Cet article examine la manière dont le Tribunal administratif du logement traite les litiges relatifs aux clauses interdisant les animaux de compagnie (“no-pet clauses”), en examinant tout d’abord le droit applicable, puis les exceptions acceptées par le Tribunal. Le texte est disponible en anglais seulement.

 

Auteur.e.s: Beata Elliott et Gillian Smith

 

Table of contents

Introduction

General Law

Exceptions

Service Animals

Therapy Animals

Bad Faith

Tolerance

Lack of Serious Prejudice

Implications of this Law/Discussion

Discrimination Before a Lease is Signed

Inconsistent and Unclear Regulations

Medical Documentation

Conclusion

 

Introduction

Every year, the Tribunal Administratif du Logement (TAL) hears many disputes between landlords and tenants over clauses banning animals in residential leases (commonly known as “no pet clauses”). When those clauses are violated, landlords often seek to expel the animal from the dwelling, fearing property damage or excessive noise. At the same time, many tenants consider these clauses extremely prejudicial. In the midst of a housing crisis, tenants cannot afford to be picky with apartments, and many will end up renting for a long time, with little hope of ever owning their own property. Many tenants therefore feel that it is unfair that they are prevented from owning pets. This paper will examine how the TAL handles disputes over no pet clauses, examining first the applicable law, then the exceptions accepted by the TAL. Finally, this paper will analyze the implications of the TAL’s handling of no pet clauses.

General Law

Landlords in Quebec may include clauses forbidding pets in a residential lease. Such clauses range from limiting the size or type of pet allowed, to outright banning all pets from the dwelling.^[1] These clauses have consistently been upheld by Quebec courts and tribunals as valid and reasonable.^[2] When a tenant agrees to a no pet clause and then gets a pet anyways, the TAL orders them to get rid of their pet, usually within 30 to 60 days of a judgment being rendered.^[3] Tenants can successfully keep their animal despite a no pet clause through a handful of exceptions.

Sometimes, when tenants violate no pet clauses, landlords apply to the TAL to have the lease resiliated pursuant to article 1863 of the Civil Code of Quebec (CCQ). These claims are rarely successful. In order to have the lease resiliated, the landlord must prove that they suffered a serious prejudice.^[4] Often times, serious prejudice is found when the presence of a pet is combined with other factors, such as the tenant being late on rent,^[5] violating other clauses in the lease,^[6] or harassing their neighbours.^[7] In other cases, the TAL may order the resiliation of a lease if the condition ordering the tenant to get rid of their pet within a specific time period was not met.^[8]

Exceptions

When a tenant is found to have violated a no pet clause, they can keep their animal in certain exceptional situations: if the animal is a service animal, if the animal is a therapy animal, or if their landlord is acting in bad faith. In some cases, tenants have also been successful in keeping their pets by proving that the landlord has set a standard of tolerance towards their pets or pets in the building, though this argument is generally rejected by the TAL. Tenants whose landlords are attempting to resiliate their lease due to their animal can maintain the lease by proving a lack of serious prejudice caused by the animal.

Service Animals

Use of a service animal is protected under section 10 of the Quebec Charter of Human Rights and Freedoms, as they are a “means to palliate a handicap,” and thus exempt from no pet clauses.^[9] These animals, primarily dogs, receive extensive training to behave calmly in public spaces, and are trained to perform a specific task to alleviate their owner’s disability.^[10] While the most commonly known service animals are guide dogs for people with visual impairments, service animals are used by people with a wide range of disabilities.^[11]

Tenants claiming that their animal is a service animal are expected to provide the TAL with medical evidence that they need this animal to palliate their disability.^[12] This generally takes the form of testimony from doctors prescribing the tenant with a service animal for their condition. The TAL also often requires that this evidence be specific about how the animal in question palliates their disability.^[13] The expertise of the doctor in question can also be relevant here.^[14] It can also be necessary to provide proof of the service animal’s training, to show that it has can fulfill its medical task.^[15]

