Powers to Order a Substitute Rental Unit (RTA)

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Date Retrieved:	2024-05-07
CLNP Page ID:	1931
Page Categories:	[Category:Hearing Process (LTB)]
Citation:	Powers to Order a Substitute Rental Unit (RTA), CLNP 1931, <7Y>, retrieved on 2024-05-07
Editor:	Sharvey
Last Updated:	2022/06/22

Ottawa-Carleton Association for Persons with Developmental Disabilities/Open Hands v. Séguin, 2020 ONSC 7405 (CanLII)

[1] Ottawa-Carleton Association for Persons with Developmental Disabilities/Open Hands (“the appellant”) appeals an order of the Landlord and Tenant Board dated September 5, 2019 that ordered it to reinstate the respondent André Séguin to the care home in which he had been living prior to his eviction. The appellant argues that the Board had no authority to order reinstatement, and it had denied procedural fairness to the appellant during the hearing that led to the order.

[2] For the reasons that follow, I would dismiss the appeal, as the Board had the statutory authority to make the reinstatement order, and there was no denial of procedural fairness in the way the hearing was conducted.

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[22] The Board member was informed by the appellant’s counsel and Don Ferguson, the Executive Director of the appellant, that the respondent’s former room remained empty, but that the Ministry had assigned the room to another individual JJ. JJ was in transitional temporary housing paid for by the appellant because of the Board’s order to keep the room vacant. Mr. Ferguson also told the Board that he feared the staff would quit if the respondent were reinstated, and he might have to close the home.

[23] The parties subsequently filed written materials. In its material, the appellant submitted that reinstatement should not be ordered, and if the parties could not resolve the dispute, the appellant should be required to pay $25,000 for the difference in costs of rent and services.

The Decision of the Board

[24] In the final decision dated September 5, 2019, the Board found that the appellant had substantially interfered with the respondent’s reasonable enjoyment of the rental unit or the residential complex, because it had evicted him without proper notice of termination and without an order of eviction from the Board. The member concluded that it was appropriate to order the respondent reinstated to possession of the rental unit, and she ordered that he be allowed to return to the rental unit immediately.

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[67] Moreover, to restrict a reinstatement order to a situation where the locks are changed would leave many other tenants, evicted directly or indirectly by other means, without a remedy of reinstatement. As the respondent’s factum points out, a landlord might directly or indirectly oust a tenant from possession by other means, such as the use of security guards, threats or intimidation, blocking access to the property, cutting off utilities, or taking advantage of a tenant’s physical or mental disabilities. The appellant submits that the induced vacating provision would apply to them However, that ignores the fact that many such tenants would want to return to their home, and the monetary relief in s. 31(2) would not be an adequate remedy. Section. 31(1)(f), read in a large and liberal manner and in light of its broad words, provides a remedy of reinstatement for these tenants who have been unlawfully evicted, even if the locks were not yet changed.

[68] It is important to remember that since the respondent’s tenancy was not terminated in accordance with the Act, he remains a tenant, and he has the lawful right to possession of the unit. In Board decision TSL-06175-10-RV, 2010 CanLII 65490, the Board stated at para. 3: “this issue is primarily one of logic … If the tenancy was not terminated then the Tenant must have the right to possess the rental unit as that is a right that goes along with the tenancy agreement.”

[69] Reading s. 31(1)(f) broadly to allow the Board to order reinstatement is consistent with the remedial purpose of the Act. As noted by Jack Fleming, in Residential Tenancies in Ontario, 3rd ed. (Canada: LexisNexis, 2015 at p. 1017),

A wrongfully evicted tenant who is requesting to be put back into possession should normally receive such an order. To allow a landlord to illegally evict a tenant and then not put the tenant back into possession (where the tenant wishes to reoccupy the rental unit) would bring the administration of justice into disrepute.

Fleming states as well that the Board has the power to order that the tenant be given possession of the rental unit pursuant to s. 23(1) of the SPPA (an order to prevent an abuse of process), s. 31(1)(f) of the Act, and s. 31(3) through (5) of the Act.

Devoe v. Haran, 2012 HRTO 1507 (CanLII)

[10] The applicant was 63 years old when she began renting an apartment on the second floor in September 2010. She testified that when she first moved in she did not have any disability-related problems. However, she stated that she was subsequently diagnosed with fibromyalgia and osteoarthritis, and that in the winter or spring of 2011, she began to experience back pain which was diagnosed as sciatica. She stated the back pain worsened over time and limited her mobility. As a result, she stated that she had great difficulty walking up the stairs to the second floor apartment, maintaining her apartment, and working and earning income. She stated that during the spring and summer of 2011 she visited the hospital five times because of health issues related directly or indirectly to her back. On or about August 7, 2011, the applicant delivered a letter to the landlord via the caretaker, which set out these circumstances.

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[13] In early April 2012, the applicant also found out that one of the main floor apartments in her building would be vacant and available at the end of the month. She testified that she called the landlord, told him about her disabilities and her difficulty climbing the stairs to her second floor apartment, and asked him if she could transfer to the vacant main floor apartment. She stated that he did not provide her with an immediate response, but that when she called him back a second time, he told her that he would not consider her for the main floor apartment.

