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RTA - Human Rights Law. Salim v. Singh
In Salim v. Singh (Div Court, 2024) the Divisional Court allowed an RTA s.210 appeal where the LTB "refused to apply the Ontario Human Rights Code, R.S.O. 1990, c. H.19 (“the Code”), to determine whether a landlord’s refusal to rent a townhome to a couple with three children was “arbitrary or unreasonable” under s. 95(5)" [Assignment, Subletting and Unauthorized Occupancy - Refusal or non-response].
Here the court confirms that Ontario administrative tribunals have HRC jurisdictions, and usefully sets out the test for establishing 'prima facie discrimination':[2] This was a serious error that requires correction on appeal. The Code is quasi-constitutional legislation that has paramountcy over the RTA: s. 3(4), RTA; s. 47(2), Code; Tranchemontagne v. Ontario (Director, Disability Support Program), 2006 SCC 14, at paras. 33-39. In Tranchemontagne, the Supreme Court of Canada found that Ontario’s tribunals have the jurisdiction to interpret and apply the Code because is it “the law of the people.”
[3] The Preamble to the Code recognizes that it is public policy in Ontario to recognize the dignity and worth of every person and to provide for equality and non-discrimination. The Code gives everyone a right to equal treatment in respect to “occupancy of accommodation,” without discrimination on the basis of seventeen grounds, including age, marital status, and family status. Family status attracts human rights protection because of the family’s unique and imperative role in caregiving.
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[45] In Moore v. British Columbia (Education), 2012 SCC 61, [2012] 3 S.C.R. 360 at para. 33, the Supreme Court of Canada articulated the test for discrimination under human rights legislation, stating:As the Tribunal properly recognized, to demonstrate prima facie discrimination, complainants are required to show that they have a characteristic protected from discrimination under the Code; that they experienced an adverse impact with respect to the service; and that the protected characteristic was a factor in the adverse impact. Once a prima facie case has been established, the burden shifts to the respondent to justify the conduct or practice, within the framework of the exemptions available under human rights statutes. If it cannot be justified, discrimination will be found to occur. [46] This approach was recently applied to the Code by the Court of Appeal for Ontario in Ontario (Health) v. Association of Midwives, 2022 ONCA 458, 161 O.R. (3d) 561, at para. 101. It was also applied to the ground of “family status” under s. 5(1) of the Code in Misetich v. Value Village Stores Inc., 2016 HRTO 1229, at paras. 35-48. While there has been some uncertainty in the case law on this point, in my view, Adjudicator Jennifer Scott took the correct approach in applying the Moore test to the ground of family status in Misetich. It is important to apply a uniform test for discrimination to all protected grounds, including family status.
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What is the proper remedy for discrimination under s. 98(3) of the RTA?
[67] If discrimination is found, the LTB has the discretion to determine the appropriate remedy under s. 98(3). While the remedies must relate to the relationship between the landlord and tenant, the LTB must remain mindful of the primacy of the Code over the RTA, the Code’s quasi-constitutional status, and the importance of protecting families from discrimination in housing. It would seem perverse to allow a landlord to claim a remedy before the RTA after engaging in discrimination, whether or not the person who was discriminated against is before the LTB. There is an important role for the LTB to play in holding landlords who discriminate accountable. This was the takeaway message from the Supreme Court of Canada’s ruling in Tranchemontagne back in 2006.
What is the proper remedy on appeal?
[68] The appeal is allowed, and the matter shall be remitted back to the LTB with the opinion of the Court.
[69] I would also order that the LTB serve a copy of this decision on the Executive Chair of Tribunals Ontario, the Executive Chair of the Human Rights Tribunal of Ontario, and the Chief Commissioner of the Ontario Human Rights Commission. Proof of service shall be filed with the court within 7 days of the release of the decision to the parties. . Medallion Corporation v. McIlroy
In Medallion Corporation v. McIlroy (Div Court, 2023) the Divisional Court considered (and supported) a progressive RTA LTB case where a tenant applied (successfully) to the LTB, alleging that the LL was responsible for "interference with his reasonable enjoyment" [RTA 22] when a neighbour tenant's autistic child created noise. The case did not apparently include the parents of the child as parties, and the issue was an HRC-type burden on the LL to accomodate (essentially both) tenants with noise-proofing and other ameliorating renovations:[2] The Order arose from the Tenant’s application alleging interference with his reasonable enjoyment of his rental unit due to noise from the adjacent unit. The Member determined that the noise was caused by a child with autism who lived next door. The Landlord had sent notices to the neighbouring tenant in response to the complaints, but the issue persisted.
