COURT FILE NO.: 7/06

DATE: 20071204

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

carnwath, pierce and hackland jj.

B E T W E E N:

ROBERT CONNELLY

Tenant

(Appellant

• and -

MARY LAMBERT SWALE NON-PROFIT HOMES

Landlord

(Respondent in Appeal)

Gary S. Strashin, for the Tenant (Appellant)

Gary S. Farb, for the Landlord (Respondent in Appeal)

HEARD at Toronto: December 4, 2007

carnwath J.: (Orally)

1The appellant submits the Tribunal made an error in law when it found the appellant to be addicted to drugs without specifically analyzing the significance of that addiction under the Ontario Human Rights Code. The Tribunal found further the appellant was a drug dealer operating a crack house.

2The appellant made no submissions on the Ontario Human Rights Code before the Tribunal on the first hearing.

3The appellant’s request to review Member Buffa’s Order specifically raised Member Buffa’s failure to address the Ontario Human Rights Code in her Reasons. Member Fellman, the reviewing Member found Member Buffa specifically considered that the applicant’s disability by delaying eviction under s.84 of the Tenant Protection Act. Member Fellman noted that Member Buffa did not expressly characterize the appellant’s addiction as a disability.

4The appellant submits the Tribunal made an error in law in failing to appropriately consider the Ontario Human Rights Code in the application of s.84 of the Tenant Protection Act.

5Assuming without deciding the appellant’s submission is correct, the question for the Court is whether to send the matter back or to apply s.196(4)(a) of the Tenant Protection Act and “affirm, rescind, amend or replace” the decision. We prefer the latter course.

6We agree with the appellant’s submission that the appellant’s addiction must be considered a disability. We turn to a consideration of the Ontario Human Rights Code as it bears on the Order for Eviction in the light of that disability.

7A distinction must be made between the appellant’s addiction-disability and his decision to deal drugs from his apartment or, in the finding of the Tribunal, to operate a crack house.

8We agree with the appellant’s submission that a tenant cannot be evicted for behaviour directly caused by a disability if an accommodation can be reached without undue hardship, in this case to the landlord and its tenants.

9As noted in Renaud v. Central Okanagan School District No. 23, [1992] 2 S.C.R. 910 at paragraph 50:

“To facilitate the search for an accommodation, the complainant must do his or her part as well. Concomitant with a search for reasonable accommodation is a duty to facilitate the search for such an accommodation. Thus in determining whether the duty of accommodation has been fulfilled the conduct of the complainant must be considered.”

10On the finding of the Tribunal, no accommodation is possible. The appellant denied he was dealing drugs from his apartment. He denied his conduct created difficulties both for the respondent and its tenants.

11The Tribunal found that the appellant’s operation of a crack house substantially interfered with the rights of the other tenants.

12We reject any suggestion there is an obligation on the respondent to permit the tenant to operate a crack house in order to accommodate his disability. We conclude that such an attempt at accommodation would be an undue hardship to the respondent by substantially interfering with the rights of other tenants.

13The appellant submits that he is making accommodation by virtue of his undergoing treatment. We reject this submission because the tenant’s denial of drug dealing in the face of overwhelming evidence to the contrary impairs any air of reality in the submission.

14The Tribunal came to the correct decision and made no error in law, though perhaps for imperfectly expressed reasons.

15For these reasons, the appeal is dismissed.

16I have endorsed the Appeal Book and Compendium, “The appeal is dismissed for oral reasons given in court by Carnwath J. An order shall go: (1) The tenancy is terminated. The tenant must vacate Unit 1001, 269 Jarvis Street, Toronto, Ontario, M5B 2P1, on or before January 6, 2008; (2) The Landlord may file this order with the Court Enforcement Officer forthwith, and (3) The Court Enforcement Officer is directed to give vacant possession of the unit to the Landlord on or after January 6, 2008. No order as to costs.”

CARNWATH J.

PIERCE J.

HACKLAND J.

Date of Reasons for Judgment: December 4, 2007

Date of Release: December 6, 2007

COURT FILE NO.: 7/06

DATE: 20071204

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

CARNWATH, PIERCE AND HACKLAND JJ.

B E T W E E N:

ROBERT CONNELLY

Tenant

(Appellant

• and -

MARY LAMBERT SWALE NON-PROFIT HOMES

Landlord

(Respondent in Appeal)