Relief from Eviction (Human Rights)

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Date Retrieved:	2024-06-03
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 2024-06-03
Editor:	Sharvey
Last Updated:	2023/09/22

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.

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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.

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.

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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