by Mike O’Brien
A few weeks ago, Québec’s official housing tribunal (TAL) ruled on a case about no-pet clauses in residential leases. The case involved a tenant, M. Desjardins, who had lived in the same apartment since 2011, having taken over a lease from the previous tenant (this is a very common situation in Montréal, where transferring existing leases is one of the few ways tenants can avoid the staggering rise in rents over the last decade). At that time, all tenants in the building were subject to leases that forbade pets, but most or all of them kept pets regardless, and the landlord at the time tolerated this situation with no apparent issues arising from the animals living there. The ownership of the building changed hands twice since 2011, and the new landlords continued to include a no-pets clause in their leases. The current landlord, fed up with Desjardins’ disregard of the no-pets clause, applied to the housing tribunal for permission to end the lease.
Some context: Québec, and Montréal particularly, has a very strong regime of tenant rights. Montréal is largely a city of renters, and has a robust culture of community organizing and public protest that is quick to attack any perceived threat to housing security. It is also in the grips of a homelessness and housing affordability crisis, not as bad as in Vancouver or Toronto but still desperate. As the only major city (not counting Laval, which one shouldn’t) in North America’s only officially francophone territory, Montréal is the natural destination for people leaving their communities all over Québec, concentrating the effects of province-wide affordability issues. The recent explosion of longer-simmering housing problems is particularly shocking to a place that, for decades, was considered a haven of affordability and “livability”, where working class people could live comfortably (if modestly) within a world-class city. Montréal’s reputation as an artistic incubator stems largely from the fact that young artists could split their time between making art and earning wages, and still be fed and housed. Many Montréalers now wish, half-joking, half-not, that the recent uptick in separatist rhetoric from the Parti Québecois (which hopes to unseat the floundering Coalition Avenir Québec government in this year’s provincial elections) will scare away foreign real estate investment and depress rents, repeating the effects of the 1980 and 1995 separation referenda.
Landlords, individually and collectively, regularly complain that the protections designed to protect tenants from abusive and predatory treatment impose unreasonable burdens on property owners. It can be difficult to remove tenants who fail to pay rent or who behave in a manner that damages the owners’ property and harms neighbouring residents’ well-being. Landlords, knowing that they are unlikely to get certain or speedy relief from legal recourse, can be resigned to putting up with problem cases until the tenant leaves for their own reasons. But this can create its own problems if a landlord finally resorts to legal action, such as bringing a case to the housing tribunal, since it weakens their argument that a tenant’s behaviour is intolerable or that a clause’s observance is non-negotiable. While these concerns are not without merit, the CAQ government is often seen as unduly deferential to landlords’ interests, and to business interests generally, being of the “common-sense business management” (or in the vernacular, “de gros bon sens des patrons”) variety of centre-right clods. They are also widely reviled in Montréal, where they have won only two of the island’s two dozen ridings despite sweeping the rest of the province, setting up an electorally successful political framing of the ethnically and linguistically degenerate city vs the “real” Québecois in the rural regions.
The former housing minister (ignoring the tenure of a minister who served barely a month between her and the current one) was a real estate developer who was found to have “abusively favoured” the interests of a business partner (also a real estate developer) while in office, in violation of the legislature’s code of ethics. She also oversaw a controversial housing bill that made it easier for landlords to refuse lease transfers, which became a lightning rod for general anxiety about access to housing. There were other measures in favour of tenants and in favour of landlords, and the dissatisfaction of both groups with the bill suggests that it was at least somewhat balanced, if inadequate. All this to say, Montréal’s tenants find themselves under-served by housing development (in which new construction leans heavily towards the wealthier end of the market), outbid by outside money, and disfavoured by the government in Québec City. Understandably, and in many individual cases correctly, any additional threat to housing security is seen as the final blow that will push them onto the street.
