Thursday, November 11, 2010

Hoarding and Bedbugs and Fires and Mental Health and Code and the LTB and.........

There has been a lot of press lately about hoarding, bed-bugs and fires.  I say them together in one breath as in rental housing, they are usually connected.  Manifestations of obsessive compulsive behaviour often cause hoarding.  Hoarding causes infestation.  Hoarding causes fires.  We saw recently the frightening fire in the TCHC building at 200 Wellesley, and in yesterday's Sun there was a story about two brothers facing eviction for hoarding.  And of course there is almost daily news coverage about the plight of bed-bugs in Toronto.

I have a number of social housing landlords as clients, so I end up doing a lot of hoarding and bed-bug cases. First I would suggest you not blame the Landlord and Tenant Board.  They are generally following the law, albeit sometimes over-applying the Human Rights Code without using much common sense.

Hoarding is not permitted by the Residential Tenancies Act nor condoned by the Board.  The problem is that the Human Rights Code is paramount to the Residential Tenancies Act and the landlord's obligations (and the tenant's obligations) under the Code must first be examined and exhausted prior to attempts at termination of a tenancy.  If a provision of the Residential Tenancies Act is inconsistent with the Code, that provision has no force or effect.  The HRC produced a Policy Guideline on Rental Housing in 2009, and it's oppressive to put it mildly.  Thank you Mr. McGuinty. 

Landlords flock in numbers to the Landlord and Tenant Board trying to evict tenants for having committed one or all of the conduct trilogy.  To succeed their application usually boils down to the landlord having to prove that they have made efforts to accommodate the tenant's inclusion in a Code-related ground (usually disability) to the point of undue hardship. Undue hardship has been defined as being costs so substantial that they permanently and materially impair the viability, the very existence of the commercial enterprise.  In other words, to the point just short of bankruptcy.

If a tenant fits into one of 14 protected groups under the Code, and you are providing accommodation to them, then you may have a duty to accommodate.  These protected groups include but are not limited to race, ethnicity, religion, physical and mental disability, sexual orientation, receipt of public assistance and family composition.

It always starts with the tenant creating problems by way of his or her conduct.  Basically the tenant is not following the rules.  If the tenant is unable to comply with these apparently neutral policies or requirements, a standard of behaviour, a behaviour that you or I or most of us would have no problem complying with AND if that inability to comply is based in the tenant's inclusion in one of the 14 protected groups, then there arises upon the landlord the duty to accommodate.

This apparently neutral policy or requirement that is expected from all tenants may include things like:
  • Paying rent on time
  • Parking in an outdoor parking space
  • Not hitting people or swearing at them
  • Not starting fires or floods
  • Not yelling and screaming so as to cause a noise disturbance
  • Not hoarding
  • Not allowing infestation
  • Not running a crack house
  • Not doing damage to the unit
  • Not listening to music at loud volumes
But if the tenant's inclusion in one or more of the 14 protected groups makes it difficult to comply with the apparently neutral requirement or policy, then landlords need to work with the tenant in the "shared responsibilities of accommodation" to try and bring the behaviour or environment to a point so that the tenant is not excluded from the full participation and inclusion in normal living. The landlord needs to assist in the accommodation process so as to remove the risk of the tenant losing their housing.  A few misconceptions to burst:
  • Accommodation is different from toleration.  It doesn't mean you do nothing or "live with it" and hope it goes away.
  • Accommodation is not simply warning the tenant that if they don't change their ways, the tenancy might be at risk.
Accommodation is working with the tenant, their supports, family, sources of outside funding, professionals etc. so that the tenant and their behaviour is elevated to a level where the problem no longer affects the enjoyment or safety of others.  The effort and length to which the landlord must strain to help the tenant achieve that level is "the point of undue hardship".  If the landlord's efforts fail despite having reached the level of undue hardship, then the tenant may be evicted and the landlord absolved of further responsibility.

At a hearing, the Landlord and Tenant Board has the jurisdiction and obligation to consider the Code and the landlord’s duty to accommodate, and too often, it does it badly.  By badly, I mean that many Members grossly over-apply the code. They also tend to do a poor job in fact-finding insofar as determining:

• The existence of a disability
• The seriousness of the disability
• What affect that disability had on the tenant’s alleged behaviour
• What efforts the tenant made to advise the landlord of their need for accommodation
• What efforts the tenant made to be part of the accommodation process
• What is the connection between the disability and the tenant's conduct

These issues are the keys for you in defending a tenant's claim that they are entitled to relief from eviction under the Code.  At a hearing a tenant must be held to strict proof of those issues I've just listed.  If the Board doesn't give you the leeway and latitude to cross-examine on these issues, then you need to get your displeasure on the record, and file a review or if necessary, an appeal of the adverse decision
.
Having said that, if you know or ought to know that the behaviour may be the result of the tenant's inclusion in one of the 14 protected groups and you don't take action (and document it) prior to starting the eviction proceedings, then you've not done your job and under Ontario law, you don't deserve the eviction order.

The Code is the Code.  It is what it is.  In my opinion, the effects of the application of the Code on housing are perverse.  What is more perverse is that the poverty activist community, often funded by tax dollars from Legal Aid Ontario, use the Code to thwart evictions where safety is an issue.  Look at 200 Wellesley.  Now I have no insider knowledge of this file, but I can tell you that most landlords are now throwing up their hands when faced with hoarding as they know that the legal clinics will be all over it, claiming that the tenant has post-traumatic-stress-disorder or schizophrenia and that the landlord recklessly ignored the (invisible) signs of the tenant's illness in a flagrant violation of their requirements under the Code.  I wonder how many buildings have to become un-inhabitable or how many people must die in fires before this stops.

I would urge you to read the Human Rights Commission's policy guideline on Human Rights in Rental Housing.  You can find it here.

Ontario Human Rights Code Rental Housing Policy Guideline

It is a 110 page tome of pure social engineering that has me advising my small landlord clients to get out of the business.  The risk is too high;  the downside too great.

2 comments:

Anonymous said...

Great article Mr Fine!! I was googling horading and social housing and you were number 1 on my goggle search.I live in a housing coop in downtown TO.
My coop was not advised that a referral from Housing Connections was a hoarder, just that they were from a shelter (because they had been evicted for hoarding) Our first clue is when 6 large cube vans arrived to move this individual into a 1 bedroom unit. The problem was made obvious when our maintenance people couldn`t enter the unit to test the smoke alarms, the FD was called in and now this unit is inspected every month at a cost to us collectively as members. I imagine our insurance has gone up as well. As an RN I wonder when hoarding might legally be considered as posing a threat to oneself or others. The fine line is piled with boxes to the ceiling with a narrow clearing wide enough for a fireman.
Again I really enjoyed your article!

Anonymous said...

Thank you for your article. You said that "Hoarding is not permitted by the Residential Tenancies Act nor condoned by the Board." Are you referring to s. 63(1)(b) of the Act? Or perhaps 66(1)?