINIUM AUTHORITY TRIBUNAL
DATE: May 8, 2024
CASE: 2023-00199N
Citation: Metropolitan Toronto Condominium Corporation No. 1053 v. Ahluwalia et al., 2024 ONCAT 63
Order under section 1.44 of the Condominium Act, 1998.
Member: Brian Cook, Member
The Applicant,
Metropolitan Toronto Condominium Corporation No. 1053
Represented Bharat Kapoor, Counsel
The Respondents,
Birinder Ahluwalia
Self-Represented
Sohni Ahluwalia
Self-Represented
Hearing: Written Online Hearing – September 27, 2023 to March 27, 2024
REASONS FOR DECISION
A. INTRODUCTION
[1] Birinder Ahluwalia is the owner of a unit in Metropolitan Toronto Condominium Corporation No. 1053 (“MTCC 1053” or “Palace Pier”). Sohni Ahluwalia is his daughter. She lives in the unit with her daughter. Two dogs also reside in the unit. The MTCC 1053 governing documents provide that only one dog per unit is permitted. The Applicant seeks an order directing the Respondents to remove one of the dogs.
[2] The Respondents assert that both dogs are emotional support or service animals and that one (“Blue”), provides support for Mr. Ahluwalia and the other (“Batman”), provides support for Ms. Ahluwalia. The Respondents assert that both Mr. and Ms. Ahluwalia are residing in the unit and that they are entitled to an accommodation under the Ontario Human Rights Code to allow them to have two dogs in the unit.
[3] The Applicant asserts that Mr. Ahluwalia is not residing in the unit and that because of this, the corporation is not required to consider an accommodation request from Mr. Ahluwalia. They submit that both dogs are living in the unit with Ms. Ahluwalia and that this is contrary to the governing documents.
[4] The history of this dispute has been characterized by some confusion. Based on its belief that both dogs belonged to Ms. Ahluwalia, MTCC 1053 initially asked for medical confirmation that she requires two dogs because of a disability. Based on their assertion that Mr. Ahluwalia is a resident of the unit, the Respondents provided medical evidence pertaining to Ms. Ahluwalia’s disability and separate evidence concerning Mr. Ahluwalia.
[5] During the hearing, it was clarified that Ms. Ahluwalia is not seeking an accommodation to allow her to have two dogs. It was further clarified that since one dog is permitted, Ms. Ahluwalia does not require accommodation to allow her to have her dog.
B. ISSUES
[6] As defined by the Applicant, the issue is whether Mr. Ahluwalia is a resident of the unit. The Applicant asserts that he is not a resident in the unit and that the two dogs reside in the unit with Ms. Ahluwalia, contrary to the governing documents of the condominium.
[7] A secondary issue is whether the Applicant is entitled to costs related to carpet soiling allegedly caused by the dogs.
C. EVIDENCE AND SUBMISSIONS
[8] The hearing in this matter extended over many months. Much of the delay was related to requests for accommodation by the Respondents regarding timing of events. Evidence was received in video conference calls and documents submitted by the parties. I also heard and received extensive submissions from the Respondents on a wide range of issues, including allegations of discrimination under the Human Rights Code on the basis of family status, services, and disability, and allegations of violations of the Accessibility for Ontarians with Disabilities Act. I have only addressed these submissions as they relate to the issues that are relevant to this case.
[9] MTCC 1053 relies on a statement prepared by Michael Schwartz, the condominium manager. Mr. Schwartz adopted his statement as his evidence in chief and was subject to a detailed cross-examination by the Respondents.
Key fobs and security video
[10] Mr. Schwartz’s statement includes information about the use of key fobs that are registered to the unit, and a review of security video. Mr. Schwartz asserts that this evidence shows that Mr. Ahluwalia comes to the condominium but does not stay overnight. He typically comes in the morning, often to pick up his granddaughter. If he returns, he leaves by the afternoon, not returning until the next day. Mr. Schwartz testified that to his knowledge, Mr. Ahluwalia’s dog Blue has not been seen to accompany Mr. Ahluwalia when he arrives or leaves.