Back to the Desjardins case. The tenant argued that their (Desjardins uses “they/them” pronouns) pet served a necessary role in supporting their mental health, helping them deal with symptoms of anxiety and PTSD. Desjardins entered into evidence several notes from medical professionals supporting this argument, both in their own personal case and in mental health cases more generally. As such, abiding by the no-pets clause would not be feasible and the only other option would be to leave the apartment and find another dwelling, which itself would be extremely stressful and difficult given the state of Montréal’s rental market. Desjardins also pointed out that the current and preceding landlords had never cited any problems or neighbour complaints caused by their current or previous pets. The landlord admitted this but argued that enforcing the terms of the lease was important for maintaining control of the property. She furthermore claimed that the psychological benefits of animal companionship cited by Desjardins hold true for anybody in the normal course of life. Both parties’ claims seem reasonable on their face, hence the recourse to legal intervention.
The director general of the Montréal SPCA also appeared before the tribunal as an interested party in the case. The Montréal SPCA has both a moral and a material interest in challenging the legality of no-pet leases; every year, their shelters receive hundreds of animals whose owners are unable to find housing that permits pets. In 2022, the organization delivered to Québec’s legislature a petition to nullify such clauses, but a bill aimed at implementing this change was not adopted. In her testimony, the director cited international, Canadian and Québec human rights law, particularly section 5 of Québec’s Charter of Human Rights and Freedoms, section 35 of Québec’s Civil Code, and sections 7 and 8 of the Canadian Charter of Rights and Freedoms, all of which which guarantee a right against undue intrusion into one’s private life. (While refreshing my knowledge of the Québec Charter, I noticed, without too much surprise, that the preamble rejects Canadian multiculturalism, inclusive secularism and public bilingualism. Let the United Nations look after universal declarations while the Québecois look after themselves, I suppose.)
The wrinkle, of course, is that these rights are qualified. Québec’s Civil Code states that intrusions into one’s private life are permissible where the law allows and where the rights-holder consents; a landlord could argue that the no-pets clause is both lawful (absent any official ruling to the contrary) and consented to upon the signing of the lease (or the acceptance of a transferred lease, in Desjardins’ case). Québec’s Charter states that the practical extent and application of rights and liberties is subject to considerations of democratic values, state secularism, the importance of the french language, integrationist nationalism, public order, and the well-being of Québec citizens. Under such considerations, our charter rights are decidedly non-absolute. In a city like Montréal, where over 60% of residents rent their dwellings, an overly broad interpretation of the rights of landlords to dictate the conditions under which tenants live their private lives would deprive most people of their Charter rights. Moreover, the economic reality is such that home ownership is not a feasible option for relief from the vulnerabilities of renting. But clearly tenants must accept some conditions on the exercise of their private lives when they live in someone else’s property, and often in such proximity that one tenant’s freedoms impinge on another tenant’s rights.
The SPCA intervenor argued that the application of a general no-pets clause to Desjardins is abusive and unreasonable, since the landlord already has recourse to other provisions in civil law to deal with a problematic companion animal (recall that all parties agreed that Desjardins’ dog had not caused any problems). Interestingly, she also referred to Québec’s Animal Welfare and Safety Act, the preamble to which declares that animals contribute to life in Québec society, but seemingly (from the text of the tribunal’s decision) this citation only served to underline the importance of companion animals for tenants’ well-being, and not to argue on behalf of the interests of pets themselves. (This Act is an odd duck; it doesn’t apply to animals that are hunted, which are covered by other legislation, and its welfare provisions don’t apply to agricultural animals, whose treatment is instead regulated by the standards of the National Farm Animal Care Council, a “collaborative partnership of diverse stakeholders”. Incidentally, the Council is a division of Animal Health Canada, whose eight-member board of directors includes six representatives of animal farming industries. “Steakholders” might be more apt.)
Desjardins’ made arguments similar to those of the SPCA director, and further argued for a broad interpretation of the right to pursue one’s private life without intrusion, citing the 1988 Morgentaler decision that found restrictions on abortion to contravene the Charter rights of Canadian women. (Fun fact: In the 1990s, Montréal was home to a popular ska band named “Me, Mom and Morgentaler”. I couldn’t name a single one of their songs, but every time I am reminded of their existence, I feel a little prouder for Montréal’s heritage of playfully transgressive weirdos.) Desjardins also argued that choosing to live with an animal is an expression of one’s values, sensibilities and way of life, rather than a mere form of entertainment, and as such has particularly deep salience for Charter protections regarding the enjoyment of one’s private life. They asked the tribunal to not only find the application of the no-pets clause abusive in their particular case, but unenforceable generally due to the conflict with Charter rights.
