Walmer Developments v. Wolch
67 O.R. (3d) 246
[2003] O.J. No. 3435
Court File No. 637/02
Ontario Superior Court of Justice
Divisional Court
Lane, Meehan and Linhares de Sousa JJ.
September 8, 2003
Landlord and tenant -- Residential tenancies -- Termination -- Ontario Rental Housing Tribunal being required to comply with s. 17 of Human Rights Code in its decision-making and in particular when exercising its discretion under s. 84 of Tenant Protection Act as to whether it would be unfair to landlord not to evict disabled tenant -- ORHT having duty to consider whether any disruption in enjoyment of other tenants may be sufficiently alleviated by reasonable accommodation of disabled tenant without undue hardship to landlord -- Human Rights Code, R.S.O. 1990, c. H.19, s. 17 -- Tenant Protection Act, 1997, S.O. 1997, c. 24, s. 84.[page247]
The tenant suffered from schizophrenia. She was a good tenant when she took her medication. The landlord gave the tenant a Notice to Terminate a Tenancy Early, complaining that she had been screaming loudly on many occasions over a period of months and that on one occasion she had left food cooking unattended and the hall had filled with smoke. Six weeks later, the landlord issued a second notice complaining of a series of events, some predating the first notice but most occurring after it. The tenant did not vacate the premises, and the landlord applied to the Ontario Rental Housing Tribunal for a date for a hearing in order to evict her. The hearing proceeded on the second notice. Without referring to the Ontario Human Rights Code, the Member terminated the tenancy. The tenant applied for a review of that decision, and another Member concluded that the failure to apply the Code was not a serious error. The tenant appealed.
Held, the appeal should be allowed.
The ORHT should not have proceeded upon the second notice as there was no statutory authority for the landlord to have issued it. The legislative scheme is that when the landlord issues the first notice, the tenant has the opportunity to rectify the matter complained of, and so remain in the premises. If the complaint is not rectified, the landlord proceeds upon the basis of the first notice to seek an eviction order. If the complaint is rectified, the first notice becomes void, but any revival of the same or similar conduct within the next six months entitles the landlord to issue a second notice. A second notice does not give the tenant the right to remain if the conduct is rectified. There was evidence that the tenant's screaming started before the first notice was issued and never stopped.
Section 2(1) of the Human Rights Code provides that every person has the right to equal treatment with respect to the occupation of accommodation without discrimination because of, inter alia, "disability", which is defined to include a mental disorder. [Section 17(1)](https://www.canlii.org/en/on/laws/stat/rso-1990-