CITATION: Reisher v. Westdale Properties, 2023 ONSC 1817
DIVISIONAL COURT FILE NO.: 456/22
DATE: 20230321
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Lederer, McCarthy, Matheson JJ
BETWEEN:
JEANETTE REISHER
Appellant
(Tenant)
– and –
WESTDALE PROPERTIES
Respondent
(Landlord)
Kyle Warwick, for the Appellant
Douglas J. Spiller, for the Respondent
Sabrina Fiacco, for the Landlord and Tenant Board
HEARD at Toronto by video conference: February 8, 2023
Lederer, J.
[1] The appellant, Jeanette Reisher is a tenant in a rental unit. The respondent Westdale Properties is her landlord. Jeanette Reisher has lived in the unit for 15 years. It is uncontested that she has had long-term mental health issues for which she receives treatment. Jeanette Reisher lives alone. Her children live with her mother (their grandmother). They live nearby. Jeanette Reisher is the recipient of support from the Ontario Disability Support Program. Her rent is paid directly from her social assistance funding. Jeanette Reisher has what appears to be a broad-based community support team including her psychiatrist, the Canadian Mental Health Association and the Jewish Family and Child Services.
[2] For some years Jeanette Reisher lived in the unit without incident. Certainly, none that was referred to or relied on. Over the last years she has acted out in a fashion which has been disruptive to others living in the building. Whether this change came in concert with, or at a different time than, the commencement of the pandemic that has affected us all is a matter of some disagreement between the parties. The initial complaints received by the landlord included attempted forced entry into a unit other than her own, yelling, swearing and false accusations against other tenants and false complaints to the police regarding other tenants.
[3] Confronted by these difficulties and the accompanying complaints of other residents, Westdale Properties applied for an order terminating the tenancy and evicting Jeannette Reisher on the basis that she had substantially interfered with the reasonable enjoyment or lawful right, privilege or interest of the landlord or another tenant.[^1] A hearing by the Landlord and Tenant Board took place on August 5, 2021. Both Jeanette Reisher and Westdale Properties were represented. The parties agreed to resolve all matters at issue and requested an order on consent. The order was made on August 16, 2021 (the Consent Order). In short, it required Jeanette Reisher to no longer engage in the behaviour that had resulted in the application to terminate and to initiate retaining the services of support staff through the Assertive Community Treatment Team or another similar service provider. The terms of the order were further to other actions already taken by those who support Jeanette Reisher. When her support team learned of the eviction proceeding, her psychiatrist had increased her medication and others had increased their visits.
[4] The Consent Order provided that in the event that Jeanette Reisher failed to comply with the requirement not to engage in the conduct that had been the subject of the complaints, Westdale Properties would have the right to apply to the Landlord and Tenant Board for an order pursuant to s. 78 of the Residential Tenancies Act, seeking to terminate the tenancy and evict Jeanette Reisher.[^2]
[5] Jeanette Reisher breached the Consent Order. During March 2022 her disruptive and threatening behaviour began again. In particular it was alleged that Jeanette Reisher had played loud music, slammed her door, screamed and made banging noises inside her unit, shouted profanities in the staircase and at her upstairs neighbour. It was said that she had knocked on her neighbour’s door and shouted profanities.[^3] When her support team learned that the landlord was again reporting problems, her psychiatrist arranged for Jeanette Reisher to be hospitalized for a three-day stabilization period. In a later letter, dated May 27,2022, the psychiatrist explains her circumstances, as they were at the time, including her diagnosis, adjustments to her treatment, her application to the Assertive Community Treatment Team, her significant and persistent deficits in cognitive functioning (i.e. memory, executive), and her difficulties navigating housing instability.
[6] Based on the concerns that had been raised by other tenants, and in accordance with the terms of the Consent Order, the landlord applied to the Board to have Jeanette Reisher evicted. The eviction hearing proceeded virtually, on June 1, 2022. Following that hearing, on June 6, 2022 the Landlord and Tenant Board made an order terminating the tenancy and directing that Jeanette Reisher move out on or before July 31, 2022 (the 2022 Order).[^4] As she was entitled to do, Jeanette Reisher sought to have that order reviewed. The request to review was denied and the 2022 Order was confirmed (the Review Order).[^5]
[7] This appeal is of the 2022 Order evicting Jeanette Reisher and the Review Order. As I perceive it there are three issues to be determined:
Did the Landlord and Tenant Board apply the wrong test in determining that the landlord had met its duty to accommodate Jeanette Reisher’s disability-related needs under the Human Rights Code of Ontario?
Did the Landlord and Tenant Board fail to comply with its statutory duty under s. 83 of the Residential Tenancies Act to consider all the circumstances relating to relief from eviction?
Did the Landlord and Tenant Board fail to provide Jeanette Reisher with procedural fairness by relying on hearsay testimony by the property manager and by relying on this evidence in coming to its decision?
Standard of Review
[8] This is a statutory appeal. It is brought pursuant to the Residential Tenancies s. 210 which states:
210 (1) Any person affected by an order of the Board may appeal the order to the Divisional Court within 30 days after being given the order, but only on a question of law.
