Snow removal requirement leading to constructive discrimination

 

Here is a recent ruling from the Human Rights Tribunal of Ontario which showed that a lease clause putting responsibility for snow removal on the tenant led to constructive discrimination on the grounds of disability.
Although the landlord explained that he implemented the snow removal requirement because he was elderly (84 years old at the time of the events) and unable to shovel snow at the building, there was no evidence that requiring tenants to be responsible for snow removal was necessary, since the landlord could hire a third party to do snow removal.
The landlord was ordered to pay compensation for injury to dignity, feelings and self-respect to the applicant / tenant and to remove the lease clause from future tenancy agreements.

Scocchia v. Sokol, 2022 HRTO 1418 (CanLII), <https://canlii.ca/t/jt96w>

More information on snow removal: 

Is snow shovelling / lawn mowing always the landlord's duty?

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Excerpt from Scocchia v. Sokol, 2022 HRTO 1418 (CanLII), <https://canlii.ca/t/jt96w>:

"[...]

Application to the Facts of this Case

[49]      In this Application, it was the evidence of all parties that the applicant and the respondent did not sign the Lease. Even if the Lease had been signed, it is not clear that the snow removal provisions in the Lease constitute a requirement or qualification within the meaning of section 11 of the Code. The snow removal provisions in the Lease are vague and do not create a severable obligation or enforceable contractual obligation on a tenant. They do not specifically and clearly set out the work to be performed by, or the consideration to be paid to, a tenant for snow removal. As such, the snow removal provisions in the Lease are void and unenforceable and the obligation for snow removal remained with Mr. Sokol as the landlord for the Apartment (See, Montgomery at paras. 9-16 and s. 4 RTA).

[50]      In such circumstances, it is not clear that the snow removal provisions in the Lease were a requirement or qualification within the meaning of section 11 of the Code. There was no legal obligation on Mr. Scocchia to be responsible for snow removal at the Apartment.

(b) did the respondent require tenants to be responsible for snow removal resulting in an infringement of section 11 of the Code?

[51]      While it is clear that the snow removal provisions in the Lease are unenforceable and therefore did not create a legal obligation on the applicant to assume responsibility for snow removal at the Apartment, the evidence given by Mr. Scocchia at the Merits Hearing was that when he reviewed the Lease, he understood that he would have to be responsible for snow removal if he rented the Apartment. Indeed, the Lease presented to Mr. Scocchia by the respondent states that the tenant would be responsible for snow removal, and it is undisputed that as part of the discussions about renting the Unit, Mr. Sokol and Mrs. Sokol told the applicant that as their tenant, he would have to be responsible for snow removal. Based on the evidence at the Merits Hearing, it is clear that the respondent had a rule or requirement that the tenant that rented the Apartment would be responsible for snow removal (the “snow removal requirement”). It is also clear that this requirement infringes section 11 of the Code.

(b) Did the respondent’s snow removal requirement exclude or prefer individuals with Code-protected characteristics?

[52]      I am satisfied that the snow removal requirement excludes or prefers individuals based on Code-protected characteristics. The hallmark of adverse effect discrimination is that a seemingly neutral rule or requirement is adopted which has a discriminatory effect or impact on an individual or group because it imposes obligations, penalties or restrictive conditions not imposed on others. The thrust of human rights legislation is to eliminate assumptions and break down the barriers that stand in the way of equality for all (See, Grismer at para 2). The harm experienced by a claimant must be viewed in light of the systemic or historic disadvantage experienced by persons with disabilities. It is well established that persons with disabilities experience both systemic and historic discrimination which is often manifested through social exclusion or barriers to full participation. The applicant has, in my view, made out a prima facie case of discrimination as a result of the snow removal requirement.

[53]      Although the snow removal requirement applied to all tenants, it created an additional burden on, and barrier for persons with disabilities, like Mr. Scocchia, who could not shovel snow. While it is true that the snow removal requirement only required tenants to be responsible for snow removal and did not place any obligation to personally remove snow from the premises, this does not address the additional personal and potential financial burden that this requirement placed on prospective tenants on Code-protected grounds. Although Mr. Sokol indicated that he may have been willing to allow an abatement of rent were a third party needed to clear snow for the applicant, this placed an onus on the applicant to seek out a method which could address this requirement which would not be placed on other prospective tenants who do not have a disability. As well, the respondent did not confirm that he would provide an abatement of rent but simply indicated that he may have been willing to do so.

