RESIDENTIAL TENANCIES: Mental Health Problems, a Duty to Accommodate, and a Tenant’s Right to Remain in their Home
By: Michael K.E. Thiele, B.A., LL.B., Plant Quinn Thiele LLP, Ottawa, Ontario Canada. Copyright 2007
The legislation governing most residential landlord and tenant relationships in Ontario is the Residential Tenancies Act S.O. 2006, c.17. (RTA). While the residential lease, written, oral, or implied, executed by the parties may inform the rights and responsibilities between the parties, the lease agreement may only establish those rights subject to the over-riding provisions of the RTA. In Ontario, the RTA applies to rental units in residential complexes despite any other Act and despite any agreement or waiver to the contrary. Further, where a provision in a tenancy agreement/ lease is inconsistent with the RTA or its regulations, that provision is void, and where the provision of another Act conflicts with the RTA the RTA takes precedence. In this regard, the freedom to contract is restricted; even prevented by the RTA, and appellate judicial pronoucement confirms that the RTA is effectively a complete code removing even the jurisdiction of the Superior Court in dealing with the relationship between landlord and tenant outside of the regime established by the RTA.
A recognized and statutorily mandated exception to the foregoing is the application of the Ontario Human Rights Code, the provisions of which take precedence over the provisions of the RTA. It is with respect to this exception that this paper is concerned, in the context of discussing recurring and difficult cases arising at the Landlord and Tenant Board, and how the Human Rights Code is helping tenants suffering from disabilities that cause behaviours which otherwise or normally would justify termination of their tenancies and eviction.
In practice before the Landlord and Tenant Board of Ontario, it has become increasingly apparent that a great number of tenants who are called upon to defend themselves and consequently their tenancies are suffering from some form of mental illness. In many instances, the mental illness is undiagnosed, but nevertheless is apparent to the observant onlooker. These tenants, but for the litigation support offered through Legal Aid Ontario, Community Legal Clinics, and generous lawyers, are left without the protections that one expects a Court to afford parties under disability. The Landlord and Tenant Board will allow proceedings to continue against a tenant, who by any reasonable measure would appear to be a party under disability, with the usual caveat being that they speak to duty counsel (who can not represent during the proceeding) prior to hearing.
Whether justice is wrought in these circumstances is a hard question; however, I believe it is fair to say that under these circumstances, the chance for injustice is greatly elevated. How then, and where, is the protection for parties under disability, for the mentally ill and infirm?
The starting point to deal with mental illness in residential landlord and tenant matters lies in the Ontario Human Rights Code R.S.O. 1990, c. H 19.. The code provides that -every person has a 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, sex, sexual orientation, age, marital status, family status, disability or the receipt of public assistance-. A disability is defined to include a condition of mental impairment or a mental disorder.
In the recent Supreme Court of Canada decision in Werbeski v. Ontario (Director of Disability Support Program, Ministry of Community & Social Services), 2006 SCC 14 (S.C.C.) , the Court held that a provincially created statutory tribunal was obligated to follow the provincial human rights legislation when rendering its decision. The Court stated that statutory tribunals, which were empowered to decide questions of law, are presumed to look beyond the enabling statute, to apply the whole law to a matter properly before them.
The OHRC is a fundamental law. The Ontario legislature affirmed the primacy of the OHRC in the law itself, which is applicable both to private citizens and public bodies. Further, the adjudication of OHRC issues is no longer confined to the exclusive domain of the Ontario Human Rights Commission: OHRC, Section 34. The legislature has clearly contemplated that this fundamental law could be applied by the Court and other administrative bodies and has amended the OHRC accordingly.
In Werbeski , supra, the Supreme Court of Canada found that an administrative tribunal should apply the provisions of the OHRC when interpreting statutes because:
(i) The Ontario Human Rights Code states that it has primacy over other legislative enactments;
(ii) The recent amendments to the OHRC have removed the exclusive jurisdiction over interpretation and the application of the Code, from the Human Rights Commission.
In addition, the provisions of Section 11(2) and Section 17(2) and (3) of the OHRC specifically state that “a Court, as well as the Tribunal or the Commission, could apply these provisions of the OHRC when deciding if the needs of a person with a disability can be accommodated without undue hardship.” Section 47(2) of the OHRC states that the OHRC is paramount over other legislation. The Supreme Court of Canada has also held that the Human Rights Code takes precedence over agreements and contracts: Syndicat Northcrest c. Amselem, [2004] 2 S.C.R. 551 (S.C.C.).
