(This is longer than most articles on newspaper websites.)

Last year, an Australian court struck down a strata ban on pets because it was “oppressive”. The court issued the decision in a case involving a luxury-condo tower in Sydney and a dog named Angus.

The dog, a miniature schnauzer, belongs to Jo Cooper, a local singer and songwriter. Cooper and husband Leo bought and moved into a unit at the Horizon, even though they knew that it had a no-pet policy. The strata corporation allows only assistance animals for residents with disabilities.

In a unanimous ruling on October 12, 2020, the court of appeal of New South Wales, which is the highest court in the state, explained why the strata’s bylaw barring pets was oppressive.

“That is because it prohibits an ordinary incident of the ownership of real property, namely, keeping a pet animal, and provides no material benefit to other occupiers,” the court stated.

A bylaw that limits the property rights of lot owners is “only lawful (valid)”, the court noted, “if it protects from adverse affection the use and enjoyment by other occupants of their own lots, or the common property”.

The rule “thus interferes with lot holders’ use of their real property in a respect and to an extent that is unjustified by any legitimate concern of others in the building”.

Moreover, it is “immaterial” whether the bylaw was “adopted or maintained by a large majority or even unanimously”.

“That would not detract from the quality of oppression, which does not depend upon whether any current lot holder desires to act contrary,” the court stated.

The court’s decision could be instructive for animal lovers and advocates elsewhere, including here in B.C.

Online, the provincial government notes that strata corporations can adopt bylaws regarding pets.

These bylaws can do a lot of things. They can ban pets, limit the number of animals, mandate leashes in common areas, limit the weight and height of pets, and so on.

But unlike the Residential Tenancy Act (RTA), which explicitly provides that landlords can bar renters from keeping pets, the Strata Property Act (SPA) does not make a categorical declaration.

Section 123 of the SPA only states: “A bylaw that prohibits a pet does not apply to a pet living with an owner, tenant or occupant at the time the bylaw is passed and which continues to live there after the bylaw is passed.”

It is also important to note that a bylaw prohibiting a pet from a strata lot or common property does not apply to guide or service dogs.

Can strata councils ban pets?

Rebeka Breder is a pioneer in the field of animal law. She founded Breder Law, which is described on the office’s website as Western Canada’s first legal firm to focus on animal law.

According to the Vancouver lawyer, the SPA simply says that if there is a prohibition, it does not apply to someone who already has a pet.

“So that begs the question: are stratas even allowed to ban pets?” Breder said in a phone interview with the Straight.

She noted that although the legislation “implies that you’re allowed to do that…there’s room to argue and it has not been tested in court”.

“I have not litigated this issue, but one day I expect I will, unless the law changes,” Breder said.

She maintained that unlike the tenancy act, Section 123 of the SPA “doesn’t necessarily allow a prohibition”.

“That’s the starting point,” Breder said.

So far, the opportunity for Breder to test the SPA and its pet provision has not yet presented itself.

As a barrister focusing on animal law, Breder has seen many different types of strata bylaws.

“On one extreme, there are bylaws that don’t allow any animals whatsoever, not even a goldfish,” she said.

There are bylaws that allow pets only to a certain height or weight, and these sometimes lead to “ridiculous” situations.

Breder related that she once represented a client who had a dog. When the person and his pet moved into a Yaletown condo, the animal was within the weight limit set by the Vancouver strata’s bylaw.

“But he had a little bit too many dog treats. So he gained weight,” the lawyer said about the pooch.

Someone noticed and complained. Even though the pet was not causing trouble to anyone, the strata sent her client a letter and demanded the removal of the dog. In short, the dog was being evicted for going over the weight limit.

Months of back-and-forths followed. The strata eventually relented. The matter did not go to court. The dog got to stay at the Yaletown condo with his owner.

“You cannot have that dog removed from the premises because, ‘Oh, he’s 10 pounds over.’ We’re not talking about furniture here,” Breder said.

Double standard for renters

Some strata bylaws treat owner-residents differently from tenants.

