Lindsay v. Metropolitan Regional Housing Authority, 2019 NSSM 61

SMALL CLAIMS COURT OF NOVA SCOTIA Citation: Lindsay v. Metropolitan Regional Housing Authority , 2019 NSSM 61 Date: 2019-06-06 Docket: SCCH 487153 Registry: Halifax ON APPEAL FROM AN ORDER OF THE DIRECTOR OF RESIDENTIAL TENANCIES Between: Michael (Mike) Lindsay Appellant (Tenant) - and - Metropolitan Regional Housing Authority Respondent (Landlord) REASONS FOR DECISION AND ORDER Adjudicator : Eric K.

Slone Heard : In Halifax, Nova Scotia on May 14 and 23, 2019 Appearances : For the Claimant, Meghan Deveaux, Mark Culligan and Rachel Zuliniak (student) - Dalhousie Legal Aid For the Defendant, Sheldon Choo, counsel (Dept. of Justice) BY THE COURT : [ 1 ] This is an appeal by the Tenant from a decision of the Director of Residential Tenancies dated April 10, 2019, which was issued following a hearing March 27, 2019.

The order terminated the Tenant’s tenancy in the building at 1 Alderney Drive in Dartmouth, Nova Scotia as of May 31, 2019. [ 2 ] Although the order partly involved arrears of rent and several other minor financial matters, those issues were resolved prior to the matter coming before this court on appeal. The only issue on appeal was whether the Tenant was in violation of the “good behaviour” obligations under the statutory conditions contained in s.9(1)3 of the Residential Tenancies Act.

[ 3 ] The Residential Tenancy Officer stated without elaboration the basis for her decision, which was that she accepted the Landlord’s evidence that they had received numerous complaints regarding the Tenant’s behaviour and that it would be unfair to the other tenants in the building to continue with the tenancy. The Tenant (through his representatives) had argued in Residential Tenancies that he has disabilities which explain (at least in part) his behaviour and that he now has supports in place to assist him.

Implicitly, the Residential Tenancy Officer did not find the Tenant’s arguments sufficient to allow him to stay in his tenancy. [ 4 ] The hearing before this court was, of course, a hearing de novo , and both sides presented their evidence, which was heard over two evenings in May 2019. The position taken by the Tenant was not just that he has disabilities which explain his behaviour. He also denied the veracity of most of the evidence against him, thus placing his credibility very much in issue. [ 5 ] The allegations against the Tenant are not pretty.

It is alleged that he is frequently drunk, that he has on occasion urinated in the hallways, and that he is confrontational and belligerent with other tenants and staff. Some of these tenants are afraid of him and avoid coming into contact with him, if possible. They complain that his behaviour seriously undermines their enjoyment of their homes. [ 6 ] Some background about the building and its tenant population is important. 1 Alderney Drive in Dartmouth is a 199-unit high- rise apartment owned and operated by Metropolitan Regional Housing Authority (MRHA) as part of the public housing system.

It is restricted to seniors aged 57 or older, most if not all of whom are low income and paying a rent geared to income. Many (if not most) of the tenants live alone. Many are female. [ 7 ] I believe it is fair to say that the tenant population is “vulnerable” by reason of their age and circumstances, quite apart from any disabilities that some of the tenants may exhibit. [ 8 ] It is important to emphasize that this is not a group home or other kind of health facility. It is an apartment building which provides a home to its tenants.

That said, I do not propose to lose sight of the obligation of landlords, and particularly those operating in the quasi-government sector, to accommodate people with disabilities to the point of undue hardship. [ 9 ] The Tenant was initially accepted into the building for a six-month term beginning October 1, 2016. Two further six-month leases were signed, and eventually (though it is not exactly clear how) he became a month to month tenant upon the expiry of the lease dated October 1, 2017. [ 10 ] The short leases were essentially a type of probation.

All leases have to be approved by the MRHA board, and there were concerns about the Tenant from the outset, based on his track record elsewhere. The evidence [ 11 ] It is the Landlord’s legal burden to prove that the Tenant has breached his legal obligation, and it called several witnesses in support of its case. I will refer to the witnesses who are also tenants in the building anonymously, to the extent possible, in order to reduce the risk of reprisals and to preserve their confidences.

