By: Emily Zarychta, Human Rights Clinic Lawyer, July 14, 2022

Housing is an essential part of our security and health, especially to those who have mental disabilities. People with mental disabilities are especially vulnerable to precarious housing and homelessness.[1]

Housing providers including landlords, co-ops, and stratas have a duty to accommodate people with mental disabilities, including disabilities that can cause behaviour that may be off-putting or disruptive to neighbours. Examples include compulsive hoarding disorder, excessive noise due to a mental disability, and reliance on emotional support animals.

These can be challenging issues because they intersect with health and safety, as well as the interests of other residents. However, housing providers must be mindful that the Human Rights Code is “quasi-constitutional,” which means it has special importance over other laws because it protects people’s fundamental rights.[2] Housing providers have a legal obligation under the Code to ensure people with mental disabilities do not face unfair barriers in their access to housing.[3]

Housing providers must not discriminate on the basis of mental disability when choosing or evicting residents, creating occupancy rules, dealing with repairs, or providing services and facilities to residents.[4] Avoiding discrimination may require housing providers to take steps to accommodate the disability-related needs of their residents.

The duty to accommodate involves a shared responsibility between the housing provider and the resident to work together towards informed solutions. Housing providers need to seriously consider the resident’s disability-related needs and take reasonable steps to try to remove any barriers the resident may be experiencing due to their disability.

Housing providers must accommodate residents to the point of undue hardship, which is a high standard. The steps required will depend on the situation. Factors like financial costs, the inability to afford those costs, and the size of the respondent’s organization are considered. For example, a large corporation renting out apartments will likely need to take more extensive steps to accommodate residents than a single homeowner renting out the basement of their home. In both cases, the parties must accommodate the resident to the point of undue hardship, but the single homeowner will likely reach the point of undue hardship before the large corporation does.

Best practices for housing providers include taking proactive steps to ensure they comply with their human rights obligations. This could include:

  1. Reviewing their bylaws to ensure that any policies or restrictions contain human rights exemptions or a mechanism to request an exemption.
  2. Improving the accessibility and inclusiveness of common spaces.
  3. Seeking feedback from residents on the accessibility and inclusiveness of their housing.
  4. Posting public information about the duty to accommodate and human rights.

If a resident asks for accommodations, housing providers should:[5]

  • Address requests for accommodation promptly and take them seriously.
  • Take the lead role in investigating possible solutions and cooperate with the person asking for accommodation.
  • Gather enough information to understand the nature and extent of the need for accommodation. If the housing provider requests further medical reports they should cover the cost.
  • Restrict access to a person’s medical information only to those involved in the accommodation process – keep it confidential to the greatest extent possible.
  • Obtain expert reports where necessary.
  • Rigorously assess whether they can implement an appropriate accommodation solution. In doing so, the housing provider may have to consider the financial cost and competing needs of others with disabilities. If it would suffer undue hardship, the housing provider should document the hardship and test its conclusion to ensure there is no other possible solution.
  • Recognize that the housing provider cannot choose to not be bound by the Human Rights Code. For example, a strata cannot rely on a vote of its membership to deny an accommodation.
  • Ensure that those who are working on the accommodation are able to approach the issue with compassion and genuine respect.

Below are three examples of situations highlighting the human rights obligations of housing providers in respect of residents with mental disabilities:

Compulsive Hoarding Disorder

Hoarding is currently classified as a diagnosable compulsive disorder[6] and may afflict 2-5% of the population.[7] It has a higher prevalence in low income and older populations, including Vancouver’s Downtown Eastside.[8] It involves accumulating possessions to the point that they fill the home, which can cause severe problems with day-to-day activities and relationships, and may pose a fire and safety hazard. Compulsive hoarding disorder would likely be considered a mental disability protected from discrimination by the Code, triggering the housing provider’s duty to accommodate.[9]

Possible accommodations for residents with compulsive hoarding disorder may include:[10]

  • Approaching the tenant about the issue with compassion, patience, and flexibility.
  • Providing residents with extra storage.
  • Working with residents to help them address any legitimate health and safety implications of their hoarded items.
  • Providing residents extra time or assistance in reducing the contents of their unit if needed.
  • Connecting the residents with appropriate resources and referrals such as Vancouver’s Hoarding Action Response Team (HART) in Vancouver.[11]

Noise from Neighbours

Sometimes, one resident’s conduct may have a negative impact on other residents. For example, some mental health conditions may cause a resident to make excessive noise from time to time.[12] If a resident’s behaviour is disruptive, a housing provider is expected to take steps to determine whether the situation can be resolved by accommodating a Code-related need.

