Set-Aside Hearing (Beach based on Disability)

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-12-28
CLNP Page ID:	2452
Page Categories:	[Hearing Process (LTB)], [Human Rights]
Citation:	Set-Aside Hearing (Beach based on Disability), CLNP 2452, <https://rvt.link/eo>, retrieved on 2024-12-28
Editor:	Sharvey
Last Updated:	2024/12/27

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Residential Tenancies Act, 2006, S.O. 2006, c. 17

78 (1) A landlord may, without notice to the tenant, apply to the Board for an order terminating a tenancy or evicting the tenant if the following criteria are satisfied:

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(11) If the respondent makes a motion under subsection (9), the Board shall, after a hearing,

(a) make an order setting aside the order under subsection (6), and any order made under subsection (7) or (7.1), if any of the criteria set out in subsection (1) are not satisfied;

(b) make an order setting aside the order under subsection (6), and any order made under subsection (7) or (7.1), if the Board is satisfied, having regard to all the circumstances, that it would not be unfair to set aside the order under subsection (6); or

(c) make an order lifting the stay of the order under subsection (6), and any order made under subsection (7) or (7.1), effective immediately or on a future date specified in the order. 2006, c. 17, s. 78 (11); 2017, c. 13, s. 16 (10).

TSL-57457-14-SA (Re), 2015 CanLII 59176 (ON LTB)

12. As noted above, the sole issue before the Board is whether having regard to all the circumstances, it would not be unfair to set aside the order.

13. Many submissions were made on behalf of the Tenant about the duty to accommodate. The pertinent case in the matter before the Board, which was relied on by both parties, is Walmer Developments v. Ava Wolch, (2003) 2003 CanLII 42163 (ON SCDC), 67 O.R. (3d) 246, a case involving schizophrenia. In Walmer, the Divisional Court concluded that landlords are required to accommodate the needs of disabled tenants to the point of undue hardship. Accordingly, the Board, when exercising discretion under subsection 78(11)(b) of the Act, must have regard to the landlord’s obligations under section 17 of the Ontario Human Rights Code.

14. There is really no dispute that the Tenant is a person with a disability. According to a note from a treating psychiatry resident at CAMH, the Tenant has a ‘mental health condition that made it difficult for him to control his impulsivity’. A note dated January 23, 2015 from two CAMH physicians confirms that the Tenant was admitted to CAMH from November 12, 2014, with ‘an acute decompensation of his mental illness’.

15. It was also not seriously disputed that a Landlord may be required to accommodate a person with a disability to the point of undue hardship.

16. In this case, the evidence before the Board is sufficient to conclude that the Tenant did not comply with the mediated agreement as a result of his disability. It would therefore be discriminatory to evict the Tenant for conduct directly attributable to his disability, without considering the Landlord’s duty to accommodate to the point of undue hardship.

17. In spite of the earlier consent order, in which the Tenant raised that he has a disability and the parties acknowledged that the consent order was accommodation pursuant to the Human Rights Code, the Landlord does not appear to have considered or accepted that the Tenant’s conduct might be due to his disability.

18. The Landlord’s view is that the Tenant was behaving illegally and terrorizing other tenants, many of whom are older. The Landlord is also very concerned about individuals who frequent the Tenant’s unit, including when he is not there. The Landlord is concerned that the when the Tenant returns he will be swept back into his old ways.

19. It was also submitted on behalf of the Landlord that it has already accommodated the Tenant by entering into the consent. In doing so, the Landlord considered that the Tenant had been diagnosed with mental health and addiction issues for which he had been referred for treatment.

20. The evidence before me is that the initial diagnosis was incorrect, and while waiting for treatment, the Tenant’s symptoms escalated and he breached the consent order. His conduct ultimately resulted in his being admitted to CAMH, where he received a different diagnosis and has engaged in treatment, including a six month residential program. In addition to the treatment he has undergone, ongoing supports have been arranged for which should assist in preventing a relapse.

21. The Landlord’s evidence is not sufficient to find that it would cause undue hardship to the Landlord or other tenants to set the order aside.

22. Having considered all of the disclosed circumstances, I am satisfied that it would not be unfair to set aside the order.

TEL-14279-11-SA (Re), 2011 CanLII 50628 (ON LTB)

1. Pursuant to subsection 78(11)(b) of the Residential Tenancies Act, 2006 (‘Act’), the Board may make an order setting aside the ex parte order issued if the Board is satisfied, having regard to all the circumstances, that it would not be unfair to set aside the order.

2. This provision means that I have the discretion to grant relief to the Tenant by setting aside order TEL-14279-11, notwithstanding the fact that the Tenant has breached four conditions required in the mediated agreement.