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.
3. The Landlord is a social housing provider but it does not provide social supports beyond informal internal resources and referrals to outside agencies. Its position is essentially that the Tenant is either unwilling or unable to clean up the rental unit to an acceptable condition. The Landlord has been attempting to resolve this problem since September of 2015. During that period the Tenant has continuously been connected with social supports and agencies willing to help him, supportive medical personnel, and legal assistance from the local community legal clinic. The Landlord argues the Tenant’s behaviour has amply demonstrated that additional time will not resolve the problem and permitting the situation to continue further would be unfair to the Landlord.
4. The Tenant has lived in the rental unit for about 18 years. He lives alone and his sole source of income is Ontario Disability Support Program benefits (‘ODSP’). The Tenant has fibromyalgia, degenerative bone disease, COPD, damage to his knee and shoulder, depression, and a generalised anxiety disorder. He has been diagnosed with hoarding disorder. In January of 2018 he was newly diagnosed and underwent surgery for bladder cancer. As of the date of hearing before the Board the Tenant was scheduled for further surgery on April 19, 2018.
10. A letter dated February 26, 2018 from the Tenant’s physician states:
- "It is my opinion that [the Tenant’s] physical health cannot improve significantly unless his housing is secure, safe and clean, and that he cannot get his current apartment into that state by himself, and that concerted intervention will be needed to achieve this. Furthermore, I believe that eviction at this point would be extraordinarily prejudicial to his health, because of the stress, effect on sleep, nutritional status, pain, and hope of recovery."
12. What this letter indicates is that the Tenant is not refusing to co-operate with a reasonable plan to meet the Landlord’s requirements. As a result, the Board is not prepared to make a funding that the Tenant is unwilling or unable to clean up the rental unit to an acceptable state.
13. No evidence was led by the Landlord that would support a finding that the Landlord has accommodated the Tenant’s disability up to the point of undue hardship. The Landlord argues that it is unfair to expect the Landlord to use staff resources to “monitor” the state of the unit. But no evidence was led as to the cost to the Landlord of this “monitoring” activity, outside sources of funding available to assist it, if any, or any relevant health and safety requirements. As a result, the Board has insufficient evidence before it to support a finding that the Landlord has accommodated the Tenant up to the point of undue hardship.
14. Given all of the above, I am satisfied that it would not be unfair to set aside the eviction order so the Tenant’s motion shall be granted. Pursuant to s. 78(12) of the Residential Tenancies Act, 2006 (the 'Act') the mediated agreement signed on August 4, 2017 will be replaced with a Board order designed to match the proposal put forward by the Tenant’s physician.
45. MG referred to a decision of the Board in TSL-51280-14 where the member stated as follows:
- "Subsection 64(1) of the Act uses the phrase “lawful right, privilege or interest”. Discrimination is not lawful unless a defence can be established under the Code. This means that if the Landlord here cannot establish it has a defence to the allegation of discrimination, then it is not open to the Board to make a finding that the Tenant has substantially interfered with a lawful right, privilege or interest of the Landlord’s. I note that I would reach the same conclusion if the Landlord was asserting the Tenant’s behaviour constitutes substantial interference with “reasonable” enjoyment. As discrimination is unlawful and the Code take precedence over the Act, the reasonableness standard means it is not open to the Board to find that disability related behaviour is a breach of s. 64(1) of the Act where a prima facie case of discrimination has been made out unless a landlord can establish a defence under the Code.
So the question that must be addressed is whether or not the Landlord has led sufficient evidence to establish that efforts to preserve the Tenant’s housing have been exhausted and its standards cannot be curtailed without imposing a degree of hardship that is undue.
46. I believe that in the circumstances of this case the Landlord has provided a defence and in light of the health and safety risks the tenancy cannot be preserved.
47. In Morguard Residential v Peters 2010 ONSC 2550 (CanLII), (Ont Div Ct) the Tenant was evicted for substantial interference with reasonable enjoyment and with landlord’s lawful rights and interests arising from state of uncleanliness of the rental unit. Court upheld as reasonable the member’s finding that the landlord had a legal interest in the state of the unit arising from its obligation under section 20 of the Act to maintain the unit is a state fit for habitation and that the Landlord has a lawful interest in protecting itself from future claims based on a failure to comply with section 20. The member found, without any supporting evidence, the tenant suffered from a disability under the HRC. In this case the tenant was found to be incapable of maintaining the unit in a state of ordinary cleanliness and the member found there was nothing the Landlord could do to accommodate the Tenant which would permit her to stay. This conclusion was supported by the fact the tenant had refused assistance and had also refused entry. Most significantly the Court found that the tenant had to “do her part” in respect of accommodation.