It might seem odd (it did to me) that a housing tribunal would be asked to rule on the application of a legal fundament like Québec’s Charter, but the tribunal’s decision laid out the legal precedence granting it jurisdiction over such matters when they bear on its usual scope of competence. (Appeals to the tribunal’s decisions can be sought from the Court of Québec, and in exceptional cases a judicial review can be sought from the Superior Court of Québec). With this jurisdiction established, the tribunal ruled on Desjardins’ claim that the no-pets clause infringed on their rights to liberty and personal integrity as enshrined in the first article of Québec’s charter. It agreed with Desjardins’ position that the choice to live with an animal was integral to their expression of values, sensibilities and way of life, and so the no-pets clause was an infringement of article 1 rights.
Regarding the right against interference in one’s private life, secured by article 5 of Québec’s Charter, the tribunal cited precedence that interprets quite robustly the importance of a tenant’s dwelling space as the locus of their private lives. The tribunal also cited the Animal Welfare and Safety Act’s elevation of animals’ status from property to sensible beings, which cannot be disposed of like mere possessions, and appeared to come close to equating their status (in terms of social and emotional importance) to that of human family matters. Ultimately, the tribunal found that the no-pet clause contravenes articles 1 and 5 of the Québec Charter, and is unreasonable and abusive according to the section of 1901 of Québec’s Civil Code, which sets limits on the conditions and penalties that landlords can impose on tenants. Therefore, the landlord’s request to end Desjardins’ lease agreement was rejected.
I suspect that this decision will be appealed, or will be cited in future cases that end up in Superior Court, with interventions from parties representing the interests of tenants, landlords and animals. First, there is the question of whether the tribunal is “legislating from the bench”. A few key paragraphs in the tribunal’s decision wax juridical about the co-evolution of legal statutes, jurisprudence, and societal values, and about how previous decisions have spanned a range from more conservative to more liberal interpretations of relevant statutes. To a critical observer unhappy with the tribunal’s ruling, such apologetics may signal the guilty conscience of a judicial over-reacher. To a critical sympathizer like myself, the ruling is an untested blueprint for eventual legislation prohibiting no-pets clauses.
The generalizability of the ruling was already a point of contention when it hit the news, with animal and tenant rights organizations hailing it as a landmark decision, while the provincial housing minister cautioned that the ruling only applied to a “very, very specific” case (given all the times I’ve caught CAQ ministers lying through their teeth about documents they assume nobody else has read, I wouldn’t put any weight on that statement). Reading the decision myself, it seems clear that it applies throughout Québec, empowering any tenant to challenge a general no-pets clause as unenforceable. Ultimately, it is up to Québec’s legislature to legislate on the legality of these clauses (hopefully after the CAQ is defeated in this year’s election), as Ontario’s did when it banned them in the 1990s.
Good for tenants (at least for those with pets, not so much for those who would prefer a humans-only building), bad for landlords… and good for animals? In the immediate situation, where people live in rented dwellings with pets that they may have to abandon when moving to a different dwelling, yes. As the SPCA director noted, this leads to hundreds of animals being surrendered to shelters every year (and many more being merely abandoned). But is it right to subject animals to such precarity in the first place? Note that the tribunal’s decision cited the value of animal companionship for human well-being, placing the enjoyment of such companionship within the exercise of fundamental human rights. As tenants are generally in a weaker position relative to their landlords, they tend to attract sympathy as underdogs in housing disputes. But the real underdogs are, of course, dogs, who have no say in the conditions of their captivity, and no lawyers to secure their private lives against undue intrusions. Not many people, least of all animal lovers, want to hear abolitionist arguments against the institution of pet-keeping. But it is a position that bears consideration, if only to unsettle settled assumptions about the background conditions of domestic animal welfare. To that end, I recommend the works of Angie Pepper, of the University of Roehampton, and her co-author Richard Healey, of Aarhus University, particularly their recent paper “Pets, Power and Legitimacy”, available here:
https://journals.publishing.umich.edu/phimp/article/id/6219/
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