Understanding the Human Rights Code Protection Applicable Within Residential Tenancy Relationships

Residential Lease Document In Ontario, all people shall receive equal rights and equal opportunities without discrimination in various respects, including housing, as is prescribed within the Human Rights Code, R.S.O. 1990, c. H.19.  Specifically, the Human Rights Code prohibits discrimination and harassment based on 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.

Examples

The protections within the Human Rights Code prohibit, among much more:

  • Discrimination due to family status, including whether a person has children or is pregnant, with exception where a building specifically caters to seniors;
  • Discrimination involving refusal to rent due to concerns for overcrowding where a prospective tenant was seeking a two bedroom unit that would have two children sharing a bedroom and thereby present as a form of family status discrimination;
  • Discrimination based upon status as a member of the LGBTQ+ community including the failure of a landlord to properly address situations where such a tenant is harassed by another tenant;
  • Discrimination based on origin or citizenship which thereby disallows the conduct of requiring a refugee or recent immigrant to provide a rent deposits as well as forbids declining to rent to a refugee or recent immigrant due to a lack of credit or lack of prior landlord reference; or
  • Discrimination based receipt of welfare, disability pension, or other form of public assistance;

It is notable that asking for deposits, references, credit checks, or even a co-signer, based specifically on any of the prohibited grounds for discrimination may result in a Human Rights Code violation.  For example, in the case of Garbett v. Fisher1996 CanLII 20101, a Human Rights Code violation occurred when a landlord refused to rent to a sixteen (16) year-old on welfare.  Specifically, the case decision stated:

[57]  In his submissions, the respondent also asked the Board to consider the difficulties which he had experienced as a landlord of low-cost housing with tenants of limited financial means. His testimony indicated that he had experienced a significant turnover in occupancy, and that his best security for loss of income was to always collect last month's rent in advance. Although there was no independent evidence to support the respondent, I accept his testimony that he would, with some regularity, lose rental income when tenants were unable or unwilling to pay rent. The respondent testified that his financial difficulties had resulted in the loss of a residential rental building in Hamilton.

[58]  Nevertheless, financial difficulties on the part of a respondent cannot justify conduct or policies which discriminate on the basis of a prohibited ground under the Code. A landlord doing business in the province of Ontario must be in a position to run his rental operations in keeping with legislated anti-discrimination protections. Although the respondent may well have honestly believed that the complainant was a bad risk as a tenant, the entire purpose of human rights laws is to prevent individuals from being excluded from employment rights, services or housing because of assumptions based on their membership in a group identified by a prohibited ground of discrimination The respondent thought that the complainant was a bad risk because she was only 16 years of age and living on welfare. The evidence of the complainant suggests that this assessment was in fact wrong. She has obtained housing, schooling and employment since the events giving rise to the complaint. She is entitled to compensation for having been wrongfully denied housing because of her age and her receipt of public assistance. I find the amount of $2,500 to be reasonable in light of the particular impact of the discrimination on the complainant.

As indicated within the Garbutt decision, the financial security concerns of the landlord fail as an excuse for violating the Human Rights Code; and accordingly, landlords should appreciate that the Human Rights Code is a quasi-constitutional law that stands paramount to all other law.

Discrimination Within Rental Advertisements

When listing rental opportunities, landlords are forbidden from excluding people identified by protections within the Human Rights Code.  For example, phrases within rental housing advertisements with statements such as “suits a working person” which indicates that people who receive social assistance or are unable to work due to a disability, or other Human Rights Code ground, are unwelcome or should refrain from applying.  Other forms of inappropriate advertising include statements that a building:

  • Is “adults only”;
  • Is “adult lifestyle”;
  • Is “unsuitable for children”;
  • Is “suitable for a single person or couple”;
  • Is “working people only”; or
  • Is “professionals only.”

Discriminatory advertising that targets households with children may even be quite subtle such as where a landlord uses euphemisms such as statements that a building:

  • Is a "quiet building";
  • Is lacking soundproofing; or
  • Is "geared to young professionals";

Statements such as the above, if coinciding with a refusal to rent to a family with children, may indicate that discriminatory attitudes related to family status played a role in the refusal.

Furthermore, in addition to improper statements within advertisements, section 13 of the Human Rights Code prohibits the publication or public display of any notice, sign, symbol, emblem, or other representation, that indicates an intention to discriminate.

Discrimination Within Rental Applications

Some housing providers, and the agencies hired to find tenants for the housing providers, may engage in practices that are designed to screen out certain people identified by the Human Rights Code.  For example, information requested upon a rental application form may, intentionally or otherwise, identify prospective tenants as falling within protected Human Rights Code grounds such as an application that asks the applicant to provide source of income details and may thereby reveal the person is receiving social assistance, is unemployed due to disability, among other things.

