This article is intended to be of help to family members of tenants, who suffer from various mental health problems such as schizophrenia, bi-polar disorder, and varying other disorders that may manifest behaviours that are considered antisocial and inconsistent with living in rental accommodation.
The issue that I am seeking to explore is best described in the context of an example. Let us imagine a situation of a tenant suffering from a mental health condition. That tenant is capable of independent living and for the most part is compliant with medication and treatment. When the tenant is on medication and perhaps receiving support in the community they are able to live in their apartment without incident. However, this same tenant, from time to time stops taking medication, or at other times of the year the medication seems to be less effective or somehow the mental health condition is more pronounced. Whatever the reason, in these times the tenant will do (one or all of the following): mutter to themselves in public spaces raising safety concerns for other tenants; behave oddly in elevators with other tenants present, shout intermittently for no apparent reason in common areas and in the rental unit thereby disturbing other tenants, throwing their own property out of their unit, re-organizing their unit very loudly, making repeated telephone calls to management raising complaints that are unfounded, filling up the voice-mail of the superintendent with rants--often religious in nature; complaining of being wronged in some way--illegally, contrary to the Residential Tenancies Act, harassment, etc., fixating on a tenant and interfering with that person in the building (notes, telephone calls, constantly knocking at the door). Sometimes the behaviours are self destructive and disturbing for other tenants to watch or hear and may included calling police, writing to the landlord extensively, posting notices in the building etc..
The tenant, as described, is understood to be acting or behaving in the manner that they are because of a mental health problem. When the condition is under control, the complained of behaviours stop. However, when the condition is not controlled you get the kinds of behaviours described--which in varying degrees range from being an annoyance to other tenants to becoming issues of impaired safety or even illegal conduct.
In circumstances where the conduct complained of substantially interferes with the reasonable enjoyment of the premises, impairs safety, or is an illegal act, the Landlord is in a position to serve a Notice of Termination in Form N5, N6, or N7 respectively. These Notices of Termination would ultimately lead to a hearing which would normally lead to an eviction Order based on the conduct described.
I say "normally" because the behaviour complained of is not acceptable behaviour in a rental complex and the Residential Tenancies Act (Ontario) allows a landlord to terminate a tenancy where this kind of conduct takes place. However, in situations where this kind of behaviour exists because of a mental health condition it is possible to avoid eviction and maintain the tenancy on the basis of Human Rights law, specifically the Ontario Human Rights Code (OHRC).
I'm going to write about the OHRC applying to the landlord and tenant law in broad general terms in the hope that the interaction between the two becomes clear.
As a general statement it is true to say that tenants or a landlord of a rental complex do not need to suffer continued interference with their reasonable enjoyment of the premises, illegal acts, or impaired safety regardless of whether the perpetrator of the act is disabled. Being disabled---suffering as our example sets out---from a mental health condition, is not a licence to annoy, impair safety, or commit crime. Sometimes landlords and other tenants react to the applicaiton of human rights law as requiring such tolerance. In fact, when tempers cool, it is clear enough that Human Rights law does not impose such a burden.
What a person's disability may require under the Residential Tenancies Act, is an accommodation or an adjustment of how things are done, to assist that person in not committing the behaviour complained of. What this means is that the tenant's disability requires an understanding on the part of landlords and tenants that some of the conduct that bothers them is caused by a condition beyond the tenant's control. In order for the disabled tenant to enjoy the benefits of continuing to live in the apartment building other tenants and/or the landlord may be asked to assist or accommodate the disabled tenant so that the complained of behaviours can be controlled, minimized, or stopped.
So what exactly does that mean? At the landlord and tenant board you may very well hear an adjudicator refer to a "duty to accommodate". What that means is that a landlord or other tenants have an obligation under the law to help a disabled person ( to the point of undue hardship) overcome the things that are causing that person to behave in the way that allows the landlord to serve the Notice of Termination. It can be said that the Notice of Termination imposes a harsh consequence for certain types of behaviour---and perhaps appropriately so where the tenant who committs that behaviour does so voluntarily. However, where the behaviour is involuntary (because of disability), the availability of serving a Notice of Termination against that disabled tenant may be too readily available without first requiring an investigation into alternative courses of action.
Lets look at the example where a tenant's medication is being adjusted. In that period of time while the medication adjustments are happening the tenant becomes verbally aggressive and confrontational towards other tenants and landlord staff. The verbal aggression and confrontation is real, scary, and disturbing to other tenants and the landlord. However, unlike a situation where the behaviour is intentional, the tenant in this example can provide medical reports and explanation from a treating phsyician explaining what is happening, why it is likely happening, and most importantly that the behaviour is temporary. The physician provides an opinion that the tenant poses no real physical threat. In light of this information, the tenant's spouse, family member, asks the landlord and other tenants for understanding, asks for some patience, and advises that all should be well within a month or two. Is this an unreasonable outcome? What if the tenant's spouse says to anyone with a concern or problem to please call her/him immediately if anything is happening so that he/she can take care of it?
The duty to accommodate forces landlords, tenants, and the Landlord and Tenant Board to investigate how and why certain things are happening. If these things are happening because of something falling under the Human Rights Code then there is a positive obligation to look for alternatives to the traditional penalty of eviction and termination of a tenancy. In other words, there is a duty to accommodate the tenant who is behaving in a certain way because of a disability.
The "duty to accommodate" is something that the HRCode imposes on all landlords. Some landlords greatly resist this obligation citing their view that they are not social workers and that they have no obligation to look after the tenants beyond collecting rent and maintaining the units as per the lease and the RTA. The reality is that this view is simply wrong and it is inconsistent with the actual law.
