Carfra Lawton LLP | Victoria BC

    No Specialised Duty of Care to a Tenant in Enforcing Rights as Landlord

    Aron Bookman and Caroline Alexander of Carfra Lawton LLP recently obtained a dismissal of the action commenced by a tenant against their clients, for failure to state a cause of action: Bulwer v. Canadian Mental Health Association et al, 2016 BCSC 1110.

    Aron Bookman | Carfra Lawton LLP | Victoria BC

    Aron Bookman

    The plaintiff Bulwer alleged that he suffered from severe mental illness and was rescued from poverty and homelessness by the defendant society. The defendant society is a charitable organization which assists the mentally ill and provides subsidized housing as part of its mandate. The plaintiff qualified for this subsidized housing and rented an apartment from the society.

    Issues arose due to the plaintiff’s alleged behavior towards his neighbors in the apartment building. The society and property manager decided to take eviction steps. The society alleged that the plaintiff’s behavior ceased in response to the eviction notice, and the society and property manager did not proceed with the residential tenancy arbitration hearing. The eviction notice was cancelled and the plaintiff continued to reside in the apartment.

    Caroline Alexander | Carfra Lawton LLP | Victoria BC

    Caroline Alexander

    The plaintiff subsequently alleged that he had suffered extreme emotional shock and distress as a result of the eviction notice and process. He commenced an action seeking general, aggravated and punitive damages alleging breaches of the Human Rights Code, Canadian Human Rights Act, Residential Tenancy Act and common law negligence. He alleged that the society was aware of his mental illness and owed him a duty of care.

    In dismissing the action, the court noted that it was not reasonably foreseeable that a person of ordinary fortitude would suffer psychological injury of a compensable magnitude merely by receiving an eviction notice in a garden variety dispute with a landlord.” The court rejected various arguments by the plaintiff, including one that the society owed him a specialized duty of care arising from its position as a mental health service provider fully aware of his particular sensibilities, deficits and frailties. The court held that the relationship between the parties was contractual, whereby the society provided tenantable premises and quiet enjoyment in return for payment of rent and peaceful occupation. When other tenants complained about the plaintiff’s behavior, the society took remedial steps as permitted by the RTA. The court held that there was nothing negligent about the society’s actions. To the contrary, the society had a duty to protect the rights and interests of its other tenants.