Even the name of an applicant, albeit a necessary piece of information for housing providers, may reveal the race, origin, creed, among other things, about the person.  Of course, housing providers are forbidden from discriminating against people on the basis of Human Rights Code grounds that may be identifiable from the name of the person; and accordingly, decisions to offer housing must avoid considerations that involve the name of the applicant.

Tenancy application forms sometimes ask the ages of prospective tenants. The Human Rights Tribunal of Ontario has deemed this practice as a prima facie act of discrimination based on family status.

Tenancy application forms sometimes also ask about the number of children in a family.  Where a landlord asks such questions, the legal onus will require the landlord to show a lack of discrimination against the tenancy applicant; and accordingly, if a landlord has a bona fide requirement for asking about the number of children, the landlord should refrain from asking until after approving the housing application.

In other situations, a landlord may improperly use a telephone calls for screening applicants whereas telephone inquiries may provide information about identity via presence of an accent or other characteristics.  Socio-linguistic research shows that people are able to make fairly accurate racial attributions based on linguistic cues alone; and thereby landlords are able to, improperly, screen out prospective tenants by simply saying that the rental unit is, "already rented" upon hearing the prospective tenant speak.  This practice is known as linguistic profiling.  Of course, any technique used for tenant screening that targets people based on Human Rights Code grounds is contrary to the law and may result in a claim filed with the Human Rights Tribunal of Ontario.

Additionally, in person meetings between a landlord and prospective tenant where the prospective tenant is later declined may lead to a claim at the Human Rights Tribunal of Ontario where the prospective tenant believes that the rental unit became, "unavailable" due to discrimination involving a Human Rights Code grounded issue.  While in many cases it may be difficult for the prospective tenant to prove that discrimination was involved, such may occur; and accordingly, where a landlord or housing provider receives multiple tenant applications, the landlord or housing provider should be prepared to the selection process that was used when chosing the successful applicant.  For example, a landlord may decide to rent to qualified applicants on a first comers basis.

Denial of Rental Application

Obviously, there are legitimate grounds for refusing to rent.  For example, a landlord may request credit references and rental history information, or both, and may refuse a tenancy application based upon the information received.

Interestingly, and surprising to many, a landlord may request income information from a prospective tenant only if the landlord also requests a credit check and rental history.  If, after requesting such information, the landlord receives only the income information, the landlord may consider the income information independently when assessing the prospective tenant and the landlord may select or refuse the prospective tenant accordingly.  With this said, a landlord may only use the income information to determine that a tenant has income; however, the landlord is forbidden from evaluating the source of the income such as welfare (Ontario Works).

Additionally, as per the case of Shelter Corp. v. Ontario (Human Rights Commission), 2001 CanLII 28414, a landlord must avoid using a ratio to determine the worthiness of a tenant and must consider only the ability to pay rent without factoring in, or projecting upon the tenant, what the landlord believes other living or lifestyle expenses should be.

Caution Required

In some circumstances, a landlord may impose the requirement of a guarantor; however, this requirement must comply with the Human Rights Code and therefore the requirement may be imposed only where the requirement of a guarantor is due to factor unrelated to a protected Human Rights Code ground.

Additionally, a landlord may refuse a tenant who owns an animal unless the animal is a service animal; however, and as a separate issue, after a tenant takes possession of a rental unit, except for very specific circumstances, the landlord will be unable to deny a tenant from having a pet.

Evaluating Rental History

A lack of a rental history may be related to a protected Human Rights Code ground.  For example, per the case of Ahmed v. 177061 Canada Ltd.2002 CanLII 46504 a recent immigrant or refugee may lack a Canadian rental history which, due to place of origin, is a protected Human Rights Code ground.  Additionally, a man or woman may be a first time renter without a rental history following a marital breakdown which, due to family status, is also a protected Human Rights Code ground.  Accordingly, landlords are strongly encouraged to refrain from treating the lack of a rental history as equivalent to a negative rental history.

If a prospective tenant lacks a rental history for reasons related to a protected Human Rights Code ground, a landlord should look to other available information so to ensure a bona fide assessment.  Whereas a prospective tenant identifiable within a protected Human Rights Code ground may be more likely to have lived in rooming houses or lived at past residences for short periods of time, extra caution is required to ensure against discrimination that arises from the rental history factor.

Evaluating Employment History

A landlord may impose requirements that stable long-term employment be shown by a prospective tenant; however, this requirement can be problematic for people identified by several protected Human Rights Code Grounds.  For example, a requirement of employment history may inherently be discriminatory against women who took time away from the workforce to raise children or to provide care-giving to others or who are recently separated seeking to establish independent living and support themselves independently.  Employment history requirements may also affect new Canadians, may affect people with disabilities who are unable to work, may affect people who receive social assistance, may affect older people receiving benefits from the Canadian Pension Plan, may affect seasonal workers, or may affect young people with a short employment history. 

