Court File and Parties

COURT FILE NO.: CV-23-93301 DATE: 2024/06/05 COURT OF ONTARIO, SUPERIOR COURT OF JUSTICE

RE: CENTRETOWN CITIZENS OTTAWA CORPORATION, Applicant AND: ALEXANDRA NOBLE, Respondent

BEFORE: C. MacLeod RSJ

COUNSEL: Lorinc Mucsi, for the Applicant Michael Raimondo, for the Respondent

HEARD: May 16th, 2024

Reasons for Decision

[1] The Applicant is a not-for-profit corporation which provides affordable housing including market rent and subsidized housing in the Centretown District of Ottawa. It has been in existence for over 50 years and is the landlord of numerous residential properties.

[2] The Respondent is a non-subsidized tenant of a one-bedroom unit at 104-160 Argyle Avenue. The Respondent has a complex illness which impacts her immune system. This makes her particularly susceptible to environmental factors such as mould and air borne particulate. For purposes of this Application, it is undisputed that the Respondent suffers from a disability within the meaning of Part 1 of the Ontario Human Rights Code (OHRC or “the Code”). In order to meet its obligation to provide equal treatment to all tenants regardless of disability, a landlord must make all reasonable efforts to provide suitable accommodation to an individual in such circumstances.

[3] Since the Respondent took possession of her unit in 2021, the parties have been engaged in attempts to remediate the unit to address the Respondent’s health needs. The Respondent believes the Applicant’s efforts have been inadequate and there is currently a complaint before the Ontario Human Rights Tribunal (the Tribunal).

[4] In the course of attempting to address the needs of the Respondent and in attempting to resolve the complaint before the Tribunal, the parties entered into a number of temporary agreements. Pursuant to those agreements, the Respondent was given access to an alternative unit at 149 Arlington Ave.

[5] It was agreed that temporary use of the unit was not a tenancy, and it was further agreed that the Respondent would vacate the additional unit when the agreement expired. She now refuses to do so. The Applicant brings this application for a finding that the Respondent’s continued use of the Arlington property is unauthorized and for a writ of possession.

[6] The issue before the Court is narrow question. Is the Respondent now trespassing and should the Applicant be entitled to regain possession? The Respondent’s only basis for refusing to vacate is her position that possession of two units is necessary on a temporary basis to accommodate her disability.

[7] For the reasons that follow, I conclude that the Court has the jurisdiction to deal with the Arlington property. The Respondent cannot use her allegation against the Centretown Citizens Ottawa Corporation (“CCOC”) under the Code to retain possession of a second unit when she had agreed to temporary limited use. A writ of possession is the appropriate remedy. As discussed in the reasons, I will delay the writ of possession for 30 days to permit the Respondent to make alternative arrangements or for the parties to reach agreement.

Background

[8] As noted above, the Applicant suffers from mould and airborne particulate sensitivity. She had been on protracted medical leave when she first became a tenant of CCOC on July 1, 2021. Shortly after taking possession of her rental unit, the Respondent raised concerns with CCOC about water damage and mould in the unit. She reported having adverse reactions when she remained in the unit for any length of time. The Respondent arranged for a mould inspection and provided CCOC with the report and recommendations.

[9] CCOC implemented or purported to implement all of the recommendations in the first report. On July 11, 2021, the Applicant had a post-remedial mould inspection completed. That report indicated there were still some issues with mould. The Respondent continued to report adverse reactions and concern for her health. CCOC then obtained its own expert, performed further remediation work and verified that the air quality within the unit was within Health Canada Guidelines.

[10] In an effort to accommodate the Respondent, the Applicant agreed to a number of steps. Primarily it was agreed that the Respondent would be offered alternative accommodation as suitable units became available and if any of those units were acceptable, they would transfer her tenancy. They also agreed to continue to confer with experts and to take any additional and reasonable remediation steps to address the issues in the existing unit on Argyle.

[11] CCOC is now of the view that sufficient remediation has been undertaken and that two experts chosen by the Applicant and the Respondent have verified that there is no obvious sign of water damage or mould and the air quality is within acceptable parameters. The Applicant might be prepared to take further remedial measures if the Respondent provided it with specific recommendations from her physician but to date no such recommendations have been forthcoming.

[12] Whether or not CCOC took the Respondent’s complaints and illness seriously in the first instance, took adequate timely remediation steps, and when and if the unit ever became fully habitable by the Respondent are issues of continuing dispute. The Respondent acknowledges that by early 2022 there had been a significant improvement in her unit, but the Respondent continued to report serious reactions when she slept in the unit and she frequently slept elsewhere. In July of 2022 she filed a complaint with the Tribunal regarding the alleged failure of CCOC to accommodate her disability. That proceeding is still a live proceeding and it has yet to be determined.