[9] Both as a statutory appeal and pursuant to its own terms, as a question of law, the standard of review on this appeal is correctness. As such the Court is empowered to replace the opinion of the Landlord and Tenant Board with its own:[^6]
When applying the correctness standard, the reviewing court may choose either to uphold the administrative decision maker’s determination or to substitute its own view: Dunsmuir, at para. 50. While it should take the administrative decision maker’s reasoning into account — and indeed, it may find that reasoning persuasive and adopt it — the reviewing court is ultimately empowered to come to its own conclusions on the question.[^7]
[10] The correctness standard does not detract from the need to respect a tribunal’s specialized function. The expertise and familiarity of the Landlord and Tenant Board with the requirements of the Residential Tenancies Act is to be taken into account:
While the Court will ultimately review the interpretation of the Act on a standard of correctness, respect for the specialized function of the Board still remains important. One of the important messages in Vavilov is the need for the courts to respect the institutional design chosen by the Legislature when it has established an administrative tribunal (at para. 36). In the present case, the Court would be greatly assisted with its interpretive task if it had the assistance of the Board’s interpretation respecting the words of the Act, the general scheme of the Act and the policy objectives behind the provision.[^8]
The Landlord and Tenant Board
[11] Before entering into the analysis of the issues in this appeal, it is worthwhile to consider the role the Landlord and Tenant Board plays within the legislative scheme that addresses the relationship of tenants and landlords. The legislation recognizes that relative power within this relationship favours the landlord. The legislation is designed to bring that foundational aspect of the relationship closer to balance:
The purposes of this Act are to provide protection for residential tenants from unlawful rent increases and unlawful evictions, to establish a framework for the regulation of residential rents, to balance the rights and responsibilities of residential landlords and tenants and to provide for the adjudication of disputes and for other processes to informally resolve disputes.[^9]
[12] This is accomplished in part through substantively favouring tenants, as in s. 83 where the Board is required to refuse an order of eviction unless, having regard to all the circumstances, it determines that it would be unfair to refuse to do so. But as already noted and as the Act also prescribes, the adjudication of disputes is to be provided within the framework of regulation that attempts to balance the rights of tenants and landlords. Absent this prescription the position of landlords would be superior to that of most tenants. As a general rule, landlords are more likely to have the resources and ability to retain counsel and whatever other experts are required. Many tenants cannot. A loosening or broadening of the rules generally applicable in court, applicable to both sides, serves to bring increased balance to the way in which these disputes are adjudicated and resolved. It is the Landlord and Tenant Board that sets the rules that govern the procedures and practice applicable to the hearings it conducts.[^10]
[13] The need for a broader, less structured approach, is underscored by the nature of the task. The Landlord and Tenant Board, appropriately describes itself as a high-volume tribunal. It received 61,586 applications and 2,452 requests for review in the 2021-2022 fiscal year. These numbers require it to adopt procedures that, while providing an adequate opportunity to understand the issues and for both parties to be heard, allows for expedition. Vavilov notes that not all Boards can be expected to produce reasons with the degree of exactness required of the courts:
Administrative decision makers cannot always be expected to deploy the same array of legal techniques that might be expected of a lawyer or judge — nor will it always be necessary or even useful for them to do so. Instead, the concepts and language employed by administrative decision makers will often be highly specific to their fields of experience and expertise, and this may impact both the form and content of their reasons. These differences are not necessarily a sign of an unreasonable decision — indeed, they may be indicative of a decision maker’s strength within its particular and specialized domain. “Administrative justice” will not always look like “judicial justice,” and reviewing courts must remain acutely aware of that fact.[^11]
The reviewing court must also read the decision maker’s reasons in light of the history and context of the proceedings in which they were rendered. For example, the reviewing court might consider the evidence before the decision maker, the submissions of the parties, publicly available policies or guidelines that informed the decision maker’s work, and past decisions of the relevant administrative body. This may explain an aspect of the decision maker’s reasoning process that is not apparent from the reasons themselves or may reveal that an apparent shortcoming in the reasons is not, in fact, a failure of justification, intelligibility or transparency.[^12]
Analysis
Issue 1: Did the Landlord and Tenant Board properly account for the requirements of the Human Rights Code?