Possible accommodations for these types of issues may include:[13]

  • Obtaining quotes to soundproof the unit and carrying out the soundproofing if it’s possible to do so without undue hardship.
  • Weather stripping the unit, sealing the door, and installing soundproof window inserts.
  • Providing rugs, carpeting, curtains, and bookshelves to absorb sound.
  • Relocating the resident to a unit that will reduce the impact on neighbours, such as a corner or main floor unit.
  • Relocating those impacted by noise to a unit where noise would be minimized.
  • Providing white noise machines to those impacted by the noise.
  • Connecting the resident with appropriate resources and referrals where the noise exceeds reasonable levels and undue hardship has been met.

Emotional Support Animals

A person with a disability who relies on an animal in connection with their disability has a right to have their needs accommodated. No-pet bylaws and rental clauses may be discriminatory if a person’s disability would be adversely impacted by not having the animal.[14]

Possible accommodations for residents who rely on an emotional support animal may include:

  • Allowing the animal even if there is a rule or bylaw against pets.[15]
  • Working with the resident to ensure the animal is trained, under control, and minimally disruptive to other residents.
  • Educating other residents about the Code where conflict may arise.

For more information on emotional support animals, see our blog posts: No-Pet Clauses and Human Rights Part 1 and Part 2

Conclusion:

Housing providers must provide discrimination-free housing and ensure residents don’t face barriers in their housing due to their disabilities. When a resident’s mental health-related behaviour may be disruptive or off-putting to neighbours, housing providers must work cooperatively with residents to ensure that the human rights of all residents are respected and fulfilled.

_____

[1] Dr. Krausz, Reinhard Michael MD, PhD, FRCPC, “BC Health of the Homeless Survey” 2011, University of British Columbia, online: https://paninbc.ca/wp-content/uploads/2012/07/BC-Health-of-the-Homeless-Survey-FINAL1.pdf.

[2] Human Rights Code, RSBC 1996, c. 210, s. 4.

[3] Section 8 of the Code applies to the services and facilities provided by a strata or equity co-op, which includes its bylaws. Section 10 of the Code applies to a rental tenancy or non-profit co-op. Section 10 of the Code does not apply if: 1) the resident shares a bathroom, kitchen or sleeping space with the landlord, 2) the building is for adults age 55 and older, and 3) the building is for persons with physical or mental disabilities.

[4] Ontario Human Rights Commission, “Policy on Human Rights and Rental Housing” (July 21, 2009), online: https://www.ohrc.on.ca/en/policy-human-rights-and-rental-housing.

[5] The Tribunal made these points in the strata context in Leary v. Strata Plan VR1001, 2016 BCHRT 139 at para 69.

[6] Vancouver Coastal Health and the Diagnostic and Statistical Manual of Mental Disorders-5, Vancouver Coastal Health, “Hoarding Disorder (aka Pathological Hoarding).” Online: https://www.ementalhealth.ca/Vancouver-Coastal/Hoarding/index.php?m=article&ID=13330

[7] Jack F Samuels et al, “Prevalence and Correlates of Hoarding Behaviour in a Community-Based Sample”, Behavioural Research and Therapy 46:7, July 2008.

[8] Seniors First BC, “Compulsive Hoarding.” Online: http://seniorsfirstbc.ca/getting-help/elder-abuse-and-neglect/compulsive-hoarding/.

[9] Lauren Blumas, “Buried Alive: The Human Rights Implications of Compulsive Hoarding in the Landlord-Tenant Context,” (2013) 2:2 Canadian Journal of Poverty Law 58 at page 1.

[10] Several of these suggestions come from Sarah Eadie, “Alberta Legal Blog Post on Human Rights in Residential Tenancies re. Hoarding.” Online:

https://eclcaccessreview.wordpress.com/2012/05/08/human-rights-in-residential-tenancies-and-the-rtdrs/.

[11] Vancouver Hoarding Action Response Team, online: https://vancouver.ca/people-programs/hoarding-action-response-team.aspx

[12] See, for example, Surry Now Leader, “Whalley Family Evicted after Neighour Complains Special Needs Child is Too Noisy.” Online: https://www.surreynowleader.com/news/whalley-family-evicted-after-neighbour-complains-special-needs-child-is-too-noisy/.

[13] Many of these recommendations come from the Tribunal’s decision in Borutski and others v. Crescent Housing Society and another (No. 3), 2014 BCHRT 124 at para 356. This case involved a complaint about second-hand smoke, but the accommodations ordered could apply in the case of noise issues as well.

[14] BH obo CH v. Creekside Estates Strata, 2016 BCHRT 100 (“”Creekside”) at para 88, Devine v david burr Ltd. (No. 2), 2010 BCHRT 37 at paras 107-8

[15] As ordered by the tribunal in Daughter by Parent v. The Owners, A Strata, 2020 BCHRT 105.

Photo by Brandon Griggs