[13] What is of most significance for purposes of this Application is that CCOC provided the Respondent with access to other units to consider whether or not they would be suitable to her needs. Over the course of 2022 and 2023 the parties negotiated and participated in mediation. The Respondent was ultimately given access to the property at 149 Arlington.

[14] The parties signed an “Interim Agreement” in which CCOC acknowledged that the Respondent had asked for accommodation pursuant to the Ontario Human Rights Code (“OHRC”) and acknowledged that the parties would continue to work towards finding a solution to the issues at Argyle that were causing problems for the Respondent. The Agreement dated August 4, 2022 contained the following terms:

• CCOC will provide temporary accommodations tor Ms. Noble, free of charge, at 147 Arlington Avenue, Ottawa, Ontario, for a maximum of three months from the date of this agreement. This is not a tenancy agreement - Ms. Noble's tenancy remains at 104-160 Argyle Ave, Ottawa, Ontario, and she is expected to continue paying rent at that address and fulfilling her obligations as a residential tenant under the Residential Tenancies Act at that address;
• Ms. Noble will vacate the unit at 147 Arlington Avenue, Ottawa, Ontario, upon the expiry of 3 months from the date of occupying the premises. This residency may be extended by mutual agreement, if necessary, but the parties agree that any extension does not create a tenancy agreement between the parties at 147 Arlington, Avenue, Ottawa, Ontario.
• COOC agrees to provide to Ms. Noble the same rights and be bound to the same obligations as imposed on landlords under the Residential Tenancies Act in relation to the residency at 147 Arlington Avenue, Ottawa, Ontario, save and except that the occupation of 147 Arlington Avenue, does not create a tenancy agreement under the Residential Tenancies Act, that the Ontario Landlord and Tenant Board has no jurisdiction over the occupation of 147 Arlington Avenue, Ottawa, Ontario, by Ms. Noble, and that there is no indefinite right to occupy 147 Arlington;
• This temporary accommodation is provided in the spirit of attempting to accommodate Ms. Noble while a long-term solution is sought, via remediation work at 104-160 Argyle, Ottawa, Ontario; via a permanent transfer to another unit; or by some other solution that may be identified;
• This voluntary provision of temporary accommodation is not an admission of any liability or duty on behalf of CCOC that it must provide such housing; nor an acknowledgement that the unit at 104-160 Argyle Street, Ottawa, Ontario, is not fit for habitation as understood under the Residential Tenancies Act.

[15] Since that time, the Respondent has been occupying both units. She advises that her personal effects, work computer, wi-fi and furniture are located at the Argyle property where she remains a tenant but she sleeps at the property at 147 Arlington. She has not been prepared to abandon Argyle or swap her tenancy for the unit at Arlington because the Arlington property is partially below ground, has no balcony and she believes it will be prone to dampness and possible mould development in the future. The Respondent is not satisfied that the unit at Argyle has been fully remediated. While she sleeps at Arlington without adverse effects, she is not willing to switch her tenancy from Argyle.

[16] The Interim Agreement was renewed on several occasions. The Applicant has continued to conduct remediation measures and to engage experts to measure the environmental conditions at Argyle. By July of 2023, the Applicant believed it had done everything possible to accommodate the Respondent. The Applicant served a letter from its counsel demanding that the Respondent choose between the two units and either move back into Argyle, swap it for Arlington or be deemed to have abandoned the tenancy. In response, her counsel advised that she was not abandoning the Argyle tenancy and would not do so, confirmed her personal effects remained at Argyle and advised the Respondent was not satisfied her needs had been accommodated. She has continued in possession of Arlington as well as Argyle.

[17] The Interim Agreement has not been renewed. The Applicant acknowledges that the tenancy itself is in good standing and is under the exclusive jurisdiction of the Landlord Tenant Board. It is not seeking to evict the Respondent from Argyle or to recover possession of that unit. It simply seeks an order permitting it to recover possession of the other unit at Arlington (which both parties agree is not a tenancy).

Analysis & Decision

Jurisdiction & the Residential Tenancies Act

[18] The first issue is one of jurisdiction. The Landlord and Tenant Board (“LTB”) has exclusive jurisdiction to determine all matters in which jurisdiction is conferred upon it under the Residential Tenancies Act, 2006 (RTA). This Court is not empowered to deal with the rights of the Applicant or the Respondent in relation to the tenancy of 104-160 Argyle and is not asked to do so.

[19] Although there is no doubt that the Arlington property is a “rental unit” and a “residential unit” within the meaning of the RTA, the Respondent has never paid rent or occupied the unit under a tenancy agreement. Both parties acknowledge that the occupation Arlington is temporary use under an agreement between the parties and is not a tenancy. I accept this characterization.

