Relief from Eviction (Human Rights)

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Date Retrieved:	2024-05-11
CLNP Page ID:	1928
Page Categories:	Human Rights, Human Rights (LTB)
Citation:	Relief from Eviction (Human Rights), CLNP 1928, <https://rvt.link/8r>, retrieved on 2024-05-11
Editor:	Sharvey
Last Updated:	2023/09/22

Connelly v. Mary Lambert Swale Non-Profit Homes, 2007 CanLII 52787 (ON SCDC)

[8] We agree with the appellant’s submission that a tenant cannot be evicted for behaviour directly caused by a disability if an accommodation can be reached without undue hardship, in this case to the landlord and its tenants.

[9] As noted in Renaud v. Central Okanagan School District No. 23, [1992] 2 S.C.R. 910 at paragraph 50:

“To facilitate the search for an accommodation, the complainant must do his or her part as well. Concomitant with a search for reasonable accommodation is a duty to facilitate the search for such an accommodation. Thus in determining whether the duty of accommodation has been fulfilled the conduct of the complainant must be considered.”

[10] On the finding of the Tribunal, no accommodation is possible. The appellant denied he was dealing drugs from his apartment. He denied his conduct created difficulties both for the respondent and its tenants.

[11] The Tribunal found that the appellant’s operation of a crack house substantially interfered with the rights of the other tenants.

TEL-12889 (Re), 2008 CanLII 82450 (ON LTB)

Application of the Human Rights Code to Board Proceedings

1. Ontario’s Human Rights Code, R.S.O 1990, c. H.19, as amended (“Code”), is the primary source for human rights law in front of provincial tribunals such as the Landlord and Tenant Board. By operation of subsection 47(2) of the Code, the legislature has given the Code primacy over all other legislative enactments. As a result of this primacy clause, where provisions of the Code conflict with provisions in another provincial law, including the Residential Tenancies Act, 2006, it is the provisions of the Code that are to apply.

2. The leading decision respecting the application of the Ontario Human Rights Code to eviction proceedings is Walmer Developments v. Wolch (September 8, 2003), Toronto Docket No. 637/02 (Div. Ct.) Re: TSL-39032. This decision was rendered while the Tenant Protection Act, 1997 was the legislation in force. However, it is applicable to proceedings under the successor Residential Tenancies Act, 2006. I understand Walmer Developments v. Wolch to mean that in determining whether to exercise my discretion to grant relief from eviction, pursuant to section 83 of the Act, I must consider whether the Tenant has a disability. If so, has the Landlord has met its obligation to make reasonable efforts to accommodate, to the point of undue hardship, the tenant's disability, pursuant to section 17 of the Human Rights Code.

3. Section 2(1) of the Code provides that everyone has the right to equal treatment with respect to the occupancy of accommodation, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed (religion), sex (including pregnancy, gender identity) , sexual orientation, age, marital status, family status, disability, or the receipt of public assistance. “Disability” is defined by section 10(1) of the Code to include both physical conditions and mental disorders.

4. If seeking relief from eviction pursuant to the Code, the Tenant bears the onus of establishing, on the balance of probabilities, that they are covered by one of the grounds set out in section 2(1) the Code.

5. Section 17 of the Code creates an obligation to accommodate persons with disabilities. Section 17 states that a right is not infringed if the person with a disability is incapable of performing or fulfilling the essential duties or requirements attending the exercise of the right. However, this defence is not available unless it can be shown that the needs of the person cannot be accommodated without undue hardship. The Code prescribes three considerations in assessing whether an accommodation would cause undue hardship. These are: (1) cost; (2) outside sources of funding, if any; and (3) health and safety requirements, if any.

...

17. In the event the Tenant indeed suffers from schizophrenia, I would not consider such a diagnosis to be relevant in this proceeding. In Connelly V. Mary Lambert Swale Non-Profit Homes, 2007 CanLII 52787 (ON S.C.D.C.), the Court upheld the Ontario Rental Housing Tribunal’s order evicting the tenant notwithstanding the fact the tenant had a disability, stating at paragraph eight that “. . . a tenant cannot be evicted for behaviour directly caused by a disability if an accommodation can be reached without undue hardship, in this case the landlord and its tenants” [emphasis added]. In the case at hand, there is no evidence to support a finding that the Tenant’s illegal acts, the possession of child pornography and sexual assault, were directly caused by his schizophrenia.

Burns v. David B. Archer Co-operative Inc., 2018 HRTO 1850 (CanLII)

[5] The respondents submit that in TSC-01079-16, issued on November 3, 2017 (“TSC-01079-16”), at paragraphs 13, 14, 15, 17 and 18 the LTB considered evidence pertaining to the applicant’s medical issues, and heard submissions on the respondents’ duty to accommodate. Her legal counsel at her LTB hearing made submissions in which he referenced the Code. The evidence considered included details pertaining to the applicant’s health issues and how they related to her ability to pay her regular housing charges. The LTB considered the applicant’s submissions and granted her relief from eviction; she was given a conditional order. It directed her to make certain payments on a periodic basis. However, in the event that she breached that order, the Respondent Co-op could apply to the LTB for an order in which it sought to evict her given her failure to comply.

