RESIDENTIAL TENANCIES: Mental Health Problems, a Duty to Accommodate, and a Tenant’s Right to Remain in their Home
By: Michael K.E. Thiele, B.A., LL.B., Plant Quinn Thiele LLP, Ottawa, Ontario Canada. Copyright 2007
The legislation governing most residential landlord and tenant relationships in Ontario is the Residential Tenancies Act S.O. 2006, c.17. (RTA). While the residential lease, written, oral, or implied, executed by the parties may inform the rights and responsibilities between the parties, the lease agreement may only establish those rights subject to the over-riding provisions of the RTA. In Ontario, the RTA applies to rental units in residential complexes despite any other Act and despite any agreement or waiver to the contrary. Further, where a provision in a tenancy agreement/ lease is inconsistent with the RTA or its regulations, that provision is void, and where the provision of another Act conflicts with the RTA the RTA takes precedence. In this regard, the freedom to contract is restricted; even prevented by the RTA, and appellate judicial pronoucement confirms that the RTA is effectively a complete code removing even the jurisdiction of the Superior Court in dealing with the relationship between landlord and tenant outside of the regime established by the RTA.
A recognized and statutorily mandated exception to the foregoing is the application of the Ontario Human Rights Code, the provisions of which take precedence over the provisions of the RTA. It is with respect to this exception that this paper is concerned, in the context of discussing recurring and difficult cases arising at the Landlord and Tenant Board, and how the Human Rights Code is helping tenants suffering from disabilities that cause behaviours which otherwise or normally would justify termination of their tenancies and eviction.
In practice before the Landlord and Tenant Board of Ontario, it has become increasingly apparent that a great number of tenants who are called upon to defend themselves and consequently their tenancies are suffering from some form of mental illness. In many instances, the mental illness is undiagnosed, but nevertheless is apparent to the observant onlooker. These tenants, but for the litigation support offered through Legal Aid Ontario, Community Legal Clinics, and generous lawyers, are left without the protections that one expects a Court to afford parties under disability. The Landlord and Tenant Board will allow proceedings to continue against a tenant, who by any reasonable measure would appear to be a party under disability, with the usual caveat being that they speak to duty counsel (who can not represent during the proceeding) prior to hearing.
Whether justice is wrought in these circumstances is a hard question; however, I believe it is fair to say that under these circumstances, the chance for injustice is greatly elevated. How then, and where, is the protection for parties under disability, for the mentally ill and infirm?
The starting point to deal with mental illness in residential landlord and tenant matters lies in the Ontario Human Rights Code R.S.O. 1990, c. H 19.. The code provides that -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, age, marital status, family status, disability or the receipt of public assistance-. A disability is defined to include a condition of mental impairment or a mental disorder.
In the recent Supreme Court of Canada decision in Werbeski v. Ontario (Director of Disability Support Program, Ministry of Community & Social Services), 2006 SCC 14 (S.C.C.) , the Court held that a provincially created statutory tribunal was obligated to follow the provincial human rights legislation when rendering its decision. The Court stated that statutory tribunals, which were empowered to decide questions of law, are presumed to look beyond the enabling statute, to apply the whole law to a matter properly before them.
The OHRC is a fundamental law. The Ontario legislature affirmed the primacy of the OHRC in the law itself, which is applicable both to private citizens and public bodies. Further, the adjudication of OHRC issues is no longer confined to the exclusive domain of the Ontario Human Rights Commission: OHRC, Section 34. The legislature has clearly contemplated that this fundamental law could be applied by the Court and other administrative bodies and has amended the OHRC accordingly.
In Werbeski , supra, the Supreme Court of Canada found that an administrative tribunal should apply the provisions of the OHRC when interpreting statutes because:
(i) The Ontario Human Rights Code states that it has primacy over other legislative enactments;
(ii) The recent amendments to the OHRC have removed the exclusive jurisdiction over interpretation and the application of the Code, from the Human Rights Commission.
