How Serious Must the Disruptive Conduct of a Tenant Be to Deserve An Eviction?
Where the Conduct of a Tenant Substantially Interferes With the Legal Rights or Reasonable Enjoyment of Another Tenant or the Landlord, An Eviction of the Disruptive Tenant May Be Ordered By the Landlord Tenant Board.
Understanding What Constitutes As An Unreasonable Interference In the Rights or Enjoyment of Others
When people live in close proximity to one another, including within a rental complex, conflicts and disputes often arise due to various differences within the lifestyles, habits, beliefs, general conduct, among other things. Where such conduct is substantially interfering with the enjoyment of others, sanctions may result.
The statutory law, being the Residential Tenancies Act, 2006, S.O. 2006, Chapter 17, prescribes protection against conduct that interferes with the rights and enjoyment of others, and especially including the rights and enjoyment of other persons who are living within the residential complex. Additionally, the common law previous decisions of the Landlord Tenant Board and courts help to define what actually is an interference and in what circumstances is the interence so substantial as to rise to the level of unreasonable and therefore to warrant a sanction, including possibility of eviction. Specifically, the Residential Tenancies Act, 2006 states:
Termination for cause, reasonable enjoyment
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.
(a) provide a termination date not earlier than the 20th day after the notice is given;
(b) set out the grounds for termination; and
(c) require the tenant, within seven days, to stop the conduct or activity or correct the omission set out in the notice.
Notice void if tenant complies
Termination for cause, reasonable enjoyment of landlord in small building
65 (1) Despite section 64, a landlord who resides in a building containing not more than three residential units may give a tenant of a rental unit in the building notice of termination of the tenancy that provides a termination date not earlier than the 10th day after the notice is given if the conduct of the tenant, another occupant of the rental unit or a person permitted in the building by the tenant is such that it substantially interferes with the reasonable enjoyment of the building for all usual purposes by the landlord or substantially interferes with another lawful right, privilege or interest of the landlord.
(2) A notice of termination under this section shall set out the grounds for termination.
Non-application of s. 64 (2) and (3)
As above, the Residential Tenancies Act, 2006 provides for possible sanctions, including eviction, where a substantially unreasonable interference in the rights or enjoyment of others occurs; however, this then raises the question of what constitutes as substantially unreasonable interference. To help with this understanding, examples from previous Landlord Tenant Board or court decisions include:
Interfering in Rights or Enjoyment
While some circumstances involving what is unreasonable interference in the rights or enjoyment of others may be plain and obvious, other circumstances require a careful and objective factual review and legal analysis to balance the rights of tenants with competing interests and concerns. As an interesting example, the case of C.L.P. v. C.K., TSL-72867-16 (Re), 2016 CanLII 71310 involved allegations that the display of a female mannequin, often partially clad, was offensive and an unreasonable substantial interference in the rights or enjoyment of others. In reviewing the C.L.P. case, the Landlord Tenant Board needed to go beyond just a review of the Residential Tenancies Act, 2006 and common Landlord Tenant Board cases and instead leaned heavily upon the law known as the tort of private nuisance when assessing what, objectively, in the circumstances, is an unreasonably substantial interference. In the C.L.P. case, the tenant was permitted to keep the mannequin and the process to evict the tenant was dismissed by the Landlord Tenant Board. Specifically, the Landlord Tenant Board said:
17. Essentially, the Landlord’s claim is grounded in the tort of nuisance—in particular, private nuisance. The basis of the tort of nuisance is set out in Linden and Feldthusen’s Canadian Tort Law, 8th ed. (Toronto: LexisNexis, 2006) at pages 559-60:
“Nuisance is a field of liability. It describes a type of harm that is suffered, rather than a kind of conduct that is forbidden. In general, a nuisance is an unreasonable interference with the use and enjoyment of land…Underlying the present law of nuisance is the Latin maxim sic utere tuo ut alienum non laedas (use your own property so as not to injure that of your neighbours). This basic principle gives some coherence to the otherwise confusing case law in this area. Basically, what the courts are doing here is furnishing compensation to those whose use and enjoyment of private land or public rights is being interfered with by the unreasonable use of another’s land."
18. Clearly, causation is a pre-requisite to a finding of nuisance. At page 569, the learned authors state:
“The onus of proof that the defendant caused an unreasonable interference with the use and enjoyment of the plaintiff’s land rests on the plaintiff, but once that is shown, the onus is on the defendant to establish that the use of the land is reasonable.”
