COURT FILE NO.: 278/04

DATE: 20040601

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

macfarland, howden and linhares de sousa

B E T W E E N:

CANADIAN MENTAL HEALTH ASSOCIATION

Landlord

(Respondent in Appeal)

(Respondent in the Motion

- and -

ANN WARREN

Tenant

(Appellant)

(Moving Party)

Joseph Hoffer, for the Landlord

Bruce M. R. Best, for the Tenant

HEARD: June 1, 2004

MACFARLAND J. (Orally)

1The tenant raises four grounds which she says give rise to doubt as to the correctness of the order of Keenan J.

(1) The tenant says there was no evidence that the tenant’s disruptive conduct continued in the seven days following service of the N5. In the reasons of the Tribunal at p. 20 of the record, the finding is:

“In spite of the N5 notice, delivered to the Tenant on November 24, 2003, the behaviour continued, as shown by the photos and incident reports. The Tenant did not void the notice by stopping these activities and correcting her behaviour within seven days.”

The tenant’s argument in this respect is unfounded.

(2) The tenant claims the Tribunal applied the wrong test in applying s.84(1) of the Tenant Protection Act. It is clear from the reasons of the Tribunal that it considered s.84 of the Act (see p. 21 of the record), and that consideration included whether or not the tenancy should be continued. Further, this Court has held that the Tribunal has a broad discretion under s.84(1)(a). It can weigh the overall circumstances relevant to the situation of both the landlord and tenant to provide what the Tribunal perceives to be a fair result. See Salter v. Beljinac, 2001 40231 (ON SCDC), [2001] O.J. No. 2792. The tenant’s argument on this ground fails.

(3) As to the third ground, there was no evidence before the Tribunal that the eviction proceeding was commenced only in the face of the tenant’s efforts to enforce her rights.

(4) The tenant urges as her most important ground that the Tribunal erred in law in determining that the landlord had accommodated the disability of the tenant to the point of undue hardship for the purposes of ss. 11 and 17 of the Ontario Human Rights Code. There is no dispute that the tenant is a person with a disability and that, as the result of that disability, engaged in conduct that interfered with other tenants’ reasonable enjoyment of their rental accommodation and seriously impaired the safety of herself and others.

2It is clear from the reasons of the Tribunal that it did properly apply the Code and follow the direction of this Court in Walmer Developments v. Wolch 2003 42163 (ON SCDC), [2003] 230 D.L.R. (4th) 372 (Ont. Div. Ct.) in relation to the duty to accommodate.

3At p.21 of the record under the heading “Considerations”, the Tribunal sets out its reasons in this respect. The landlord is obliged to make reasonable efforts to accommodate, to the point of undue hardship, the tenant’s disability. The Tribunal found that the landlord had made such accommodation on the facts of this case.

4We are all of the view that there was overwhelming evidence of accommodation, to the point of undue hardship, on the facts before the Tribunal which fully supported its decision in this respect.

5In our view, the appeal from the decision of the Tribunal raises no issue of law and is devoid of merit. Accordingly, we find no error in the decision of Keenan J. and the motion is dismissed.

6I have endorsed the motion record: “Dismissed for reasons given orally this day. No costs.”

___________________________

MACFARLAND J.

___________________________

HOWDEN J.

___________________________

LINHARES DE SOUSA J.

Date of Reasons for Judgment: June 1, 2004

Date of Release: June 8, 2004

COURT FILE NO.: 278/04

DATE: 20040601

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

macfarland, howden and

linhares de sousa

B E T W E E N:

CANADIAN MENTAL HEALTH ASSOCIATION

Landlord

(Respondent in Appeal)

(Respondent in the Motion

- and -

ANN WARREN

Tenant

(Appellant)

(Moving Party)