Can I sue: Apartment building has severe criminality, gang activity, intimidation, and the Landlord does nothing!

Can a tenant sue a landlord when the landlord fails to control criminality in the building?

Imagine a tenant who lives in an apartment building where there is rampant drug use in the common areas, violence, threats of violence, vandalism, intimidation of tenants by others in the building, and basic criminality is a part of every day life.   How horrible it must be to live in a building like this?  Why stay there?--many ask.  The answer often is that the apartment is subsidized and moving is not an option because finding something affordable elsewhere is impossible.  Even if the unit is not subsidized, sometimes the answer is that the rent is affordable compared to renting elsewhere.  Moving is not an option as rents are high and moving costs money too.

Does a tenant have to put up with criminality, open drug use, trafficking, and all of the anti-social and anti-community impacts that these kinds of activities bring with them?  For a long time now, anyone versed in Landlord and Tenant law would point a tenant complaining of this kind of activity to a T2 Application (Tenant's Rights) that can be pursued at the Ontario Landlord and Tenant Board.  Along with that direction, most lawyers, paralegals, and clinics would tell a tenant that the chance of recovering very much, against a landlord, was low.  The concept of general damages---the award of pure pain and suffering money--at the Landlord and Tenant Board is more theoretical than real.  Even when an adjudicator is convinced to make an award the sum is generally quite modest (low).  

There are two major barriers to any tenant wishing to retain a lawyer or paralegal to pursue a T2 claim against a landlord for the issues described.  The first is that paying a lawyer or paralegal an hourly rate is a financial challenge from out of pocket money.  That problem is compounded by the fact that the Residential Tenancies Act makes illegal any type of contingency fee that exceeds 10% of the amount that is recovered.  Given that the absolute maximum knock it out of the park home run after a hearing is $35,000 (soon to be $50,000 on October 1, 2025), the maximum legal fee on a contingent basis is $3500 (see section 214 RTA and O.Reg. 516/06 s. 60 for the contingency fee cap).   You can safely presume that getting the Landlord and Tenant Board to award $35,000 for substantial interference with reasonable enjoyment is highly improbable.  The LTB favours an abatement analysis for damages which is a percentage of the rent paid--even when a case is proven.  That approach limits the value of damages and measures them relative to the rent as opposed to a more abstract conception of fairness, harm, and putting the victim back into the position they were in (as far as money allows) before the harm.

The low awards, limit the contingency fees to be earned.  The work involved (for the legal representative) is virtually guaranteed to exceed any reasonable or modest fee that can be charged.  There is a reason that lawyers and paralegals are not lining up to take on tenant cases (the inability to earn a reasonable living even when winning a case is quite dissuasive).

The next major issue (barrier) is that Residential Tenancies Law has incorporated a fault analysis that looks at the reasonableness of a landlords behaviour in response to the issues raised.    This approach is adopted from cases such as Onyskiw where the Ontario Court of Appeal affirms an approach where the landlord escapes liability on repair issues where they can establish that they proceeded diligently in dealing with the repair problems.  For this reason, when tenants do file T2 applications against their landlords because they are being harassed by other tenants, Landlords typically defend on the basis that they have investigated the issues, written letters, served Notices of Termination where appropriate, and are simply waiting for a hearing at the Landlord and Tenant Board.  A defence (roughly in these terms), tends to be successful.

The problem, of course, is that a landlord who responds to issues in the building by investigating transgressions and then initiating LTB proceedings, is doing very little (to nothing at all) to preventing the behaviours from occurring in the first place.   There is little incentive vis a vis liability to other tenants to properly vet prospective tenants to see if they are a good fit for the building.  Tenant past history, trouble at other places, can be ignored without any real risk---in the sense of liability being imposed on the landlord for not properly selecting prospective tenants.   There is also limited liability and risk to a landlord when they fail to proactively protect the residential complex, fail to have adequate security, and fail to harden the property against criminality.  For the most part, tenants only have success if they establish that a landlord fails to respond to issues in a timely way and even then, the damages awarded tenant to be quite modest.

Is anything changing?  There is a very interesting case in Ottawa called Yasin v. Ottawa Community Housing Corporation et. al. .

The link to this case (above) is an endorsement in a civil action respecting pleadings.  It is technical and procedural.  However, the endorsement by C. MacLeod RSJ is something to take note of.  The facts in that case (as pleaded--not yet proven), is that a tenant's rental unit was invaded by a guest of another tenant who was high and paranoid.  The tenant whose unit was invaded was so terrified that she jumped from her balcony--10 metres--suffering physical and psychological injuries.

What is interesting about this case is how it is framed.  The plaintiff is alleging that the defendant landlord breached a broader duty of care.  How RSJ MacLeod responds to the pleading is far more familiar to tort lawyers than it would be to Landlord and Tenant lawyers--it is an occupiers liability framework.  The measurement of damages seems to follow more of the general damages pain and suffering model than the LTB's abatement of rent model.

It also appears, in Yasin , that the plaintiff is aiming not just at the immediate actions of another tenant, or another tenant's guest, but at the entire organization of the residential complex, the landlord's knowledge of problems in the area, and basically the foreseeability of danger and hazards in the residential complex before those dangers have manifested.   This is very interesting---and will be of great interest to tenants living in community housing buildings where they have little option of moving elsewhere.   This case potentially challenges the housing programs that focus on housing the unhoused without immediate or close analysis of the impact of housing the unhoused on the tenants who are already living in the building.    It is not uncommon to be contacted by tenants in subsidized housing complaining about their residential complex and them describing it in terms similar to the alleged facts in Yasin.  As alleged in Yasin, it is not uncommon to hear of landlords who move in new tenants with problems that quite predictably cause severe distress and trauma for other tenants in the building.   It seems that the plaintiff, in Yasin, is putting that kind of landlord practice under the microscope.

Hopefully, Yasin will end up with a trial judgment for us all to review.  It raises interesting questions that will perhaps re-shape how the LTB considers T2 applications and the obligations of landlords in tenanting a building and ensuring that there is adequate and appropriate security.  Landlords should have a duty to their sitting tenants and should ensure that in filling a building that they are making reasonable choices, not just for themselves, but also for the tenants who will need to live next to each other.

Michael Thiele

www.ottawalawyers.com