[14] On behalf of Jeanette Reisher it is submitted that there was a failure to properly account for the impact of the Human Rights Code and the failure of Westdale Properties to accommodate her disability, as the Code requires. The Landlord and Tenant Board is obliged to consider and, where necessary, account for the Human Rights Code in the decisions that it renders.[^13] The Code notes:
Where a provision in an Act or regulation purports to require or authorize conduct that is a contravention of Part I, this Act [the Human Rights Code] applies and prevails unless the Act or regulation specifically provides that it is to apply despite this Act.[^14]
[15] This is confirmed by the Residential Tenancies Act, where it says:
If a provision of this Act conflicts with a provision of another Act, other than the Human Rights Code, the provision of this Act applies.[^15]
[16] This being so, it follows that the Landlord and Tenant Board cannot give effect to an eviction that is in breach of the Human Rights Code. The Code protects against discrimination with respect to accommodation:
2 (1) 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, gender identity, gender expression, age, marital status, family status, disability or the receipt of public assistance.[^16]
[Emphasis added]
[17] The structure of the Human Rights Code is such that where a breach of s. 2(1) would otherwise occur there is a duty placed on a landlord to act to accommodate the characteristic that is the foundation of the otherwise discriminatory treatment. The duty to accommodate a disability is specifically referenced in the Code:
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) No tribunal or court shall 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.[^17]
[18] In the circumstances of this case, there is no question but that the root cause of the eviction of Jeanette Reisher was the impact and effect of her mental health concerns, a disability under the Human Rights Code. The issue to be determined, is whether the decision of the Landlord and Tenant Board reflects a proper consideration of the duty to accommodate. The parties agree that the duty to accommodate includes both a procedural and a substantive element. The former requires the landlord to obtain information relevant to the tenant’s disability to determine how it might be accommodated. The latter requires demonstration that the tenant cannot be accommodated without undue hardship. The reasons of the Board refer to the Human Rights Code and to the duty to accommodate and demonstrates that the member was aware of its relevance and role in the decision he was being asked to make. The relevant paragraph begins:
The Tenant’s representative argues that the Tenant is covered by the Human Rights Code and that the Landlord has a duty to accommodate to the point of undue hardship.[^18]
[19] The position taken on behalf of Jeanette Reisher is that the reasons of the Landlord and Tenant Board do not demonstrate any consideration of the duty to accommodate, either the procedural or substantive components of that responsibility.
[20] I begin with the procedural component. To my mind this is where those acting in the interest of Jeanette Reisher make their first and fundamental mistake in understanding the responsibility, process and procedures that guide the Landlord and Tenant Board. The notice of March 23, 2022[^19] which led to the hearing of June 1, 2022 and the 2022 Order was not the beginning of the process leading to the termination of the tenancy of Jeanette Reisher. It started with the initial application, the hearing giving rise to the Consent Order of June 21, 2021. The 2022 Order was a continuation of that proceeding. It starts:
The order provided that the landlord could apply to the Board under section 78 of the Residential Tenancies Act, 2006 (the “Act”) without notice to the Tenant to terminate the tenancy and affected the Tenant if the Tenant did not meet certain condition(s) specified in the order.
The Tenant’s representative acknowledges that the Tenant is in breach of the terms of order TNBL-31371-21 issued on consent on August 16, 2021. The Tenant’s representative is seeking relief from addiction under section 78.11 (b) of the Act.[^20]
[21] The consideration given to whether the duty to accommodate has been met should account for what took place leading to and included in the Consent Order. Presumptively, the order itself is the conclusion arrived at between the parties of an accommodation they agreed was practical, appropriate and without undue hardship. In advance of the order the medication prescribed to Jeanette Reisher had been adjusted in the hope that it would assist in controlling the difficulties arising of her disability and her existing support team undertook to visit her more often. As part of the order, Jeanette Reisher agreed to initiate retaining the services of support staff through the Assertive Community Treatment Team or another service provider. She also agreed not to engage in the behaviour that had been the source of the application that she be evicted. These steps are demonstrative of an effort to find a means of accommodation. By taking this as the starting point for its consideration of the subsequent application, the Landlord and Tenant Board confirmed its acceptance that the terms of the Consent Order satisfied the procedural component of the duty to accommodate.
[22] In making submissions on her behalf, those acting in the interest of Jeanette Reisher submit that the responsibility for searching for a means of accommodation lies with the landlord. The submissions rely on the continuation of the paragraph quoted above, as demonstrating that the Landlord and Tenant Board, in its decision acknowledged that the landlord had failed to comply with this obligation. The paragraph continues:
No recommendations were made on how to accommodate the Tenant other than not terminating the tenancy.[^21]
[23] This says nothing with respect to any effort of the landlord to search for how to accommodate Jeanette Reisher. This statement is directed at the tenant whose answer to the concern was that the tenancy not be ended. While the duty to accommodate is directed at the landlord, the tenant has a role:
Tenant’s role in the accommodation process
If a tenant wants accommodation under the Code, the tenant has a duty to provide the landlord with sufficient information about their needs so that the landlord can determine possible accommodation. That tenant also has a duty to cooperate the landlord in the development and implementation of the accommodation. If the tenant refuses to cooperate the landlord can argue it has failed its duty to accommodate.[^22]
[24] As it is, in the period leading up to the consent order, Westdale Properties did make an effort to contact the team supporting Jeanette Reisher but, it would seem, without success as set out in the emails that the landlord sent to the Landlord and Tenant Board. The appellant objects to this court receiving these emails because it is not clear that the member who reached the 2022 Decision was given them. However, the Board has confirmed that they were sent to it, and on that basis we have accepted them as part of the record on this appeal.
[25] These emails show that on May 13, 2021 the Senior Property manager sent an email to Jeanette Reisher’s social worker to facilitate communication about the appellant’s tenancy noting that they were pressing issues that it wanted to address constructively. In response, the social worker said that were taking all necessary steps available to them and were hoping for improvement.
[26] The response to the landlord’s inquiry did not take up the continued dialogue with the landlord.