[54]      The concept of constructive discrimination recognizes that a requirement imposed identically on everyone can have the effect of denying the right to equal treatment of people with personal characteristics protected by the Code. The snow removal requirement imposed an additional burden on a prospective tenant with a disability by requiring the prospective tenant to make inquiries of the respondent about how this requirement could be met in order to allow them to rent the Apartment, or by imposing other burdens and possible financial obligations on persons with disabilities who rented the Apartment by having to make arrangements to meet this requirement.

[55]      It is also clear from the evidence given by all of the witnesses at the Merits Hearing that this requirement did, in fact, have an adverse and discriminatory effect on Mr. Scocchia as a person with a disability. Mr. Scocchia testified that after being told that snow removal would be the responsibility of the tenant, he decided that he did not want to rent the Apartment. It is also clear from his testimony at the Merits Hearing that he did not want to rent the Apartment as a result of his disability and the additional burden the snow removal requirement would place on him. It is clear from the applicant’s testimony at the Merits Hearing that the snow removal requirement, in fact, resulted in the exclusion of Mr. Scocchia from this rental opportunity as it was central to his decision to not apply to rent the Apartment.

[56]      In addition to prohibiting a neutral requirement, qualification or factor that results in the exclusion, restriction or preference of a group of persons identified by a Code-protected ground, section 11 of the Code also provides certain defences to a respondent. Where a requirement, qualification or factor is reasonable or bona fides in the circumstances or where an applicant cannot be accommodated without undue hardship, a respondent has a valid defence to an allegation of constructive or adverse effect discrimination (See, Meiorin and Grismer).

(c) Are there reasonable or bona fide grounds for the respondent’s snow removal requirement and has the respondent accommodated the applicant to the point of undue hardship?

[57]      In Meiorin, the Supreme Court set out a three-part test to determine whether a requirement or rule that is found to be prima facie discriminatory can be justified by a respondent. Once an applicant establishes that a rule or requirement or rule is prima facie discriminatory, the onus shifts to the respondent to prove, on a balance of probabilities, that the discriminatory requirement, rule or standard has a bona fide and reasonable justification. In order to establish this justification, a respondent must establish, on a balance of probabilities, that:

a.   it adopted the requirement, rule or standard for a purpose rationally connected to the function being performed;

b.   it adopted the requirement, rule or standard in an honest and good faith belief that it was necessary to the fulfillment of that purpose; and

c.   the requirement, rule or standard is reasonably necessary to accomplish its purpose or goal in the sense that the respondent cannot accommodate individuals sharing the characteristics of the applicant without experiencing undue hardship (See, Grismer at para 20).

[58]      I am satisfied that the respondent has not provided a bona fide and reasonable justification for the snow removal requirement and has failed to accommodate Mr. Scocchia to the point of undue hardship.

i. Is the snow removal requirement rationally connected to its purpose?

[59]      The purpose of the snow removal requirement is to ensure that the Building and its premises are cleared of snow and safe for tenants and members of the public in accordance with the RTA. This is required for Mr. Sokol to comply with his obligations as a landlord under the RTA and it is also required for the safety and security of tenants and members of the public at the premises. However, the snow removal requirement is not rationally connected to this purpose. The respondent has provided no rational basis for placing the obligation for snow removal on tenants. While Mr. Sokol has indicated that he cannot shovel snow because he is elderly and suffers from a medical condition, this does not provide a rational explanation for placing the obligation on tenants. No evidence was led, nor was it suggested that there was any impediment to the respondent hiring a contractor for snow removal. Nor was there any evidence of efforts made by the respondent to pursue other means of arranging for snow removal. The snow removal requirement is therefore not rationally connected to its purpose.

ii. Was the snow removal requirement adopted in an honest and good faith belief that it was necessary to the fulfillment of its purpose?

[60]      The respondent also has not demonstrated that the snow removal requirement was adopted in an honest and good faith belief that it was necessary to accomplish its purpose. As previously noted, no evidence was led to suggest that the snow removal requirement was implemented as part of a good faith belief that it was necessary to achieve its purpose of removing snow from in and around the Building. Accordingly, this requirement has not been met.

iii. Is the snow removal requirement reasonably necessary to accomplish its purpose or in the sense that the respondent cannot accommodate individuals sharing the characteristics of the applicant without experiencing undue hardship?

