Medical Disability - Re: Impossible to Void Notice

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-04-20
CLNP Page ID:	1652
Page Categories:	[Defective Notice (LTB)], [Human Rights], [Medical Disability]
Citation:	Medical Disability - Re: Impossible to Void Notice, CLNP 1652, <3y>, retrieved on 2024-04-20
Editor:	Smcgrory
Last Updated:	2022/06/29

TSL-87739-17 (Re), 2017 CanLII 142654 (ON LTB)

8. In her written submissions and in her testimony, the Tenant states, given her past experiences of persecution, her personal security and privacy is very important to her. The Tenant also states she lives with post-traumatic stress disorder (PTSD), hypertension, irregular heart beats and other conditions and, as such, is a person with a medical disability and the Landlord owes to her a duty to accommodate under the Human Rights Code, R.S.O. 1990, c. H.19 (the “Human Rights Code”). Indeed, the Tenant testified she agreed to provide RM with a key on September 1, 2017, which key would be held by RM and not available to any other agents of the Landlord, and, upon so doing, the Tenant testified she suffered a panic attack and provided corroborating medical evidence in this connection.

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29. As I stated during the hearing, and above, I accept the Tenant’s evidence going to her mental health and physical health issues and her stated reasons why she seeks to continue to withhold a duplicate key from the Landlord.

30. As the Tenant correctly pointed out in her written submissions, and in her testimony, the Landlord owes to her a duty to accommodate under the Human Rights Code. I say this as the evidence provided by the Tenant shows, on a balance of probabilities, she lives with PTSD arising out of her past persecution in the former Yugoslavia and such condition, coupled with her experiences with the superintendent at issue, whom she associates with the agents of persecution who caused her to flee to Canada and the Tenant’s view of her home as a personal sanctuary, directly leads her to refuse to provide the Landlord with a duplicate key.

31. In my view, what the Landlord’s duty to accommodate means is that the Landlord must make every reasonable effort possible, to the point of undue hardship, to accommodate the Tenant, given the Tenant’s disability and her concerns about the superintendent at issue. However, this does not mean that the Landlord must be exposed to significant and ongoing liability and the other residents of the building, especially those living in units near the unit, must be exposed to the stated risks arising out possible emergencies in the unit. The issue becomes whether or not the evidence satisfies me that the Landlord met its obligation with respect to accommodation under the Human Rights Code.

32. The Tenant states in her written submissions, and she made this clear during the hearing, she trusts and has a good relationship with RM—the Landlord’s Administration Manager. RM testified, and this was not disputed by the Tenant, he advised the Tenant he is willing to accommodate the Tenant by keeping a duplicate key to the lock at issue on his person and to ensure no one else has access to the key. RM added he went further by agreeing, upon receiving the Tenant’s request, to meet with her to show that he remains in sole possession of the key.

33. RM testified he is willing to accommodate the Tenant in this fashion notwithstanding the liability involved in so doing as the key to the unit, while on his person, will not be available to the Landlord’s staff in the residential complex in the event of an emergency when the Tenant is not in the unit and RM is not near the complex.

34. For the reasons stated in paragraphs 24 and 25, above, in my opinion RM’s proposal to the Tenant, which still exposes the Landlord to some liability, amounts to accommodation of the Tenant’s disability to the point of undue hardship.

35. As the Landlord is not seeking termination of the tenancy, it is not necessary that I consider relief from eviction pursuant to section 83 of the Act.

TSL-59271-15 (Re), 2015 CanLII 79679 (ON LTB)

7. The Tenant did not void the N5 notice by stopping the conduct or activity within seven days of receiving the N5 notice. It was the evidence of the co-landlord MF and her secretary MW that they observed the Tenant on his balcony screaming for help because he believed someone was trying to kill him. The event was disturbing not only to the Landlords but also to the other tenants observing the event in the complex.

8. As stated in the prior interim order on this file, TSL-59271-15-IN issued on June 3, 2015, the Interested Party is a corporate entity and a registered charity. It provides affordable housing for individuals living with mental illness and/or addiction. On August 1, 2013, the Interested Party entered into fifteen lease agreements with the former owner of the complex. The Interested Party then rents these rental units to sitting tenants who actually live in the units. The residential complex was sold to the current Landlord in January of 2014. Although the Interested Party pays market rent to the Landlord, the tenants living in the units pay the Interested Party rent based on their income.

9. The Tenant named in this application resides in one of those units. A letter from the Tenant’s physician indicates that he believes that the Tenant: “suffers from quite symptomatic mental illness which results in refractory bizarre behaviours, beliefs and actions”.

10. The Landlord’s representative objected to the admissibility of this document given that it was only obtained the day prior to the last hearing date and not provided in the time set out in the “disclosure” interim order. The Tenant’s representative submitted that they had attempted to get the letter earlier but were unable to do so. I permitted the letter into evidence because it is relevant, material to the issues before the Board, apparently not reasonably available prior to the date disclosed and the information contained within it surely did not come as a surprise to the Landlords given their observations of the Tenant’s behaviour.

11. Based on the medical evidence before me, I find that the Tenant has a disability within the meaning of the Human Rights Code (the ‘Code’). I am also satisfied that the Tenant’s disability is connected to Tenant’s behaviour. This is sufficient to trigger the Landlord’s obligation under the Code to accommodate the Tenant’s disability up to the point of undue hardship.

12. At a minimum, the accommodation process requires the Landlord to explore with the Tenant his disability related needs and barriers. In this situation, one would expect the Landlord to contact the Interested Party as to what the symptoms are that the Tenant is experiencing related to his behaviour and whether or not they can be stopped or minimised. This is sometimes called the procedural duty to accommodate or the duty to inquire. Here, it appears that the Landlord did not do even that minimal exercise.

13. As a result it is not open to the Board to find that the Landlord has accommodated the Tenant to the point of undue hardship. The Landlord must engage in a process of consultation with the Tenant and if necessary, his health professionals, to come up with a reasonable plan to either stop the behaviour complained of or ameliorate its impact. If the Landlord engages in that process and it proves impossible to develop such a plan or the plan does not work, then the Landlord may be able to establish at that point it has met its burden under section 17(2) of the Code.

14. What this means is the Landlord should not have served notices of termination on the Tenant without going through the process described above. Doing so appears to have contravened the Code. As the Code takes precedence over the Act the Board cannot give effect to notices of termination that contravene the Code. As a result, the Landlord’s application shall be dismissed.

15. I would also say that if I am wrong in this regard with respect to the proper application of the Code I would have granted the Tenant relief pursuant to s. 83 of the Act for fundamentally the same reason; the evidence is insufficient to establish that the Tenant’s disability-related behaviour cannot reasonably be controlled so as to ensure the disturbances stop.