For true animal lovers, pets are family – FULL STOP.
They provide us with countless benefits like reducing stress, lowering blood pressure, promoting social interaction, providing security, fighting allergies, alleviating depression and fostering higher self-esteem to name but a few.
This is an instance where one pet owner decided he was going to fight for his dog.
In a recent case heard by the BC Civil Resolution Tribunal, a North Vancouver strata council tried to evict Parham Esfahani’s golden retriever puppy, Zoey.
Esfahani’s purchased the condo in 2016. In October 2016, when Zoey moved into the building, the strata advised Esfahani that Zoey did not meet the definition of “small dog” as defined in the strata bylaws.
The bylaw in which Esfahani was in contravention reads as follows:
- 3 (4) An owner, tenant or occupant must not keep any pets on a strata lot other than one or more of the following:
(d) one small dog…; small being defined as an animal that can comfortably be picked up and carried.
Esfahani received a letter from the strata manager in October of 2016 advising him that “while the puppy at the time fit within the definition of a ‘small dog’, that breed of dog would mature into a larger dog which would not be permitted under the bylaw”.
In response to this letter, Esfahani met with 3 members of the strata council to ask the strata to exercise their discretion in allowing Zoey to remain in the complex once fully grown, arguing that they have made exceptions in the past which included a wheaten terrier, a pit bull and a golden doodle.
In December 2016, the Strata sent another letter to Esfahani stating that “the dog does not fit within the definition of ‘small dog’ now and it is not permitted in the building under the bylaw.” Esfahani was told to remove the dog from the property no later than June 30, 2017.
If the dog was not removed a fine of $200 could be imposed every seven days until the dog vacated the premises.
The strata gave the Civil Resolution Tribunal definitions of golden retriever from various websites which described the breed as a medium-large or large dog. The strata also quoted the American Kennel Club which defines “small dog” as weighing between 7 to 35 pounds. According to the American Kennel Club, a golden retriever is a “large dog” typically weighing between 55 to 75 pounds.
Esfahani provided two videos to demonstrate that he could pick Zoey up and carry her without difficulty for a minute or so. Esfahani also argued that the strata was inconsistent with enforcing the bylaw law in allowing the wheaten terrier, pit bull and golden doodle who didn’t meet the criteria of a small dog to be grandfathered into the bylaw.
Tribunal Member Baird determined that the meaning of “small dog” in the bylaw was vague.
The bylaw defines “small dog” in terms of it being able to be comfortably carried and not by specific breed according to the American Kennel Club as argued by the Strata.
Comfortability is a very subjective factor and it was not clear who must be able to pick up and carry the animal, what is considered comfortable and at what point in time the measurement should be made. Moreover, Esfahani provided videos which were clear evidence that he could pick up and carry Zoey without any signs of distress while holding her.
Baird continued that “there is no objective criteria to determine if a dog is or is not in compliance with the bylaw. There may be cases where a golden retriever weighs less than 35 pounds, in which case it would be a small dog by the American Kennel Club definition. This may be because of age, condition or perhaps breeding.”
In this case, justice prevailed!
Baird held that bylaw was unenforceable for vagueness. Baird stated that the strata will have to pass a new bylaw and Zoey will be grandfathered into the new bylaw. Any fines levied against the Esfahani were reversed.
THE MORAL OF THE STORY
READ THE BYLAWS BEFORE YOU PURCHASE! Many Strata units in Metro Vancouver have pet bylaws with specific restrictions regarding type, size and number of pets permitted. This should be one of the due diligence items in your contract of purchase and sale expressed as a “subject condition.”
If you are a member of a strata council and have pet restrictions in your bylaws make sure that the criteria to determine violations are specific and objective if you want to be able to lawfully enforce those restrictions.
Note on the Civil Resolution Tribunal
Due to the skyrocketing cost of housing, most newly constructed residential buildings in BC are strata properties –apartments or townhomes.
When many people are located in a comparatively small space, problems and disputes inevitably occur.
Sections 164 and 165 of the Strata Property Act allow aggrieved owners to seek redress in court for unfair acts and to compel a strata corporation to carry out its duties or refrain from contravening the Act among other things.
Unfortunately, the cost of even fairly minor litigation is prohibitively expensive for most owners.
To address this situation the Civil Resolution Tribunal was established in BC.
The Civil Resolution Tribunal (CRT) is the first online tribunal that has the authority to hear certain strata property disputes and civil claims. Using collaborative problem solving methods, the CRT resolves disputes in a timely and cost effective manner. The CRT is available 24/7 from any computer or mobile device, offering timely access to justice.
The small claim disputes that the CRT can resolve are disputes under $5000 which include:
- Debt or damages
- Recovery of personal property
- Personal injury
- Specific performance agreements involving personal property or services
Strata disputes that the CRT can resolve include:
- Non-payment of monthly strata fees or fines
- Strata’s failure to enforce its bylaws
- Financial responsibility for repairs
- Unfair, arbitrary or non-enforcement of strata bylaws such as noise, pets, parking rentals and more.
- For more information on what disputes the CRT has jurisdiction to resolve and how to start your dispute visit their website at https://civilresolutionbc.ca/
- If you don’t like the decision, a party to the proceeding can file an application for leave to the BC Supreme Court in a strata dispute or file a Notice of Objection in a small claims matter.
Is the CRT a good idea?
Time will tell, but if you have had a good or bad experience with them, let us know!
©2018 Pazder Law Corporation
Disclaimer: The foregoing is not legal advice, but is provided for information purposes only.