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[30] In order to establish a prima facie case of discrimination, the applicant must prove that (1) she had, or was perceived to have, a disability, (2) she received adverse treatment, and (3) her disability was a factor in the adverse treatment. See, for example, Communications, Energy & Paperworkers' Union of Canada (CEP), Local 789 v. Domtar Inc., 2009 BCCA 52, at para. 36.

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[34] Furthermore, in his Response and at the hearing, the respondent did not dispute that the applicant had established a prima facie case of discrimination. Specifically, he did not dispute the fact that the applicant had a disability and mobility issues related to her disability, and admitted that he refused to rent her the vacant main floor apartment because of her “physical and mental needs”. The applicant is not required to prove that disability was the sole factor in the decision to deny her the vacant main floor apartment; it is sufficient that she prove that disability was one factor. See, for example, Dominion Management v. Velenosi, (1997) 1997 CanLII 14482 (ON CA), 148 D.L.R. (4th) 575 (ON C.A.), at para. 1; and Ontario (Human Rights Commission) v. Gaines Pet Foods Corp. (1993), 1993 CanLII 5605 (ON SC), 16 O.R. (3d) 290 (Div. Ct.), at para. 11.

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[36] The respondent’s position is that he cannot rent the vacant main floor apartment to the applicant mainly because she has physical and mental needs that cannot be accommodated in the apartment building. Under the Code, the respondent has both procedural and substantive duties to accommodate the applicant’s disability-related needs up to the point of undue hardship, and the onus is on the respondent to establish that he has met these duties. See ADGA Group Consultants Inc. v. Lane, 2008 CanLII 39605 (ON SCDC), 91 O.R. (3d) 649, at para. 103. More than a mere negligible effort is required to satisfy the duty to accommodate. See Central Okanagan School District No. 23 v. Renaud (1992), 1992 CanLII 81 (SCC), 95 D.L.R. (4th) 577 (S.C.C.), at p. 585.

[37] The procedural duty to accommodate involves obtaining all relevant information about the applicant’s disability, at least where it is readily available. The term “undue hardship” requires that the respondent seriously consider how the applicant could be accommodated. A failure to give any thought or consideration to the issue of accommodation, including what, if any, steps could be taken constitutes a failure to satisfy the procedural duty to accommodate. In assessing whether the respondent has met the duty, the respondent’s efforts will be assessed at the time of the alleged discrimination. The respondent may not use after-acquired evidence to support its view that the applicant could not be accommodated. See ADGA, supra, at paras. 106-107.

[38] The substantive duty to accommodate requires the respondent to show that it could not have accommodated the applicant’s disability-related needs short of undue hardship. “Accommodation” refers to what is required in the circumstances to avoid discrimination. The factors causing “undue hardship” will depend on the particular circumstances of every case. The use of the term undue infers that some hardship is acceptable; it is only undue hardship that satisfies the test. Undue hardship cannot be established by relying on impressionistic or anecdotal evidence, or after-the-fact justifications. See ADGA, supra, at paras. 112 and 116-117. The respondent has to present cogent evidence to support its position that it cannot accommodate the applicant’s disability-related needs because of undue hardship. See British Columbia (Public Service Employee Relations Commission) v. BCGSEU, 1999 CanLII 652 (SCC), [1999] 3 S.C.R. 3, at paras. 78-79.{{British Columbia (Public Service Employee Relations Commission) v. BCGSEU, 1999 CanLII 652 (SCC), [1999] 3 S.C.R. 3}}

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[63] Accordingly, the Tribunal orders as follows:

1) Within one week of the date of this Decision, the respondent and the applicant shall sign a standard rental agreement with respect to the vacant main floor apartment of the building that allows the applicant to move in to it immediately, and with the rent set at $900 per month. The applicant is required to move all her belongings and possessions out of the second floor apartment within one week of signing the rental agreement. The rent amount for the main floor apartment shall be prorated for the first month from the date the applicant moves in, and the respondent is not permitted to double charge the applicant for rent for her second floor apartment and the main floor apartment.

2) Within 30 days of the date of this Decision the respondent shall pay the applicant $4,000 as monetary compensation for the violation of her inherent right to be free from discrimination and for injury to dignity, feelings and self-respect. The amount shall be offset by $67.47 for the damage that the applicant caused to the door of the apartment.

Dixon v. 930187 Ontario, 2010 HRTO 256 (CanLII)

[1] In this Application, filed on February 9, 2009, under the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the "Code"), the applicant alleges discrimination with respect to the occupancy of accommodation on the basis of disability and family status. Pursuant to Requests made prior to the hearing, and with the agreement of the respondent, the Application was amended to add the grounds of marital status and receipt of public assistance, to add an allegation of breach of section 12 of the Code, which prohibits discrimination “because of relationship, association or dealings with a person or persons identified by a prohibited ground of discrimination”, and to amend the request for remedy.

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[55] Section 45.2 (1) of the Code provides that, if the Tribunal determines that a party to the application has infringed a right under Part I of another party to the application, it may make the following orders:

1. An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.

2. An order directing the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect.

3. An order directing any party to the application to do anything that, in the opinion of the Tribunal, the party ought to to do to promote compliance with this Act.

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[73] The Tribunal makes the following order:

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(f) The respondent shall offer the next available apartment on the first floor to the applicant. If the next available apartment on the first floor is not a one-bedroom apartment or is not otherwise considered suitable by the applicant, the respondent’s responsibility to offer the next available apartment on the first floor continues until such time as a suitable one-bedroom apartment on the first floor becomes available.