[61]      The respondent also has not demonstrated that the snow removal requirement was reasonably necessary to accomplish its purpose. As previously noted, there has been no explanation for placing the snow removal requirement on tenants. Although the Sokols have explained that they implemented the snow removal requirement because Mr. Sokol is elderly and unable to shovel snow at the Building, there was no evidence that requiring tenants to be responsible for snow removal was necessary for the purpose of maintaining the safety of the Building and its surrounding premises.

[62]      While the RTA prescribes that landlords are responsible for snow removal, it does not prevent a landlord from hiring a third party contractor to perform such maintenance functions. At the Merits Hearing, Mr. Sokol indicated that he would have been prepared to allow the applicant to hire a third party to remove the snow. Based on the evidence before me, the respondent was not prevented from hiring a third-party contractor to fulfill these maintenance services and no evidence was led which demonstrates that this obligation had to be placed on tenants at the Building.

[63]      Where an allegation of adverse effect discrimination is made, a respondent may also rely upon the further defence of “incapability” set out in section 17 of the Code (See Entrop at para. 77). In Entrop, the Court of Appeal for Ontario held that the three-step test set out in Meiorin should also be used to determine whether a respondent may successfully assert the defence set out in section 17 of the Code (See Entrop at para. 77). In light of my findings above, the respondent cannot rely on section 17 of the Code.

[64]      The respondent also has not demonstrated that the applicant could not be accommodated without undue hardship in accommodating the applicant. The respondent has the onus of establishing a defence of undue hardship but led no evidence on whether it would have experienced undue hardship in accommodating the applicant’s needs.

[65]      I find that the respondent’s snow removal requirement infringes section 11 of the Code by placing responsibility for snow removal on tenants and thereby adversely affecting individuals sharing the characteristics of the applicant as a person with a disability. I also find that the respondent has not provided a bona fide justification for this requirement and has not demonstrated that the applicant could not be accommodated without undue hardship.

[...]"

 

 

 

A few recent rulings (early April 2022)

 

A few recent rulings which might be of interest (an N12-based appeal, a couple of rulings from the Human Rights Tribunal, a couple of commercial lease cases):

1)

Marshall v. Brady, 2022 ONSC 2158 (CanLII), <https://canlii.ca/t/jnmlm>

Appeal of N12 decision based on "new post-hearing evidence about the mother living in Florida this past winter", challenging the good faith claim.

"Both the finding of good faith and the finding of intended full time occupancy are findings of fact."

Appeal dismissed.

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"[8] We conclude that the appeal raises no question of law, and the Court therefore has no jurisdiction under s. 210 of the RTA. The Tenants are essentially challenging the factual findings of the Board, which are not the subject of appeal. Both the finding of good faith and the finding of intended full time occupancy are findings of fact. There was no extricable issue of law and no error of law. The exceptional circumstances referred to by counsel, in which a factual matter may give rise to an error of law, do not apply in this case. The new evidence, even if admitted, does not give rise to an error of law."

______________________

2)

Interim decision of the Human Rights Tribunal about witnesses' evidence:

Amoako v. Truong, 2022 HRTO 483 (CanLII), <https://canlii.ca/t/jnm6g>

"[7] The proposed witnesses’ evidence that the respondent is not racist is not admissible and they will not be permitted to testify on that issue. This is opinion evidence about the respondent’s character and is not directly relevant to the interaction between the parties that gave rise to the allegation of discrimination. This is consistent with other Tribunal decisions such as Segal v. Toronto (City), 2009 HRTO 1907 at paras. 9 to 15 and Benjamin v. PTC Accounting & Finance Inc., 2011 HRTO 1593 at para. 24.

[8] The Application alleges that the respondent told her that he had bad experiences in the past when he rented out to Black people. The respondent denies this. The applicant’s narrative puts into issue whether the respondent told her that he did not want to rent to Black people based on his past experience when he rented to Black people. The racial background of past tenants and tenants to whom he rented after the interaction has some relevance. If the applicant does not dispute the fact that the respondent rented units to these two tenants, then there may be no reason for the tenants to testify on this point. This will be further addressed at the hearing to determine whether the tenants are necessary and relevant witnesses.

ORDER

[9] The proposed witnesses will not be permitted to testify about their opinion as to whether the respondent is racist."

______________________

3)

A decision from HRTO involving a failure to establish a link between the respondent's alleged actions/inactions and applicant's Code-protected grounds / characteristics.

