by Joe Hoffer
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.