19. In St. Pierre v. Ontario (Minister of Transportation and Communications) (1983), 1983 CanLII 1890 (ON CA), the Court of Appeal for Ontario emphasized the difficulty in applying the law of nuisance as follows:
“What conduct amounts to a nuisance at common law is "incapable of exact definition" . . . There is perhaps no more impenetrable jungle in the entire law than that which surrounds the word "nuisance." It has meant all things to all men, and has been applied indiscriminately to everything from an alarming advertisement to a cockroach baked in a pie. There is general agreement that it is incapable of any exact or comprehensive definition.”
20. Here, the onus of proof rests on the Landlord to prove, on a balance of probabilities, that the conduct of the Tenant has substantially interfered with the reasonable enjoyment or lawful right, privilege or interest of the Landlord or another tenant. Keeping in mind the already enigmatic definition of “nuisance”, the Act, and case law, add another wrinkle to the exercise by requiring the “interference” alleged (read: nuisance) to be “substantial”.
21. For the reasons that follow, the Landlord has not, in my view, discharged its onus.
22. Each case must be decided on its own facts and its own merit and, in my view, based on the very unique facts before me, whether the Tenant’s conduct substantially interferes with the reasonable enjoyment or lawful right, privilege or interest of the Landlord or another tenant is a question of judgment based on all of the circumstances.
23. The courts have repeatedly held that some of the factors that must be considered include the gravity of the interference, the character of the neighbourhood, the nature/utility of the Tenant’s conduct and the sensitivity of the complainant(s): Antrim Truck Centre Ltd. v. Ontario (Transportation), 2011 ONCA 419 (CanLII) (“Antrim”). I would add the duration and frequency of the conduct and the impact of the conduct on the complainant(s). These factors must be weighed against the injury caused, and the value of the interests sought to be protected. Such an approach is consistent with the pronouncement of the Supreme Court of Canada in Tock v. St. John's Metropolitan Area Board, 1989 CanLII 15 (SCC),  2 SCR 1181, where Laforest, J. stated:
“…the very existence of organised society depended on a generous application of the principle of "give and take, live and let live". It was therefore appropriate to interpret as actionable nuisances only those inconveniences that materially interfere with ordinary comfort as defined according to the standards held by those of plain and sober tastes. In effect, the law would only intervene to shield persons from interferences to their enjoyment of property that were unreasonable in the light of all the circumstances.”
24. In Antrim, speaking about whether something is a "substantial interference," while keeping in mind that the tort of nuisance must be applied in a balanced manner, the Court stated, in part, as follows:
“Particularly as people live in closer proximity to each other, a certain amount, arguably an ever-increasing amount, of interference with each other's property must be tolerated. It makes sense, therefore, that only substantial interference constitutes nuisance.
The requirement that the interference be substantial is a threshold aspect of the test. At this stage of the analysis, the court will exclude claims that disclose no actual interference as well as those in which the interference alleged is so trifling as to amount to no interference at all.”
25. Here the competing interests are those of a tenant, to engage in artistic and creative expression within the confines of her unit, versus a landlord’s, and other tenants’, interest in maintaining the appearance of a residential complex in a manner consistent with their standards and/or tastes. Keeping the parties’ respective interests in mind, in the end what the Act and the case law requires is that I determine whether the interference in the instant case is “substantial”. In my view, "substantial", as contemplated by the Act, should be given a flexible meaning related to the varying circumstances of each individual case in a manner consistent with the purposes of the Act.
26. While the Tenant began displaying the mannequin in her balcony six or seven years ago, the two main complaints that form the basis of the Landlord’s application came in September 2015 and March 2016—from one tenant. This is important because the residential complex is a large multi-unit building; yet the Landlord only produced two written complaints from one tenant. As the Tenant has been displaying the mannequin for about seven years, given the size of the complex, the number of tenants and changeover of tenants and the likely large number of visitors/guests to the complex over the years, the two complaints from one tenant does indeed appear inconsequential.
27. I am mindful of CL’s testimony that she has received verbal complaints from tenants and that prospective tenants have “walked away” due to the mannequin. However, I am unable to attach much weight to CH’s testimony. CL is the Landlord’s property manager and I expected better evidence from her, not simply the general statements provided. More particulars about the prospective tenants who “walked away” would have been helpful, such as the dates when they attended at the complex, the unit(s) they were interested in, etc. Direct testimony from existing tenants and their guests who have allegedly complained would have been similarly helpful, yet such evidence was not provided. Indeed, the Landlord did not provide sworn affidavits or letters from any of the purportedly offended tenants or their guests and no explanation was provided for the absence of such evidence.