48. The need to consider the Tenant’s actions in the enquiry about the Landlord’s duty to accommodate is set out in the Supreme Court of Canada case of Central Okanagan School District No. 23 v. Renaud (1991) 2 S.C.R. 970. The court stated:
- "The search for accommodation is a multi-party inquiry…..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."
1. The Landlord testified that:
- She has been employed since 2000 and that she is the President of the property management company, and;
- The Tenant has been served with several notices to tidy up her unit due to an accumulation of goods, and;
- There was a former mediation agreement in 2005 with the Tenant related to the same issues, and;
- Other tenants have complained about the condition of the Tenant’s unit, and;
- The fire department issued an order against the Landlord on July 5, 2016 and they are potentially facing prosecution, and;
- The property manager and fire inspector inspected the rental unit on October 25, 2016 and noticed some improvements, and;
- The Landlord has tried to accommodate the Tenant previously by providing her extensions to clean up her rental unit. The Landlord submitted copies of previous correspondence sent to the Tenant dated as far back as 1998.
4. The N5 Notice was served on the Tenant on August 30, 2016. The termination date is September 21, 2016. The N5 Notice alleges that the Tenant has significant combustible materials in her unit which poses a safety risk and a fire hazard. Since this is a first N5 Notice, the Tenant had an opportunity to void the notice during the seven days following service of the notice. The voiding period ran from August 31, 2016 to September 6, 2016.
5. On August 30, 2016, the Landlord served the Tenant with an N6 Notice to End your Tenancy for Illegal Acts (N6 Notice). The N6 Notice has a termination date of September 21, 2016 and alleges that the Tenant has significant combustible materials in her unit which poses a safety risk and a fire hazard.
6. On August 30, 2016, the Landlord served the Tenant with an N7 Notice to End your Tenancy For Causing Serious Problems in the Rental Unit or Residential Complex (N7 Notice). The N7 Notice has a termination date of September 11, 2016 and alleges that the Tenant has significant combustible materials in her unit which poses a safety risk and a fire hazard.
10. Based on the evidence, I am satisfied that the the condition of the rental unit substantially interferes with the Landlord’s lawful rights and interests, particularly since the Landlord is facing potential prosecution under the Fire Protection and Prevention Act, 1997. The photographic evidence shows the high level of clutter in the unit, and in particular, some areas are completely inaccessible. The Tenant has also seriously impaired the safety of all of the residents as the amount of clutter and garbage in the unit poses a health and safety hazard to the Tenant and to other tenants that reside in the 76-unit building. The Tenant has also committed an illegal act that has a serious impact upon the character of the residential complex as the current state of clutter in the unit is contrary to the Fire Protection & Prevention Act, 1997.
11. The Tenant has tried cleaning the rental unit herself but is limited by her mobility disability. The Tenant’s nephew has assisted her and she now has more recently accepted assistance from the community outreach team. With their help, there has recently been significant progress in de-cluttering the rental unit. The community outreach team are intending to return to the unit to further assist the Tenant.
12. The Landlord is seeking to terminate this tenancy due to the lengthy history with the Tenant, the prospect of prosecution from the fire department, the safety hazard and potential liability for the Landlord.
13. The Tenant’s Legal Representative submitted that the Tenant is a person with a disability and that her hoarding might be caused by her disability. There was no medical evidence submitted to support that the hoarding was connected to the Tenant’s disability.
14. At the hearing, the Tenant’s Legal Representative submitted that the Tenant could reasonably comply with the inspection order within six weeks of the issuance of this order.
16. The Tenant is elderly and has occupied the rental unit for twenty six years. Moving out would likely be a very difficult experience for her. While the hoarding has been a serious ongoing problem for a number of years, the evidence suggests that condition has recently improved and may continue to improve. The Tenant and has recently become involved with the community outreach team. The community outreach team has made significant progress within the unit and additional visits are scheduled. The fire inspector has some discretion to postpone the charges to allow the Tenant to make some progress and comply with the inspection order. The statute of limitations expires on January 5, 2017 with respect to the charges under the Fire Protection & Prevention Act, 1997. It would not be unfair to provide the Tenant with some brief additional time to further de-clutter the unit prior to that date. Therefore, I am providing the Tenant with an opportunity to comply with the inspection order by December 31, 2016.