A Victoria strata dispute recently settled by the provincial Civil Resolution Tribunal (CRT) serves as an example.

The strata’s bylaw allows owners who occupy their units to keep pets. The rule implicitly does not do the same for renters.

An owner granted his tenants’ request to have a dog at the rental unit. The strata found out and demanded the removal of the pet.

The landlord filed a claim before the CRT arguing that the bylaw is “significantly unfair”.

Tribunal member Sherelle Goodwin ruled in favour of the strata in reasons for decision dated February 12, 2021.

Goodwin explained that “significantly unfair conduct must be more than mere prejudice or trifling unfairness”.

“Significantly unfair means conduct that is oppressive or unfairly prejudicial,” the tribunal member wrote.

The term oppressive, which is the same word used in the Australian court’s ruling, means “conduct that is burdensome, harsh, wrongful, lacking fair dealing or done in bad faith”.

The landlord argued that the Victoria strata’s bylaws should apply equally to all residents, regardless of whether they are owners or tenants.

While Goodwin agreed that the bylaw does “not benefit all residents equally”, there is “no requirement under the SPA or Strata Property Regulation that bylaws must benefit all residents equally”.

The tribunal found that the bylaw is “not significantly unfair simply because it treats owners and tenants differently”.

“The test is whether the bylaw is oppressive or unfairly prejudicial,” Goodwin wrote.

Council wins dog-barking case

Stratas also enjoy wide discretion in applying their own pet bylaws.

A dispute involving a couple and a strata corporation in Coquitlam illustrates this.

The strata has a bylaw that provides that a resident shall “not permit their pet to bark excessively anytime”. It fined the couple $200 because their dog was barking excessively.

The partners disputed the bylaw fine before the CRT. They argued that the bylaw is “ambiguous”. While it prohibits “excessive” barking, the word “excessive” is not defined.

Tribunal vice chair Kate Campbell ruled in favour of the strata.

In reasons for decision dated November 16, 2020, Campbell agreed that the interpretation of excessive requires the strata council to “exercise discretion”.

“However, that is true of many strata bylaws,” Campbell noted.

She cited as an example a standard SPA bylaw and another bylaw of the strata involved in this case. That bylaw says an owner may not use a strata lot, common property, or common assets in a way that “unreasonably interferes” with the rights of other persons to use and enjoy a strata lot or common property.

“As with excessive barking, determining when an interference is unreasonable requires applying discretion,” Campbell pointed out.

Talking about standard bylaws, the SPA provides a set of these rules that cover a range of concerns, including pets.

Stratas can adopt these standard bylaws as a default. The standard pet bylaw provides that an owner, tenant, or occupant must not keep any pets other than one or more in a list. The list consists of a “reasonable number of fish or other small aquarium animals”, a “reasonable number of small caged mammals”, up to two caged birds, and one dog or one cat.

Strata corporations are free to amend these standard bylaws and adopt their own version.

However, the SPA also provides that stratas cannot make bylaws as they please. A bylaw is deemed unenforceable if it contravenes the legislation itself, its regulations, and the B.C. Human Rights Code.

A strata’s no-dog bylaw was tested in connection with the provincial human-rights law in a discrimination complaint filed by a mother on behalf of her young daughter.

The girl suffers from mental and physical issues, including trauma caused by an abusive father. Her wellbeing improved immediately after she got a dog.

The strata council presented to condo owners two motions that would, in effect, allow the girl to keep her dog. Both motions failed at the strata’s 2019 annual general meeting.

The mother filed a complaint before the B.C. Human Rights Tribunal.

In reasons for decision on April 29, 2020, tribunal member Devyn Cousineau ruled that the daughter “needs a dog because of her disabilities”.

Cousineau declared that the bylaw prohibiting the girl from having a dog is “discrimination” and contrary to the B.C. Human Rights Code. She also ordered the strata to stop applying the no-dog bylaw to the daughter.

BCSPCA focuses on legislation

According to the B.C. Society for the Prevention of Cruelty to Animals (BCSPCA), about 1,150 pets are surrendered annually to the organization by people who cannot find pet-friendly housing.