[3] The Member cited this Court, setting out the Landlord’s obligation to take reasonably necessary action against a neighbouring tenant who denies a neighbour quiet enjoyment: Hassan v. Niagara Housing Authority, [2000] O.J. No. 5650 (Div. Ct.). This obligation is not disputed.
[4] The Member found that the only action the Landlord had taken regarding the noise complaints was sending notices to the neighbour, and that the Landlord had decided to do nothing else. The Member found that the Landlord did not investigate other noise suppression techniques such as retaining a contractor to adjust the insulation between the two units. The Member said, “I can certainly appreciate the situation the Landlord is faced with” but found that the Landlord had substantially interfered with the Tenant’s reasonable enjoyment of his rental unit.
[5] The Member awarded a rent abatement of $7,419.60 and directed the Landlord to hire a contractor to ascertain whether soundproofing could be installed to reduce the noise. The Member declined to order the Landlord to cease the noise, finding that would be unreasonable and unenforceable.
[6] This appeal is limited to questions of law: Residential Tenancies Act, 2006, S.O. 2006, c. 17 (“RTA”), s. 210. The standard of review is correctness: Housen v. Nikolaisen, [2002] 2 S.C.R. 235, 2002 SCC 33, at para. 8; Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at para. 37.
[7] The Landlord submits that the Member erred in law by failing to take into account s. 3(4) of the RTA, which confirms that the RTA is subject to the Human Rights Code. More specifically, the Landlord submits that the Member failed to analyze the significance of the child’s disability under the Human Rights Code and the resulting limitations on the Landlord’s ability to address the noise complaints. The Landlord submits that it could not evict the neighbour and child under the Human Rights Code and there was nothing more that could be done.
[8] The first difficulty with this submission is that it is being raised for the first time on this appeal, which is not normally permitted. The second difficulty is that it is based on the assumption that there was nothing more that the Landlord could do given the child’s disability short of an impermissible eviction. This overlooks the basis for the Order. The Member found that there were more steps that the Landlord could have taken regarding soundproofing, specifically having a contractor adjust the insulation.
[9] The Landlord submits that the Member erred in law because the reasons for decision do not contain an express analysis of the obligations to the child under the Human Rights Code. However, the reasons for decision do reflect an awareness of and need to consider the disability and the Member did not make an order that would potentially discriminate against the child.
[10] The Landlord further submits that the Member failed to take into account the real substance and the good faith of the Tenant’s complaints, as required by s. 202 of the RTA. However, the Landlord has not shown a legal error in the Member’s consideration of the real substance of the noise complaints and it does not appear that good faith was challenged before the Board.
[11] Despite the able argument of counsel, the Landlord has not established an error of law. ... . Padathe v. Lee
In Padathe v. Lee (Div Court, 2023) the Divisional Court considered, and dismissed, a unelaborated human rights challenge and Charter against the fundamentals of the residential landlord and tenant relationship. Here, the court held that a private landlord was not subject to the Charter (SS: the tenant's did not argue that the common law, under which the basics of the financial relationship and the land system exists in Ontario, was subject to the Charter):[25] In their materials before the motion judge, and in their materials on this stay motion, the tenants have not identified an error of law respecting the Board’s analysis leading to its conclusion that the “lawful monthly rent” is $3,998.00 as of January 1, 2023. The tenants argue that there are exemptions to s.6.1 of the Residential Tenancies Act that apply to social housing. This argument does not avail the tenants: receipt of social benefits by a tenant does not transform a privately owned residential unit to “social housing”. None of the exceptions to the exemption apply to the rental unit in this case.
[26] The main thrust of the tenants’ arguments – on this point – is:a. Such a substantial rent increase is manifestly unfair to the tenants; and
b. One of the tenants is elderly and disabled and will be severely prejudiced by being rendered “homeless” as a result of eviction. In support of these arguments the tenants have referenced the duty to accommodate in the Human Rights Code, RSO 1990, c. H.19, ss. 7 and 15 of the Canadian Charter of Rights and Freedoms, and the above-referenced exceptions to the exemption in s.6.1 of the Residential Tenancies Act.
