A room filled with piles of stuff. An example of hoarding.
An example of hoarding. Credit: Donald Trung Quoc Don / Wikimedia Commons Credit: Donald Trung Quoc Don / Wikimedia Commons

Items piled as high as your eyes and the decay of takeout containers scattered throughout the unit; it’s a view we tune into for entertainment purposes on shows like “Hoarders: Buried Alive”. However, this type of unit condition is all too familiar for many housing providers across Ontario and the challenges which come from navigating it.

Accommodation

Housing providers in Ontario are governed by the Human Rights Code (the Code), which prohibits discrimination in housing on the basis of 17 protected grounds, including disability be it physical or mental. Hoarding may qualify as a mental health disability, which could mean that a housing provider should not discriminate against their resident based on that disability. Oftentimes therefore, if a resident exhibits signs of having a mental health disability, which could be the route of causing the hoarding, the housing provider may have a duty to accommodate that disability under the Code to the point of undue hardship.

What is that duty?

Section 2 (1) of the Code states:

“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.”

In essence, any action taken regarding the resident’s unit needs to be done in the context of the housing provider’s duty to accommodate under the Code. Housing providers may have a duty to accommodate if there is evidence that behaviour is linked to one of the characteristics protected by the Code, and appropriate accommodation does not constitute undue hardship.

Every province and territory has comparable human rights legislation that specifies this obligation.

Hoarding as a recognized disorder

“Hoarding Disorder” was officially identified as a mental disorder in the 2013 edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-5). While it was previously understood to be a sub-set of Obsessive Compulsive Disorder, hoarding is now recognized as a stand-alone condition defined by a “persistent difficulty discarding or parting with possessions, regardless of their actual value, to the point that it causes harmful effects for the person, or to those around the person.”. The “Clutter Image Rating” scale is used to screen for a hoarding disorder.

Safety considerations

Where hoarding results in the obstruction of pathways, or causes pest infestations, it can pose a risk to the hoarder, and potentially others in a multi-residential complex.. Housing providers are required to balance their duty to accommodate tenants or residents with a hoarding disorder, with their obligation to ensure that the premises are safe, and free from hazards.  Part of the ‘accommodation’ may include assisting the tenant with reducing clutter in the unit, setting timelines to reduce clutter, and connecting the tenant with social service agencies that specialize in assisting those with hoarding disorders.

In the event that a housing provider has fulfilled its duty to accommodate and has been unable to bring the unit up to a clean and safe living standard, it may consider eviction. However, the Landlord and Tenant Board (the LTB), the body that administers the Residential Tenancies Act in Ontario, has a high threshold and requires substantial evidence while considering terminating a resident’s tenancy. Despite section 33 of the Residential Tenancies Act (the RTA), which states:

“the tenant is responsible for ordinary cleanliness of the rental unit, except to the extent that the tenancy agreement requires the landlord to clean it”,

Where the lack of cleanliness is caused by a mental health condition, a housing provider is required to show evidence that it has fulfilled its duty to accommodate to the fullest extent.

Even where a housing provider is able to demonstrate that hoarding has “substantially interfered with the rights of the landlord” or other residents, the LTB has the discretion to grant relief from eviction. This is because of the language of Section 83 of the RTA, which states:

  1. (1)  Upon an application for an order evicting a tenant, the Board may, despite any other provision of this Act or the tenancy agreement,

   (a)      refuse to grant the application unless satisfied, having regard to all the circumstances, that it would be unfair to refuse; or

   (b)      order that the enforcement of the eviction order be postponed for a period of time.

In one case, the LTB heard about a tenant whose unit was so cluttered that it resulted in a Notice of Violation from the fire department. There, the tenant cleared a number of items from the unit; still, the LTB found that the tenant’s actions had substantially interfered with the landlord’s rights.  Regardless, the adjudicator ordered relief from eviction, stating that the language of the legislation “reflects the idea that eviction is a remedy of last resort […] If a landlord’s interests can be protected but the tenancy is preserved, then the Board will normally grant some form of conditional relief from eviction if, in all the circumstances, it would not be unfair to do so.”

Conclusion

While hoarding can be difficult to navigate, housing providers must be aware of their obligation to accommodate to the point of undue hardship. Familiarity with community resources, dedicated to working with individuals with hoarding disorders, can go a long way in allowing both housing providers and tenants/residents to achieve their goal of safe housing.

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Pro Bono

Pro Bono is a monthly column written by lawyers and legal experts at Iler Campbell LLP that explores the murky legal waters activists regularly confront in doing their work.

Hunter Stone

Hunter Stone is a Paralegal at Iler Campbell LLP, and a contributor to rabble’s Pro Bono Column. Hunter practices law in the co-operative, non-profit and for-profit housing sector.