Autistic Child, Noise and Eviction

The Ottawa Citizen newspaper today printed a story about a family with an autistic child who makes a fair amount of noise in their Ottawa townhouse rental unit.  The landlord served the tenants, John From and Kerri Oastler, with a Notice of Termination on the basis that the child is banging and jumping to the extent that this is substantially interfering with the reasonable enjoyment of the residential complex by other tenants. 

I thought I would take a moment to comment about this newspaper article and fill in some of the blanks that do not appear in the newspaper story. 

The Notice of Termination that the landlord would have served on the tenant is a Form N5 (as published by the Ontario Landlord and Tenant Board HERE).  The fact that the tenants, in the story, are advised that they have 7 days to correct the behaviour is an indication that they received a voidable notice of termination--which necessarily is the form N5 in these circumstances.

A form N5 is voidable if the complained about behaviour stops after service of the Notice of Termination.  Hence, if there is no more banging or noise--then the tenants can not be evicted for the grounds set out in the Notice of Termination.

Of course, the problem for this family is that they have a limited amount of control over the behaviour of their son who allegedly is shaking the walls, running, jumping and screaming and behaving in such a way that other people in the complex are bothered.  The family feels that the Notice of Termination is "discrimination" and appears to be considering a Human Rights complaint of their own as they maintain that the behaviour arises from a disability (i.e. autism).

Presuming that the disability (autism) is indeed causing the son to create noise and disruption that amounts to a "substantial interference with the resonable enjoyment of the residential complex by another tenant" then the legal requirements for eviction are technically met.  The Residential Tenancies Act sets out in section 64 the landlord's right to terminate a tenancy where the conduct of a tenant or occupant substantially interferes with the reasonable enjoyment of the residential complex by other tenants.

Surely, where the complained of noises are "shaking the walls", running, jumping, screaming, and making noise that sounds like 50 pound box being dropped repeatedly, that would be enough to constitute a substantial interference warranting eviction?  In cases where there is no explanation for the noise arising from a disability there is almost no defence to the landlords application.  However, in cases such as this (autism), there is in fact a defence of sorts just as the parents intuit, which is a defence based on the application of the Ontario Human Rights Code.

The human rights code is, in the hierarchy of laws, constitution like.  Meaning it has a certain supremacy that all other laws in the Province are generally subject to.   When you review the Ontario Human Rights Code you will find that the Code does speak to discrimination in housing and that in fact the provisions of the Residential Tenancies Act are subject to the Ontario Human Rights Code.  You will actually find several references to the Ontario Human Rights Code in the Residential Tenancies Act itself and it is well accepted that Adjudicators at the Ontario Landlord and Tenant Board must apply "Human Rights Law" in their decision making process.

That Human Rights law applies is all well and good.  The more interesting question is "how" does it apply to the circumstances described in this newspaper article.  The fact is that there is noise---substantial noise.  Tenants are bothered and they are bothered a lot.  Does the Human Rights Code state that you can not evict a family because the noise is directly caused by an occupant with a disability?  Does the HRC trump the provisions of the Residential Tenancies Act such that a person with a disability can disturb neighbours with impunity?

How you answer the question is often not an all or nothing proposition and generally it is a matter of degrees.  Most people would expect that in accommodating a person with a disability that there would have to be a little more leeway in interpreting the rules and that you do not apply the same standard to a person with a disability as you would to a person without a disability.  This is in fact what the Court has done.

There is a decision in the case of Walmer Developments v. Wolch which dealt with a Notice of Termination being served on a tenant who suffered from schizophrenia.  That tenant, as a direct result of the disability, behaved in a way that substantially interfered with the reasonable enjoyment of the property by other tenants (screaming).  The Court held that the landlord, before evicting the tenant, has a duty to make reasonable accommodation for the tenant to the point of undue hardship.  The court held that the tenant's suggestion that the landlord notify her family at the signs of problems (i.e. the tenant being off medication), is a reasonable accommodation request.  By notifying the family, the family could intervene and ensure that the tenant got back on her medication and hence the disturbances would cease.

What is instructive from the caselaw is that the Court decisions make it clear that the duty to accommodate does not mean that one just needs to put up with the disturbance.  The HRC is to be used to foster cooperation and working together so that the person with the disability is able to remain in the apartment and the other tenants and landlord are able to enjoy their units peaceably.   To a degree, this means putting up with some disruption or a little more than what one would have to put up with otherwise.  It is a matter of compassion, living as community, and determining what is reasonable to expect from your community in the circumstances.

Where accommodating a person--up to the point of undue hardship--does not result in the issues being resolved then the HRC and the RTA allow for the conclusion that termination of the tenancy is the only option.  Landlords and tenants will not be required to indefinitely tolerate an intolerable situation regardless of the reason.

In reading this newspaper article I see the solution as being a matter of putting options on the table that will stop the noise and the things that cause the problem.  That may mean moving to another unit, padding on walls, or other things suggested by treatment providers that would allow the disturbing behaviour to be curbed.  If there is a plan of action, that would ultimately meet the goal of quieting things down, and the timeline is reasonable, then it is likely that the Landlord and Tenant Board would order the tenancy preserved while the plan is implemented.  It is doubtful that the plan would have to be "perfect" and this is as one would expect given the age of the child and what is rather unpredictable behaviour and likely changing behaviour over time.

For cases such as this to work out it is clear that the landlord needs to approach the tenants cooperatively.  This is not only a matter of decency but it is also the law---i.e. duty to accommodate.  For the tenants to receive the benefit of the duty to accommodate the tenants will need to acknowledge the problem (i.e. admit it), and then propose solutions and seek assistance from the landlord in coming to a mutually satisfactory resolution.  In my experience, it is impossible to do effective "accommodation" in an adversarial manner.    Cooperation is the key, and I find that once the landlord and the tenant know the scope of the duty to accommodate that they can work together. 

A landlord who refuses to accommodate a tenant and work towards a resolution where HRC issues are at play should expect that their applications to evict will be dismissed.  Likewise, a tenant who refuses to cooperate in coming up with a reasonable accommodation plan to solve the problems can also expect that their tenancy will be terminated and they will be evicted notwithstanding the fact that the problem arises from a disability.

Michael K. E. Thiele
www.ottawalawyers.com

P.S.  A last issue that the article seems to raise, which is interesting to me, is that the rental unit seems to be part of a condominium complex.  Query whether the Landlord and Tenant Board has jurisdiction in this matter and whether this isn't an opportunity to raise these same legal issues (as in Walmer) in the Superior Court.