[27] The landlord is not a public entity. She is a private person. She is not bound by the Canadian Charter of Rights and Freedoms. The landlord is bound by the Human Rights Code, but she has no obligation thereunder to charge the tenants reduced rent because they cannot afford the full lawful rent. The landlord is not an owner of social housing. The landlord is entitled to charge lawful rent for her premises, and if the tenants cannot pay the lawful rent, then they will have to leave. The harshness of this result – and it is indeed harsh in the circumstances of this case – is inherent in the decision made by the Legislature to exempt new buildings from rent control. It is not open to the Landlord and Tenant Board – or to this court – to second guess the Legislature’s decision. . Lee v. Padathe
In Lee v. Padathe (Div Court, 2023) the Divisional Court considered the treatment of human rights accomodation issues (here, medical factors) by the administrative Landlord and Tenant Board (LTB):[21] Ms. Kallikattumadathil has raised two issues that could be characterized as alleged legal errors and breaches of procedural fairness. The first is that the Board had an obligation to grant her an adjournment as an accommodation for her disability. The second is that the hearing was not under oath and the Board failed to consider the authenticity and admissibility of documents.
[22] In my view, these submissions have little merit. A Board’s denial of an adjournment is a discretionary decision entitled to significant deference unless there is an error of principle. Here, the Board expressly acknowledged its duty to accommodate a litigant with health issues. However, a litigant seeking an accommodation has an initial onus to demonstrate prima facie discrimination before the onus shifts to the Board to accommodate: Bernard Property Maintenance v. Taylor, 2018 ONSC 4390 (Div. Ct.), at para. 43, aff’d 2019 ONCA 830, 148 O.R. (3d) 494. The litigant also has a procedural obligation to request a specific accommodation: Koda Holdings Inc. c/o Domus Inc. v. Gareth D’Costa et al., 2022 ONSC 1865 (Div. Ct.), at paras. 26-29, 47-63. . Westdale Properties v. Reisher
In Westdale Properties v. Reisher (Div Court, 2023) the Divisional Court considered, and dismissed, a landlord's motion to quash an RTA s.210 appeal for being "devoid of merit", in part on the LTB's inadequate reasons regarding the tenant's human rights accomodation issue:Ground of Appeal #1: The Board applied the wrong legal test in determining the landlord had no further requirement to accommodate the tenant under the Human Rights Code
[25] Westdale submits that Ms. Reisher has not identified the test for accommodation or included how the LTB erred in law. Westdale submits that the LTB’s reasons reveal that it was aware of the accommodation argument. It considered the evidence and determined that it did not show any reasonable expectation the tenant’s conduct would change. The LTB further found there were no submissions on how Ms. Reisher could be accommodated.
[26] Ms. Reisher submits that the LTB erred in law by not failing to apply the Human Rights Code during its decision making: see Tranchemontagne v. Ontario (Director, Disability Support Program), 2006 SCC 14 ; RTA s. 174, s. 3(4); Human Rights Code, s. 47(2); s. 2(1). Ms. Reisher submits that the LTB neither considered the procedural requirement that the landlord ought to have obtained all relevant information about Ms. Reisher’s disability and how it might be accommodated, nor did it consider the substantive component of the test, and the question of undue hardship to the landlord.
[27] Having reviewed the findings of the decision of the Board of June 5, 2022, and the review decision of August 3, 2022, I cannot conclude that this ground of appeal is devoid of merit. There is an argument to be made that the LTB in its Hearing Decision appeared to place the onus on Ms. Reisher for resolving the issue of her right to accommodation under the Human Rights Code. The reasons do not discuss the test for accommodation, nor do they discuss any potential accommodation that might have avoided the necessity of evicting Ms. Reisher. The LTB Hearing Decision did not mention any evidence or submissions from Westdale about the “undue hardship” element of the substantive test for accommodation.
[28] It is an error of law to apply the wrong legal test. The duty to accommodate is found in ss. 2(1), 9, 11 and 17 of the Code. It has procedural and substantive components. A landlord must obtain all relevant information about a tenant’s disability and how it might be accommodated: see ADGA Group Consultants v. Lane (2008), 91 O.R. (3d) 649, 2008 CanLII 39605 at para. 107.
