Emmerson v. Al-Molky

Emmerson v. Al-Molky

The adjudicator set aside the Director's eviction order because the breaches were not sufficiently serious to justify termination, the Tenant’s hearing impairment likely contributed to the incidents and could be reasonably accommodated (with mitigation measures), and eviction would be discriminatory absent evidence that accommodation would cause unreasonable hardship to the Landlord.

Citation
2019 NSSM 62
Parties
Appellant (tenant): Natasha Ann Emmerson; Respondent (landlord): Gerard Al-Molky
Court
Nova Scotia Small Claims Court
Jurisdiction
Canada
Judgment Date
13 November 2019
Procedural Posture
Appeal From Decision of the Director of Residential Tenancies / Appeal Hearing and Decision by Small Claims Court Adjudicator
Outcome
Order of the Director of Residential Tenancies dated October 1, 2019 is set aside
Legal Topics
Eviction, Reasonable Accommodation, Disability Discrimination, Statutory Duty of Good Behaviour, Noise Complaints, Fire Safety
Source Language
English
Residential Tenancies Human Rights Landlord and Tenant Law Eviction Reasonable Accommodation Disability Discrimination Statutory Duty of Good Behaviour Noise Complaints +1 more

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Parties

Natasha Ann Emmerson

Appellant (tenant)

Gerard Al-Molky

Respondent (landlord)

Procedural Posture

Appeal From Decision of the Director of Residential Tenancies / Appeal Hearing and Decision by Small Claims Court Adjudicator

Legal Issues

  1. 1 Whether the Tenant’s breaches of the statutory duty to be of good behaviour justified termination of tenancy
  2. 2 Whether the Tenant’s hearing impairment is a disability requiring reasonable accommodation under the Human Rights Act
  3. 3 Whether accommodating the Tenant would cause unreasonable hardship to the Landlord

Ratio Decidendi

The adjudicator set aside the Director's eviction order because the breaches were not sufficiently serious to justify termination, the Tenant’s hearing impairment likely contributed to the incidents and could be reasonably accommodated (with mitigation measures), and eviction would be discriminatory absent evidence that accommodation would cause unreasonable hardship to the Landlord.

Court Disposition

Order of the Director of Residential Tenancies dated October 1, 2019 is set aside

Orders

  • Order of the Director of Residential Tenancies dated October 1, 2019 is set aside.
  • Tenant is to take reasonable steps to mitigate disturbance (for example use headphones) and ensure smoke detectors and other safety concerns are addressed; repetition of negative behaviour may result in more serious action.