The group also notes that this number does not include thousands of other animals, often cats. The animals are abandoned in the streets or left behind in apartments by their owners.

The BCSPCA’s manager for companion-animal welfare science and policy, Meghann Cant, believes that pet owners suffer due to the province’s strata legislation allowing stratas to ban pets.

“It leads people to make a choice between housing and keeping family members,” Cant told the Straight by phone. “It means that if they want to move into the strata, they’re forced to give up their pets, which is really unfortunate.”

She also noted that the standard strata bylaw giving a person a choice of either one dog or a cat is “arbitrary”.

The same also applies to bylaws that limit the height or weight of a pet.

“Again, that is pretty arbitrary because it’s more about the behaviour of the animal,” Cant said. “So, for instance, big dogs can be quiet. They can be very gentle, very friendly with people.”

“But, basically, by limiting their size or height or weight,” Cant continued, “it means you’re only allowed to have small dogs.”

To help residents and stratas come up with more pet-friendly bylaws, the BCSPCA released a guide in 2015.

The guide offers a sample policy for stratas. It provides that an owner, tenant, or occupant must “follow the local municipal bylaw to determine the number of pets that may be kept on a strata lot”.

For example, the City of Vancouver’s animal-control bylaw states that except for someone licensed as a kennel keeper, a person must “not keep more than three dogs at any one time or at any one place or property in the city”.

Also, a person must not keep in any area, temporarily or permanently, at any one time, more than six, in total, “hamsters, guinea pigs, tame mice, chinchillas, cats, rabbits, and other small animals and reptiles”.

The BCSPCA guide also features several proposed policies.

One is that an owner must submit a registration form for each pet. Also, all dogs, cats, and rabbits must be spayed or neutered. Pets must not be left in the unit if the resident will be absent for a long time. If a pet is causing noise, the owner should work with a pet trainer, behaviourist, sitter, or walker.

“It’s a balance of being a good neighbour and also allowing people to keep their pets,” Cant said.

According to Cant, pets are wonderful companions, especially in times like the current COVID-19 pandemic.

Legal environment evolves

Breder opened her own office after working for more than a decade in a Vancouver downtown law firm.

“The people who come to me, not once has their animal actually caused a problem,” Breder related.

“It’s just that someone complained in the building, because it’s either a no-pet building or maybe they have one too many cats and that person doesn’t like animals and he goes to strata council and strata council sends a letter,” she said.

According to her, stratas always have a bylaw that prohibits unreasonable interference with someone else’s right to use and enjoy their property. So the question is: how does an animal interfere with that?

“Fundamentally, that’s what matters. If the answer is that that animal doesn’t, then the animal stays,” Breder said.

The Vancouver lawyer is also in the forefront of changing the way courts treat and consider animals.

In law, animals are considered personal property, or chattel. However, in a 2015 ruling on an ownership dispute, a B.C. provincial judge accepted a proposition put forward by Breder in the case.

It’s that “in the case law, there is an acceptance that an animal is not just an ordinary piece of property”.

“Animals are something more than just a simple chattel,” Judge David St. Pierre wrote.

He ruled that animals are “living beings that people create inextricable bonds with and these bonds are powerful”.

Breder told the Straight that a number of courts are now saying that they need to consider the “best interest” of an animal in deciding cases.

“Judges are realizing, ‘Oof, what do I do here? On the one hand, animals are property, but on the other hand, I can’t treat this animal like a chair,’ ” Breder said.

In a case wherein Breder represented a litigant, Judge Valliammai Chettiar noted that in two separate and previously decided cases, “even though animals are considered personal property, they are treated differently.”

“Factors different from those considered inanimate objects, including the best interests of the animals, are to be considered when addressing competing claims for animals,” Chettiar wrote in the 2016 judgment.

According to Breder, there is an ongoing “evolution in the language and the approach that judges are using”.

“Without a doubt, I would say that the landscape is changing,” she said.

Although there is a long way to go, Breder believes that it is changing for the better.