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I have two tenants upstairs who live in rooms very close to each other - for privacy reasons I'll call them Left and Right based on their position relative to the staircase. Left frequently has a guest over who suffers from Tourette's syndrome, which is a disability protected against anti-discrimination laws. Right is making noise complaints against Left and threatening to go to the tenant board about it. I am legally not allowed to restrict guests unless they are causing problems, but a noise problem is beyond control for someone with TS and I am legally not allowed to discriminate against that either. I am ALSO legally not allowed to do nothing while Right's reasonable enjoyment of the property is compromised for the sake of Left's.

What can I do to ensure both tenants' reasonable enjoyment of the property?

For the record, it is a four-bedroom house. I am the homeowner's daughter and I act as his agent/property manager and live in this house, but he is the landlord and he does not live in the house. I believe this DOES mean we fall under the RTA. All rental agreements are month-to-month.

edit: i guess what i'm asking is if anti-discrimination laws DO extend to tenants' guests, or if i am not legally liable for discriminating against this guest with tourette's in the interest of Right's reasonable enjoyment of property.

  • I am a landlord. This sounds like something that I would pass to the attorney. This does not have to be expensive. Just a letter informing both left and right of their rights and responsibilities in the matter as well as the landlords. The letter can be friendly. He can possibly offer mitigation as a solution. However, just sending the letter should isolate the property owner of undue responsibilities and level set expectations. – closetnoc Oct 14 '17 at 2:01
  • Sorry, on this site we can't give legal advice for specific situations. You would have to hire a lawyer. – Nate Eldredge Oct 14 '17 at 2:06
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    This seems to me a quite straightforward question about what the law actually is: does A forbid X, does B require Y, and which one wins? – user6726 Oct 14 '17 at 15:01
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The Ontario Residential Tenancies Act says that:

64 (1) A landlord may give a tenant notice of termination of the tenancy if the conduct of the tenant, another occupant of the rental unit or a person permitted in the residential complex by the tenant is such that it substantially interferes with the reasonable enjoyment of the residential complex for all usual purposes by the landlord or another tenant or substantially interferes with another lawful right, privilege or interest of the landlord or another tenant.

There are statutory provisions whereby a landlord is prohibited from himself interfering with a tenant's quiet enjoyment of the premises, which would not be applicable. Given just this, you may, but are not required to.

The Conveyancing and Law of Property Act (23)(1) says:

In a conveyance made on or after the 1st day of July, 1886, there shall, in the cases in this section mentioned, be deemed to be included, and there shall in those cases be implied, covenants to the effect in this section stated, by the person or by each person who conveys, as far as regards the subject-matter or share thereof expressed to be conveyed by him, with the person, if one, to whom the conveyance is made, or with the persons jointly, if more than one, to whom the conveyance is made as joint tenants, or with each of the persons, if more than one, to whom the conveyance is made as tenants in common: In a conveyance for valuable consideration, other than a mortgage, the following covenants by the person who conveys, and is expressed to convey as beneficial owner, namely, covenants for...ii. quiet enjoyment...according to the forms of covenants for such purposes set forth in Schedule B to the Short Forms of Conveyances Act, being chapter 472 of the Revised Statutes of Ontario, 1980, and therein numbered 2, 3, 4 and 5, subject to that Act.

In other words, if the lease doesn't say anything about quiet enjoyment, there is an implied covenant whereby "the landlord, by letting the premises confers on the tenant the right of possession during the term and impliedly promises not to interfere with the tenant’s exercise and use of that right to possession during the term". The implied covenant pertains to interference by the landlord, not to interference by other tenants (see this analysis). Again, you would have a right to evict a noisy tenant, but not an obligation.

However, the Canadian Human Rights Act(6) states that:

It is a discriminatory practice in the provision of commercial premises or residential accommodation (a) to deny occupancy of such premises or accommodation to any individual, or (b) to differentiate adversely in relation to any individual, on a prohibited ground of discrimination.

where 3(1) states:

For all purposes of this Act, the prohibited grounds of discrimination are race, national or ethnic origin, colour, religion, age, sex, sexual orientation, gender identity or expression, marital status, family status, genetic characteristics, disability and conviction for an offence for which a pardon has been granted or in respect of which a record suspension has been ordered.

The Canadian Supremacy Clause (52(1) of the Constitution Act, 1982) says that:

The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.

and furthermore:

The Constitution of Canada includes (a) the Canada Act 1982, including this Act

The Constitution act (15)(1) also states:

Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

So under the Canadian Constitution, the national anti-discrimination requirement is superior to the provincial RTA. Since no provincial law actually requires eviction of a tenant with a noisy guest, there is no conflict.

Ontario also has an anti-discrimination law (The Human Rights Code):

  1. Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability.

  2. (1) Every person has a right to equal treatment with respect to the occupancy of accommodation, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status, disability or the receipt of public assistance.

(2) Every person who occupies accommodation has a right to freedom from harassment by the landlord or agent of the landlord or by an occupant of the same building because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sexual orientation, gender identity, gender expression, age, marital status, family status, disability or the receipt of public assistance.

Right must therefore refrain from hassling Left.

A problem could arise if there is a lease clause whereby you guarantee tenants a noise-free environment and promise to remove noisy neighbors. In that case, Right could sue you, and you would have to defend yourself by reference to the fact that Canadian and provincial law prohibits you from pursuing eviction in this case.

An alternative would be to ask Left to not have the noisy individual over. But that would not be a wise choice. The anti-discrimination laws are not stated as protections against tenants who have the protected characteristics, indeed all tenants have some sex, religion, race etc. You can't start eviction proceedings because the tenant is white, black, Catholic, or atheist, and you likewise can't evict a person for having a guest who is white, black, Catholic, or atheist. You also can't "have a talk" with a tenant – creating a "poisoned environment" – because they or their guest are white, black, Catholic, or atheist. Having a mental disability is included in this set.

All that said, this is clearly a case that needs to be looked at by an Ontario landlord lawyer.

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Their rights end where ours begin. Tourette’s guy has to move and possibly pay damages.

  • Could you offer precedent and code to support this analysis? – A. K. Jan 25 at 21:55

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