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)

[1] The 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.

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[2] The appellant made no submissions on the Ontario Human Rights Code before the

Tribunal on the first hearing.

[3] The 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.

[4] The 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.

[5] Assuming 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.

[6] We 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.

[7] A 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. 20

07 C

anLI

I 527

87 (

ON

S.C

.D.C

.)

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[8] We 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.

[9] As 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.”

[10] On 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.

[11] The Tribunal found that the appellant’s operation of a crack house substantially interfered

with the rights of the other tenants.

[12] We 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.

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[13] The 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.

[14] The Tribunal came to the correct decision and made no error in law, though perhaps for

imperfectly expressed reasons.

[15] For these reasons, the appeal is dismissed.

[16] I 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.

2007

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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)

ORAL REASONS FOR JUDGMENT

CARNWATH J.

2007

Can

LII 5

2787

(O

N S

.C.D

.C.)

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Date of Reasons for Judgment: December 4, 2007

Date of Release: December 6, 2007

2007

Can

LII 5

2787

(O

N S

.C.D

.C.)