In the case of professional witnesses, or employees of the Landlord, that precaution will not be necessary. [ 12 ] Karen Dauphinee is a social worker employed as the community relations officer with MRHA. She was tasked with meeting with the Tenant in October 2017 to ascertain if he needed any “support” such as equipment, devices or programs that MRHA might be able to provide. She was aware of existing complaints that he was annoying other tenants. She was also aware of possible alcohol addiction and brought him information on addiction support programs.

The Tenant told her emphatically that he did not have any such support and that he would not be getting any. She raised the issue of possibly engaging a trustee to help with financial issues and suggested a motorized scooter to assist with physical mobility. The Tenant had apparently become physically disabled after working at the dockyards. He disclosed to Ms. Dauphinee that he suffered from shrinkage of his cerebellum, something which was confirmed by other witnesses. [ 13 ] In the end, the Tenant did not want any of the help that Ms. Dauphinee might have provided.

She allowed that he did not seem to be drunk at the time she visited, and he was not belligerent to her.

[ 14 ] Witness 1 is a long-time resident of the building whose apartment is right next door to that of the Tenant on the 8th floor. She testified that he seemed OK at the beginning, but he has been nasty to her ever since an incident when she returned home to find him urinating, or having urinated, in the hallway outside his apartment (and next to hers). She testified that every time he sees her, he says something nasty such as by calling her a “f***ing bitch.” She finds this very upsetting.

She believed that this event was 3 or 4 months ago. [ 15 ] She also described seeing him coming out of a bathroom during a party in the common room (more than a year ago), with his pants half down, which caused him to trip and fall down.

She said that he was obviously drunk. [ 16 ] When she testified on the first night of the hearing, she said that the day before (which would have been May 13, 2019) he came up to her in the common room and made some veiled threat about seeing her tomorrow (at the hearing) and also that evening he pounded several times on the wall between their apartments, the last such event being at or after midnight when she was trying to sleep. She found all of this very distressing. [ 17 ] Witness 2 is a tenant on the 6 th floor.

She is familiar with the Tenant who is apparently friendly with another tenant on the same floor and who frequently visits. She testified that the Tenant appears inebriated a lot of the time. Recently she witnessed him apparently drunk and banging on her neighbour’s door. [ 18 ] Several weeks prior to the hearing, she says that she was aware of the incident when he apparently urinated on the 8 th floor. [ 19 ] She testified that he can often be seen in the hallway carrying a case of beer.

She testified that he is widely talked about among the tenants, the gist of which is that he is unpleasant to encounter. [ 20 ] She testified that she has (at least once) seen him wet in the front, meaning that he had urinated in his pants. [21] She did not describe any aggressive behaviours addressed to her. [22] Allan Wessell is employed by MRHA as the Resident Building Attendant at the building in question. He resides in the building and - somewhat like a superintendent - deals with matters “on the ground” such as safety, illegal activity, security and tenant complaints.

In his almost three years in the building he has had numerous encounters with the Tenant, which he described as “mostly negative.” He described the Tenant as an “alcoholic with a nasty demeanour” who “attacks people” verbally, especially women. He has knowledge of incidents where women have been physically groped by the Tenant in the elevator, as a result of which he says no one wants to ride the elevator with him. He says that most tenants’ approach is to avoid him, as much as possible. (I appreciate that the allegation of groping is otherwise unsupported hearsay and give it very little weight.) [23] Mr.

Wessell described an incident when the Tenant had urinated in the hallway on the 5 th floor, which meant that he had to suit up with special “bio-gear” in order to attend to cleaning it up. (There was no date attached to this incident.) [24] Mr. Wessell also described a recent event (after the Residential Tenancies hearing) when the Tenant was taken away by the police who were responding to a complaint. He says that they had to take him away because he was uncommunicative. [25] In general, Mr.

Wessell described the Tenant as a major disruptor in the building; a person who makes other tenants upset with his drunken behaviour and threats. He says that he sees the Tenant returning to the building with cases of beer “all the time.” [26] As for his own relationship with the Tenant, he says that the Tenant verbally attacks him every time he sees him. He says that, while other tenants drink and smoke in the building, the Tenant is the only one who urinates inappropriately and is nasty to other tenants.