[11] Mr. Schwartz indicated that his testimony is based on his own observations and review of security video and discussions with security personnel. Ms. Ahluwalia objected that the security personnel were not called as witnesses to testify directly about their observations.
[12] Mr. Schwartz indicated that he had reviewed the security video personally and spoke with the security personnel. He has also made his own observations of the comings and goings of Mr. Ahluwalia. Under section 15 of the Statutory Powers Procedure Act, the tribunal may admit evidence that would not be admissible in court. Noting Mr. Schwartz’s personal knowledge of the security video and his own observations, I find his evidence on this point to be admissible, but subject to weight, as discussed below.
[13] In discussion about the fob logs, Mr. Schwartz agreed that while the logs show which fob was used, there is no way to know who used the fob. So, records that show that a fob registered to Ms. Ahluwalia was used does not establish if the fob was used by Ms. Ahluwalia or Mr. Ahluwalia. Mr. Ahluwalia states that he often does not use a fob at all as he enters with other residents or is recognized by security who let him in.
[14] In his answer to written questions from me at the end of the hearing process, Mr. Ahluwalia notes that the video evidence relied on by the Applicant consists of isolated occasions. He says that he comes and goes from the condominium at various times. He often goes out for a coffee and returns to pick up his granddaughter to take her to school.
Parking
[15] Mr. Schwartz testified that the condominium installed a video licence recognition system a few years ago to keep track of parking in the resident parking area. He indicated that Mr. Ahluwalia has not registered a vehicle in this system and the recognition system has not identified Mr. Ahluwalia’s vehicles.
[16] Mr. Ahluwalia initially testified the reason for this is that if he drives his own vehicle, he usually parks in an above ground parking area and that he more often takes Uber. In his answers to written questions posed by me at the end of the hearing process, Mr. Ahluwalia said that he parks in a variety of places, including the parking spot registered to the unit. if he parks his own car at the condominium, his practice is to give the keys to the valet who then parks the car. He says that he does not currently have a car registered with the condominium because he has never been required to do so. Since his car is not registered in the system, his licence plate is not registered by the automatic system. However, he says that this is not necessary because the security person recognizes him and opens the gate for him. He asserts that in the 20 years that he has owned the unit, he has never been required to register a vehicle or had his parking practices challenged. He believes that his parking practices are the same as other residents.
[17] In his answer to my written questions, Mr. Ahluwalia added that he often has “agents” with him in the car who return the car to the place required for insurance purposes, which I understand is the Cummer Ave. address noted below.
Other residences
[18] Mr. Ahluwalia testified that he sleeps in the unit about 80% of the time. He travels for work which explains some of his absence. He testified that he owns several other properties and indicated that he sometimes stays in one or more of them. Mr. Ahluwalia was rather vague about these other properties. He indicated that other of his children live in some of them and that he sometimes stays with them. In his answers to my questions at the end of the hearing process, he referred to multiple properties in Ontario and around the world. He further advised that Ms. Ahluwalia also owns other properties and that she sometimes stays in them.
[19] Mr. Ahluwalia’s driver’s license lists a property on Cummer Ave. in Toronto as his address. He explained that he was advised to list this property as his place of residence by his accountant. He indicated that ownership of four vehicles which he owns, either personally or through a corporation, are also registered to this address. He has provided a letter from an accountant confirming that he advised Mr. Ahluwalia to register the vehicles at the Cummer Ave. address for “insurance and tax related purposes”. In submissions from Ms. Ahluwalia, she indicated that the reason the vehicles are registered to the Cummer Ave. property is that it is too expensive to park them at Palace Pier.