28. Moreover, there is no persuasive evidence before me that, over the years, a single tenant has moved out of the complex, or suggested that they would move out of the complex, due to the Tenant’s conduct. On the contrary, CL testified that, as at the date of the hearing, not a single unit was vacant in the complex and, when a unit becomes available, it is rented within one month. Additionally, no evidence was presented going to the Tenant’s conduct being in breach of the tenancy agreement between the parties or any by-law. As such, I am unable to find, on a balance of probabilities, that the conduct of the Tenant has substantially interfered with the reasonable enjoyment or lawful right, privilege or interest of the Landlord.
29. As stated, the Tenant testified that parents and same-sex couples, who live in the complex, have told her that they like the mannequin and, further, that some tenants have told her that they moved into the complex, in part, due to seeing the mannequin. As with CL’s evidence, I am unable to give much weight to the Tenant’s testimony in this regard. The Tenant did not call any of these individuals to testify, nor did she provide any affidavits or letters from these supportive tenants. Given the potential consequences to the Tenant of the instant application, I would expect better evidence in this connection.
30. I am also not persuaded that the Landlord is seeking to evict the Tenant in order to re-rent the unit at a higher rent. The Landlord’s legal representative made the Landlord’s position abundantly clear. The Landlord seeks a conditional order that the Tenant “Remove or dress the mannequin.”
31. Based on the evidence before me, it appears, on balance of probabilities, the Landlord’s application is rooted mainly, if not solely, on the two recent complaints by WH, who is a long-standing tenant of the complex.
32. The evidence before me shows that the Tenant and WH have, over the years, had a cordial relationship. As stated, when WH complained to the Tenant in June 2012, the Tenant agreed to put “pants” on the mannequin. Be that as it may, I have no doubt that WH genuinely disapproves of the Tenant displaying the mannequin in anything short of full garb. WH came across as rather firm in her conviction that, when the mannequin is clad solely in undergarments, such display is inappropriate for children, is offensive to her as a Christian and makes her feel uncomfortable. WH went as far as describing the mannequin, when it is scantily clad, as “smut”.
33. As mentioned above, I am required to balance the interest of the parties in my analysis. I am also required to consider factors such as the severity of the interference, the character of the neighbourhood, the nature/utility of the Tenant’s conduct and the sensitivity of the complaining Tenant.
34. For the reasons that follow, I am unable to find, on a balance of probabilities, that the conduct of the Tenant has substantially interfered with the reasonable enjoyment or lawful right, privilege or interest of another tenant—including WH.
35. Generally, while WH may be genuinely bothered by the Tenant’s art, the alleged interference is trivial and insufficient to constitute a nuisance or interference. While WH may not, as she put it, “feel particularly comfortable” upon seeing the thinly clad mannequin, it cannot be said that such an effect materially interferes with WH’s reasonable enjoyment of the complex or a lawful right, privilege or interest. No evidence was provided that the tenants of the complex in general, and/or WH in particular, had an expectation of a building entirely devoid of art that may be considered, by some, unconventional.
36. The residential complex is located in Toronto, a vibrant and widely diverse city where it is reasonable to expect that all individuals, who call the city home, will, on a daily basis, encounter things and conduct that will not necessarily be commensurate with their tastes, standards or beliefs. Indeed, and as stated, an exterior common area of the complex is home to a fair-sized statue of a nude young girl, to which WH does not object. Clearly, art, like beauty is in the eye of the beholder and the concept of art is such a relative one that its defined terms change with whomever is actively doing the perceiving.
37. The standard of substantial interference in nuisance, and as contemplated by the Act, is objective. Certainly, no evidence was put forth that the Tenant’s art rendered WH’s life in the complex in any way near intolerable or that the reasonable person would find the situation intolerable. On the other hand, and while it is trite to say, individuals have a right to artistic creation and expression and art, in all its forms, has an intrinsic value to society.
38. For these reasons, the Landlord’s application will be dismissed.
A tenant that substantially interferes in the legal rights or the enjoyment of residence of the landlord or other tenants may be evicted. What constitutes as substantial interference varies and requires a careful review of the circumstances of each case situation.Learn More About
Interfering in Rights or Enjoyment