A recent small claims court case between a landlord and tenant suffering from mental illness has been described by its adjudicator as “difficult and novel.”
In his Dec. 7 decision, Augustus M. Richardson noted he was granting anonymity to the witnesses and all parties involved due to the “nature of the evidence and issues” in the matter.
The case revolved around a tenant who lives in the bottom level unit of a house divided into three units on Alex Street in Halifax. The case was an appeal by the landlord from an Oct. 7 Residential Tenancy Order (RTO). The landlord had applied for an order terminating the tenant’s lease due to unpaid rent and for what the RTO Order described as “behaviour issues.”
The issue of whether rent was due was adjourned by the Residential Tenancy Officer. The issue about whether the lease should be terminated by reason of a breach of the statutory condition requiring good behaviour was heard and was dismissed. That was the decision being appealed by the landlord.
The facts of the case outline how the tenant entered into a one-year lease April 1 with the landlord, with rent set at $825 per month including utilities.
Starting in May 2020 the tenant’s conduct became erratic. Two other tenants living in the triplex and a neighbour living next door testified to his conduct in May, June, July, and August.
“The conduct included abusive and aggressive language directed at Ms HG (neighbour adjacent to triplex) and the other tenants; loud music playing at all hours of the night; and, at one point, a threat to burn down the triplex,” notes the findings of fact.
“The police were called at least twice, resulting in him being taken away in handcuffs.”
He would also play loud music for up to 16 hours a day at all hours, refusing to turn it down when asked.
By the end of August, the tenant’s conduct had “quieted down,” with another tenant testifying that his last confrontation over loud music was July 28. The last texted complaint introduced into evidence was dated Aug. 31, with the majority sent in May, June and July. The landlord had already started the eviction process on July 29.
The tenant didn’t vacate, so the landlord applied to the Residential Tenancy Board for termination and vacant possession. At the appeal, the tenant testified that he had a bipolar diagnosis, explaining that although he took medication for this condition, the unfortunate side effect was believing he was better. This led him to stop taking his medication and his symptoms would return, a cycle that could be aggravated by stress.
Wrote Richardson:
All of this resulted in manic behaviour—behaviour which he often could not remember. He did not deny the behaviour that the other witnesses complained about, but did say that it could be controlled by medication. He explained that he had been admitted to the hospital in late July 2020, and that as a result had been placed on a regime that involved monthly injections of his medication (rather than taking it orally). He also explained that he has been receiving those injections from a nurse at the Connections Halifax site of Nova Scotia Health.
The tenant said because of the police interventions, he was now legally required to have his monthly injections. Since then, he said, he “had not done anything to cause any grief … I have avoided people … I keep the music low or listen with headphones.”
In his analysis and decision, Richardson noted that the tenant’s behaviour in late spring and early summer would have been grounds for termination of his lease. But satisfied the tenant suffers from a bipolar disorder and that his mental illness has been under control since September, he asked if the tenant’s prior conduct, caused by mental illness, could be grounds for termination.
Continued Richardson:
The Nova Scotia Human Rights Act (the HRA) forbids discrimination by landlords in the provision of housing on the basis of “physical or mental disability:” … It would be a violation of that prohibition for a landlord to terminate a lease merely because a tenant had a mental illness. It would arguably also be a violation for a landlord to seek to terminate the lease because the tenant had in the past suffered a breakdown of their treatment leading to periodic outbursts or manic or inappropriate behaviour.
The adjudicator also noted that if a landlord knows the underlying cause of such conduct is due to mental illness, steps should be taken to accommodate or mitigate the conduct. That could include asking the tenant’s family members to intervene or getting help from mental health providers. He noted if these steps are taken but the conduct continues, termination of tenancy may be warranted.
He points to evidence that the landlord was aware of the tenant’s mental illness, noting the lease contained the name and number of an emergency contact. He said there was no evidence the landlord attempted to contact that person for help:
I also found it odd that the Landlord did not serve his Notice to Quit until July 29th (some time after the Tenant’s early July threat to burn the house down), even though complaints about his conduct had been made to him in May, June and early July. It may be that the Landlord delayed because he was trying to accommodate the Tenant in some way, but there was no evidence before me to say that was the case.
Richardson further outlined “concern” about the landlord’s conduct. He said a notice of rent increase of $600 served “very recently” on the tenant represents a 75% increase to his current $825 rent and one he couldn’t afford.
“While the Landlord testified that he served it because of the four month notice of rent increase required by the Residential Tenancy Act, the chronology and circumstances of this case gave rise to a suspicion of an ulterior motive,” he noted in the decision.
Richardson said he was not persuaded that termination at this point in time would be appropriate. He said the tenant is entitled to remain a tenant as long as he continues with his medication and refrains from conduct similar to what occurred between May and August.
In dismissing the appeal, he said if the tenant “fails in either,” and if the landlord is unable to get help from the tenant’s emergency contact or health authorities, he can then apply for and get termination of the tenancy agreement.
“I add that Counsel for the Landlord is to be commended for a forceful representation of her client, one which nevertheless remained respectful of the Tenant and his condition,” he said in conclusion.
“The facts of this case were and are difficult and novel, involving as they do a complex intersection between the rights of her client and those of a person suffering from mental illness. It was a representation that was true to the best qualities of her profession.”
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