Wednesday, July 6, 2011
Fire Marshall's Report on 200 Wellesley Won't Solve the Problem
I've been waiting for the Ontario Fire Marshall's report and recommendations with anticipation. The fire at 200 Wellesley struck home for me as I have a large number of social housing landlord clients where the incidence of compulsive hoarding is higher than the norm.
Despite the report's suggestion that the problem can be handled through the Ontario Fire Code by the Fire department working with public health departments, it has been my experience that they generally take a hands-off approach.
In Ontario, the landlord is expected to be the first line of defence. After all, they are required by law to make sure that rental units are fit for habitation and comply with standards.
But landlords, from the TCHC's to the smallest mom and pop operation renting out a basement, are also required to accommodate any tenants engaged in behaviour that violates the law if that behaviour may be caused by the tenant's inclusion in any one of 14 Human Rights Code protected groups.
Accommodation efforts must be continued until the landlord reaches the point of undue hardship, which is the point just shy of insolvency.
Ontario's system requiring landlords to fulfill their responsibility and keep their buildings free from hoarding is flawed for at least three reasons.
First is the controversial Ontario Human Rights Commission which introduced a Policy guideline on the Code and Rental Housing in October of 2009. This guideline's perverse content is closely followed by judges and adjudicators makes it almost impossible for a landlord to evict those who exhibit hoarding behaviour, even those retaining competent legal help. Most hoarders suffer from OCD and are therefore entitled to de facto protection under the Code. The Landlord and Tenant Board sets the bar very high in evicting tenants who may suffer from code related issues.
The second hurdle is the Landlord and Tenant Board and the Residential Tenancies Act which it oversees. The Board over-applies the Code and holds landlords responsible for accommodating a tenant's code-related behaviour even if they had no knowledge of the behaviour, the Code-related issue or if the tenant refuses to take part in the accommodation process.
The time to evict in complex hoarding/Code cases is upwards of a year. That itself mitigates against resolving the problem. There is no threat of quick sanctions to spur the tenant and their community or family supports into action. It also provides time for the fire to start or infestation to spread.
The Residential Tenancies Act has a mechanism for tenancy termination notices. The statutory framework is so complicated that no small landlords and most experienced landlords cannot comprehend or comply with the rules. Notices of termination are frequently found to be defective by the Board resulting in applications being dismissed.
The most common, the N5 termination notice, is served to a tenant who has interfered with enjoyment or the landlord's lawful rights. It is a voidable notice. It is remedial. If the tenant corrects the behaviour, the notice is void. However the 7 day voiding provision is so complex that only a handful of people can articulate it. To prove at a hearing that the tenant did not correct the hoarding behaviour (cured the breach) is a long-shot, particularly since hoarding behaviour is not like a noise complaint. Hoarding may be both a breach of omission and a breach of commission. Voiding behaviour differs for each type of breach. Don't even ask.
Most landlords don't want eviction, they want the dangerous conditions removed. Under the Residential Tenancies Act, the tenant is required to keep the unit in a state of reasonable cleanliness. That's all the landlord wants. The LTB Members have the power, at a hearing, to order the tenant to remediate the condition within a fixed period of time, failing which the landlord could file for a quick eviction. Instead the Board routinely dismisses applications, allowing the problem to continue.
Finally the support tenants receive through LAO funded community legal clinics makes the unrepresented landlord easy prey. I've been on hoarding cases where dangerous conditions exist, where all my client wanted was to have the condition resolved, yet the tenant refuses reasonable fixes and time-frames and their counsel says to me "If Ms. X would prefer to die in the unit, that should be her choice". In short the legal system in the L&T world is too adversarial and not geared to solving problems. No surprise there. The government should examine the mandate of the clinics in light of this health and safety crisis.
Perhaps the pending class-action lawsuit will help to shed some light on the plight of the landlord who is given the responsibility without the tools or authority.