[27] I turn now to the substantive component of the duty to accommodate and whether there is undue hardship. If there is no undue hardship, either as matters stand or with whatever accommodation the procedural component brought forward, this would absolve the need for the eviction. Counsel for Jeanette Reisher submitted that her disruptive behaviours are not violent and, thus, not the cause of undue hardship. This submission refers to evidence of Marina Reisher, the mother of Jeanette Reisher:
Her disability can cause her to behave inappropriately, but she is not violent.
She's not dangerous. She's just polite sometimes, but not nice. And if I could, you know, apologize to the people that were insulted I would do. But she's not a dangerous person, that's for sure.[^23]
[28] These submissions go to make the point that undue hardship is to be substantiated by cogent, not speculative evidence:
Undue hardship cannot be established by relying on impressionistic or anecdotal evidence, or after-the-fact justifications. Anticipated hardships caused by proposed accommodations should not be sustained if based only on speculative or unsubstantiated concern that certain adverse consequences "might" or "could" result if the claimant is accommodated.[^24]
[29] As with the procedural component, those parts of the overall process leading to the 2022 Order are pertinent. The Consent Order refers to a number of incidents that, looking forward are of the type that are not to be engaged in. They indicate that Jeanette Reisher:
• on October 21, 2020, at 7:20 am, tried to forcefully enter unit 202 and physically assaulted and criminally harassed another tenant. She physically pushed the other tenant who was also the property manager of the building, and exerted her body weight to try to force/push her way in, despite the resistance of the other tenant, saying “I want to see...” The daughter of the other tenant was screaming and crying. The daughter and the tenant were so impacted that they moved out of the unit shortly thereafter,[^25]
• on December 11, 2020, at 7:10-7:15 am, was knocking on the door of another tenant and covering the peep hole so that she could not be seen,
• on February 11, 2021 knocked on the door of another tenant and when it was opened yelled at him accusing him of stealing and made other accusations,
• on May 7, 2021 yelled at the tenant in unit 202 accusing him of stealing from her, [^26]
• on May 10, 2021 falsely called the fire department and stated there was a fire in unit 202,
• on May 11, 2021, at 5:39 am, was turning the door knob and trying to enter unit 101,
• on May 12, 2021, at 2:00 am, was knocking at the door of apartment 202 and at 2:30 am was playing very loud music,
• on May 13, 2021, at 12:07 am, was playing music “blasting” and later in the morning doing it again,
• on June 7, 2021, at 3:30 am was banging loudly on the door of another unit and yelling profanities startling the tenant and a niece, this had also happened two days earlier,
• on June 15, 2021 made a “false accusation” against another tenant to the Toronto Police, who had been called.
[30] At a time after the Consent Order, in particular during March 2022, there were fresh complaints from two tenants in two other units.
[31] At one unit, Jeannette Reisher:
• on March 9, 2022 came to the door and yelled profanities at the tenant and admonished the tenant to “Be careful,”[^27]
• later on the same day, played loud music for two hours and slammed her door many times,
• on March 10, 2022, knocked on the door and screamed profanities and “you stole my cigarettes.
[32] At another unit, Jeanette Reisher
• over four days within the week to ten days leading up to March 12, 2022 came to the door about four times, banged on it and yelled “I hate you, you are an animal, profanities and “if you don’t leave my building I will kill you,”
• on March 9, 2022, at 3:10 am played “extremely loud music and occasionally screaming and hitting the wall,
• on March 22, 2022 into March 23, 2022, from approximately 9:30 pm to 12:55 am was randomly screaming inside her apartment, outside her door and in the staircase; she slammed the door and shouted profanities in the staircase, made very loud “bangs”, tossed things around while yelling profanities. At 11:45 pm she banged on the door twice, used a profanity, called the tenant “a beast” and “an animal” and that he should go to hell. At 12:55 am the police arrived and were there for “a while”,[^28]
• a few days or a week before the hearing of June 1, 2022 started swearing at a tenant and his brother, who were sitting on a balcony, “you’re a rapist, you’re rapists. You’re coming to my apartment and stealing my cigarettes.[^29]
[33] I return to the question of whether Jeanette Reisher was, or threatened to be, violent. Being violent may be a marker of “undue hardship” but undue hardship can exist without violence being present. Even so, quite apart from the evidence of Jeanette Reisher’s mother and the indications of violent behaviour included in the statements above, there was the evidence of Frank Bartone, who is a tenant in the building, heard by the Landlord and Tenant Board at its hearing on June 1, 2022:
There is always the threat of violence with her. She’s always threatened to kill, to hurt. She’s stepped into my apartment – she literally stepped into my apartment…
... So what’s the issue here? Are we waiting for an assault charge? Are we waiting for violence to occur? If she has mental health issues I feel sorry for her, I really do for anybody. But she shouldn’t be living in this building disrupting everyone’s lives, I’m sorry. I’ve got three kids that visit me, and I don’t need her screaming and yelling and being violent and belligerent all the time.[^30]
[34] And the evidence of George Kavalas:
It was kind of very loud and it was kind of scary. It lasted, from what I recall, like a couple of hours, maybe three. There was a lot of banging in her house. And then it carried on into the hallway….,[^31]
[35] And in response a question he was asked while being cross-examined:
