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Human Rights (Ontario) - Bhadauria - RTA

. Reisher v. Westdale Properties [for numbered case cites see main link]

In Reisher v. Westdale Properties (Div Court, 2023) the Divisional Court considers (and endorses) in a mental disability case the interplay of 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.

...

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.