Therapy Animals

Therapy animals occupy a grey zone between service animals and pets, and the law concerning them can be inconsistent. While they are less protected than service animals, evidence that an animal provides a therapeutic benefit can allow a tenant to keep their animal despite a no pet clause. Tenants are expected to provide medical evidence of a psychological condition, and evidence that the animal in question assists with this condition.^[16] As with service animals, this evidence generally needs to be specific to why the tenant in question will be helped by this specific animal, rather than evidence pointing to the general therapeutic benefits of animals.^[17]

This requirement is not consistently enforced, however, and some judges accept evidence proving that the tenant needs a therapy animal that does not specify the type of animal needed.^[18] In order for a tenant to keep a therapy animal, that animal cannot cause trouble of any kind.^[19] Thus, cases where a tenant has been allowed to keep a therapy animal also often reference the cleanliness of and lack of damage to the unit, and that the animal has not disturbed neighbours.^[20]

Bad Faith

In the Quebec civil law, parties are required to act in good faith.^[21] In TAL cases concerning pets, this requirement is often used against landlords. If a landlord has known for a long time that the tenant has a pet, and their decision to enforce a no pet clause coincides with another dispute between them and the tenant, such as a disagreement over a rent increase, the TAL usually determines that the landlord is likely acting in bad faith, by using the no pet clause as an excuse to drive the tenant out of the dwelling.^[22]

Tolerance

While passive tolerance is generally not an accepted defence for possessing an animal contrary to a no pet clause,^[23] in some cases tenants can have a no pet clause waived by proving that the landlord has consistently and generally tolerated animals in the building.^[24] This exception is based on the notion that a contract should be interpreted according to the intention of the parties at the time of signing, and the way the contract has been interpreted in the past.^[25]

However, different judges have used different standards to assess a landlord’s tolerance of animals, with some ruling that a landlord having a history of not enforcing a no pet clause when they knew of the animal waives the clause,^[26] and others ruling that it does not.^[27] The standard of generality is also inconsistently applied by the TAL, with some cases ruling that a general tolerance of other animals in the building waives a no pet clause,^[28] and others ruling that the landlord’s actions towards other tenant’s animals should not be considered.^[29] There are also inconsistencies regarding whether the previous landlord’s tolerance of the animal waives a no pet clause^[30] or not.^[31] Sometimes, tolerance is considered a factor in determining bad faith on the part of the landlord.^[32]

Lack of Serious Prejudice

While a lack of serious prejudice is not a defence in cases where a landlord wishes to have the animal removed from the unit, it is a defence when the landlord wants the lease to be resiliated. In some cases, tenants have successfully kept their pets simply because their landlord only sought the resiliation of the lease and not the removal of the animal, and the TAL was unable to order the removal of the animal on its own.^[33] Situations the TAL has recognized as serious prejudice concerning pets include: refusal to comply with a previous TAL order to get rid of an animal,^[34]considerable noise from the pet,^[35] consistently not cleaning up a pet’s waste in common areas,^[36] and the animals harming the condition of the unit.^[37] In many of these cases other factors also contributed to the resiliation of the lease.^[38]

Implications And Discussion

Discrimination Before a Lease is Signed

In many cases, the dispute over no pet clauses happens before the tenant is able to sign a lease. Service animal owners in particular are sometimes refused housing due to their animals at the application stage, despite the fact that service animals are protected under section 10, 12, and 4 of Quebec’s Charter.^[39] Tenants refused a home at the application stage may file a claim with the Commission des droits de la personne et de droits de la jeunesse (CDPDJ), instead of to the TAL, as such a claim stems from an action preceding the actual signing of a residential lease. Based on the lack of case law on the topic, few tenants pursue such claims. No evidence can be found to determine if this is due to a lack of knowledge of the applicable law, lack of resources to take cases to the CDPDJ, feelings of reluctance based on the assumption that the case will go poorly, or other access to justice concerns. It should be noted that individuals living with a disability who are trying to find housing are unlikely to have the time and energy to undertake such a case.

