On September 8 the Divisional Court of Ontario
released an important decision which has serious legal
and financial implications for Landlords. The Divisional
Court has ruled that the Ontario Rental Housing Tribunal
(the “Tribunal”) has jurisdiction to determine
whether a landlord has complied with the Ontario Human
Rights Code and to force a landlord to bear the cost of
accommodating tenants with disabilities.
The particular case involved a tenant whose mental disability
caused her to scream at all hours, most days and nights.
This behaviour substantially interfered with other residents’
reasonable enjoyment of their rental units and the landlord
moved to evict on that basis. The court determined that
the Human Rights Code requires the Tribunal, if asked
to do so, to refuse to evict unless the landlord can demonstrate
that it would be a financial hardship to accommodate the
resident’s disability.
The Divisional Court held that the Tribunal
has jurisdiction to determine whether the landlord has
properly exercised its duty under the Human Rights Code
to accommodate the tenant’s disability (for example,
through soundproofing measures; installation of specially
designed appliances; providing special services such as
cleaning, deodorizing or just checking in on the resident).
While Tribunal Members lack the expertise of the Human
Rights Commission, they are nonetheless required to interpret
and apply the Code. In order to demonstrate “hardship”
in accommodation, a landlord basically has to show that
accommodation would push it to the brink of bankruptcy.
There are numerous cases now pending at
the Tribunal where landlords can show the tenants is in
breach of the TPA and where the tenant fights eviction
or other liability on the grounds of disability and the
landlord’s failure to accomodate under the Code.
What does this case mean in practical terms?
• First, if the defense to an application
involves the Code, the landlord should ensure the resident
has met the burden of proving that they have a disability.
The landlord should require that reliable medical evidence
be provided and that there is an opportunity to cross-examine
the maker of the opinion (too often the decision of disability
is based on hastily drafted Doctor’s letters where
the Doctor is not even in attendance at the hearing).
• Second, the landlord should be prepared
to demonstrate what would properly constitute “accommodation”
of the disability and what would result in “undue
hardship”. For example, while “soundproofing”
may sound attractive, an Engineer may testify that it
cannot be done without costly structural changes which
would cause “undue hardship” as that term
is interpreted under the Code.
• Third, if the case holds the potential
for high risk and high cost, the landlord should seriously
consider a careful mediation strategy using defences under
the Code as leverage in the negotiations.
This Divisional Court decision will have
tremendous impact at the Tribunal. It is likely that the
frequency of defences to landlord applications based on
allegations of disability and a breach by the landlord
of the Code will increase substantially. Landlords and
their representatives who lack knowledge of the Code or
who are ill-prepared at the Tribunal will expose themselves
or their clients to serious financial consequences.
If you have any questions, contact
Joe Hoffer
1 (519) 672-9330
hoffer@cohenhighley.com