Q. So at any time has there been any physical –have you been under any physical threat or-from Ms. Reisher?
A: Uhm one time she forced-actually forced her way into my unit. She said, “Oh, you’re new here, let me see your unit.” And I’m like, “Uhm, I don’t know you.” And she basically took her hand, moved me to the side and came inside to look at my place. And I was like, “Uhm, miss, I’m sorry, but I don’t want you in my house.” Because I thought it was actually kind of rude for to like just push me aside and come inside.[^32]
[36] The member of the Board considered the impact of the actions of Jeanette Reisher which resulted from her disability. He noted:
• that her representative acknowledged that she was in breach of the consent order of August 16, 2021,
• that the evidence and testimony showed the Jeanette Reisher continues to call other tenants rapists, yells at them when she sees them, threatens them, and bangs on their doors in the middle of the night,
• that despite medication Jeanette Reisher continues the behaviour that gave rise to the consent order,
• that while the retaining of the Assertive Community Treatment Team had been initiated as the consent order required, Jeanette Reisher remained on the waiting list with no time frame as to when she would be accepted, and
• that although it was clear from the evidence that Jeanette Reisher suffered from mental health issues, the fact remained that she continued to substantially interfere with the reasonable enjoyment of other tenants in the residential complex.[^33]
[37] The member of the Board found “there is no reasonable expectation that [Jeanette Reisher’s] behaviour towards other tenants in the residential complex will change. Other tenants should not be required to continue to live with the ongoing abuse from [Jeanette Reisher].” On this basis, the member concluded that “the tenancy must be terminated.[^34] This is a finding of undue hardship. It is amply supported by the evidence. To the extent that this is a finding of fact, there is no palpable and overriding error. It also demonstrates that an evaluation of undue hardship attaches to the impact on other tenants either because they are “person[s]” who share the responsibility “for accommodating the needs of the tenant” or because the inability of the landlord, as the person responsible for accommodating those needs suffers undue hardship as a result of the inability to provide these other tenants with quiet enjoyment of their homes (see: s. 17 of the Human Rights Code quoted at para. [17] above). Either way, the standard of review is correctness. In this case, it is the correct determination. There was no error of law.
Issue 2: Did the Landlord and Tenant Board, pursuant to s. 83 of the Residential Tenancies Act consider all the circumstances relating to relief from eviction?
[38] This leaves the question of whether the Board erred in law in not exercising its discretion to refuse to order the eviction of Jeanette Reisher. The Notice of Appeal refers to and the submissions made relied on s. 83 of the Residential Tenancies Act. Subsections (1) and (2) state:
83 (1) Upon an application for an order evicting a tenant, the Board may, despite any other provision of this Act or the tenancy agreement,
(a) refuse to grant the application unless satisfied, having regard to all the circumstances, that it would be unfair to refuse; or
(b) order that the enforcement of the eviction order be postponed for a period of time.
(2) If a hearing is held, the Board shall not grant the application unless it has reviewed the circumstances and considered whether or not it should exercise its powers under subsection (1).
[39] In this case the Decision being appealed refers to relief from eviction being sought under s. 78(11)(b):
78 (11) If the respondent makes a motion under subsection (9), the Board shall, after a hearing,
(b) make an order setting aside the order under subsection (6), and any order made under subsection (7) or (7.1), if the Board is satisfied, having regard to all the circumstances, that it would not be unfair to set aside the order under subsection (6)
[40] Subsection 78(6) states:
If the Board finds that the landlord is entitled to an order under subsection (1), the Board may make an order terminating the tenancy and evicting the tenant.
[41] The thrust of the two sections is the same. An order for eviction will be set aside unless it is unfair to do so; the determination of which requires that regard be had to “all the circumstances”.
[42] The submissions made on behalf of Jeanette Reisher suggest that the Board’s reasons are to identify, outline and consider all of the circumstances that bear on any decision made as directed by s. 83 of the Residential Tenancies Act. I point out there is a difference between “having regard to” and outlining and reviewing each circumstance in reasons for decision. Be that as it may, this a place where the understanding that we cannot hold tribunals like the Landlord and Tenant Board to the same standard as the court and where the need to bear in mind the status and role the Landlord and Tenant Board are relevant and important considerations. In this case the Landlord and Tenant Board was aware that Jeanette Reisher suffers from mental health issues, that she continues to interfere with the reasonable enjoyment of other tenants, that she continues to call them rapists, yells at them, threatens them, and bangs on their door in the middle of the night and that there was no reasonable expectation that her behaviour towards the other patients would change. The Board referred to and understood that there had already been a Consent Order granting relief from eviction, on agreed terms but the difficulties with her behaviour continued.[^35]
[43] The relevant circumstances leading to an order that, pursuant to s. 83(1)(b) of the Residential Tenancies Act (or s. 78(11)(b)), it would not be unfair to provide Jeanette Reisher with additional time to find alternative accommodation and support. The member exercised his discretion to postpone the eviction under s. 83, but did not refuse to grant it bearing in mind all the circumstances including those arising from the impact on the other tenants and Westdale Properties.