For those who do take these cases to the CDPDJ, it can be difficult to prove that they were denied housing because of their service animal. Despite the law saying that the service animal only needs to be a factor in the decision for that decision to be discriminatory, rather than the only factor,^[40] this can still be difficult to prove. If the landlord says they denied the person housing for another reason and the potential tenant has no evidence otherwise, the CDPDJ is unlikely to find that there was discrimination and argue the case before the Tribunal des droits de la personne.^[41]The few cases at the TDP that have been argued successfully rely on the landlord directly stating that they denied the application because of the service animal.^[42]

Inconsistent and Unclear Regulations

The existence of no pet clauses and the lack of a standard definition for service animals and therapy animals in Quebec law also causes significant problems. Many tenants brought before the TAL for violating no pet clauses argue that their pet is a therapy or service animal. The psychological harm of being forcibly separated from one’s pet surely motivates such claims.^[43] Unfortunately, in so doing, tenants likely contribute to a culture of doubt at the TAL regarding the status of therapy and services animals. Tenants who actually require animals for therapeutic purposes may face a harder time in having the status of their animals recognized.^[44] In much of the caselaw it was ruled that the animal in question was not a service or therapy animal, either due to a lack of proof or because the animal was truly a pet.^[45] Bad faith claims that pets are service or therapy animals result in increased doubt towards real service animal users, worsening problems of discrimination.^[46]

This problem is evident in the inconsistency across the case law, with some judges holding service and therapy animals to a higher standard of proof than others.^[47] Some cases ruled that service animals cannot assist with anxiety and depression,^[48] while others allowed service animals for these diagnoses.^[49] Without clear rules on the training and certification required for service and therapy animals, tenants are left unsure how to prove their legal rights. The case law also offers inconsistent definitions for service animals and therapy animals,^[50] which is problematic given that they each perform distinct tasks and have different levels of legal protection. If even the TAL is unclear in these matters, then tenants are likely also confused about their legal rights and the evidence they need to present to assert those rights.

Medical Documentation

Tenants are generally allowed to keep their therapy animals as long as they can prove that they have a medical condition that could be helped by the presence of that animal, and that the animal is not causing trouble.^[51] This reveals a contradiction in the rule. On the one hand, the TAL acknowledges that animals can provide therapeutic benefits to many people^[52] and that being forcibly separated from one’s pet can cause significant distress.^[53] On the other hand it also will order tenants to get rid of their animal if they fail to provide sufficient medical documentation to meet a specific judge’s definition of what constitutes a therapy animal. Given the benefits of therapy animals and the variable nature of mental health, some have argued that medical requirements are unreasonable.^[54] This is particularly relevant given the negative effect separation from a pet can have on one’s mental health.^[55]

Obtaining the medical documentation required to prove that one’s pet is a service animal is a major barrier, particularly for low-income individuals. In Canada, mental health care is not covered by public health insurance, meaning that not all Canadians can access a therapist or psychologist to diagnose them with a mental illness and to confirm their need for a therapy animal. The lack of clarity from the TAL concerning the level of medical documentation required for an animal to be ruled a therapy or service animal compounds this challenge. Some cases have ruled that medical testimony needs to come from a doctor with specific knowledge of the patient’s mental health and the animal’s impact on their mental health. A note from a family doctor (covered by public health insurance) is not considered sufficiently expert to sway the court’s opinion.^[56] However, other judges have ruled favourably for tenants providing a lower lever of proof. Such inconsistencies burden tenants with unneeded interrogations.^[57]

Conclusion

Given how the TAL enforces no pet clauses, it is impossible for a tenant to act in a way that guarantees that they will be allowed to keep their pet. The TAL is more likely to decide in favour of tenants if the animal in question is a certified service animal or a therapy animal with proper accompanying medical documentation, but the rules are not consistently applied. Moreover, there is little recourse for tenants who are denied housing because of their pet.

Faced with these issues, many have campaigned for the removal of no pet clauses in Quebec. They argue that these clauses are abusive, particularly in the context that tenants are in no situation to bargain with landlords concerning their inclusion or exclusion from their lease.^[58] This argument also stems from the serious prejudice suffered by tenants who are forced to get rid of their pets.^[59] Québec solidaire, a provincial opposition party, presented a bill in 2023 to amend article 1900 of the CCQ in order to render these clauses without effect.^[60] This was backed by the Montreal SPCA, which tabled a petition the previous year calling for a ban on no pet clauses, due to both the issues mentioned above and shelter overcrowding they experience due to these clauses.^[61] Such legislation would not be without precedent, as no pet clauses are banned in both Ontario^[62] and France.^[63] No pet clauses force many to make the impossible decision between their companion or their home, and the TAL’s inconsistent rulings concerning exceptions to these clauses hurts tenants trying to keep both.