In addition, the provisions of Section 11(2) and Section 17(2) and (3) of the OHRC specifically state that “a Court, as well as the Tribunal or the Commission, could apply these provisions of the OHRC when deciding if the needs of a person with a disability can be accommodated without undue hardship.” Section 47(2) of the OHRC states that the OHRC is paramount over other legislation. The Supreme Court of Canada has also held that the Human Rights Code takes precedence over agreements and contracts: Syndicat Northcrest c. Amselem, [2004] 2 S.C.R. 551 (S.C.C.).
APPLICATION TO LANDLORD AND TENANT BOARD PROCEEDINGS
The Divisional Court in Walmer Developments v. Wolch, on a appeal from a decision of the Ontario Rental Housing Tribunal (predecessor to the Landlord and Tenant Board), dealt with a situation where the tenant was diagnosed with schizophrenia. As a consequence of this condition, the tenant exhibited behaviours that included frequent screaming, throwing garbage loose in the halls, shouting profanity in the elevator, putting her property, such as her TV, out in the hall, and leaving food cooking on the stove unattended and hence filling the hall with smoke.
The Ontario Rental Housing Tribunal did not apply the Ontario Human Rights Code, and failed to give consideration to the implications of section 2 of the OHRC to the eviction proceedings before it. This was ultimately held to be in error as Section 17 of the Code provides:
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) The Commission, the board of inquiry or a court shall not 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.
After some discussion of issues pertaining to the Ontario Rental Housing Tribunal’s ability to require accommodation (since ameliorated by statutory amendments), the Court held that a tenant suffering a disability has the protections of the OHRC, and most importantly that the question of accommodation shall be considered in the Tribunal’s/Board’s determination of whether to relieve from eviction under the discretionary provisions of the Tenant Protection Act/Residential Tenancies Act.
In Walmer, the appeal was allowed because it was ultimately demonstrated that the landlord could accommodate the tenant by notifying the tenant’s family of problems as they arose and that the tenant’s family could intervene. It was found that the tenant, when on her medication was controlled and her behaviour was then not objectionable.
Walmer, then, stands for the proposition that a landlord has a duty to accommodate a tenant who exhibits behaviours as a result of a disability, that otherwise would warrant termination and eviction, and where the accommodation does not amount to undue hardship, to actually take steps to assist the tenant in maintaining their tenancy by finding reasonable solutions to the problems alleged. Further, where a landlord fails to provide such accommodation, the Landlord and Tenant Board is directed to consider what may be a reasonable accommodation and where available, refuse termination and eviction to the landlord.
SINCE WALMER The Walmer decision has had the practical impact of sensitizing the Landlord and Tenant Board to the fact that many of the persons who appear before the Board are suffering from disabilities. While sensitized to the issue, it continues to be the case that the burden of establishing the existence of the disability; and further establishing what the reasonable accommodation may be; remains with the tenant. Where tenants do not have representation and/or do not have a support network the accommodation potential (and hence retention of the rental unit) offered by Walmer , is not pursued and hence is lost. Very clearly, in the Landlord and Tenant Board context, a human right is only a right if it is pursued and the Board will not, on an institutional basis assure that a mentally ill party is represented and that his/her human rights are asserted.
The Walmer decision has had a dramatic real life impact for many tenants. In particular, tenants suffering from schizophrenia, paranoid delusional disorder, dementia, alzheimers, hoarding instincts, and a host of other mental illnesses that from time to time cause behaviours that otherwise would warrant termination and eviction; now, are retaining their housing, with the landlord being required to take a little extra care for them. The Walmer development has been a positive change in that it has very clearly prevented homelessness of persons with mental illness who are able to be treated and who will function normally with the right support, understanding, and accommodation.
