Hoarding

TSC-00132-15 (Re), 2015 CanLII 86358 (ON LTB)

70. Essentially the Member argues that the Co-op’s decision to evict dated September 29, 2014, is prima facie discrimination under the Code and the Co-op has failed to demonstrate that prior to issuing the notice it accommodated the Member up to the point of undue hardship. She further submits that standing by and waiting to see if the problem resolves itself is not accommodation as envisioned by the Code; and that the only genuine efforts made by the Co-op to meet the duty to accommodate occurred after the decision to evict was made and in response to TFS’s Inspection Orders of October 29, 2014.

71. The Co-op says it has accommodated the Member’s disability for the last five years by co-operating with her own proposals and plans that were largely unsuccessful. It tried to get involved with Public Health, the City’s programs, and made efforts on her behalf to find resources and get the unit into compliance. The prosecution the Co-op faces because of the Notice of Violation means it is now facing undue hardship. The Co-op is in a funding deficit situation; it can ill afford legal assistance let alone a fine of up to $100,000.00. It argues that in determining the criteria for undue hardship the Board must look at the impact of accommodation on the other members of the Co-op. (See: Metropolitan Toronto Condominium Corp. No. 946 v. J.V.M. (Public Guardian and Trustee of), [2008] O.J. No. 5412 (SCJ) at paras. 105-107.]

72. I agree with the Member that the Co-op’s decision to evict her dated September 29, 2014, constitutes prima facie discrimination under the Code.

86. The Member provided and relies on the unreported order of the Board in TSL-51280-14 issued on July 7, 2014. In that case the Landlord and the Tenant both acknowledged that the Tenant’s hoarding behaviour was disability-related and the Board found that the issuance of a notice to terminate the tenancy because of the Tenant’s hoarding constitutes a prima facie case of discrimination. The Landlord’s application is dismissed on the basis that because the Code takes precedence over the Act a notice of termination that violates the Code cannot be the basis of a successful application.

87. In TSL-51280-14 the application alleged the Tenant’s behaviour substantially interfered with the Landlord’s lawful right, privilege or interest. As it was not lawful for the Landlord to discriminate it was not open to the Board to make a finding that the Tenant’s behaviour amounted to a substantial interference with the Landlord’s lawful right, privilege or interest. The notice did not allege serious impairment of safety. As a result, it is not directly on point with the situation here.

88. More importantly, for the purposes of analysing the Co-op’s decision to evict the Member in light of the Code and the duty to accommodate, the decision that the Board must look at is the one the Co-op made on December 22, 2014, when it issued its notice to end occupancy in the Board’s Form N7.

92. Although the financial information provided by the Co-op was very limited I am satisfied it does not have and cannot obtain the resources needed to fill the gap in the Member’s most recent accommodation plan. I say this because operating a deficit means that although the Co-op might be able to borrow $2,000.00 from one line item to pay for movers, it is highly unlikely it has the resources to put in place supports like long-term case management.

93. On a very practical level this means that there is realistically nothing more the Co-op could do to assist the Member and accommodate her disability-related needs.

94. I would also agree with the Co-op that in assessing the criteria for undue hardship the Co-op’s responsibilities to its other members cannot be ignored, nor can the Board ignore the very real possibility that the current prosecution of the Co-op based on the Notice of Violation issued by TFS may succeed. That prosecution puts the Co-op at substantial risk.

95. In other words, and given all of the above I am satisfied the Co-op has met its obligation under the Code to accommodate the Member up to the point of undue hardship.

99. It seems to me that in all the circumstances the reasonable thing to do is require the Co-op to have TFS re-inspect the unit. If TFS indicates the unit is no longer a safety hazard then eviction shall be refused. If it indicates the unit is still in such a state that an Inspection Order would normally issue then eviction should proceed no earlier than 30 days after TFS has re-inspected the unit.