HUMAN RIGHTS IN HOUSING
The Human Rights Code is the most important piece of legislation in Ontario. The Code overrides all other pieces of legislation in the province, unless the contrary is explicitly stated. This means that if a particular provincial regulation or act contains provisions which violate the Human Rights Code, the Code will prevail. A provincial Act or regulation can take precedence over the Code only if the Act or regulation specifically states that it applies despite the Code.
Why has the Human Rights Code been given such legal prominence? The introduction to the Code itself gives an explanation of the values and principles which underlie the Act:
...it is public policy in Ontario to recognize the dignity and worth of every person and to provide for equal rights and opportunities without discrimination...
More broadly, the introduction states that the aim of public policy in Ontario is:
…the creation of a climate of understanding and mutual respect for the dignity and worth of each person so that each person feels a part of the community and able to contribute fully to the development and well-being of the community and the province.
The essence of the Code is fairness and equality of opportunity. In its provisions concerning housing, the Code helps to ensure that all people in Ontario have equal opportunity to access accommodation, and equal opportunity to enjoy the benefits which come along with that housing.
ONTARIO'S HUMAN RIGHTS CODE
The following section of the guide provides an overview of the Human Rights Code as it relates to housing.
a) Prohibited "Grounds" of Discrimination:
Under the Human Rights Code, it is illegal to treat a person unfairly or refuse to rent to that person because of:
It is also illegal for a landlord, agent of the landlord or another occupant of the same building to harass a tenant on the basis of any of the "grounds" of discrimination listed above. If one tenant is subjecting another tenant to discriminatory harassment, it is the landlord's or property manager's responsibility to ensure that the harassment ceases. If the landlord or property manager does not take steps to stop the harassment, he/she could be subject to a human rights complaint.
b) "Direct" and "Constructive" Discrimination:
When most people think of discrimination, they think of direct discrimination. For example, if a rental agent says to a potential tenant, "sorry, we don't rent to people on welfare", this is direct discrimination. "Constructive" discrimination is a much more subtle, but equally important (and equally illegal) form of discrimination. Constructive discrimination refers to policies or practices which may not be intentionally or obviously discriminatory, but which have a discriminatory effect on a group or groups which are protected under the Code. For example, a policy of not allowing internal transfers in a building may not be intentionally discriminatory, but would have a negative, discriminatory effect on some groups protected under the Code, such as families who need to change apartments because of the birth of an additional child.
There is an important qualification to constructive discrimination. The discriminatory policy or practice will not be held to violate the Code if it would impose undue hardship on the landlord to accommodate the needs of the effected group or groups.
16 or 17 year olds who are living away from their parents cannot be refused an apartment because of their age. A lease signed by a 16 or 17 year old is binding.
d) Income Criteria and "Rent-to-Income" Rules:
Terry is a single mother. She applied for a one bedroom apartment renting for $650/month for her and her daughter. However, the rental agent felt that her monthly income of $1,100 from Ontario Works and tax credits was too low and refused her, even though Terry had good landlord references, had never missed a rent payment and was certain she could afford the apartment.
On December 22, 1998, a human rights Board of Inquiry ruled that the use of income criteria or "rent-to-income" ratios to select tenants is a violation of the Human Rights Code because it unfairly disqualifies groups such as women, single parents, families, racial minorities, newcomers and young people. The Board of Inquiry in Kearney et al v. Bramalea Ltd. et al, found that there is no evidence that lower income tenants are more likely to default on rent. Usually it is an unpredicted change in circumstances such as losing a job that leads to default. The landlords have appealed the decision.
There is some confusion about the effect of recently enacted amendments to the Human Rights Code which permit landlords to ask for income information, as long as they also ask for credit and landlord references. Landlords are allowed to use this information but not in such a way as to "refuse accommodation to any person because of race, ancestry, place of origin, colour,....or receipt of public assistance." In light of the decision in Kearney that income criteria constitute discrimination on these grounds, it is CERA's opinion that the use of income criteria to disqualify lower income applicants who do not have a problem with credit or landlord references is still prohibited under the amended Human Rights Code.
e) Landlord References and Credit Checks:
Aslam is a refugee claimant. He has been living for the past three months in a shelter with his wife and two children and desperately wants to find permanent housing so that he and his family can start their new life in Canada. He is very frustrated by the fact that every time he applies for an affordable apartment he is refused because he has no Canadian landlord references or credit history.
