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Pet Problems: Avenues for Landlords to Deal with Problem Pets

Martin Smith
Martin Smith,
Partner

March 2015

By Martin Smith
First presented at a Landlords Association of Durham Meeting

Introduction

Landlords have long since struggled with the issue of "problem pets" in their residential units. Cleanliness, property damage and liability for injuries caused by tenants' pets are all common concerns. What does provincial legislation say about pets in residential complexes and what options are available to landlords?

Applicable legislation

The Residential Tenancies Act, 2006 is provincial legislation in Ontario that regulates tenancies. Section 14 of the Residential Tenancies Act states “a provision in a tenancy agreement prohibiting the presence of animals in or about the residential complex is void”.1 This means that any provisions in residential lease agreements forbidding pets are not enforceable.

The Dog Owners' Liability Act is provincial legislation in Ontario that imposes strict liability on dog owners for injuries caused by their pets.2 This means that proof of intent or negligence on the part of the dog owner is not needed to impose liability for injuries caused by the animal. The statute further discusses which dogs are deemed aggressive and bans pit bulls in Ontario.

Landlords can also exposed to liability for injuries caused by a tenant's dog under the Occupiers' Liability Act. This Act imposes a statutory duty of care on landlords, requiring them to take reasonable care to ensure persons on their premises and their property is safe while on the premises.3 Whether or not a landlord has met his/her duty of care is determined based on the facts of each case.

What is a Landlord to do?

With possible exposure for injuries caused by tenants'dogs and “no pet provisions” unenforceable, how are landlords supposed to fulfill their statutory duty of care under the Occupiers'Liability Act?

One avenue is for landlords to bring applications under section 76 of the Residential Tenancies Act to end a tenancy agreement. Section 76 (1) outlines the test to be met by the applicant when attempting to end a tenancy agreement pursuant to a notice of termination under sections 64, 65 or 66. It specifically applies when trying to end a tenancy because presence of an animal in a residential complex is interfering with the reasonable enjoyment of the landlord or other tenants. It states that the Board will not end a tenancy agreement unless satisfied that that the tenant is keeping the animal and that:

(a) subject to subsection (2), the past behaviour of an animal of that species has substantially interfered with the reasonable enjoyment of the residential complex for all usual purposes by the landlord or other tenants;

(b) subject to subsection (3), the presence of an animal of that species has caused the landlord or another tenant to suffer a serious allergic reaction; or

(c) the presence of an animal of that species or breed is inherently dangerous to the safety of the landlord or the other tenants.4

It is important to note that interpretation of the Act suggests only one of the above subsections must be proven in order for the Board to end the tenancy.

Section 76 and Landlord Tenant Board Decisions

Ontario Landlord Tenant Board Decision # TNL-51096-13 (2014)

The landlord brought an application to terminate the tenancy on the basis that she was suffering a severe allergic reaction to the tenant's dog. The landlord was renting a two bedroom apartment in the basement of a house and lived on the main and second floors of the house. The landlord stated no pets were allowed and the tenant agreed. The tenant then moved in with his pet golden retriever.

At the hearing, the landlord put forth evidence that she suffered from severe asthma, exacerbated by pets, and presented a letter from her doctor supporting this claim. The landlord also provided records of her absences from work, to demonstrate the severe impact the tenant's dog was having on her life. Lastly, the landlord put forth expert evidence regarding the airflow transfer between the basement apartment and the main house. The tenant stated the landlord was exaggerating her symptoms but provided no evidence to support this speculation. The Board determined that the tenant's dog was severely impacting the health of the landlord. Further, the Board determined it was not reasonable, nor does the Act require the landlord to incur thousands of dollars in costs to change the furnace operating system in the house in order to allow the tenant to keep his dog. The Board allowed the landlord's application to end the tenancy agreement.

Key Points: This case illustrates the importance of providing sufficient evidence at tribunal hearings to claims that a pet is interfering with your right to reasonable enjoyment. This can be done by taking notes of incidents and recording any tenant complaints. Additionally it suggests that once a valid claim for reasonable interference with enjoyment is found, the Board does not expect landlords to incur unreasonable expenses in order to accommodate a tenant's pet.