[29] I conclude that this ground of appeal is not clearly devoid of merit. It engages questions of law and the application of the Human Rights Code to the decision to be made by the LTB, both on the Hearing Decision and on the Review Decision, which relied on the evidence and findings of fact from the Hearing Decision. . Reisher v. Westdale Properties [for numbered case cites see main link] (this is a separate case from that above)
In Reisher v. Westdale Properties (Div Court, 2023) the Divisional Court considers (and endorses) in a mental disability case the interplay of the HRC duty to accomodate and residential tenancy (RTA) law, concludes that in this case the landlord's duty to accomodate was embodied in their negotiations and s.78 consent order [esp. see para 21-24], and is critical of the tenant's presentation for neglecting the landlord's efforts:Issue 1: Did the Landlord and Tenant Board properly account for the requirements of the Human Rights Code?
[14] On behalf of Jeanette Reisher it is submitted that there was a failure to properly account for the impact of the Human Rights Code and the failure of Westdale Properties to accommodate her disability, as the Code requires. The Landlord and Tenant Board is obliged to consider and, where necessary, account for the Human Rights Code in the decisions that it renders.[13] The Code notes:Where a provision in an Act or regulation purports to require or authorize conduct that is a contravention of Part I, this Act [the Human Rights Code] applies and prevails unless the Act or regulation specifically provides that it is to apply despite this Act.[14] [15] This is confirmed by the Residential Tenancies Act, where it says:If a provision of this Act conflicts with a provision of another Act, other than the Human Rights Code, the provision of this Act applies.[15] [16] This being so, it follows that the Landlord and Tenant Board cannot give effect to an eviction that is in breach of the Human Rights Code. The Code protects against discrimination with respect to accommodation:2 (1) 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, gender identity, gender expression, age, marital status, family status, disability or the receipt of public assistance.[16]
[Emphasis added] [17] The structure of the Human Rights Code is such that where a breach of s. 2(1) would otherwise occur there is a duty placed on a landlord to act to accommodate the characteristic that is the foundation of the otherwise discriminatory treatment. The duty to accommodate a disability is specifically referenced in the Code: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) No tribunal or court shall 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.[17] [18] In the circumstances of this case, there is no question but that the root cause of the eviction of Jeanette Reisher was the impact and effect of her mental health concerns, a disability under the Human Rights Code. The issue to be determined, is whether the decision of the Landlord and Tenant Board reflects a proper consideration of the duty to accommodate. The parties agree that the duty to accommodate includes both a procedural and a substantive element. The former requires the landlord to obtain information relevant to the tenant’s disability to determine how it might be accommodated. The latter requires demonstration that the tenant cannot be accommodated without undue hardship. The reasons of the Board refer to the Human Rights Code and to the duty to accommodate and demonstrates that the member was aware of its relevance and role in the decision he was being asked to make. The relevant paragraph begins:The Tenant’s representative argues that the Tenant is covered by the Human Rights Code and that the Landlord has a duty to accommodate to the point of undue hardship.[18] [19] The position taken on behalf of Jeanette Reisher is that the reasons of the Landlord and Tenant Board do not demonstrate any consideration of the duty to accommodate, either the procedural or substantive components of that responsibility.
[20] I begin with the procedural component. To my mind this is where those acting in the interest of Jeanette Reisher make their first and fundamental mistake in understanding the responsibility, process and procedures that guide the Landlord and Tenant Board. The notice of March 23, 2022[19] which led to the hearing of June 1, 2022 and the 2022 Order was not the beginning of the process leading to the termination of the tenancy of Jeanette Reisher. It started with the initial application, the hearing giving rise to the Consent Order of June 21, 2021. The 2022 Order was a continuation of that proceeding. It starts:1. The order provided that the landlord could apply to the Board under section 78 of the Residential Tenancies Act, 2006 (the “Act”) without notice to the Tenant to terminate the tenancy and affected the Tenant if the Tenant did not meet certain condition(s) specified in the order.