This is significant as the number of aging renters increases. Aging seniors, who haven’t had an issue with their landlords since the commencement of their tenancy are increasingly finding themselves before the Landlord and Tenant Board facing allegations of anti-social behaviours. Often these behaviours are age related as aging sometimes brings on mental illnesses or medical conditions that cause a person to exhibit anti-social behaviours. Often, these can be medically treated or ameliorated by additional care and support. These -mentally ill- tenants are often just regular folks whose entire life is subject to being turned upside down through eviction because they got sick. Through eviction they lose the stability that having a place to live gives, it robs them of peace, their routines, and likely exacerbates any medical condition or mental illness through the stress caused by the eviction.
While Walmer has been a tremendous help to many tenants by forcing the Landlord and Tenant Board to recognize -disabilities- and to impose accommodation of those disabilities where reasonable; the procedures of the Landlord and Tenant Board in adjudicating cases dealing with the mentally ill continue to disregard the fact that in many instances these tenants are not only mentally ill but incompetent as well. From the perspective of the Landlord and Tenant Board it never has a party before it that can be a -person under disability- as in the sense of the Rules of Civil Procedure. Query whether this is just.
CONCLUSION The issue that this paper started with remains unresolved. Persons suffering with mental illness still face procedural disadvantage at the Landlord and Tenant Board. The Landlord and Tenant Board can make a person homeless. Hopefully, the law will eventually recognize that the mentally ill and incompetent deserve procedural protection and it seems fair to suggest that one avenue to such protection is through the ideas expressed by the Court in Walmer.
If you are going through a divorce, or possibly you have had an injury lately as a result of someone else’s negligence, then you should look into personal injury and family law in St. Petersburg. Several Americans do not know a lot about the court system. They are not familiar with the overall structure of how the law works. It can actually be quite confusing at times, and this is why it is so important to do your research about personal injury and family law before you hire an attorney. There are several different things that you will want to look for before you hire a lawyer.
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personal injury and family law St. Petersburg
The employee should have an excellent working bond with their employer regardless of the nature of their work. Both parties should benefit and grow in this relationship. Salary is provided to the employees in return for their time, know-how, and abilities while the employer receives the return of investment. This sounds great. Nonetheless, but this isn’t the situation in all workplaces./p>
If the labor law or employment law is implemented appropriately by both employee and the employer then work issues won’t possibly happen. Many people might end up breaking some work laws without realizing it since these laws are quite complicated. This is the main reason why troubles in workplaces happen. In times like this, the assistance of an expert and proficient new york employment attorney is crucial.
There are different factors why work problems are occurring. This is due to the fact that personnel are not all alike. They have different thoughts and religious beliefs as well as personality and characteristics. Problems at work are more likely to take place when the employer harasses his employee or perhaps, fails to pay him according to what is specified on in the contract. Whatever work-related concerns would that be, they could be handled by employment attorneys successfully.
Main Reasons Why It is Important to Get Employment Lawyer NYC
Wrongful termination and unjust payments are the most common work-related issues that result in litigation. Accident of personnel due to dangerous work practices and sexual harassment need to undergo legal process as well. There are also many workers who have filed complaints to the court as their retirement plans and benefits are not given to them. Engaging in a legal battle requires a tremendous amount of time, money, and determination. With the assistance and representation of reputable employment attorneys nyc, workers can conquer this challenge easily.
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Employment attorneys who work for employees always make sure the odds will be on their favor. They will carefully evaluate documents and contracts in order to finding any glitch that could assist strengthen the case. Then again, employment attorneys who work for employers/company owners adopt an approach called -preventive lawyering’. This is a method in making firm policies that are in accordance to local and federal/state employment laws and regulations.
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If we see now the authorities have made these federal and state labor posters compulsory for the businesses. These federal, state and OSHA posters come together in fact it merge OSHA posters with the federal ones. It makes bit easier to fulfill and bring calmness to the mind. In Florida the labor posters come up because the work force asked the authorities to give them better rights and protection to their rights, so thing can go fine for them on work place. It happens because the demands of the owners to limit the rights and powers of the work force, in most of the companies they wanted to keep the costs price normally low by doing this. Thats why authorities have made and brought these federal and state posters up enough to protect the workers rights, so that they have better earnings, managerial bodies, and health, safety and equal chances circumstances. They have need of a lot more than these. The trade unions working for workers in the organizations basically exceeding industrial clashes, and helping to increase the political supremacy which is opposed by most of the employers and owners.