[20] In my written questions at the end of the hearing process, Mr. Ahluwalia was asked who lives at the Cummer Ave. address and whether he sometimes stays there. He answered that “authorized individuals” reside there and that he and Ms. Ahluwalia and her daughter sometimes stay there as well.
[21] Mr. Ahluwalia’s evidence is that he is registered to vote using the Palace Pier address.
[22] Mr. Ahluwalia noted that he regularly receives emails from MTCC 1053 that are sent to “residents” and suggests that this shows that MTCC 1053 agrees he is a resident. Mr. Schwartz indicated that emails to residents are often sent to owners as well.
[23] Mr. Ahluwalia has provided a bank statement showing monthly withdrawals to MTCC 1053. The bank statement indicates an address for Mr. Ahluwalia on Sheppard Ave. in Toronto. Mr. Ahluwalia has provided account statements from service providers in reference to the unit. He has also provided a letter from a friend who states that he has visited Mr. Ahluwalia at the MTCC 1053 unit on at least 25 occasions in the last year and picked him up or dropped him off at the building on at least 30 occasions. The friend asserts that he believes that Mr. Ahluwalia’s regular residence is in the unit.
[24] In his affidavit, Mr. Schwartz said that he finds it difficult to believe that two adults, one child, and two dogs are living in a one-bedroom unit. He notes that this arrangement would contravene the governing documents. However, counsel for the Applicant advised that MTCC 1053 is not pursuing this issue at this time.
The dogs
[25] Mr. Ahluwalia indicated that his dog Blue is usually with him. However, other evidence indicates that while Mr. Ahluwalia is not generally in the unit during the day, Blue usually is. For example, a statement from Mr. Ahluwalia’s ex-wife confirms that she often walks both dogs during the day. In her final submissions, Ms. Ahluwalia indicates that Mr. Ahluwalia rarely walks the dogs because of his age and disability and that she often walks both dogs. A statement from a family friend similarly confirms that the dogs are usually together during the day.
[26] The Respondents indicated that Blue assists Mr. Ahluwalia with support that includes management of coordination, mobility, blood pressure, and pain.
[27] Mr. Ahluwalia testified that he has another dog who is also a support or service animal that lives in another unit he owns. In answer to my questions at the end of the hearing process, Mr. Ahluwalia indicated that the other service dog is being trained in Mt. Forest Ontario, where Mr. Ahluwalia owns a property. Mr. Ahluwalia further indicated that he also owns a horse that is also a support animal.
[28] MTCC 1053 first raised concerns relating to the dogs on October 6, 2022, when Mr. Schwartz wrote a letter to the Respondents noting that there were two dogs in the unit, contrary to the rules.
[29] On November 21, 2022, Mr. Schwartz wrote again, adding an allegation that the dogs had soiled and stained the carpets in the hallway outside the unit. He added that dirt had been observed on the carpet outside the door to the unit.
[30] These early communications proceeded on the understanding that both dogs belonged to Ms. Ahluwalia.
[31] Following the involvement of a lawyer retained by MTCC 1053 Ms. Ahluwalia added some medical information about her disability and need for a service animal.
[32] Limited information about Mr. Ahluwalia’s health has also been provided. This includes a report from a physician describing physical injuries sustained by Mr. Ahluwalia in a motor vehicle accident in 2019. That letter makes no mention of any need for a service dog. An email has also been provided from a doctor using a private email address. It reads as follows in its entirety:
Mr. Ahluwahlia has a disability.
Mr. Ahluwahlia uses a dog to support management of his disability.
[33] Through its legal counsel, MTCC 1053 determined that information about Mr. Ahluwalia’s health was “irrelevant” because he is not a resident of the unit. This means that MTCC 1053 has not considered whether Mr. Ahluwalia is entitled to accommodation to allow him to have Blue with him when he is at the unit.
D. ANALYSIS
[34] This case arises because there are two dogs living in the unit, but the governing documents say that only one dog can live in a unit. Mr. Ahluwalia maintains he is entitled to an accommodation because Blue is an emotional support or service dog.
