Dust Allergy (LTB)

CET-29366-13 (Re), 2013 CanLII 51046 (ON LTB)

The Supreme Court of Canada has indicated in Tranchemontagne v. Ontario (Director, Disability Support Program), 2006 SCC 14 (CanLII), [2006] 1 S.C.R. 513, that tribunals like the Board must apply the Code in proceedings before it. What this means here is that the obligation of the Landlords under section 22 of the Residential Tenancies Act, 2006 (the ‘Act’) to refrain from substantially interfering with the Tenants’ reasonable enjoyment, includes the obligation to comply with the Code.

The application requires the following analysis:

Did the Landlords breach the Code?

1. The answer to this question requires a three part analysis:

i. Is the Tenants’ child’s dust allergy a disability as defined under paragraph 10(1)(b) of the Code?

ii. Did the Landlords discriminate against the Tenants contrary to subsection 2(1) of the Code by failing to remove the carpet?

iii. If the presence of the carpets in the rental unit is found to constitute discrimination, did the Landlords accommodate the Tenants to the point of undue hardship pursuant to section 17 of the Code?

2. If the answer to issue one above is ‘no’, then: did the Landlords’ decision not to remove the carpet from the rental unit otherwise substantially interfere with the reasonable enjoyment of the rental unit by the Tenants or a member of their household?

i. Is the Tenants’ child’s dust allergy a disability as defined under paragraph 10(1)(b) of the Code?

The parties do not agree that the Tenants’ child has a disability. Disability under the Code is broadly defined and includes “any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness”. The Tenants testified that their child has been diagnosed with a dust allergy, as confirmed by a doctor’s note submitted into evidence, and provided oral evidence of their observations of their child’s health. Based on the evidence presented at the hearing and the broad interpretation given to the Code’s definition of disability, I find that the Tenants have proven on a balance of probabilities that their child has a disability recognized under the Code.

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The evidence was insufficient to establish that their child’s disability is impacted by having carpet in the rental unit. No medical evidence was led to establish that the Tenants’ child has been adversely impacted by the presence of the carpets in the rental unit. The Tenants provided a doctor’s letter which set out the doctor’s conclusion that the child had an allergy and it would be preferable for the child to live in a carpet free home, but offered no evidence to support the proposition that the child’s allergy could not be controlled or successfully treated if the carpets remained. In other words, I found the letter to be of limited value to assess the nexus between the carpet in the unit and the impact on the child’s disability.

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Issue 2: Did the Landlords’ decision not to remove the carpet from the rental unit otherwise substantially interfere with the reasonable enjoyment of the rental unit by the Tenants or a member of their household?

On a balance of probabilities I do not find the Landlords’ decision not to remove the carpet has substantially interfered with the reasonable enjoyment of the rental unit for all usual purposes by the Tenants or a member of their household.