[20] Despite the fact that the Respondent has been sleeping in the unit at Arlington, she has not established a tenancy. The question of whether she should be required to vacate the Arlington unit is not within the jurisdiction of the LTB and is within the jurisdiction of the Court. Yu v. Xiao, 2014 ONSC 3257 (Div. Ct.)

Jurisdiction and the Ontario Human Rights Code

[21] Whether the actions or inaction of the Applicant and the manner in which the Applicant dealt with the Respondent’s accommodation needs at 104-106 Argyle due to her complex health condition is or was discriminatory is an issue currently in litigation before the Ontario Human Rights Tribunal. Unlike the LTB, however, the Tribunal does not have exclusive jurisdiction to apply the OHRC. In particular s.46.1 of the OHRC permits a court to grant civil remedies where the court finds infringement of a protected right in the course of any civil proceeding.

[22] This Application is a civil proceeding. I may make findings and if necessary, grant remedies pursuant to the Code. In this case it is the Respondent who invokes the OHRC as a shield for the remedy sought by the Applicant. The only defence raised by the Respondent to granting a writ of possession and the only justification for remaining in possession of the Arlington property despite her agreement to vacate, is an assertion that granting the relief would breach her rights under the Code.

[23] The Respondent asserts that the Applicant must continue to provide her with the use of the second unit because it is the only current way to reasonably accommodate her disability. In effect, this would require the Court to leave her in occupation as a remedy to what would otherwise be unlawful discrimination under the Code.

[24] It is important to emphasize that the “duty to accommodate” is actually a defence to a claim of discrimination under Part I of the Code. The defence is set out in s. 17 and permits discrimination on a prohibited ground only if the needs of the person cannot be accommodated without undue hardship on the person responsible for accommodating those needs. The actual wording of s. 17 is as follows:

Disability

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.

Accommodation

(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.

[25] For purposes of this Application, I assume that the Respondent’s health condition is a disability which imposes an obligation to provide living accommodation reasonably modified or adjusted to meet her needs. Whether that duty has been breached in regard to the tenancy at Argyle and the appropriate remedy if the duty has not been met is the precise issue before the Tribunal.

[26] The question to be addressed on this Application is much narrower. The question is whether the Applicant’s duty to accommodate can be used by the Respondent to block the relief requested for the Arlington property.

[27] Framed another way, the issue is whether the evidence available to me demonstrates that enforcing the agreement between the parties will violate the duty to accommodate. The Respondent must show that only by leaving her in occupation of two units can the Applicant satisfy its obligation to accommodate the needs of the person under disability “without undue hardship”.

[28] I turn now to the evidence.

Evidence

[29] As discussed above, the sole question before the Court is whether to enforce the terms of the Interim Agreement and to grant an order to CCOC permitting it to recover possession of the unit at Arlington.

[30] Despite the non-renewal of the Agreement, and despite the agreement to vacate when the Agreement expires, the Respondent refuses to surrender possession. The only argument justifying her position is her contention that she has a lawful right to continue to occupy it because of the Applicant’s duty to accommodate her to the point of undue hardship pursuant to the Code.

[31] In deciding this question, I am not in a position to decide whether or not the Argyle property has been rendered fit for habitation by the Respondent. This is the precise question before the Tribunal but even if I thought it appropriate to decide that question, I could not do so on the basis of the evidence now before me.

[32] Rule 29 deals with evidence on motions and applications. Subrule (4) deals with motions and Subrule (5) with applications. On an application, statements of a deponent’s information and belief are admissible for facts that “are not contentious”. This is narrower than the use of information and belief evidence on a motion but in any event expert testimony may not be adduced by simply attaching reports to affidavits.

[33] The Applicant has provided a series of reports of consultants attached to the Affidavit of its Executive Director. This includes the two RFID reports obtained by the Respondent and subsequent reports obtained from Kanellos Consulting Inc. and Greenough Indoor Air Quality Testing. The Respondent relies on those same reports and also relates information she advises she was given orally or by email from contractors, remediation experts and physicians. She also attests that she has performed her own testing using “two Temtop meters” she had purchased to measure formaldehyde and VOC readings.

[34] There are no affidavits from any experts or physicians. As such, while I can accept the evidence that experts were retained, reports prepared, recommendations made, testing done and the results of the testing conveyed, this evidence is not admissible to prove the truth of the contents or to provide opinion evidence. See for example, Mehdi-Pour v. Minto Developments Inc., 2010 ONSC 5414 @ paras. 39 & 40 (Master); aff’d 2011 ONSC 3571 (Div. Ct.) and Pinarreta v. Abreu Refrigeration Ltd., 2009 CarswellOnt 6880, [2009] O.J. No. 4728 (SCJ) @ para. 14. Similarly, the Respondent cannot serve as her own litigation expert despite the fact that she is undoubtedly the person with the most knowledge about her personal circumstances and the management of her complex health condition.