[35] MTCC 1053 alleges that Mr. Ahluwalia is not a resident of the condominium and that two dogs are living in the unit in contravention of the rules. The Respondents assert that Mr. Ahluwalia resides in the unit about 80% of the time. There is thus a stark difference between the parties.
[36] It must be noted that even if it is true that the unit is Mr. Ahluwalia’s principal residence where he resides 80% of the time, it does not follow that he is entitled to an accommodation to permit Blue to also live in the unit. That would require an assessment of whether Mr. Ahluwalia has a disability and whether Blue provides necessary assistance in managing that disability.
[37] So far, Mr. Ahluwalia has provided minimal support for the contention that Blue is an emotional support or service animal who provides necessary support for managing a disability. However, it is also true that MTCC 1053 has not requested more information that would allow it to assess a request for accommodation, choosing instead to pursue the claim that Mr. Ahluwalia is not a resident of the condominium.
Has the Applicant shown that Mr. Ahluwalia is not a resident?
[38] A significant problem with how MTCC 1053 has approached this situation is that there does not appear to be a definition of “resident”. Resident is not defined in the MTCC 1053 governing documents or the Condominium Act, 1998 (the “Act”).
[39] In submissions, counsel for the Applicant suggested that the test may be whether the unit is Mr. Ahluwalia’s principal residence. I pause to note that even if the unit is not Mr. Ahluwalia’s principal residence, it does not follow that he is not entitled to an assessment of his request for accommodation to allow him to have Blue stay in the unit when he also lives in the unit.
[40] I find that the evidence presented by the Applicant does not establish that Mr. Ahluwalia does not ever stay overnight in the unit. Mr. Schwartz’s evidence was that from his observations and from information from the security personnel, Mr. Ahluwalia appears to mostly arrive at Palace Pier to pick up his granddaughter, often not returning until the next day. However, Mr. Schwartz did not purport to have complete knowledge of Mr. Ahluwalia’s comings and goings. Mr. Ahluwalia has provided Uber receipts to show that he comes and goes at various times.
[41] I do, however, accept Mr. Schwartz’s evidence that Blue is rarely if ever seen to be with Mr. Ahluwalia when Mr. Ahluwalia arrives or leaves. This raises some doubt about whether Blue really is a support or service animal. Most people who require an emotional support animal require support other than just at home. The supports that the Respondents say Blue provides are supports that are only available when Blue is with Mr. Ahluwalia.
[42] The fact that Mr. Ahluwalia testified about the existence of another support or service dog and also a horse further raises some questions about Blue’s status.
Have the Respondents shown that Mr. Ahluwalia resides in the unit most of the time?
[43] Mr. Ahluwalia provided limited evidence to support his contention that he lives in the unit most of the time. He has provided letters addressed to him at the Palace Pier address, but these are from businesses related to the ownership of the unit, such as from banks and insurance companies. He has not provided any letters addressed to him personally at the Palace Pier unit. The Respondents provided photos of Mr. Ahluwalia outside the unit, but this does not establish that he resides there. No details of the unit were provided that might have clarified the living arrangements.
[44] Counsel for the Applicant suggests that it can be inferred that Mr. Ahluwalia does not live in the unit on the basis of some of Mr. Ahluwalia’s evidence. The most significant evidence in this regard is the fact that Mr. Ahluwalia’s driver’s license lists the Cummer Avenue location as his place of residence and vehicles are registered to that same address. Added to this is the fact that Mr. Ahluwalia was intentionally vague about the Cummer Avenue location, claiming incorrectly that details about the Cummer Avenue location are not relevant.
[45] I find that Mr. Ahluwalia has not established that he resides in the Palace Pier unit 80% of the time or that the unit is his principal residence. However, I find that he has provided sufficient evidence to show that it is more probable than not that he is either an occasional resident, or a frequent guest.