[44] Ultimately, this was a discretionary order dealing with the remedy to be applied in circumstances where there has been a breach such that an eviction is justified. As such the decision is owed deference:
In this case, as was found in the Second Review Order, the Board considered all of the disclosed circumstances and whether to grant relief from eviction and ultimately found that it would be unfair to do so, but did find that it was appropriate to delay eviction. The Board’s exercise of discretion in this regard, absent an error in principle, is entitled to deference from this Court.[^36]
Issue 3: Was Jeanette Reiher denied procedural fairness?
[45] On behalf of Jeanette Reisher, it is submitted that there was a denial of procedural fairness. In its decision of June 6, 2022, the Landlord and Tenant Board included the observation that:
The Landlord’s Property Manager testified that in addition to the two tenants who testified at the hearing, there are three additional tenant[s] who have complained about the tenant’s behaviour but were too afraid to testify at this hearing.[^37]
[46] This statement indicates reliance on hearsay evidence which was accepted in the absence of any opportunity to question or cross-examine those tenants as to their complaints. The Statutory Powers Procedure Act, which applies to the proceedings of the Landlord and Tenant Board, provides as follows at s. 15(1):
Subject to subsections (2) and (3), a tribunal may admit as evidence at a hearing, whether or not given or proven under oath or affirmation or admissible as evidence in a court,
(a) any oral testimony; and
(b) any document or other thing,
relevant to the subject-matter of the proceeding and may act on such evidence, but the tribunal may exclude anything unduly repetitious.
[47] The breadth of this section allows for the admission of hearsay evidence:
In proceedings before most administrative tribunals hearsay evidence is freely admissible and its weight is for a matter for the tribunal or board to decide, unless its receipt would amount to a clear denial of natural justice…[^38]
[48] On what basis is it suggested that the reference to these other tenants demonstrates a breach procedural fairness (audi alterm partem (the right to be heard))? It is said that the reference to the three additional tenants as being “too afraid to testify” does not accurately describe what was said:
THE MEMBER: Okay. Let me give you a little direction. Are you telling me the other tenants feel threatened?
MS. SLJUKA: That [are the two tenants that appeared at the hearing], yes.
THE MEMBER: Okay. Any other tenants – are there any other tenants that you hear from that feel threatened from this tenant?
MS. SLJUKA: Yes, but they don’t want to report.[^39]
[49] As seen by counsel for Jeanette Reisher, to go from these answers to refer to these other tenants as being “too afraid” is speculation. The answer “yes” as given by the witness is in response to the question from the member as to whether the other tenants felt “threatened”. It is possible to feel threatened and yet not be afraid but, in this case, having regard to the entirety of the evidence as to the actions and words used Jeanette Reisher in her interactions with tenants it was a conclusion that is not out of step with what the Board member heard and was open to him as the person who heard the testimony to make.
[50] Counsel to the appellant goes further. He submits that:
…even if other tenants’ reason for not complaining about Ms. Reisher was that they were afraid of her, subjective fear does not equate to objective risk...The task for the Board in considering whether the landlord had accommodated Ms. Reisher’s disability -related needs to the point of undue hardship was to assess whether accommodation posed an objective safety risk…[^40]
[51] This is not the test of undue hardship. The question is whether given the interaction of Jeanette Reisher with other tenants in the residential complex, and accounting for the accommodation applied before and at the time of the Consent Order and its breach, was it reasonable for those other tenants to feel threatened and afraid? If the position is as put by counsel, there are sincerely frightened people who are and will be unable to have the basic enjoyment of their homes as a result of the unfortunate circumstances of Jeanette Reisher’s mental health.
[52] The problem with the position as put by the appellant’s counsel is underscored by his reference to the Review Order. It is submitted that the member who considered the request for review:
…compounded the error on review in holding, based on the same hearsay evidence, that Ms. Reisher interfered with health and safety requirements such that there would be undue hardship to accommodating her disability-related needs.[^41]
[Emphasis added]
[53] The appellant justifies this assertion by quoting from the Review Order:
The June 6, 2022 order determines that the Tenant’s actions continue to interfere with other residents and that some other residents feared testifying against the Tenant at the hearing. The hearing recording shows that the Landlord’s property manager testified that she has received complaints from residents who are fearful of the Tenant. There was therefore sufficient evidence for the presiding adjudicator to conclude that the Tenant could not be accommodated under the Human Rights Code, because the Tenant’s actions interfere with health and safety requirements….[^42]
[54] This paragraph doesn’t just refer to the “other tenants” said to be frightened of Jeanette Reisher. It refers to interfering with “other tenants” and that some of those “other tenants feared testifying against [Jeanette Reisher]”. The importance of the inclusion of tenants beyond those said by the property manager to have felt threatened, and did not appear, is made clear when one reads the whole paragraph to which counsel referred. It continues:
… Since the presiding adjudicator was in the best position to admit and consider the parties’ evidence and his submissions, and since the hearing recording confirms that there was evidence for [the] adjudicator to make his findings, the adjudicator’s conclusions are entitled to deference.^43
[55] The finding is not based solely on “hearsay evidence” of the property manager but on all the evidence placed before the Landlord and Tenant Board and considered by it in finding that there was undue hardship. The Landlord and Tenant Board did not err in law in weighing the evidence.