Landlords are permitted to ask for landlord references and to check credit. However, they are not permitted to use this information in a discriminatory fashion. The Board of Inquiry in Kearney made it clear that landlords should not refuse young people, recent immigrants or refugees because of an absence of landlord and credit references, since this would mean that members of these groups could never qualify for an apartment. The Board stated that landlords "must be mindful that there is a difference between a tenant having no credit rating and a bad credit rating. There is a difference between a poor reference from a previous landlord and no reference."
f) Co-Signor/Guarantor Requirements:
Dave is unemployed and is presently receiving welfare. He responded to an ad in the Renter's News for a bachelor apartment. Unfortunately, when he told the superintendent over the phone that he was on social assistance, the superintendent said, "if you're on welfare, you'll have to provide a co-signor. That's the building's policy". Because Dave did not have a co-signor, he was unable to apply for the apartment.
Landlords are permitted to require co-signors or guarantors where appropriate. However, requiring co-signors or guarantors of everyone in a group protected under the Code, such as people receiving public assistance or newcomers to Canada, when it is not required of other applicants should be challenged as discrimination. It would not be a violation of the Code to require co-signors or guarantors of prospective tenants who have negative credit or landlord references. On the other hand, landlords have an obligation to accommodate the unique circumstances of newcomers who have no credit rating or landlord references and who may also have no access to a co-signor.
g) Number of Occupants:
Jennifer is a single mother with three children who is receiving Ontario Works. While she would love to be able to rent a three bedroom apartment for herself and her children, these units are far too expensive. She knows that on her tight budget she will only be able to afford a two bedroom apartment. She plans to share her bedroom with her daughter and have her two sons share the other. Unfortunately, many landlords have declined her applications because they require families with three children to rent, at a minimum, a three bedroom apartment.
Often, landlords or property managers refuse to rent to families with children on the basis of rules limiting the number of occupants in units of a particular size. A couple with four children, for example, may be told that six people cannot live in a three bedroom apartment, even though it is not overcrowding to have children share bedrooms. Unless a rule relates to compliance with an overcrowding by-law, a landlord or property manager should not refuse a family because of rules limiting the number of occupants. While overcrowding by-laws vary from municipality to municipality, requirements are usually close to 100 sq. ft. of living space per occupant.
h) Direct Payment of Rent:
Ken needed to move because the house in which he rented a basement apartment had recently been sold, and the new owners had decided not to rent out the unit. Ken found a great bachelor apartment in a building nearby. However, when he told the rental agent that he was on social assistance, she told him that he would have to get social services to pay the rent directly to the management company. Ken was very upset by this, as he had always been a good tenant and paid his rent on time.
It is illegal under the Code to require public assistance recipients to provide direct payment of rent from social services.
i) Apartment Transfers:
David and Kelly lived in a junior one bedroom apartment in a large apartment building. The couple had moved into the building four years ago so that Kelly could be close to her mother who had an apartment on the fifth floor. Over the years, David and Kelly had developed friendships with many of the other tenants. Kelly was pregnant, and in anticipation of the birth of their child, David spoke to the manager of the complex about transferring to a two bedroom apartment. Although two bedroom apartments regularly came available, the manager refused David's request, stating that the building had a "no transfer" policy. David and Kelly ultimately moved out of the building to find a larger apartment.
Landlords and property managers have a duty under the Code to accommodate the needs of families with additional children by allowing them to transfer in a timely fashion to a larger unit if requested. Similarly, if a tenant becomes disabled and requires a transfer to a more appropriate unit, the landlord or property manager should do whatever he/she can to accommodate this.