[6] The applicant did not comply with the conditions in order TSC-01079-16. The Respondent Co-op filed an Application at the LTB in which it sought to evict the applicant as she had failed to make one of the payments specified in the order. In TSC-01707-14, issued on January 18, 2018 (“TSC-01707-14”), the LTB granted the application, and ordered the applicant to vacate the member unit. The applicant filed a motion to set aside order TSC-01707-14. In TSC-01707-18-SA, issued on April 5, 2018 (“TSC-01707-18-SA”), the LTB set aside order TSC-01707-14. Specifically, the LTB considered the applicant’s personal circumstances including her disability, and family issues, and ability to pay her housing charges. The LTB ordered that the payment plan in TSC-01079-16 be restored. Consequently, the applicant was granted relief from eviction and is entitled to remain in her housing.

Grenier v. Kitchener Housing Inc., 2017 HRTO 753 (CanLII)

[4] The respondent responded to the noted conduct by filing an application with the Landlord and Tenant Board (“LTB”) seeking to evict the applicant. The hearing for eviction of the applicant was held at the LTB on November 16 and December 13, 2016. The adjudicator found that the respondent had established grounds for termination of the tenancy. However, the January 13, 2017 eviction order granted conditional relief from eviction due to the applicant’s mental health issues. One condition was that the applicant refrain from collecting and/or displaying syringes on the grounds of the complex.

Centurion Property Associates Inc.; Thresholds Homes and Supports Inc. v. Debbie Kuehn ONLTB SWL-48792-21

23. The Landlords have, in my view, established that the clutter in the rental unit (a) substantially interfered with the Landlords’ lawful rights, privileges and interests by impeding the ability of the Landlord to treat the rental unit for pests; and (b) constituted a serious impairment to the safety of the Tenant and other residents of the residential complex. That is not, however, the end of the story and I must consider all of the relevant circumstances as required by section 83. That includes consideration of the HRC and whether the Landlords have established that they have complied with their obligations under the HRC.

Section 83

24. I have considered all of the disclosed circumstances and find that it would not be unfair to grant relief from eviction in accordance with paragraph 83(1)(a).

25. There is no dispute that the Tenant has a disability that has resulted in, or at least contributed to, the issues identified by the Landlords as being the basis for this application. When exercising discretion under section 83 of the Act, I must have regard to the Landlords’ obligations under the HRC and whether they have complied with those obligations. It is not, in my view, unfair to deny eviction in circumstances where a landlord has failed to comply with its obligations under the HRC.

26. Where the grounds relied upon by a landlord to terminate a tenancy and evict a tenant arise as a result of the fact that the tenant has a disability, the landlord must, in my view, establish that it has accommodated the tenant to the point of undue hardship as required by the HRC. I find, for the reasons set forth below, that, in this case, the Landlords have not met this burden and this application should, as a result, be dismissed on the basis that it is not unfair to grant relief from eviction.

...

37. The Landlords raised Connelly v Mary Lambert Swale Non-Profit Homes [2007 CanLII 52787 (ON SDC)] and argue that the conduct of the Tenant must be considered when assessing whether the Landlords have fulfilled their duty to accommodate. Connelly involved a drug addict dealing drugs from his rental unit. The Divisional Court rejected any suggestion that there was an obligation on the landlord to permit the tenant to deal drugs out of his rental unit to accommodate the tenant’s disability. The Board had found that no accommodation was possible. I am not able to make that finding based on the facts of this case. To the contrary, I find that accommodation of the Tenant is possible.

...

45. The Landlords have provided me with no evidence upon which I am able to reasonably find that the requested accommodation would impose undue hardship on the Landlords and, in the absence of any evidence as to the impact on the Landlords of doing so, I am unable to accept that providing the Tenant with a space in the parking lot of the residential complex on a temporary basis to accommodate a shipping container constitutes, in and of itself, an undue hardship on the Landlords.

46. The Landlords do not appear to have made inquiries of the Tenant as to the dimensions of the shipping container that the Tenant was considering such that they were in a position to assess the impact, if any, on placing the requested shipping container in the parking lot of the residential complex.

47. There was no evidence with respect to the cost (if any) to the Landlords of accommodating the Tenant or with respect to the sources (if any) of outside funding that may be available.

48. There was substantial evidence before me from Ms Wilcox with respect to the issues of health and safety that arise from the clutter in the rental unit. That evidence related, however, to the health and safety impact of the clutter in the rental unit and did not address any health and safety requirements as they relate to the accommodation requested by the Tenant. There is no evidence upon which I could reasonably find that the accommodation requested by the Tenant gives rise to identified health and safety requirements such that the making of the accommodation would result in undue hardship to the Landlords.

49. There is evidence that the Tenant has had issues keeping the rental unit clutter-free on a long-term basis and in making my determination I have considered: (a) the prior mediated agreement between the Landlords and the Tenant; and (b) the evidence of Ms Wilcox that the Tenant made some progress in de-cluttering the rental unit, but that progress was short-lived. Those considerations do not change my view that the Landlords have not established that they have accommodated the Tenant to the point of undue hardship. I do not see speculation as to what might happen if the Tenant’s request for accommodation is granted as being particularly relevant to whether the requested accommodation results in undue hardship to the Landlords.