[56] Like the Board member who considered the request for a review I find that Jeanette Reisher was not denied procedural fairness but rather had a complete consideration of the difficult circumstances she confronts.
The review order
[57] The decision of the member of the Board, dated June 6, 2022, having been found to be justified and consistent with what the law requires, there is no purpose in considering the order refusing to grant a review. In any event little was said of this in the submissions that were made.
Conclusion
[58] For the reasons reviewed herein, the appeal is dismissed. The Certificate of Stay dated August 18, 2022 is set aside subject to the order below.[^44]
[59] These orders having been made, the fact remains that the recognition of the termination of the tenancy of Jeanette Reisher and the resulting eviction will be a hardship on her. Time will be needed for her support workers to find an alternative residence for her. Both the counsel for Westdale Properties and Jeanette Reisher were asked how long would be required to allow a reasonable time for this to be undertaken. Counsel for Jeanette Reisher proposed 90 days. In the circumstances, this is reasonable. Accordingly, the 2022 Order and resulting eviction shall not be enforced for 90 days beginning on the day these reasons are released. This is to allow Jeanette Reisher additional time to move.
Costs
[60] As agreed to by the parties, there will be no order for costs of this appeal.
Lederer, J.
I agree _______________________________
McCarthy, J.
I agree _______________________________
Matheson, J.
Released: March 21, 2023
CITATION: Reisher v. Westdale Properties, 2023 ONSC 1817
DIVISIONAL COURT FILE NO.: 456/22
DATE: 20230321
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Lederer, McCarthy, Matheson JJ
BETWEEN:
JEANETTE REISHER
Appellant
(Tenant)
– and –
WESTDALE PROPERTIES
Respondent
(Landlord)
REASONS FOR JUDGMENT
Lederer, J.
Released: March 21, 2023
[^1]: Westdale Properties v. Jeanette Reisher, Landlord and Tenant Board File No.: TNL-31471-21: Order dated August 16, 2021 (Caselines A31)
[^2]: Ibid. the Residential Tenancies Act, 2006 is found at: S.O. 2006, c. 17 s. 78 says:
78 (1) A landlord may, without notice to the tenant, apply to the Board for an order terminating a tenancy or evicting the tenant if the following criteria are satisfied:
The landlord previously applied to the Board for an order terminating the tenancy or evicting the tenant.
A settlement agreed to under section 194 or order made with respect to the previous application,
i. imposed conditions on the tenant that, if not met by the tenant, would give rise to the same grounds for terminating the tenancy as were claimed in the previous application, and
ii. provided that the landlord could apply under this section if the tenant did not meet one or more of the conditions described in subparagraph 2i.
- The tenant has not met one or more of the conditions described in subparagraph 2 i.
In this particular case, it was agreed that, should such an application be made, it would be seven days notice to either the legal representatives of Jeanette Reisher or her mother.
[^3]: Landlord’s Application to End a Tenancy and Evict a Tenant: Tenant Failed to Meet Conditions of a Settlement or Order, Schedule A (Caselines A29)
[^4]: Westdale Properties v. Jeanette Reisher, Landlord and Tenant Board File No.: TNL-36785-22-22: Order dated June 6, 2022 (Caselines A13)
[^5]: Westdale Properties v. Jeanette Reisher, Landlord and Tenant Board File No.: TNL-36785-22-RV: Order dated August 3, 2022 (Caselines A19)
[^6]: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 SCR 235 at para. 8
[^7]: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 SCR 653 at para. 54 and see: Smith v. Youthlink Youth Services, 2022 ONCA 313 at para. 17 which references Vavilov at para. 54.
[^8]: Planet Energy (Ontario) Corp. v. Ontario Energy Board, 2020 ONSC 598 at para. 31
[^9]: Residential Tenancies Act, supra (fn.2), s. 1
[^10]: Ibid at s. 176 (1) and (2):
(1) The Chair of the Board shall establish a Rules and Guidelines Committee to be composed of the Chair, as Chair of the Committee, and any other members of the Board the Chair may from time to time appoint to the Committee.
(2) The Committee shall adopt rules of practice and procedure governing the practice and procedure before the Board under the authority of this section and section 25.1 of the Statutory Powers Procedure Act.
Section 25.1 of the Statutory Powers Procedure Act says, in part:
(1) A tribunal may make rules governing the practice and procedure before it.
(2) The rules may be of general or particular application.
(3) The rules shall be consistent with this Act and with the other Acts to which they relate.
