A Landlords Duty to Accommodate To the Point of Undue HardshipBeing a landlord in Ontario is not easy.  On top of the regular challenges that you will face like screening tenants, advertising your unit, carrying costs, etc.  You must also deal with two major pieces of Legislation, being the Residential Tenancies Act, 2006, S.O.  2006, c.  17 and the Human Rights Code, R.S.O.  1990, c.  H.19.

This legislation can be a challenge for any landlord regardless of how many units you have, or even how long you have been a landlord.

Let’s focus this article specifically on the Human Rights component of a Residential Tenancy which states: 

2 (1) 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.

At first glance, the quote above looks straight forward.  Unfortunately, it is anything but.  Landlords can easily find themselves in contravention of the Code by making a statement as simple as “We don’t want small children in our unit”; or by scheduling an inspection or showing on a tenant's religious holiday.

A landlord is required to accommodate a tenant to “the point of undue hardship”. 

Elements

Under the OHRC, the respondent (Landlord) has both a procedural and substantive duty to accommodate.  The onus is on the Landlord to prove that the Landlord met that duty; per Adga Group Consultants Inc.  v. Lane, 2008 CanLII 39605:

“[107] The procedural duty to accommodate involves obtaining all relevant information about the employee's disability, at least where it is readily available.  It could include information about the employee's current medical condition, prognosis for recovery, ability to perform job duties and capabilities for alternate work.  The term undue hardship requires respondents in human rights cases to seriously consider how complainants could be accommodated.  A failure to give any thought or consideration to the issue of accommodation, including what, if any, steps could be taken constitutes a failure to satisfy the "procedural" duty to accommodate: Meiorin, supra, at paras.  64, 65 and 68; Gordy v. Oak Bay Marine Management Ltd., [2004] B.C.H.R.T.D.  No.  180, 2004 BCHRT 225 (H.R.T.) (CanLII), at para.  84 ("Gordy"); D.  Lepofsky, "The Duty to Accommodate: A Purposive Approach" (1992) 1 Can.  Lab.  L.  J.  1 at 11 [Lepofsky]; Moore v. Canada (Attorney General), [2005] F.C.J.  No.  18, 2005 FC 13 (CanLII), at paras.  35-36.”

What this means is that if a Landlord fails to meaningfully attempt to accommodate a tenant, they will be found to not have met their procedural duty to accommodate.

Lets say for example, that you have a tenant who lives on the second floor of your rental unit.  They recently became injured, that injury may be permanent and they now have a hard time with stairs.  A ground floor unit that is similar to the tenants current unit becomes available in the building.  
You have done extensive renovation to the ground floor unit and want to rent it out for more money then the upstairs tenant is currently paying.  On this basis you refuse, and your tenant brings an application against you.

It is possible the Human Rights Tribunal would say that your loss of income on the new unit would not be undue hardship, and as your tenant has provided you with notice of her injury, you were required to accommodate her.

Now,  had your lower unit not been available,  and your tenant requested that you install an elevator in the property, it could be safe to say that the expense upon you to install such a device would be undue hardship.

What if you have a perspective tenant with a service animal?   Under normal circumstances, while you cannot stop a tenant from owning an animal, you may have the right to refuse a lease to them.  This is not so with a service animal.  If you have a tenant who has a service animal, you would have to show that you, or somebody else who lives in the living accommodation suffers from a severe allergy, and there is no way for you to accommodate the animal.

Navigating the Residential Tenancies Act, 2006 and the Human Rights Code can be challenging.  SFG Paralegal Services is happy to offer a one-time free telephone consultation lasting 15 minutes or less to answer your questions.

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