The duty to accommodate (to the point of undue hardship) can take many forms. Sometimes it involves providing grab bars for physical infirmities or even extra sound proofing to deal with extra noises. Sometimes wood floors need to be carpeted, sometimes tenants need to be moved to higher or even lower floors. Sometimes the tenant has difficulty going outside and can't pay rent at an office across town and hence the landlord has to go and pick it up or accept it late. The point of accommodating a person with a disability is to seek out a way to help the tenant maintain their tenancy by dealing with the conduct that arises from the disability that could lead to termination of the tenancy.
What an accommodation looks like depends entirely on the circumstances of the disabled tenant and what is within the power of a landlord to provide. The obligation is not without limits but at the same time relucatance based on artificial limits will not absolve a landlord from providing assistance to the disabled tenant.
How do you require accommodation of a disability from a landlord? The simple answer is that you ask for it, and preferably in writing. If a tenant suffering from some kind of disability needs accommodation they should be forthright with the landlord and ask for that assistance. Whether the landlord provides the requested accommodation is not a matter of "being nice". It is a matter of law and legal obligation much in the same way as is the duty to maintain and repair the rental unit. Presuming that the request for accommodation is proper and demonstrably required, the landlord's only way of avoiding the obligation to provide it is by demonstrating that the request is too big, too expensive, and beyond what the landlord could reasonably be expected to do (i.e. to the point of undue hardship). Ultimately, it is the Landlord and Tenant Board that will decide whether the landlord's refusal to provide the requested accommodation is reasonable or not.
What if a tenant has substantially interfered with the reasonable enjoyment of the premises by other tenants and the landlord has filed a Notice of Termination and applied to the Landlord and Tenant Board for eviction. What does the tenant do then?
The Notice of Termination will contain statements as to the alleged conduct that justifies (from the landlord's perspective) the termination of the tenancy. The tenant--or the tenant's family or lawyer---will consider the nature of the allegations and reach a conclusion that the complained of behaviour arises from a mental health condition, a disability, or something covered under the Human Rights Code. The tenant, the family member, lawyer, or social worker, will recognize that the issue complained of did in fact happen or that some version of what is complained of did happen. They will recognize that whatever did happen, should not have happened, and that it will be necessary to try to prevent a re-occurence of the event.
It is in the prevention of a re-occurence that the tenant or his family member, social worker, lawyer, or friend, may discover that the method of preventing a further re-occurrence of the behaviour requires some action, some support, or the doing or not doing of something by the landlord or other tenants in the building. The landlord will be asked to do these things as part of the "duty to accommodate" the tenant. The tenant's lawyer will assert the position that if the tenant is accommodated in this way that the chance of a re-occurence is greatly reduced and perhaps even eliminated. Therefore, the tenant's lawyer will ask the Board to deny a termination of the tenancy and eviction notwithstanding that what the landlord alleges happened--did indeed happen, and that under other circumstances a termination of the tenancy would have followed.
The Landlord and Tenant Board will very carefully consider such proposals and in the appropriate cases grant the tenant the relief requested. It is important to note that the duty to accommodate and the application of HRL to specific cases is not something that is simply or easily done. Some parties subject to eviction hearings seem to think that simply having a disability is somehow an excuse for any kind of anti-social behaviour and that the Human Rights Code automaticaly prevents eviction. Nothing could be further from the truth.
Adjudicators will require disabled persons to make the link between the complained of behaviours and the disability. Just because a person suffers from a disability does not mean that their behaviour is involuntary or the result of that disability. When a disabled person makes voluntary choices to behave in a way that would result in the eviction of a non-disabled person they should not be surprised if the same thing happens to them.
The foregoing is also a warning to those tenants, and the family members of those tenants, who are facing eviction proceedings because of conduct arising from a disability. It is not enough to simply show up and claim that the complained of behaviour arises from a disability. The Board will require evidence, supporting documentation, medical reports, expert evidence, testimony from support workers, family members, and the like to clearly demonstrate and prove that the circumstances arise from a disability. Without such evidence you could expect the Board to be highly skeptical of any claim no matter how "obvious" it seems to the tenant or the family of that tenant.
Presuming a situation where the Board accepts that the complained of behaviours are as a result of a disability, and that the plan of action to prevent reoccurrence is reasonable, the Board will likely refuse to terminate the tenancy on the condition that the plan of action be implemented and that the complained of behaviour ceases or substantially changes. The Order will normally provide that if the condition is not met--that the Landlord may apply to the Board under section 78 of the RTA to terminate the tenancy. The Order will, also recognize the landlord's duty to accommodate, and any accommodation that the tenant has requested and which the Board has found reasonable for the landlord to provide.
In many cases involving mental health issues a single hearing can not permanently solve the problems suffered or caused by a disabled person. One would hope that the landlord would proceed with a greater understanding before returning to the Board. However, if the landlord still does not respond reasonably, and instead proceeds to obtain an eviction Order under section 78, the tenant may need to set aside that eviction Order on motion and again establish that the "new" objectionable conduct does not "substantially" interfere with reasonable enjoyment or that the behaviour should not be the basis for an eviction as it is within the bounds of what the landlord and other tenants could reasonably be expected to tolerate under the circumstances.
As I re-read this article I'm hoping that I have helped you understand the inter-play between Human Rights laws and the Ontario Residential Tenancies Act. There are many sub-issues and lots of nuance that I did not even come close to exploring in this article. If you are interested in reading more about this topic you may wish to consider reviewing some the Board case law on point for examples of how the HRC is applied in specific circumstances.
Michael K. E. Thiele
Quinn Thiele Mineault Grodzki LLP
Ottawa, Ontario
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