Devoe v. Haran, 2012 HRTO 1507
Susan Devoe was a 65-year-old woman living in a second-floor unit of a small apartment building. Initially, when Ms. Devoe moved into her apartment, she was in good health. However, in 2011, Ms. Devoe developed sciatica, osteoarthritis, and fibromyalgia. She suffered from severe pain because of these conditions and was hospitalized several times as a result. Ms. Devoe sent a letter to her Landlord at that time explaining the situation to him.
Because of Ms. Devoe’s ailments, she experienced some problems in her tenancy. She had been late paying rent at least in part due to being in the hospital when rent was due. Further, her apartment had become very cluttered and she was accused of being a hoarder. To assist her with managing, Ms. Devoe had been assigned a community support worker. Ms. Devoe was provided some workers who attended and helped her begin the process of de-cluttering and cleaning her apartment. It should be noted that it was Ms. Devoe’s physical health that contributed to the clutter problem, rather than her mental health.
In April of 2012, she found out that the occupiers of the first-floor unit were planning on vacating the unit and subsequently asked her Landlord if she could move into the first-floor unit as she had ongoing medical problems. As her apartment was on the second floor, Ms. Devoe had to climb 18 steps to the landing to reach her apartment. The first-floor unit would require her only to climb the five stairs to the entrance of the building, which would be far more manageable for Ms. Devoe.
Mr. Haran, the Landlord, declined her request. Ms. Devoe did some research and found that her request for accommodation ought to be considered under the tenets of the Ontario Human Rights Code (“Code”). The Landlord received three letters in April of 2012. The first from Ms. Devoe herself outlined her needs and her request for the accommodation to be moved into the first-floor unit. The second was from her physician who provided a brief outline of her medical conditions and reiterated her request for the first-floor unit; and finally, Ms. Devoe’s community support worker sent a letter to the Landlord outlining the needs of Ms. Devoe and the Landlord’s obligation under the Code.
In May of 2012, the Landlord addressed a letter to Ms. Devoe stating that there was no discrimination taking place, and that the building was simply unsuitable for her to remain in. The letter also discussed the state of her apartment, that it was a fire and hygiene issue, the fact she had been late on her rent and concerns regarding the status of her mental health.
An application was brought to the Ontario Human Rights Tribunal. Non-monetary restitution was sought requesting an order to have the Landlord rent the first-floor apartment to Ms. Devoe. Additionally, Ms. Devoe sought $20,000 compensation for injury to hurt feelings, dignity and self-respect, and punitive damages.
The Human Rights Code, s17 (2) states that:
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.
The adjudicator had to determine whether Ms. Devoe had made out a prima facie case by proving the decision not to rent to her was as a result of her disability. Once this was established, the Landlord would have to prove that he was unable to accommodate Ms. Devoe’s needs to the point of undue hardship.
Ms. Devoe was able to establish proof that the decision not to rent the first-floor apartment to her was due to her disability. Throughout the hearing, she provided oral and documentary evidence showing that she had received adverse treatment. The adjudicator relied on the Supreme Court of Canada’s case in Andrews v. Law Society of British Columbia, 1989 CanLII 2 (SCC),  1 S.C.R. 143, at pp. 174-75, to define discrimination:
Discrimination is a distinction which, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, has an effect which imposes disadvantages not imposed upon others or which withholds or limits access to advantages available to other members of society.
The Landlord was shown not to have given enough consideration to Ms. Devoe’s request for accommodation. He had a procedural duty to find out as much as possible about Ms. Devoe’s needs and give serious consideration as to how he could accommodate her disability. Further, the Landlord had a substantive duty to prove that accommodating Ms. Devoe would be past the point of undue hardship. He took no steps to adduce information about her disability. As for the concerns of hoarding, this was being addressed by the community support worker. In fact, the Landlord did not rebut most of the evidence brought to the hearing.
The Landlord was found not to have accommodated Ms. Devoe. Ms. Devoe was granted $4,000 for injury to dignity, feelings and self-respect. The Landlord was ordered to:
Rent the first-floor unit to Ms. Devoe,
Pay the compensation to Ms. Devoe, and
Read the Ontario Human Rights Commission’s Policy and Guidelines on Disability and the Duty to Accommodate and complete the Commission’s online training module on human rights.