Rosario v. Grey (County), 2022 HRTO 490 (CanLII), <https://canlii.ca/t/jnm6h>

"[15] It states, in Section 2.(2), of the Code: “Every person who occupies accommodation has a right to freedom from harassment by the landlord or agent of the landlord or by an occupant of the same building because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sexual orientation, gender identity, gender expression, age, marital status, family status, disability or the receipt of public assistance”. The applicant did not complain to the respondent that the harassment he was experiencing from his neighbour was because of a protected grounds. The applicant did not allege or provide evidence in his possession or that may be reasonably available to the applicant to link the harassment of the neighbour or the failure, if any, on the part of the respondent to resolve the issues between the applicant and his neighbour, because of his race, colour or disability.

[16] The Tribunal has stated on many occasions that it does not have a general power to deal with allegations of unfairness. See, for example, Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389; Szabo v. Office of a Member of Parliament of Canada, 2011 HRTO 2201; and Abdi v. Voyageur Transportation, 2011 HRTO 1319. Discrimination generally involves an allegation of unfair treatment on the basis of one or more of the grounds under the Code, such as disability. Unfair treatment is not discriminatory in the legal sense unless there is proof that one or more of these personal characteristics were a factor in the treatment the applicant experienced. The Tribunal's jurisdiction is limited to claims of discrimination that are linked to the protections set out in the Code

[17] In order to make out a violation of the Code, the applicant would have to establish a link between the respondents’ alleged actions/inactions and his race, colour and/or disability. I find that the applicant has failed to point to any evidence in his possession or that may be reasonably available to the applicant that could reasonably establish that his race, colour or disability was a factor in any of the respondent’s actions/inactions in regard to his tenancy at the apartment building owned and managed by the respondent."

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4)

An interesting decision on whether or not a commercial tenant was in default of the lease (with involvement of CECRA funding), on applicability of estoppel by convention and on conditions for relief from forfeiture:

Top Modern Nail Spa Inc. v. 2383437 Ontario Inc., 2022 ONSC 2103 (CanLII), <https://canlii.ca/t/jnmlx>

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5)

On validity of an arbitration clause as the basis for renewing a commercial lease term:

Magna International Inc. v. Granite Real Estate Inc., 2022 ONSC 2200 (CanLII), <https://canlii.ca/t/jnlrg>

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6)

On whether an "air parcel" is assessable "land" for land assessment (MPAC) purposes:

Craft Kingsmen Rail Corp v. Municipal Property Assessment Corporation, 2022 ONSC 2222 (CanLII), <https://canlii.ca/t/jnmlb>

Disclaimer:

You should not act or rely on any information provided in this blog. It is not legal advice, and the content is provided for general discussion and general information purposes only and to help encourage further research. To ensure your interests are protected, retain or formally seek legal advice from a licensed legal professional.

Never disclose details about your specific legal matters outside of situations when you have established solicitor-client relationship with a qualified legal professional. By using this blog, you acknowledge and accept this warning and agree to waive all liability for use of any information contained in this blog.

A case on accommodation of disability by the tribunal, expedited hearing, viewing evidence at the hearing (Krishna v. Alexandra Park Co-operative, 2022)

 

An interesting recent decision, dismissing an appeal after a request of review was denied: Krishna v. Alexandra Park Co-operative, 2022 ONSC 92 (CanLII), <https://canlii.ca/t/jlmn4>.

The issues that the tenant / appellant raised on appeal:

"(i) whether it was fair to hold an expedited hearing on the basis of allegations that were subsequently withdrawn;

(ii) whether it was fair to view the video from the security camera at the hearing when the appellant was unable to view it with the adjudicator in the course of the hearing;

(iii) whether it was fair to make findings against the appellant for conduct that was not specifically mentioned in the notices; and,

(iv) whether the tribunal failed to accommodate the appellant’s disability."

The ruling mentions an interesting topic of preferred methods of participation in virtual hearings:

"[40] The appellant also relies on the Ontario Bar Association guide to “Best Practices for Remote Hearings” dated May 28, 2021. That guide, which post-dates the events in this matter, indicates that ideally remote hearings are conducted by video and if a party cannot participate by video, by teleconference. It goes on to say that if the parties are satisfied that no unfairness will result, the hearing may proceed with one or more parties on the telephone and others using video. Although this more recent guidance was not available at the time, it is consistent with the LTB process. The LTB notice of the video hearing specifically invited participants to notify the LTB if a video hearing would cause significant prejudice, and the appellant did not do so."

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Krishna v. Alexandra Park Co-operative, 2022 ONSC 92 (CanLII), <https://canlii.ca/t/jlmn4>

"[...]