[^11]: Canada (Minister of Citizenship and Immigration) v. Vavilov, supra (fn. 7) at para. 92
[^12]: Ibid at para. 94
[^13]: Tranchemontagne v. Ontario (Director, Disability Support Progam) 2006 SCC 14
[^14]: Human Rights Code, R.S.O. 1990, c. H.19, s. 47(2)
[^15]: Residential Tenancies Act, 2006, supra (fn. 2), s. 3(4)
[^16]: Human Rights Code, supra (fn. 14), s. 2(1)
[^17]: Ibid, s. 17(1) and (2)
[^18]: Westdale Properties v. Jeanette Reisher, Landord and Tenant Board File No.: TNL-36785-22-22: Order dated June 6, 2022 at para. 6 (Caselines A14)
[^19]: L4 Application to End a Tenancy, March 23, 2022 (Appeal Book and Compendium, Tab 4 at p. 18) (Caselines A20)
[^20]: Westdale Properties v. Jeanette Reisher, Landord and Tenant Board File No.: TNL-36785-22-22: Order dated June 6, 2022 at paras. 1 and 2 (Caselines A13)
[^21]: See fn. 18 above and see Factum of the Appellant at para. 57
[^22]: Tribunals Ontario, Landlord and Tenant Board: Human Rights Interpretation Guideline 17, para. 2c(II) (Caselines B253)
[^23]: Factum of the Appellant at para. 7: referencing the Hearing Transcript for LTB matter TNL-36785, Appeal Book and Compendium at Tab 6, p. 99 lines 20-25 (Caselines A101)
[^24]: Adga Group Consultants Inc. v. Lane, 2008 39605 (ON SCDC) at para. 118 referencing British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council for Human Rights), 1999 646 (SCC), [1999] 3 S.C.R. 868, [1992] S.C.J. No. 73(“Grismer”) at para. 41; British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees' Union (BCGSEU) (Meiorin Grievance), 1999 652 (SCC), [1999] 3 S.C.R. 3, [1999] S.C.J. No. 46 ("Meiorin") at para. 79; Ontario (Human Rights Commission) v. Etobicoke (Borough), 1982 15 (SCC), [1982] 1 S.C.R. 202, [1982] S.C.J. No. 2, at pp. 212-13; D. Lepofsky"The Duty to Accommodate: A Purposive Approach" (1992) 1 Can. Lab. L. J. 1 at 11
[^25]: This and following two bullet points appear at Schedule “A” (2nd)) N5, N6 and N7 attached to Consent Order of Chris Jackson dated August 16, 2021, file no. NL31471-21 (Appeal Book and Compendium Compendium, Tab 4, page 34) (Caselines A36 and A37)
[^26]: This and following six bullet points appear at Schedule “A” (first) N5, N6 and N7 attached to Consent Order of Chris Jackson dated August 16, 2021, file no. NL31471-21 (Appeal Book and Compendium Compendium, Tab 4, page 31) (Caselines A33 and A34)
[^27]: This and the following five bullet points appear at Schedule A (L4 Application) Landlord’s Application to End a Tenancy and Evict a Tenant, Tenant failed to Meet Conditions of a Settlement or Order (Appeal Book and Compendium, Tab 4 page 27) (Caselines A29-A30)
[^28]: For this also see the email of George Kavakas to Bathurst dated March 23, 2022 at 3:44 am (Respondent’s Compendium p.116) (Caselines B351) and referred at Hearing Transcript for LTB matter TNL-36785, Appeal Book and Compendium at Tab 6, p. 108 lines 13-21 (Caselines A110)
[^29]: Transcript of the Hearing, June 1, 2022 (Respondent’s Compendium, Document 1 at p.53 lines 5-10 (Caselines B312)
[^30]: Ibid at p. 53 lines 15-19, lines 24-25 and p. 54
[^31]: Ibid at p. 46 line 25 and p. 47 lines 1-5
[^32]: Ibid at p 50, lines 17-25 and 51, lines 1-4
[^33]: Westdale Properties v. Jeanette Reisher, Landord and Tenant Board File No.: TNL-36785-22-22: Order dated June 6, 2022 at paras. 2 ,3, 4, 5 and 7 (Caselines A13 and A14)
[^34]: Ibid at para. 8
[^35]: Ibid at paras. 3, 4, 7, 8 and 9
[^36]: Lerose v. Princess Apartments, 2022 ONSC 7 at para. 33 referring to: Ali v. New Spadina Garment Industry Corp., 2020 ONSC 3244 (Div.Ct.) at para.47 and Oz v. Shearer, 2020 ONSC 6685 (Div.Ct.) at paras.30-31.
[^37]: Westdale Properties v. Jeanette Reisher, Landord and Tenant Board File No.: TNL-36785-22-22: Order dated June 6, 2022 at para. 7 (Caselines A14)
[^38]: Bryant, Lederman, Fuerst, The Law of Evidence in Canada, Third Edition, LexisNexis Canada Inc. 2009 at p. 390, para. 6.483
[^39]: Hearing Transcript for LTB matter TNL-36785, Appeal Book and Compendium at Tab 6, p. 122 lines 23-25 and p. 123 lines1-8 (Caselines A124-A125): I point out that the Rules of Procedure of the Landlord and Tenant Board allow that “in order to provide the most expeditious and fair determination of the questions arising in any proceeding the LTB may:…(n.) question a party or witness” (Powers of the LTB rule1.6(n)).
[^40]: Factum of the Appellant at para. 63
[^41]: Ibid at para. 64
[^42]: Ibid at para. 64 quoting from Westdale Properties v. Jeanette Reisher, Landord and Tenant Board File No.: TNL-36785-22-RV: Order dated August 3, 2022, at para. 14 (Caselines A19)
[^44]: See: Caselines A151