Ontario Landlord Tenant Board Decision TEL-26968 (2009)

The landlord applied to terminate the tenancy claiming the tenant was substantially interfering with the reasonable and lawful enjoyment of the landlord and other tenants. The tenant owned a St. Bernard, which allegedly attacked three other residents'smaller pets as they were passing by

the tenant's unit, in two unrelated incidents. In one incident the complainant alleged the St. Bernard had to be beat down by the smaller dog's owner in order to be stopped. The tenant then erected a fence to keep the St. Bernard away from other animals. However, the tenant vehemently denied the St. Bernard attacked other animals, stating he was still a pup that needed to be taught and was only attempting to play with the other dogs. The Board believed the tenant's account and found he had taken precautions by erecting the fence to keep the St. Bernard contained. The Board further noted that while the landlord claimed the St. Bernard was “inherently dangerous”, St. Bernards are not included on the dangerous dog list under the Dog Owners' Liability Act. The Board found no basis for termination of the tenancy agreement and denied the landlord's application.

Key Points: This case speaks to the classification of dogs as “inherently dangerous”. While this term is not defined in the Dog Owners' Liability Act, section 1 of the Act defines “pit-bull” to include Pit Bull Terriers, Staffordshire Bull Terriers, American Staffordshire Terriers, American Pit Bull Terriers, and any dog that has a physical appearance substantially similar to any of these dogs.5 These breeds are generally accepted as dangerous because their ownership is restricted and regulated by the Dog Owners' Liability Act.

Ontario Landlord Tenant Board Decision TSL-29326 (2010)

The landlord brought an application to end the tenancy agreement because the tenant was substantially interfering with the landlords'reasonable enjoyment. Sometime after the tenants moved in, the landlords discovered the tenants owned three dogs (two of which were pit bulls), multiple exotic birds and a large monitor lizard. The pit bulls were legally owned by the tenants under the Dog Owner's Liability Act as they were born prior to 2005, when the pit-bull ban came into effect in Ontario. The female landlord had a phobia of pit-bulls. The Board determined that although they found the landlord's phobia to be genuine, this did not amount to the tenant's conduct being a substantial interference with the landlord's reasonable enjoyment. Rather, they found the interference to be a result of the landlord's own fears and bias. The Board went on to say that even if the Landlord's fears were somehow caused by the tenant's conduct, section 76 requires that the tenant's dogs caused or contributed to the substantial interference. This was not found in this case and therefore the landlord's application to end the tenancy was dismissed.

Key Points: Interpretation of the statute suggests that section 76 (c) does not require the substantial interference to be caused by the specific dog, but rather that the animal's presence is dangerous because its specific breed is inherently dangerous. However the Board did not interpret section 76 this way in the above case. The Board appears to be tenant friendly when dealing with such issues, often requiring evidence that the specific animal in question has caused substantial interference with the reasonable enjoyment of others.

Recommendations for Landlords

  1. Be aware of relevant municipal by-laws - As a landlord it is important to be aware of all by-laws regulating pet control in your municipality. Many municipalities have by-laws relating to pet control and animal licensing. These by-laws often regulate which animals are forbidden in residential complexes, as well as the number of dogs that can be kept in a residential complex. Violation of municipal by-laws is legitimate grounds for filing a complaint with your local municipal by-law enforcement agency or animal control and may lead to impoundment of illegally kept animals.

  2. Have a pet policy in place - Having a pet policy in place in residential complexes which requires tenants to disclose any pets they have as well as requiring dogs to be on leashes in all public spaces will help landlords fulfill their statutory duty of care. It helps demonstrate the landlord is taking proactive steps to maintain a safe environment.

  3. Keep detailed records - Keep detailed notes and records of any incidents involving tenants'pets or any complaints from other tenants. Be responsive to other tenants'complaints regarding pets and deal with them appropriately.

1 Residential Tenancies Act, 2006, SO c 17, s. 14.
2 Dog Owners' Liability Act, RSO 1990 c D.16, s. 2.
3 Occupiers' Liability Act, RSO 1990 c O.2, s. 3.
4 Supra note 1 at s. 76 (1)..
5 Supra note 2 at s. 2.


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