Analysis

(i)                 Expedited hearing

[24]           As set out above, at the time of the order for an expedited hearing, LTB eviction hearings were proceeding only if the matter related to an urgent issue such as an illegal act or serious impairment of safety.

[25]           There is no doubt that the grounds set out in the respondent’s notices included conduct that would fall within the above circumstances, justifying an urgent hearing.  The appellant’s issue is that some of those grounds were withdrawn at a later stage.  The appellant submits that the respondent obtained the urgent date under “suspect” circumstances.

[26]           This issue was raised before the LTB.  Member Lang noted that the above scheduling decision was not a determination of the merits of the application.  On review, Member Sullivan agreed and noted that the appellant had not shown a serious error in the scheduling of the hearing as an urgent matter. 

[27]           While some of the allegations were withdrawn, those that were pursued still included serious allegations about safety and illegality.  The allegations pursued at the hearing included forcible confinement, trespass, and theft, among other issues.  The appellant has not shown that the respondent’s conduct in obtaining the urgent date was suspect.

[28]           Further, the appellant was granted an adjournment of the urgent hearing date, to prepare, and as matters unfolded there was a second adjournment as well.  The appellant’s evidence was heard almost four months after the initial eviction notice.

[29]           The appellant has not demonstrated procedural unfairness regarding the scheduling of the hearing.   

(ii)              Form of hearing and use of video clip

[30]           The appellant submits that the hearing should not have been conducted by telephone conference call on the first two dates but does not point to a specific unfairness arising because of the form of those hearing days.  The focus of the objection before us is on the use of the video clip from the security camera on the third hearing day. 

[31]           The third hearing day was scheduled to be heard by videoconference.  The appellant submits that he had previously had difficulty participating by telephone but does not provide an adequate explanation for why he did not take steps to attend the third day by video conference.  He did not have the technology himself but did not show any efforts to access it.  In advance of the hearing date he was invited to say if the form of hearing was prejudicial to him and did not do so.  No accommodation was sought.  His counsel did participate by videoconference. 

[32]           The appellant’s counsel now submits that the appellant was forced to have a remote hearing.  That is not so.  The August LTB notice of videoconference left open the possibility of another form of hearing.  The appellant did not pursue that option.

[33]           With respect to the use of the video clip, the appellant and his counsel had ample time to review it, with at least seven weeks notice that the video clip would be relied on at the hearing.  The appellant’s counsel obtained an adjournment for the specific purpose of having time to review the disclosure and discuss it with his client.  The appellant now raises pandemic restrictions as an impediment, but he did not come forward on the return date, through his counsel, and say that he had been unable to prepare with counsel. 

[34]           On the September hearing day, Member Lang viewed the video showing the appellant take the master keys.  Due to the form of hearing, the video was not viewed by the participants at the same time.  The Member viewed it, also described what she saw, and, although the appellant suggests that there was an inconsistency between the video and her description, none has been shown.  She also gave a description of the video clip in her reasons for decision.  No error has been alleged in that description. 

[35]           The appellant now submits that he did not have the technical ability to view the video in the course of the hearing.  Again, the record does not show that the appellant made efforts to participate in the hearing in a different way if he wished, or needed, to do so.  Accepting his submission that he is of modest means, that does not necessarily preclude access to videoconference technology.  His lawyer was able to participate by video conference.  A request for accommodation could have been made to the LTB.  

[36]           The appellant further submits that the Member “cross-examined” him about the video.  However, the record shows that the Member was giving him an opportunity to explain the differences between his account of what happened and the video.  She asked: “Can you help me reconcile your testimony with the, the video and the circumstances?”  The appellant gave a lengthy factual answer, toward the end of which he said he had not seen the video “exactly” yet and went on to complete his answer.  His counsel did not object or request steps to permit the appellant to view the video clip before answering.

[37]           The appellant suggests that there was an objection to this use of the video, but the objection relied upon related to a different video.  Unlike the video clip about the master keys, appellant’s counsel indicated that he had not been given advance notice that the other video would be relied upon.  In the course of that objection, he confirmed that the appellant had notice about the video clip regarding the master keys, distinguishing it from the video that was the subject of the objection.

[38]           Relying on Browne v. Dunn (1893), 1893 CanLII 65 (FOREP), 6 R. 67, [`893] 1 WLUK 44 (H.L.), the appellant submits that any evidence used to discredit him should have been shown to him while he was testifying so he had the opportunity to explain.  Here, the video was not “shown” to him at the same time.  However, it was disclosed, express notice was given that it would be relied on, it was put into evidence, and the adjudicator described it.  The appellant was represented by counsel.  The appellant had ample opportunity to review it in advance in order to prepare for his testimony, and no break was requested so that arrangements could be made for him to review it in order to answer the Member’s question. 

