Rehabilitative Services, Therapeutic Services, and Life Skills Development (RTA 5.1)

TNT-62955-14 (Re), 2015 CanLII 79134 (ON LTB)

54. It is clear from the agreement between the COT and the SOSVDPTC (the ‘Agency’) that SC Residence is considered to be an emergency hostel and is funded as providing emergency hostel services. The agreement specifically obligates the Agency to provide emergency accommodation up to a maximum of 128 beds in 4 different locations. S C Residence is one of the 4 locations, providing 30 beds.

55. The “emergency accommodation” required to be provided by the agreement is sub-categorized into “emergency hostel” beds of which there are 78 in two locations, and “transitional hostel” beds of which there are 50 in two locations. This sub-categorization merely clarifies the nature of the “emergency accommodation” provided. It does not alter the fundamental nature of the accommodation, and does not remove it from the category of “emergency accommodation”.

63. I do not agree that the phrase “short-term” in this context must mean one month or less. The modern view of strategies to address homelessness is that the state of being homeless is in itself an emergency that can and should be dealt with by a range of interventions from urgent and immediate shelter from the elements to a longer and more nuanced attempt to stabilize and obtain housing for homeless individuals. The former may last one night, the latter may last many months. They are all “short-term” in the sense that the underlying objective is to shelter homeless people until a defined objective is either achieved or is not capable of being achieved: safety from the elements at one end of the spectrum to obtaining stable housing at the other. There is not and is not intended to be security of tenure in the context of the shelter system as that concept is understood in a landlord and tenant relationship.

64. It is apparent from the materials that the Tenant was actively seeking alternate accommodation from at least February 2014, which was about 4 months after she moved in, and the Landlord was attempting to assist her in this endeavour. The Tenant advised the Landlord that she had found alternate accommodation and asked for an extension of time to October 1, 2014 to leave the residence, which the Landlord granted.

65. On October 1, 2015, the Tenant was discharged to another hostel, with the assistance of the COT hostel staff, and in accordance with the City’s Shelter Standards.

66. I find that the RTA does not apply to the relationship between the Landlord and the Tenant because the Landlord provided short-term living accommodation as emergency shelter.

SOL-45003-14 (Re), 2014 CanLII 52441 (ON LTB)

1. The Tenant HA’s participation in the hearing was limited to requesting adjournments and refusing to participate in the proceedings. The reasons for the adjournment denials and proceeding in absence of the Tenant HA can be found in orders SOL-45003-14-IN issued February 18, 2014, and SOL-45003-14-IN2 issued April 9, 2014. The Tenant HA did not attend on the final hearing date of June 26, 2014.

2. The Landlord filed this application for an order to determine whether the Act applies to the tenancies of CG and HA.

9. The Tenants submitted that other Landlords who have similar services follow the Act. I am not persuaded by the fact that Landlords who provide similar services as the Landlord in this case operate as if the Act applies to them. The determination of whether the Act applies to living accommodation is fact specific and should not be determined in comparison to the actions of other Landlord’s regardless of how similar their services may be.

10. SOT-17250-11 is an interim order of the Board finding that the transitional housing program is not exempt pursuant to Section 5(k) of the Act. In SOT-17250-11 the member was satisfied that the program is not for the purpose of providing rehabilitative or therapeutic services noting the “[n]othing in the wording of the agreement suggests that it is about the Tenant’s disorder or disability.”

11. Although not explicitly stated in the order, SOT-17250-11 appears to accept a medical definition of the words rehabilitative and therapeutic. This is the approach that has been put forward by Tenant’s counsel. The Landlord suggests that the use of a medical definition is unduly restrictive and inappropriate and the Board has no authority to use a medical definition in this case.

19. With respect to both CG and HA, their agreements provide that they “understand that if [they] do not follow the rules or if [they] do not follow through on [their] Action Plans and Goals, [they] may be discharged from the [Landlord’s] Transitional Living Program.” They also agreed in the Guidelines and Commitment documents that “should [they] identify that supports and the services of the [Landlord’s] Transitional Housing Program no longer meet [their] needs [the Landlord] will assist [the Tenants] with making the transition to alternative living arrangements.” Also in the Guidelines and Commitment documents the parties agreed that “the [Landlord] holds the right to terminate [the Tenants] participation in the Transitional Program based on: …Does not benefit from the residence facility and program…”. I find that through these agreed terms the agreement between the parties meets the criterion in S. 5(k)(i)(B) that the parties have agreed that “the occupancy will terminate when the objectives of the services have been met or will not be met”.

20. It is apparent from the agreements themselves that the program is intended to last from one to 12 months. I am satisfied that this meets the requirement of S. 5(k)(ii) that the occupation be intended to be for no more than one year.