* Photo de couverture: Fille tenant un chien en laisse, animalerie. – 22 novembre 1957. CA M001 P179-Y-01-02-06-P754. Archives de la Ville de Montréal.

** Click here for complete bibliography.

 

^[1] Pierre Gagnon, “Droit du Logement: L’équité contractuelle en droit du logement depuis 1994 et l’interdiction conventionnelle relative aux animaux favoris” (1999) 59 R du B 333 at 339.

^[2] See e.g. Ibid at 343; Iacobelli c Bonilla, 2023 QCTAL 14746 at 67 [Iacobelli]; Gestion Malda inc. c Larochelle, 2023 QCTAL 69; Labarre c F.A., 2023 QCTAL 7496 [Labarre]; Pulice c Leblanc, 2023 QCTAL 34689 [Pulice].

^[3] See e.g. Plateau du Parc phase 14 c Robinson, 2023 QCTAL 5198; Minucci c Heier, 2024 QCTAL 5522; 9098-0822 Québec inc. c Ben Mrad, 2024 QCTAL 8471; Investisseur Famille de Yi inc. c Millan, 2024 QCTAL 2643.

^[4] Art 1863 CCQ.

^[5] Côté c Tousselle, 2023 QCTAL 30498.

^[6] Gamache c Lauzon, 2023 QCTAL 9557 [Gamache].

^[7] Chaltchi c Boivin, 2024 QCTAL 3546 [Chaltchi].

^[8] Dumas c Giroux, 2023 QCTAL 16973; Pulice, supra note 2.

^[9] Charter of Human Rights and Freedoms, CQLR, c C-12, s 10; Commission des droits de la personne et des droits de la jeunesse (Pellerin) c A. Viglione & Frère inc., 2018 QCTDP 20 [Pellerin].

^[10] Maryellen Gibson, Linzi Williamson, and Colleen Anne Dell, “Insights into Canadians’ Perceptions of Service Dogs in Public Spaces” (2023) 13 Animals 3091 at 3091.

^[11] Ibid.

^[12] Pulice, supra note 2; Groupe Investim c Houle, 2023 QCTAL 26885 [Houle].

^[13] Labarre, supra note 2; Immeubles Le Domaine de St-Liboire inc. c Ouellet, 2023 QCTAL 5455 [St-Liboire]; Maheux c Immeubles LPL, 2023 QCTAL 31784 [Maheux].

^[14] Di Lemme c Thibodeau, 2021 QCTAL 12823 [Di Lemme].

^[15] Ibid; Immeubles Eureka c Petit, 2020 QCRDL 9554.

^[16] Habitations des rivières de l’Outaouais c Aragon, 2018 QCRDL 38053; Tabbah c Lambert, 2024 QCTAL 124

^[17] St-Liboire, supra note 13.

^[18] See Denis c Forcier, 2023 QCTAL 31455 [Denis] for an example of a tenant being allowed to keep three cows due to evidence of need of a therapy animal that did not specify the type of animal needed.

^[19] Demers c Rabouin, 1995 QCRDL, file 35-950109-008-G, cited in Saint-Félicien (Office municipal d’habitation de) c Lavoie, 2015 QCCQ 6142 at 33 [Demers].

^[20] Pichette c Chevalier, 2023 QCTAL 31673; Luc c Laforest, 2023 QCTAL 38479.

^[21]Art 6 CCQ.

^[22] See Vulpe c Galarneau, 2024 QCTAL 9295; Iacobelli, supra note 2; Senela c Marakis, 2023 QCTAL 30932.

^[23] Gagnon, supra note 1 at 344.

^[24] D.C. c Berthierville (Office municipal d’habitation de), 2012 QCCQ 1524 [D.C.]; Riverside Investments Inc. c Vanloo, 2023 QCTAL 39198.

^[25] Arts 1425-1429 CCQ.

^[26] See e.g. Investissement Demers Beaulieu c Rizzi, 2023 QCTAL 763 [Investissement Demers]; Lavoie c Restrepe-Hernandez, 2023 QCTAL 36124.