2. The Tenant’s representative acknowledges that the Tenant is in breach of the terms of order TNBL-31371-21 issued on consent on August 16, 2021. The Tenant’s representative is seeking relief from addiction under section 78.11 (b) of the Act.[20] [21] The consideration given to whether the duty to accommodate has been met should account for what took place leading to and included in the Consent Order. Presumptively, the order itself is the conclusion arrived at between the parties of an accommodation they agreed was practical, appropriate and without undue hardship. In advance of the order the medication prescribed to Jeanette Reisher had been adjusted in the hope that it would assist in controlling the difficulties arising of her disability and her existing support team undertook to visit her more often. As part of the order, Jeanette Reisher agreed to initiate retaining the services of support staff through the Assertive Community Treatment Team or another service provider. She also agreed not to engage in the behaviour that had been the source of the application that she be evicted. These steps are demonstrative of an effort to find a means of accommodation. By taking this as the starting point for its consideration of the subsequent application, the Landlord and Tenant Board confirmed its acceptance that the terms of the Consent Order satisfied the procedural component of the duty to accommodate.
[22] In making submissions on her behalf, those acting in the interest of Jeanette Reisher submit that the responsibility for searching for a means of accommodation lies with the landlord. The submissions rely on the continuation of the paragraph quoted above, as demonstrating that the Landlord and Tenant Board, in its decision acknowledged that the landlord had failed to comply with this obligation. The paragraph continues:No recommendations were made on how to accommodate the Tenant other than not terminating the tenancy.[21] [23] This says nothing with respect to any effort of the landlord to search for how to accommodate Jeanette Reisher. This statement is directed at the tenant whose answer to the concern was that the tenancy not be ended. While the duty to accommodate is directed at the landlord, the tenant has a role:Tenant’s role in the accommodation process
If a tenant wants accommodation under the Code, the tenant has a duty to provide the landlord with sufficient information about their needs so that the landlord can determine possible accommodation. That tenant also has a duty to cooperate the landlord in the development and implementation of the accommodation. If the tenant refuses to cooperate the landlord can argue it has failed its duty to accommodate.[22] [24] As it is, in the period leading up to the consent order, Westdale Properties did make an effort to contact the team supporting Jeanette Reisher but, it would seem, without success as set out in the emails that the landlord sent to the Landlord and Tenant Board. The appellant objects to this court receiving these emails because it is not clear that the member who reached the 2022 Decision was given them. However, the Board has confirmed that they were sent to it, and on that basis we have accepted them as part of the record on this appeal.
[25] These emails show that on May 13, 2021 the Senior Property manager sent an email to Jeanette Reisher’s social worker to facilitate communication about the appellant’s tenancy noting that they were pressing issues that it wanted to address constructively. In response, the social worker said that were taking all necessary steps available to them and were hoping for improvement.
[26] The response to the landlord’s inquiry did not take up the continued dialogue with the landlord.
[27] I turn now to the substantive component of the duty to accommodate and whether there is undue hardship. If there is no undue hardship, either as matters stand or with whatever accommodation the procedural component brought forward, this would absolve the need for the eviction. Counsel for Jeanette Reisher submitted that her disruptive behaviours are not violent and, thus, not the cause of undue hardship. This submission refers to evidence of Marina Reisher, the mother of Jeanette Reisher:Her disability can cause her to behave inappropriately, but she is not violent.
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She's not dangerous. She's just polite sometimes, but not nice. And if I could, you know, apologize to the people that were insulted I would do. But she's not a dangerous person, that's for sure. [23] [28] These submissions go to make the point that undue hardship is to be substantiated by cogent, not speculative evidence:Undue hardship cannot be established by relying on impressionistic or anecdotal evidence, or after-the-fact justifications. Anticipated hardships caused by proposed accommodations should not be sustained if based only on speculative or unsubstantiated concern that certain adverse consequences "might" or "could" result if the claimant is accommodated.[24] ....
[37] The member of the Board found “there is no reasonable expectation that [Jeanette Reisher’s] behaviour towards other tenants in the residential complex will change. Other tenants should not be required to continue to live with the ongoing abuse from [Jeanette Reisher].” On this basis, the member concluded that “the tenancy must be terminated.[34] This is a finding of undue hardship. It is amply supported by the evidence. To the extent that this is a finding of fact, there is no palpable and overriding error. It also demonstrates that an evaluation of undue hardship attaches to the impact on other tenants either because they are “person[s]” who share the responsibility “for accommodating the needs of the tenant” or because the inability of the landlord, as the person responsible for accommodating those needs suffers undue hardship as a result of the inability to provide these other tenants with quiet enjoyment of their homes (see: s. 17 of the Human Rights Code quoted at para. [17] above). Either way, the standard of review is correctness. In this case, it is the correct determination. There was no error of law.
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