21. It is suggested by Tenant’s counsel that the Landlord wants a general exemption of this Act to the Landlord’s program. The Landlord filed this application with respect to two Tenants and my findings and determinations limited to the living accommodation of the named Tenants. It may be that there are some Tenants in the building that would fall under this exemption.

It is ordered that:

1. The Act does not apply.

CET-70982-17 (Re), 2018 CanLII 41842 (ON LTB)

1. As a preliminary issue to this T2 application, WT submitted that the Board has no jurisdiction to hear the Tenant’s application, specifically in respect of subsection 5(k) of the Residential Tenancies Act 2006 (the ‘Act’).

16. Based on the testimonies and evidence submitted, I am satisfied that CLH (with PV being the facility in question that provides accommodation to AZ) meets all of the criteria set out in subsection 5(k) of the Act.

17. There was no submission made by the parties to bring into question or dispute PV as a treatment facility. The dispute lay centrally, I believe, on whether PV is a community group home that provides tenancies in respect of rental units under the Act.

18. I do not view the matter of RZ paying CLH for AZ’s accommodation as somehow establishing a landlord-tenant relationship for a tenancy that would be covered by the Act. Instead, I believe RZ paid CLH for AZ’s stay at PV, which was required by the service agreement, and for which AZ received rehabilitative treatment for his mental condition that was intended, with goals being set, to last for a limited period of one year.

19. The service agreement is clear on the nature of the treatment that AZ would receive from CLH at PV, and I am satisfied that that treatment was rehabilitative. I do not believe a liberal interpretation of “rehabilitative” is required for anyone to arrive at this determination.

20. Because of AZ’s challenging behaviour, I am also satisfied on a balance of probabilities that AZ’s treatment at PV had to be interrupted a few times with AZ moving to another treatment facility(ies), but those interruptions did not somehow change the nature of the treatment CLH (at PV) had intended to provide AZ, so that a landlord-tenant tenancy came to exist between the parties. In other words, just because AZ’s treatment at PV extended beyond the one-year term of the service agreement, I do not believe the nature of the relationship between the parties somehow changed or evolved into a landlord-tenant relationship under the Act.

21. Going further, RZ was unable to show or persuade me that from the outset of AZ’s accommodation at PV, that the relationship between the parties was that of a landlord-tenant in respect of a tenancy for a rental unit, as defined and provided for under the Act.

22. I gave my decision at the hearing and indicated I would dismiss the T2 application on the determination that the Act does not apply.

NOT-18915-15-RV (Re), 2015 CanLII 35176 (ON LTB)

1. As a preliminary issue during the March 18, 2015 hearing, the presiding Member was asked to determine whether or not the Board had jurisdiction to hear the Tenant’s application in light of section 5(k) of the Residential Tenancies Act 2006 (the ‘Act’).

2. Subsection 5(k) of the Act states: “This Act does not apply with respect to, (k) living accommodation occupied by a person for the purpose of receiving rehabilitative or therapeutic services agreed upon by the person and the provider of the living accommodation, where the parties have agreed that, the period of occupancy will be of a specified duration, or the occupancy will terminate when the objectives of the services have been met or will not be met, and the living accommodation is intended to be provided for no more than a one-year period”.

3. The Tenant, in his Request to Review an Order, argues that the presiding Member erred by adopting an overly broad interpretation of the meaning of ‘rehabilitative and therapeutic’ as contemplated by subsection 5(k) of the Act, claiming that the Member’s interpretation was contrary to the purpose of the Residential Tenancies Act. I disagree.

6. The term ‘rehabilitative’ is defined in part: “to restore good health or useful life as through therapy or education”. I find no evidence that the presiding Member’s erred in determining that the JHS provides rehabilitative services (restoring useful life) by providing the resources and support necessary to assist MP with his transition back into regular society. The Presiding Member wrote: “given the purpose of the JHS is to help its clients become law-abiding, well-adjusted members of society and to fight against homelessness, I am not concerned that this finding will create, as the Tenant’s Legal Representative warned, an “underclass of tenants”. JHS’ program reduces homelessness in Thunder Bay, and help people, as LL testified, “get on their feet”

8. The Tenant, in his Request to Review an Order, also asserts that the presiding Member ignored facts relevant to the determination of whether the housing provided was intended to be provided for no more than a one year period. I note that subsection 5(k) does not state “the living accommodation shall be provided for no more than a one-year period. It states - the living accommodation is intended to be provided for no more than a one-year period”. JHS intends that all accommodation offered to their clients will for no longer than a one year period; however, circumstances may later require that the accommodation be extended beyond the one year intended period.

9.The presiding Member considered the intent of the parties prior to occupancy stating: “It is clear that the term of the occupancy was intended to be for less than a year. The Tenant himself testified that he was repeatedly told that the accommodation would be short-term. LL further testified that the average stay of JHS’ residents is 3 months”.

10. On the basis of the submissions made in the request, I am not satisfied that there is a serious error in the order or that a serious error occurred in the proceedings.