As far as wages are concern there are many laws which are stating that an employee must get a minimum wage according to his work per hour. This lowest limit of wage is often different from the lowest wage which is considered by the employers in the market. In Florida these law posters require some parameters such as minimum wage, child labor, workers’ reimbursements, etc. The anti-discrimination is against the work force, and this is totally illegal and unlawful and morally unacceptable as well. These federal and state posters make sure that no employer can fire any employee with out any reason; they can only do this when there is a genuine reason. The work force must be allowed to defend their self before they get fired. They have their legal privileges which facilitate them to come up and defend them selves against the allegations. And authorities make sure that they are judged honestly and fairly.
Most of the time just because they are the minorities, such people are hassled not to defend their selves. If we talk about child labor, it also considered as an illegal act by the law. This child labor law is exploited in most of countries at the international level. The main and the basic purpose of these federal state labor law posters are to protect the right of the employees and deal with such obligations. Florida labor law poster deals with the lawful privileges of the employees and the limitations on the people and working of the organization. It is such an authoritative body that can address rules and regulations, standards and managerial rulings of the rights of the workers. It actually, acts as its going between the aspect of the relationships of the trade unions, work force and the employers. Basically the labor laws are more concerned with the employees’ legal rights. The labor law is helpful for the enacting laws shielding their rights for centuries. These are essential towards the economic and social development.
A partnership together with the monster-in-law is most likely one of the most demanding for any new bride or groom. The monster-in-law is definitely an overbearing, pushy mother-in-law who does not respect boundaries and could continuously try and drive a wedge in between the newlyweds. Monster-in-law behavior can even carry on nicely into marriage. Listed here are some suggestions in coping with this sort of mother-in-law to ensure that your marriage stays robust and she a minimum of is aware of her location.
Your Partner
Mainly because the lady could be the mom of one’s partner, your partner must be the 1 to deal straight with her monster in law behavior. Eventually, a lot of girls experience undesirable and cast aside when their young children marry – all of a sudden there is a new man or woman that is certainly foremost from the grown child’s existence. Your partner must be the 1 to take the brunt in the discussions, concerns and challenges with her or his personal mom.
Go over along with your partner the require for boundaries and allow your partner set individuals up along with your mother-in-law. When discussions arise, under no circumstances get in touch with your mother-in-law names or make rude feedback. Merely state the details of her behavior. By way of example, as an alternative to saying, “She’s hates me and it is often attempting to obtain fault with me,” try and present the precise behavior, for example “Your mom often exhibits up unannounced after which helps make rude feedback about how messy the home is.” By setting distinct expectations along with your partner, your partner can then set them together with your mother-in-law.
Your Mother-in-Law
Usually stay polite and respectful along with your mother-in-law. Even when she barely disguises her dislike or distrust of you, polite behavior will give her small cause to gripe. Endeavor to get to understand her on a additional individual degree – you may advantage mainly because she’ll get to understand you like a man or woman in lieu of the 1 who took her youngster away. Inquire about her private interests and hobbies and try and see her as an independent lady.
Over all, maintain communication open. In lieu of communicating exclusively via your partner about tiny points, attempt calling her right. As an example, as opposed to just signing your mother-in-law’s birthday card, give her a contact and personally want her a joyful birthday.
Acceptance
Often even the very best of efforts do practically nothing to alter the monster-in-law behavior. In that instance, all you are able to do is keep polite, under no circumstances criticize her behavior to other people, continue to keep your sense of humor and, if it comes to it, possess a frank discussion along with your mother-in-law about her behavior. Just take into account that your partner ought to under no circumstances should pick out among you along with your monster-in-law and you may make it a additional quick existence by getting the open, comprehending and type man or woman your partner married inside the 1st location.