He allows for the likelihood that his public urination is not intentional and suggests that the Tenant probably needs to wear incontinence pads or some such thing.

[27] Constable Jennifer Clarke of the Halifax Regional Police testified. She has been the community response officer for this area since January 2018. Shortly thereafter she became aware of the Tenant whose name came up when she was looking into a report of safety concerns in the building which had been published in the Halifax Herald newspaper. One of the things she did was to perform a “call audit” to see how often the Tenant’s name came up in reports arising from calls. The reports generated, which I accept as business records, includes several relevant and recent entries: a.

On April 1, 2019 (i.e. after the Residential Tenancies hearing) the Tenant was taken away by ambulance, with a notation “intoxicated patient refusing medical care.” b. On February 2, 2019, the police responded to a noise complaint emanating from the Tenant’s unit, where there were several people present “highly intoxicated, playing loud music and knocking on doors in the hallway.” The Tenant - who was “highly intoxicated” - was arrested for Breach of Peace. c.

On December 28, 2018 the police responded to a report of a fight involving the Tenant, who was found to be highly intoxicated and escorted back to his apartment. [28] Andrew Buchanan is the Property Manager for MRHA responsible for this building, among others. He testified that there is a wait list of 25 to 30 people who are hoping for apartments in this building. He described MRHA as a “landlord of last resort” for many tenants who are financially precarious. [29] Although he does not have direct contact with most tenants, he has been involved with the Tenant because of multiple complaints about his behaviour.

These complaints go back to 2017. In August of that year the Tenant was warned because of a drunken party in his unit. In January 2018 he was warned because of public consumption of alcohol and urinating in the hallway. He was also caught smoking in the hallway, which is prohibited. [30] In 2018 the Resident Attendant (Mr.

Wessell) complained to him that he could no longer deal with the Tenant because of his rude and aggressive behaviour toward staff and other tenants. [31] He also testified to an incident on April 12, 2019 ( after the Residential Tenancies hearing) where the Tenant had been found to have urinated on the 5 th and 8 th floors and in the elevator. He had to deal with one of the cleaners who was very upset because the Tenant had apparently been very rude to her when she tried to escort him back to his unit.

He testified that some members of his staff (who are unionized) fear retaliation from the Tenant, and he recognizes that he has an obligation to provide a safe and respectful working environment for them, as well as a safe home for his other 198 tenants in the building. [32] Mr. Buchanan believes that the Tenant has not responded to repeated warnings and that things are not improving to any degree. The Tenant’s witnesses [33] The court heard from the Tenant himself, as well as from two professional witnesses.

I will deal with the Tenant’s evidence first. [34] As far as he is concerned, all of the evidence against him is a “made up story.” He denies that he has been drunk and says that people sometimes assumes he is drunk because of his mobility and speech problems, which are the result of his shrunken cerebellum. [35] He says that he drinks maybe 2 or 3 cans of beer per week. He admits that he had one urination accident, which was a result of being locked out of his apartment.

[36] He says that one alleged urination incident was actually an accidental spill of beer (and not urine at all) from a partly full beer can in a plastic bag that had sprung a leak. [37] He denies that he is an alcoholic and said that he was in a detox program once about 30 years ago.

He also admits to having attended a few AA meeting at some unspecified time. [38] He denies that he ever hosts parties in his apartment. [39] On cross-examination he allowed for the possibility that he may be forgetful as a result of alcohol-related dementia, though he attributes his problems more to toxic exposures while he was working at the port. [40] He insisted that the alleged incident where his pants were down, causing him to trip (as testified to by Witness 1) never happened. [41] Another alleged incident of urination in the hallway was, he said, a misunderstanding.

It was actually melted snow that fell off his scooter after he came into the building one day in the winter. [42] When asked about his irritable and aggressive behaviour, he denied ever threatening anyone and wrote it off to his inherently “cranky nature,” describing himself as a bit of an Archie Bunker. [43] He denied that the police ever responded to a noise complaint coming from his apartment. Findings of credibility [44] The Tenant is simply not capable of being believed.