^[27] See e.g. Plateau du Parc phase 14 c Robinson, 2023 QCTAL 5198; Pelletier c Boulianne, 2023 QCTAL 34867 [Pelletier].

^[28] See e.g. D.C., supra note 24; Dalpé c Lacasse, 2024 QCTAL 1488.

^[29] See e.g. Pelletier, supra note 24.

^[30] Investissement Demers, supra note 26.

^[31] Estinvil c Villeneuve, 2023 QCTAL 8823.

^[32] Ermacora c Miller Morgan, 2021 QCTAL 16284; Vulpe c. Galarneau, 2024 QCTAL 9295.

^[33] 9093-3300 Québec inc. (Shoreside) c St-Amand, 2023 QCTAL 31918; Gestion Famille inc. c Marchand, 2023 QCTAL 19301; Charles c El Rhoul, 2023 QCTAL 21389.

^[34] Structures métropolitaines (SMI) inc. c Amirfatahi, 2024 QCTAL 1863.

^[35] Boudreau c Viens, 2023 QCTAL 6139 [Boudreau].

^[36] Ibid.

^[37] Office d’habitation des Appalaches c Grondin, 2023 QCTAL 16406.

^[38] Chaltchi, supra note 7; Gamache, supra note 6; Girard c 12740354 Canada inc., 2023 QCTAL 10609 [Girard]; Pulice, supra note 2.

^[39] Commission des droits de la personne et des droits de la jeunesse (D.R. et autres) c Ducharme, 2020 QCTDP 16 [D.R.].

^[40] Pellerin, supra note 9 para 37.

^[41] Cera c Fiducie familiale David, 2022 QCTDP 15.

^[42] D.R., supra note 39; Pellerin, supra note 9.

^[43] Girard, supra note 38; Di Lemme, supra note 14; Boudreau, supra note 35; Pulice, supra note 2.

^[44] Deni Elliott and Pamela S. Hogle, “Access Rights and Access Wrongs: Ethical Issues and Ethical Solutions for Service Dog Use” (2013) 27:1 International Journal of Applied Philosophy 1 at 4-6.

^[45] Girard, supra note 38; Di Lemme, supra note 14; Boudreau, supra note 35; Pulice, supra note 2.

^[46] Elliott and Hogle, supra note 44 at 6.

^[47] Gagnon, supra note 1 at 342

^[48] See e.g. Maheux, supra note 13.

^[49] See e.g. Paradis c Beauchemin, 2023 QCTAL 32814.

^[50] Houle, supra note 9.

^[51] Demers, supra note 19.

^[52] Maheux, supra note 13 at para 16.

^[53] Vulpe c Galarneau, 2024 QCTAL 9295.

^[54] Jean Turgeon, “La Régie du logement, l’interdiction d’un animal de compagnie et son expulsion sans préjudice sérieux: abus de droit ou droit d’abuse?” (2013) 72 R du B 287 at 376.

^[55] Ibid.

^[56] Di Lemme, supra note 14; R&H Management 2011 inc. c Desforges, 2023 QCTAL 17204; Turgeon, supra note 54 at 374-375.

^[57] Turgeon, supra note 54 at 374-6.

^[58] Ibid at 305.

^[59] Ibid at 319-321; Art 1901 CCQ,

^[60] Bill 494, An Act to Amend the Civil Code to Render Without Effect the Clauses of a Lease of a Dwelling Tending to Prohibit Companion Animals, 1st Sess, 43rd Leg, Quebec, 2023 (first reading May 25 2023).

^[61] Montreal SPCA, “Quebec Solidaire Introduces Bill to Allow Animals in all Housing” (May 25 2023) online: <www.spca.com> [https://bit.ly/3U50gAa].

^[62] Residential Tenancies Act 2006, SO 2006, c 17.

^[63] Loi no 70-598 du 9 juillet 1970 modifiant et complétant la loi no 48-1360 du 1er septembre 1948 portant modification et codification de la législation relative aux rapports des bailleurs et locataires ou occupants de locaux d’habitation ou à usage professionel, JO, July 10 1970, 6464, art 10.