TST-01778 (Re), 2010 CanLII 67970 (ON LTB)

The evidence before me was that the solution arrived at after the Rogers decision was to delineate two types of occupation, which were to be identified Phases I and II (a third phase was apparently also developed but never implemented). Tenants in Phase I would remain there for twelve months after which they would potentially progress to Phase II, where it was conceded at the hearings (and discussed more fully below) the Act would apply.

The proposal was outlined in a document entitled “Transitional and Continuing After Care

Program” dated April 10, 2006 (Exhibit 6). Phase I would be…

a one year transitional program for older men who are in need of supportive, transitional recovery housing… The focus for the Program would be primarily in the area of relapse prevention and in establishing a recovery network of support and social services as required.

As the residencies would only be one year in length (non-renewable), the Program would not be under the TPA.

House Mandate: To offer an on-site recovery based structured program on a month to month basis up to 12 months maximum – dependent on committed and active participation.

Residents… would be required to sign a service agreement that would outline the terms of the residency, services provided, rates for room, services and board, in addition to details of the behaviour expectations and terms for discharge.

Phase II was described in the same document as: “a longer, more permanent residence for older men who are in need of supportive recovery housing…The length of the stay could be for more than a year, depending on the needs of an individual resident.”

The ten page Service Agreement (Exhibit 7) to Phase I to be executed by the Landlord and a tenant at the outset of a tenancy specifies the Act does not apply, the aims and objectives of the occupation and that the contract “is unconditionally terminated” at the end of the term or earlier in the event of misrepresentation or a breach of the rules which could include among other things “abuse of alcohol, damage to the House, drugs and acts of violence.” It further provides that the contract can be terminated by the Landlord if it “determined that the needs of the Participant can no longer be met by his continuing in the Program and would best be served in other ways (e.g. independent living) or by other agencies (e.g. mental health agencies, withdrawal management services, treatment program agency, special care home, referral for long-term care, etc.), or when the objectives of the services have been met or will not be met.”

[...]

Occupation must be for Purpose of Receiving Rehabilitative Services

Finally and fundamentally to the Tenants’ submissions is that the services provided by the Landlord, which in their words total referrals, case management, conversation, safe environment, appointment support and housing, do not amount to rehabilitative services. Reference was made to the Divisional Court case in Grenadier (Tenants of) v. We-Care Retirement Homes of Canada Ltd., [1993] O.J. No. 1550 where the court determined that “the enumerated purpose must be more than merely incidental to occupation.” D. Lane J. continued “indeed, in my view, the language leads to the conclusion that it must be the primary purpose to quality.”

I am satisfied, however, that what the Landlord is providing is more than just housing, and that the housing is incidental to the services and not the other way around. The written material before me supports this conclusion as does the large quantity of oral evidence.

The structure of the intended program is set out in the organizing document (Exhibit 6) which I am satisfied from the oral evidence the Landlord substantially implemented. It sets out that an

individualized care plan is created containing assessments and goals. It provides therapy, referrals to other services, what are described in the Landlord’s materials as focus group work including recreational and social activities and discharge planning. These are outlined in greater detail in the Participant Guidebook (Exhibit 8), receipt of which a prospective tenant acknowledges, including the fact that staff are available to “provide guidance, counselling, information, referral and advocacy” and mediate disputes. Housing is incidental to all of this as are the corollary financial arrangements.

I find the fourth and final criteria to be met.

[...]

I would also disagree with the other submission, that to find in favour of the Landlord in this instance would somehow undermine the rule of law and make it more difficult for tenants to exercise their rights. The situation before me is unique, at least for Toronto, because the Landlord provides unique services to a defined group. As noted above, the Landlord provides to these men rehabilitative services agreed for a specific duration not exceeding one year. Each one of parties testifying, including two who argued against the case put forward by their own solicitor, said that they implicitly trusted the Landlord to make the correct decisions to maintain their very unique living arrangements incidental to the services being provided, specifically completely abstinent housing with no tolerance for drugs or alcohol.

Unlike the solicitor for the Tenants, I am not at all convinced that the Landlord would be entitled to an order terminating a tenancy pursuant to the Act without significant effort and/or argument and time, which could have the effect of significantly complicating the lives of the other men living at the accommodation. In fact, there was no evidence before me or even suggestion that the Landlord would make the wrong decision in such circumstances, even by Witness 9 who had

once been evicted by the Landlord prior to this application and not allowed to return until he went to detox.

Stepping back from the legal analysis, it is simply not logical in these circumstances to require the Landlord to comply with the carefully crafted provisions of the Act intended to prevent lawful evictions as set out in section 1 of the Act. In the simplest and most basic terms, this Landlord requires flexibility which the Act would not provide.

For these reasons the Act does provide that this sort of tenancy should be exempt. That is my finding: living accommodation in Phase I is exempt from the Act.