Everyone else is making stuff up, he contends. [45] Either the Tenant is lying, or his memory and mind are so compromised that he is incapable of understanding and remembering all of the things that have happened.

Either way, the evidence satisfies me that the Tenant is someone who, at least partly as the result of his alcohol consumption, is nasty and aggressive to other tenants and staff, to the extent that he significantly interferes with their enjoyment of their tenancies and workplace, as the case may be. [46] The fact that he is incapable of even acknowledging that these problems exist bodes poorly for any possibility that he could change his behaviour. Expert opinion [47] This brings me to consider the professional evidence that was offered by the Tenant’s representatives.

Occupational Therapist Erin Iles from Mobile Outreach Street Health (MOSH) has been attempting to help the Tenant with his physical and mental issues. Her role is to support him to be as mobile and functional as possible. She testified that the Tenant has admitted to her his alcohol use, and that he is trying to reduce his drinking by, for example, stopping the use of hard liquor. She testified that he is on a list to see a neurologist for further assessment. [48] Jacqueline Atkinson is a nurse practitioner with MOSH, who has been providing primary health care to the Tenant for about a

year. She described his condition as ataxia, a degenerative brain condition which can be caused by, or aggravated by, serious alcoholabuse. She testified that the medical records she has from several years ago confirm that his cerebellum has shrunk, resulting insymptoms which include slurred speech, poor motor coordination and decreased executive function. She referred several times to himhaving alcohol related dementia and confirmed that he is waiting for a further neurological consult. [49] She does not think his condition is reversible, but that occupational therapy can help to maximize his functioning.

Hisunderlying condition is consistent with the reports of irritability, aggressive behaviour and impulsivity. Alcohol consumption is anaggravating factor for all of the symptoms. [50] While I appreciate what these professionals had to say and what they may offer to the Tenant, I must observe that neither ofthem offered much hope that the Tenant will behave differently in the future. [51] What troubles me greatly is that the Tenant appears to have no insight into his own condition and behaviour. The argument thathe now has “supports” in place seems rather fanciful.

The Tenant is the one who lives in the building 24/7 with perhaps occasional visitsfrom professionals. I do not see them having any real ability to help him change his behaviour, particularly as he continues to insist thatthere is no problem, and that others have made up all of the stories about him. [52] I am prepared to allow for the possibility that other tenants in the building may have, at times, confused his symptoms of ataxiafor drunkenness.

However, there is an overwhelming body of evidence that confirms that the Tenant is frequently drunk, is often anti-social and downright aggressive (particularly with women) and that he lacks bladder control and has, at least several times, createdunsanitary conditions that seriously undermine other tenants’ enjoyment of their home. Reasonable accommodation [53] I note that the Tenant did not argue discrimination per se, but I would be remiss if I did not consider the issue. [54] The Human Rights Act in s.5 (1) (

b) and (

o) prohibits discrimination by landlords in the provision of “accommodation” (i.e.housing) on the basis of “physical or mental disability.” In the Human Rights sphere generally, as exemplified by the seminal SupremeCourt of Canada case British Columbia (Public Service Employee Relations Commission) v.

BCGSEU, (SCC), [1999] 3SCR 3 (known colloquially as the Meiorin case), the obligation not to discriminate is not absolute but is to be balanced against the extentto which accommodating the disability (or other distinction) would create unreasonable hardship. [55] In the situation here, assuming for the moment that the allegations against the Tenant are as a result of his disability, and toconsider evicting him for those reasons, the question for the court is whether it would be an unreasonable hardship for the Landlord tocontinue to accommodate the Tenant’s disabilities and provide housing for him. [56] In an Ontario case of Walmer Developments v.

Wolch, (ON SCDC), the court overturned an eviction of atenant with schizophrenia who was disruptive to other tenants when she went off her medications. The court found that there was a wayto accommodate the disability by allowing the landlord to call the tenant’s family members, forcing them to intervene. The order was asfollows: [38] The facts of this matter are now well in the past. In the interval, the mother and brother of the tenant have intervened, and, throughcounsel, have indicated an intention to continue to monitor the tenant's use of her medication.