While the Human Rights Code does allow a landlord to ask for income details, the Human Rights Code disallows discrimination where employment history is a factor when evaluating a person identifiable within a protection Human Rights Code grounds; and accordingly, the Human Rights Tribunal of Ontario has found that it is a violation of the Human Rights Code where an prospective tenant is denied housing due to a requirement that an applicant be employed on a permanent basis or a minimum tenure with an employer.

Evaluating Credit History

A landlord is permitted to request credit references and to conduct credit checks when given permission to do so by the prospective tenant. The landlord may review consider credit information within the selection of, or refusal of, a tenant; however, a landlord should be aware that a requirement for a credit check may have an adverse impact on people identified by a protected Human Rights Code grounds.  For example, women returning to the workforce after lengthy periods of care-giving or after the breakdown of a marriage, young people, and newcomers, may lack a credit history.  The Human Rights Tribunal of Ontario has found that the practice of refusing applicants with little credit history may have a disproportionate impact based on Human Rights Code grounds.  Per the case of Sinclair v. Morris A. Hunter Investments Ltd., 2001 CanLII 26232, a landlord is prohibited from deeming a lack of credit history as equivalent to a bad credit rating.  Even where an prospective tenant has a bad credit rating, there may be extenuating circumstances relating to Human Rights Code grounds that should be examined before rejecting the prospective tenant.  person.  The person should be able to explain their situation and potentially ask for accommodation.  An accommodation may be other forms of rental criteria such as a guarantor, meaning a co-signor.

In all cases, a credit history must only be considered as part of a bona fide attempt to validly assess potential tenants.

Requiring a Guarantor

Although a landlord is permitted to ask for a guarantor, meaning a co-signor, and doing so may be appropriate where a prospective tenant has poor references, a poor credit history, or a history of default, a landlord is forbidden from requiring a guarantor simply because the prospective tenant is an identifiable member of a Human Rights Code protected group such as being a lone parent, a newcomer to Canada, a young person, a person with a past, present, or perceived mental illness, a person who receives social assistance, or a racialized person.

Furthermore, a landlord who requires a guarantor is forbidden from imposing any condition upon the guarantor that would be a forbidden condition to require of the tenant.

Requiring of Deposits

For certain things, the Residential Tenancies Act, 2006, S.O. 2006, Chapter 17 permits a landlord to require that a prospective tenant provide a security deposit; however, doing so is forbidden simply because the prospective tenant is a member of a Human Rights Code protected group, such as being a person in receipt of social assistance, or a lone parent, an immigrant, among other persons.

Protection During Tenancy

When renting housing, the Human Rights Code grants protection during the tenancy application process as well as protection against unequal treatment after the person becomes a tenant. 

The Human Rights Code provides a tenant with protection from negative comments including unsolicited commentary regarding sexual orientation, marital status, and more, as well as equal treatment in accessing amenities such as recreational facilities, parking, gardens, among other things.

The protection from negative treatment may include seemingly neutral rules such as a no pets policy that would adversely affect a person with a disability who uses a  service animal. 

A tenant also holds the right to freely associate with people identified by the Human Rights Code such as a gay partner or a racialized girlfriend without discrimination from a landlord.

Additional Example Scenarios
  1. A lone mother of Aboriginal ancestry was criticized by a landlord for the behavior of her children and was asked about the whereabouts of the father.  The landlord stated that the children would be “less disturbed” and “more controllable” if the father were present.  The landlord also periodically invaded her privacy and made an offensive comment about her Aboriginal heritage.  In isolation, each of these comments might appear insufficient to conclude that discrimination occurred on the multiple grounds of marital status, family status, and Aboriginal ancestry; however, when considered collectively, the Human Rights Tribunal of British Columbia deemed that the landlord treated the claimant in a disdainful manner because of a combination of stereotypical views held about Aboriginal people and unmarried mothers;
  2. A landlord engaged in inappropriate behavior toward an Afghan family by becoming negative toned and aggressive when the family notified that the family bought a home in an affluent area and would be moving out of the rental unit.  A human rights tribunal found that the inappropriate behavior was motivated, in part, by resentment towards the improved economic status of the family and a view that immigrants were unentitled to upward mobility.  This case showed that negative attitudes and stereotypes may underlie inappropriate comments or interference in the affairs of tenants.
  3. A landlord repeatedly checked-up on a woman who spent time in a psychiatric hospital and despite that the woman told the landlord that the conduct was intrusive and unwelcome.
Summary Comment

A landlord is required to abide by the Human Rights Code by treating all persons equally and fairly without discrimination based on protected grounds.  A landlord who behaves in a discriminatory manner, intentionally or otherwise, may become the subject of a costly human rights complaint.


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