[35] The Respondent is able to give evidence that she took particular readings and for that reason and her own reaction to the unit, she believes the air quality remains problematic. She cannot prove in that manner that the remediation has been inadequate or show what reasonable further steps would have to be taken to make Argyle habitable for her. I note that one of the reports obtained by the Applicant suggests that the formaldehyde readings go up whenever the Respondent is present and suggests that her readings may be the result of something on her person. I am unable to accept that report as proof of anything either.

[36] The point is that the evidence is insufficient for me to determine if the remediation at Argyle has been properly completed and if there continues to be a medical reason that it cannot be occupied by the Respondent.

[37] I note that the Applicant expresses frustration that it has never received specific recommendations from the Respondents’ physicians for anything that can or should be done to her apartment in order to meet her medical needs. Certainly there is no such evidence before me.

Analysis and Decision

[38] What I can decide is whether the evidence supports a finding that the ongoing provision of a second unit is required by the duty to accommodate. Clearly it is not. For one thing, there is no evidence that the Respondent suffers any adverse consequences while sleeping at the Arlington property. She is not prepared to move out of Argyle and into Arlington because she fears it may develop mould and because she would prefer not to have a basement unit or one without a balcony. The Applicant is prepared to swap units and to continue to look for alternative accommodation that is to the Respondent’s liking and meets her needs.

[39] The Respondent signed the Agreement in which she agreed to vacate the unit upon the expiry of the agreement unless it was extended by mutual agreement. This was always intended to be a trial period and not a permanent arrangement. There is no suggestion that the Respondent lacks capacity to enter into such an agreement or that the agreement was not intended to be binding. There is no evidence that there have been any significant changes in circumstances since the Agreement was signed.

[40] The duty to accommodate is not infinite. The duty to accommodate arises where a requirement, qualification or factor exists that results in the exclusion or restriction of a group of persons against whom discrimination would be prohibited. Here that would be exclusion from housing on the basis of disability resulting from environmental sensitivity to mould or air borne particles.

[41] Discrimination – or inability to accommodate the disability – will be justified if the individual cannot be accommodated without undue hardship on CCOC having regard to cost, outside sources of funding, and health and safety regulations. It is not for the person with the disability to dictate the form of accommodation provided the method chosen is reasonable and respects the dignity of the person to be accommodated. Moreover, the person who seeks accommodation must also be reasonable and shares the obligation to find reasonable solutions. Renaud v. Central Okanagan School District No. 23, [1992] 2 SCR 970 @ para. 50 See also Stewart v. Elk Valley Coal Corp., 2017 SCC 30, [2017] 1 SCR 591 @ para. 56.

[42] CCOC argues that it has fulfilled its duty. They have carried out various remediation measures on the Argyle unit. CCOC has paid for experts selected by the Respondent as well as experts selected by CCOC. They have monitored the air quality and the level of contaminants and there is nothing more they can reasonably do. They argue that the Respondent has not been able to provide specific recommendations or measures proposed by the Respondent’s medical practitioners.

[43] As noted above, I am not ruling on whether the duty to accommodate has been discharged in respect to the work done on Argyle or the way in which CCOC has dealt with the Respondent and her disability. That is the issue the Respondent has put before the Tribunal along with the question of remedy if her rights have been violated.

[44] On the evidence before me, I am simply not persuaded that the duty to accommodate can now be used by the Respondent to continue in occupation of a second unit she agreed to use temporarily and to vacate when the temporary Agreement expired.

[45] Even if the evidence persuaded me that this is the only way in which the Respondent’s disability can be accommodated by the Applicant, it would still not be reasonable. The Code provides that the accommodation must be reasonable without undue hardship having regard to cost and other non-exclusive factors. Given the mandate of the Applicant as a not-for-profit housing agency, the cost of taking the Arlington unit out of its housing inventory on an ongoing basis is undue hardship. Cost can be measured not only in dollars but also in cost to the community and to the mandate of CCOC at a time when the lack of affordable housing in cities is a crisis.

[46] In the final analysis, however, the Respondent cannot prove that continued occupation of Arlington is the only way she can be accommodated. She must honour her agreement and vacate the premises.

[47] In order to permit the Respondent to make other arrangements and perhaps to permit the parties to reach an agreement, I will defer the issuing of a Writ of Possession for 30 days. The Applicant will be entitled to a declaration that the continued occupation of the Arlington unit by the Respondent is unlawful. The Applicant will be entitled to a Writ of Possession if the Respondent does not surrender possession by July 5, 2024.

Costs

[48] The Applicant seeks costs and indicates it has incurred legal expenses of approximately $13,500.00 in pursuing this matter. An award of modest partial indemnity costs is appropriate. I fix those costs at $5,000.00 to be paid by the Respondent to the Applicant.

Justice C. MacLeod Date: June 5, 2024

Released: June 5, 2024