[39]           The appellant further submits that the Member misdescribed the video as she viewed it.  This has not been established. 

[40]           The appellant also relies on the Ontario Bar Association guide to “Best Practices for Remote Hearings” dated May 28, 2021.  That guide, which post-dates the events in this matter, indicates that ideally remote hearings are conducted by video and if a party cannot participate by video, by teleconference.  It goes on to say that if the parties are satisfied that no unfairness will result, the hearing may proceed with one or more parties on the telephone and others using video.  Although this more recent guidance was not available at the time, it is consistent with the LTB process.  The LTB notice of the video hearing specifically invited participants to notify the LTB if a video hearing would cause significant prejudice, and the appellant did not do so.  

[41]           In the particular circumstances of this matter, there was no procedural unfairness in the use of the video clip regarding the master keys in the hearing.

(iii)            Findings on other matters

[42]           The appellant submits that prejudicial evidence that was not within the grounds for eviction was wrongly relied upon by the LTB.  The appellant specifically refers to testimony from a security guard that the appellant had told him that he was from Africa and should go back where he came from. 

[43]           The notices did include the appellant’s altercation with the security guard as a ground.  In addition, one of the notices specifically noted racist insults as a ground, along with many other particulars of disruptive conduct.  The appellant relies on Ball v. Metro Capital Property, [2002] O.J. No. 5931 (Div. Ct.) for this position.  However, that case arose in a different context since the landlord had given little or no details in the notices. 

[44]           Here, there was extensive evidence about the appellant’s behaviour, beyond the remarks he now focuses on.  Member Lang relied on all the evidence regarding the allegations of disturbing conduct.  Other members of the Co-op gave evidence, one of whom testified that the appellant told her that white people do not like her (she is a person of colour) and made several other highly offensive statements as well.  In response to her evidence, the appellant testified that he would never utter racial slurs.  Member Lang weighed all the evidence, finding that the appellant did make the offensive remarks.

[45]           Member Lang also weighed all of the evidence about the alleged remarks made to the security guard.  She considered the absence of an express denial, along with the other evidence.  The appellant had ample opportunity to respond to the evidence.  There were about seven weeks between the Co-op’s witnesses and the appellant’s testimony.

[46]           The appellant has not demonstrated a breach of procedural fairness regarding notice.

(iv)            Accommodation of disability

[47]           The appellant submits that because of his disability, other approaches short of eviction should have been ordered.  He submits that the LTB member erred in failing to consider whether conditions could be imposed that would allow the appellant to continue to live in the Co-op. 

[48]           There is no question that the LTB is obligated to accommodate a party with disability related needs, as set out in the Code.  Further, there is no issue that the appellant is disabled within the meaning of the Code.

[49]           The appellant relies on Walmer Developments v. Wolch, 2003 CanLII 42163 (ON SCDC), [2003] O.J. No. 3435 (Div. Ct.).  In that case, the tenant’s disability was the cause of the problems giving rise to the landlord’s notice to terminate.  She suffered from schizophrenia and, when she did not take her medication, she caused problems.  This court determined that the LTB ought to have, and did not, find that her disability could be accommodated.  Through accommodation steps, the problems could be addressed before they escalated.

[50]           The appellant’s situation is different.  Here, the appellant’s disability did not cause the conduct that gave rise to the grounds for eviction.  Further, Member Lang specifically considered the appellant’s disability in reaching her decision about eviction.  Member Lang also considered the other evidence before her.  In the circumstances before her, Member Lang decided to accommodate the appellant’s disability by delaying the eviction for two months.

[51]           The appellant has shown no failure to accommodate or other error of law in the LTB decisions challenged on this appeal. 

 Orders

[52]           This appeal is dismissed, and the stay of the eviction order is terminated.

[53]           Neither the respondent nor the LTB seek costs against the appellant.  There therefore shall be no order as to costs."

Disclaimer:

You should not act or rely on any information provided in this blog. It is not legal advice, and the content is provided for general discussion and general information purposes only and to help encourage further research. To ensure your interests are protected, retain or formally seek legal advice from a licensed legal professional.

Never disclose details about your specific legal matters outside of situations when you have established solicitor-client relationship with a qualified legal professional. By using this blog, you acknowledge and accept this warning and agree to waive all liability for use of any information contained in this blog.