It would serve little purpose to remit thisapplication to the ORHT for a fresh hearing on stale facts. We therefore allow the appeal, set aside the orders of the ORHT and dismissthe landlord's application upon terms as follows: 1. The tenant or her family shall forthwith provide the landlord with the telephone numbers of her brother and her mother and shall keepsuch information current.

2. Upon the occurrence of any conduct on the part of the tenant which the landlord considers is disturbing, or may escalate to the point of disturbing, the reasonable enjoyment of other tenants, the landlord shall forthwith notify the brother and mother of the tenant so that they may intervene. 3. If the problem is not rectified promptly, the landlord may proceed under the TPA [ Tenant Protection Act ] as it may be advised. [57] What distinguishes that case from the one before this court, is that there the real issue was keeping the tenant to her regime of medication.

The order represented something of a “last chance” order, given that the landlord was given the green light to commence further proceedings if the tenant’s family did not immediately rectify the problem. [58] Here, there is no simple fix. The Tenant does not appear to understand the extent to which he creates problems for other tenants and is not likely to change his behaviour just because the court tells him to.

There was no offer from MOSH to be on call 24 hours per day to intervene, nor is there anything that they could likely do which would represent a remedy to the problem of his drunkenness and anti-social behaviour. The Tenant apparently has extended family in the region, but they were not present at the hearing and I have no idea whether any of them has anything to offer in terms of helping to mitigate the Tenant’s behaviour. [59] In short, I cannot think of any terms that would have any chance of success.

I am convinced that the Tenant will not change his behaviour. [60] The balancing of interests and hardships must include the fact that the building in question is populated by vulnerable elderly people, many of them female, who have few if any options and no ability to defend themselves from this difficult Tenant in their midst. I believe that MRHA has been reasonable and measured in its response, but it has reached the end of its rope.

Its duties to the other tenants and staff have reached the point where they override their landlord- tenant and human rights obligations to the Tenant. [61] MRHA is not a healthcare facility. Its function is to provide affordable housing for low-income individuals, including seniors. [62] I do not know where the Tenant can best be housed, but 1 Alderney Drive is no longer viable. [63] I want to acknowledge that the Tenant’s representatives cited a case, Marshall v. Pohl 2019 BCSC 406 , where the court found fault with the quality of the landlord’s evidence in support of its eviction of a tenant for bad behaviour.

I do not find this case helpful. The main thrust of the case was that the arbitrator had failed to identify the precise facts which grounded his findings, and as a result the court on judicial review felt obliged to send it back for a new hearing. Conclusion [64] The Tenant has been in persistent breach of his obligation to maintain good behaviour as required by the statutory conditions under the Residential Tenancies Act.

The cumulative weight of all of the incidents brought forward, including events after the Residential Tenancies hearing - when the Tenant might have been expected to be on his best behaviour - satisfy me that the tenancy is no longer viable, and that termination is justified. [65] Of course, this is not an easy decision, and it will have serious consequences for the Tenant. But in the final analysis I am putting my weight behind the other 198 tenants who should not have to put up with what they have been putting up with.

I believe that MRHA is acting responsibly by addressing in this way the concerns of its tenant populations and its employees. [66] The order of the Director of Residential Tenancies is accordingly confirmed. However, the May 31, 2019 termination date has already come and gone, and a different date should be set.

[67] I appreciate that various agencies will have to mobilize to try and rehouse the Tenant, in a facility suitable for someone with his challenges. I have no idea how long this will take. My inclination is to extend the termination date by two months to July 31, 2018. I am prepared also to retain jurisdiction to hear further submissions from the parties upon there being better information available as to how long it will take to have the Tenant rehoused.

ORDER [68] The decision of the Director of Residential Tenancies dated April 10, 2019, to the extent that it deals with the Landlord’s claim for vacant possession of the unit, is accordingly confirmed with the following variation: a. The Tenant’s tenancy at apartment 807, 1 Alderney Drive, Dartmouth, Nova Scotia shall terminate at 11:59 p.m. on July 31, 2019, at which time the Tenant and any other occupants shall vacate the premises. b. The court shall retain jurisdiction to consider further submissions by the parties respecting the appropriate vacant possession date. Eric K. Slone, Adjudicator