APPLICATION TO LANDLORD AND TENANT BOARD PROCEEDINGS
The Divisional Court in Walmer Developments v. Wolch, on a appeal from a decision of the Ontario Rental Housing Tribunal (predecessor to the Landlord and Tenant Board), dealt with a situation where the tenant was diagnosed with schizophrenia. As a consequence of this condition, the tenant exhibited behaviours that included frequent screaming, throwing garbage loose in the halls, shouting profanity in the elevator, putting her property, such as her TV, out in the hall, and leaving food cooking on the stove unattended and hence filling the hall with smoke.
The Ontario Rental Housing Tribunal did not apply the Ontario Human Rights Code, and failed to give consideration to the implications of section 2 of the OHRC to the eviction proceedings before it. This was ultimately held to be in error as Section 17 of the Code provides:
17(1) A right of a person under this Act is not infringed for the reason only that the person is incapable of performing or fulfilling the essential duties or requirements attending the exercise of the right because of disability.
(2) The Commission, the board of inquiry or a court shall not find a person incapable unless it is satisfied that the needs of the person cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.
After some discussion of issues pertaining to the Ontario Rental Housing Tribunal’s ability to require accommodation (since ameliorated by statutory amendments), the Court held that a tenant suffering a disability has the protections of the OHRC, and most importantly that the question of accommodation shall be considered in the Tribunal’s/Board’s determination of whether to relieve from eviction under the discretionary provisions of the Tenant Protection Act/Residential Tenancies Act.
In Walmer, the appeal was allowed because it was ultimately demonstrated that the landlord could accommodate the tenant by notifying the tenant’s family of problems as they arose and that the tenant’s family could intervene. It was found that the tenant, when on her medication was controlled and her behaviour was then not objectionable.
Walmer, then, stands for the proposition that a landlord has a duty to accommodate a tenant who exhibits behaviours as a result of a disability, that otherwise would warrant termination and eviction, and where the accommodation does not amount to undue hardship, to actually take steps to assist the tenant in maintaining their tenancy by finding reasonable solutions to the problems alleged. Further, where a landlord fails to provide such accommodation, the Landlord and Tenant Board is directed to consider what may be a reasonable accommodation and where available, refuse termination and eviction to the landlord.
SINCE WALMER The Walmer decision has had the practical impact of sensitizing the Landlord and Tenant Board to the fact that many of the persons who appear before the Board are suffering from disabilities. While sensitized to the issue, it continues to be the case that the burden of establishing the existence of the disability; and further establishing what the reasonable accommodation may be; remains with the tenant. Where tenants do not have representation and/or do not have a support network the accommodation potential (and hence retention of the rental unit) offered by Walmer , is not pursued and hence is lost. Very clearly, in the Landlord and Tenant Board context, a human right is only a right if it is pursued and the Board will not, on an institutional basis assure that a mentally ill party is represented and that his/her human rights are asserted.
The Walmer decision has had a dramatic real life impact for many tenants. In particular, tenants suffering from schizophrenia, paranoid delusional disorder, dementia, alzheimers, hoarding instincts, and a host of other mental illnesses that from time to time cause behaviours that otherwise would warrant termination and eviction; now, are retaining their housing, with the landlord being required to take a little extra care for them. The Walmer development has been a positive change in that it has very clearly prevented homelessness of persons with mental illness who are able to be treated and who will function normally with the right support, understanding, and accommodation.
This is significant as the number of aging renters increases. Aging seniors, who haven’t had an issue with their landlords since the commencement of their tenancy are increasingly finding themselves before the Landlord and Tenant Board facing allegations of anti-social behaviours. Often these behaviours are age related as aging sometimes brings on mental illnesses or medical conditions that cause a person to exhibit anti-social behaviours. Often, these can be medically treated or ameliorated by additional care and support. These -mentally ill- tenants are often just regular folks whose entire life is subject to being turned upside down through eviction because they got sick. Through eviction they lose the stability that having a place to live gives, it robs them of peace, their routines, and likely exacerbates any medical condition or mental illness through the stress caused by the eviction.
While Walmer has been a tremendous help to many tenants by forcing the Landlord and Tenant Board to recognize -disabilities- and to impose accommodation of those disabilities where reasonable; the procedures of the Landlord and Tenant Board in adjudicating cases dealing with the mentally ill continue to disregard the fact that in many instances these tenants are not only mentally ill but incompetent as well. From the perspective of the Landlord and Tenant Board it never has a party before it that can be a -person under disability- as in the sense of the Rules of Civil Procedure. Query whether this is just.
CONCLUSION The issue that this paper started with remains unresolved. Persons suffering with mental illness still face procedural disadvantage at the Landlord and Tenant Board. The Landlord and Tenant Board can make a person homeless. Hopefully, the law will eventually recognize that the mentally ill and incompetent deserve procedural protection and it seems fair to suggest that one avenue to such protection is through the ideas expressed by the Court in Walmer.