SOL-93277-18 (Re), 2018 CanLII 88992 (ON LTB)

2. I find that the Tenants have substantially interfered with the Landlords’ and other tenants’ reasonable enjoyment and lawful rights. I find however that there are factors, including human rights considerations, which justify discretionary relief from eviction.

(...)

20. I find that the Tenants’ son’s developmental challenges arising from his autism, trigger the Landlords’ duty to accommodate under the Ontario Human Rights Code (the “Code”). The Landlords did not provide any evidence of any efforts to accommodate the Tenants’ son’s condition. The Landlords did not provide evidence of any meaningful or constructive response to the Tenants’ email dated May 24, 2018, earnestly seeking their accommodation.

(...)

28. With respect to the issue of noise, I have considered all of the disclosed circumstances in accordance with subsection 83(2) of the Residential Tenancies Act, 2006 (the 'Act'), and in particular, the Landlords’ failure to accommodate. I find that it would not be unfair to grant relief from eviction pursuant to subsection 83(1) of the Act.

TSL-91331-17 (Re), 2018 CanLII 111710 (ON LTB)

3. This was a difficult decision, as I find both the Tenant’s and D.L.’s circumstances to be compelling. Having weighed the circumstances, for the reasons set out below I find that it would not be unfair to give the Tenant a chance to preserve his tenancy, subject to strict conditions.

(...)

10. The Tenant’s circumstances are compelling. He suffers from schizophrenia, which makes it hard for him to maintain housing. The Landlord is a supportive housing provider and the Tenant receives mental health supports in his home, as well as an affordable rent. In short, this is housing of last resort. If the Tenant is not able to maintain this tenancy, he is not likely to succeed elsewhere and may become homeless.

11. There was no evidence before me that the symptoms of the Tenant’s schizophrenia caused or contributed to the assault. However, it is common knowledge that people with schizophrenia can have trouble controlling their impulses, and I think it likely that the Tenant’s disability contributed to the assault. The Human Rights Code requires that I consider whether the disability can be accommodated so that the tenancy can continue.

TSL-53314-14 (Re), 2015 CanLII 11810 (ON LTB)

7. Based on the evidence before me, I am satisfied that the Tenant JO committed an illegal act and seriously impaired the safety of a person and that this occurred in the rental unit.

(...)

10. The Tenants havenot approached the Landlord identifying that JO has a disability recognized by the Ontario Human Rights Code. There has been no request for accommodation until after the proceedings commenced.

(...)

12. Having said that, JO has a very serious disability, his mother is in receipts of disability benefits as well. Accordingly, when exercising my discretion under s. 83(1) of the Act, I must have regard to the landlord’s obligations under section 17 of the Ontario Human Rights Code.

(...)

16. I have considered all of the disclosed circumstances in accordance with subsection 83(2) of the Residential Tenancies Act, 2006 (the 'Act'), and find that it would not be unfair to grant relief from eviction subject to the condition(s) set out in this order pursuant to subsection 83(1)(a) and 204(1) of the Act.

Walmer Developments v. Wolch, 2003 CanLII 42163 (ON SCDC)

[18] The appellant submits that this legislation casts upon the ORHT the duty of considering whether a landlord can accommodate a person suffering from a disability without undue hardship when it considers its discretion under s. 84(1) of the TPA, to "refuse to grant the [eviction order] unless satisfied, having regard to all the circumstances, that it would be unfair to refuse". While the direct enforcement of the Code by the making of an order is reserved to the Commission [Note 1], the Code is the law of Ontario and its provisions must inform any Ontario decision-maker in its deliberations. Therefore, the appellant submits that the ORHT ought to refuse to grant the order to evict the tenant where a reasonable accommodation to her needs can be made without undue hardship to the landlord. Such a reasonable accommodation to the tenant's needs might be an arrangement whereby the landlord informs the tenant's relatives at the first sign of trouble, so that they can intervene to get her back on her medication.

(...)

[37] In the present case, the tenant's behaviour is acceptable so long as she is on her medication and the accommodation proposed by the tenant's relatives is a reasonable one.

[38] The facts of this matter are now well in the past. In the interval, the mother and brother of the tenant have intervened, and, through counsel, have indicated an intention to continue to monitor the tenant's use of her medication. It would serve little purpose to remit this application to the ORHT for a fresh hearing on stale facts. We therefore allow the appeal, set aside the orders of the ORHT and dismiss the landlord's application upon terms as follows:

1. The tenant or her family shall forthwith provide the landlord with the telephone numbers of her brother and her mother and shall keep such information current. [page256]

2. Upon the occurrence of any conduct on the part of the tenant which the landlord considers is disturbing, or may escalate to the point of disturbing, the reasonable enjoyment of other tenants, the landlord shall forthwith notify the brother and mother of the tenant so that they may intervene.

3. If the problem is not rectified promptly, the landlord may proceed under the TPA as it may be advised