[46] The terms “guest” and “visitor” are defined in the MTCC 1053 rules:
“Guest” or “visitor” is one who visits for a day or part thereof or overnight or longer with a resident.
[47] There is no rule specifically about guests who have a dog. However, the rule about pets stipulates that no more than one dog shall be allowed or kept in any unit, which suggests that a visitor or guest may not bring a dog if there is already a dog in the unit.
[48] In this case, as the owner of the unit, and as Ms. Ahluwalia is not a tenant, Mr. Ahluwalia can visit the unit whenever he wishes.
Is Mr. Ahluwalia entitled to an assessment of his accommodation request?
[49] I find that Mr. Ahluwalia is entitled to have his request for accommodation considered. The accommodation process did not occur in this case because MTCC 1053 concluded that it was not required to consider a request from someone they deemed to be not a resident.
[50] In considering a request for accommodation to allow a person to have a support or service dog, the person requesting the accommodation is generally required to provide evidence to show that they have a disability and that the dog provides support to help them manage their disability or symptoms related to the disability. Medical confirmation is generally required. A condominium that receives a request for accommodation is entitled to ask for reasonable additional information if the information provided is not clear or is not sufficient.
[51] The accommodation Mr. Ahluwalia is seeking is to allow an exception to the governing documents so that there can be two dogs in the unit. This requires an assessment of whether Mr. Ahluwalia has a disability as defined by the Human Rights Code and if he requires a support or service animal to help him manage the disability and symptoms related to the disability. Typically, a request for accommodation of this sort requires more medical information than Mr. Ahluwalia has so far provided. Typically, information from a treating health care provider is required that provides some details about why a support or service animal is medically recommended. It is not usually necessary to provide a diagnosis.
[52] The request for accommodation will also involve a consideration of whether Blue is in fact a support or service animal, given the concerns noted earlier.
[53] If there is a determination that Mr. Ahluwalia is entitled to an accommodation, it would not follow that Blue can live in the unit permanently. It would rather follow that Blue can stay in the unit at such time or times as Mr. Ahluwalia is also staying in the unit.
Carpet soiling
[54] The allegation that the dogs soiled or stained the carpet is based on information provided by other residents who surmised that the soiling was caused by the Respondent’s dogs. None of these other residents saw the dogs soiling the carpet. The issue of possible dog-related soiling incorrectly became conflated with some dirt on the carpet from plants and there is no clear evidence that the dogs soiled the carpets. This allegation is dismissed on the basis that there is not sufficient evidence to support the allegation and the carpet has been replaced in any event as part of a schedule maintenance.
Costs
[55] I find that neither party is entitled to any costs.
E. CONCLUSION
[56] If Mr. Ahluwalia wishes to pursue a request for accommodation, he must provide a detailed written request to MTCC 1053. The request should set out the basis for the request, the nature of the support that Blue provides, and a proposal for how the accommodation will work when Mr. Ahluwalia is not staying in the unit. This request must be made within two weeks of the date of this decision. If the request is not received within two weeks, Blue cannot remain in the unit and the Respondents must make other arrangements for where Blue will reside.
[57] If the request is received by MTCC 1053, it shall advise the Respondents within two weeks of its determination or if further information is required.
F. ORDER
[58] The Tribunal Orders that:
1. The application is dismissed without costs.
2. If Mr. Ahluwalia wishes to pursue a request for accommodation, he must provide a detailed written request. The request should set out the basis for the request, the nature of the support that Blue provides, and a proposal for how the accommodation will work when Mr. Ahluwalia is not staying in the unit. This request must be made within two weeks of the date of this decision. If the request is not received within two weeks, Blue cannot remain in the unit and the Respondents must make other arrangements for where Blue will reside.
3. If the request is received by MTCC 1053, it shall advise the Respondents within two weeks of its determination or if further information is required.
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Brian Cook |
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Member, Condominium Authority Tribunal |
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Released on: May 8, 2024