A change in circumstance, such as job loss or a disabling accident could result in a tenant having to rely on public assistance. In such a situation, a landlord or property manager may have an obligation to allow the tenant to transfer to a less expensive apartment if requested.
j) "Adults Only" Rules:
Denise saw an advertisement for a one bedroom apartment in her local newspaper. The apartment sounded perfect: it was reasonably priced, laundry facilities were available and it was close to a shopping centre. She went to view the apartment, which was located on the sixth floor of the building, and liked it. However, when she mentioned to the building's superintendent that she had a young child, the superintendent told her that children can only live on the first three floors of the building. As a result, she was not permitted to rent the apartment.
While most people are aware that it is illegal to declare an apartment building or complex to be "adults only", or refuse to rent to someone because they have children, it is also contrary to the Human Rights Code to designate certain units as "not suitable for children", or to restrict families with children to certain floors of a building. "Adult lifestyle" condominiums are also illegal if they treat families with children differently or create a negative environment for them. Adult only by-laws in condominiums have been declared by the courts to be of no force and effect.
k) Seniors' Buildings:
The Human Rights Code allows residential buildings to be restricted to persons sixty-five years of age or older. However, buildings, complexes or condominium communities which target persons over age fifty or fifty-five or which exclude people with children are likely in contravention of the Human Rights Code.
l) Reasonable Children's Noise:
In the months following the birth of her son, Cia received a large number of calls from the tenant living below her complaining about the baby's crying. Eventually, the tenant started banging on his ceiling whenever Cia's baby cried. Cia tried her best to minimize any disturbances caused by her son's crying, but the other tenant continued to complain. Finally, Cia found a letter from the building's management posted on her door stating that if the noise did not stop, the management would be forced to evict her and her baby.
A certain amount of noise is to be expected from families with young children. As long as parents make a reasonable effort to minimize their children's noise, landlords or property managers should not threaten to evict them because of noise problems. To do so would be considered discrimination based on family status, and would be a violation of the Code.
m) Special Programs:
Certain programs which are designed to alleviate the disadvantage of particular groups are allowed to discriminate in ways which, under normal circumstances, would be a violation of the Human Rights Code. This means that a housing program for African Canadian women, for example, would be permitted to restrict tenancy to members of this group. However, this does not mean that special programs can discriminate in ways that are not related to their goal of alleviating disadvantage. For example, the housing for African Canadian women should not restrict the access of children to units, because this would not work toward alleviating the disadvantage faced by African Canadian women in accessing housing.
The Code also permits residential units to be restricted to a single sex if all of the apartments in the building or complex are restricted to that sex.
n) Discrimination by Association:
Not only does the Human Rights Code protect an individual from discrimination directed at him/herself, it also protects a person from discrimination because of an association with a member of a protected group. For example, if a white person is refused accommodation because of a relationship with a person of colour, the white person (in addition to the person of colour) can file a human rights complaint of racial discrimination against the landlord or property manager.
Residents of Ontario have the right to enforce their rights under the Code. Therefore, if a tenant files a human rights complaint of harassment against a landlord, the landlord should not take any actions to "get even". Any negative behaviour directed toward the tenant as a result of the complaint could make the landlord liable for an additional human rights complaint, this time alleging reprisal.
Along with the right to enforce their rights, individuals have a right not to infringe the rights of others. This means, for example, that a property manager who is required by a landlord to refuse applicants who have children has a right to ignore this request. If the landlord attempts to discipline the property manager for this, the property manager may file a human rights complaint against the landlord.
WHAT INFO. CAN LANDLORDS ASK FOR?
The Human Rights Code states that landlords may ask for information on income, credit and landlord references but they may not use that information in a discriminatory way. It does not list information which landlords may not ask for. Many landlords' application forms require information that relates to prohibited grounds of discrimination, such as whether a prospective tenant has children, his/her marital status, age, etc. This does not mean they will necessarily discriminate on those grounds, so if someone is trying to get an apartment, it is generally better to provide the information. If the landlord uses this information in a discriminatory fashion to refuse the person, then he/she may pursue a complaint of discrimination.
Many applicants are offended by intrusive questions asked by prospective landlords about banking information, cars, loans, assets and other information which seems irrelevant to whether they should be allowed to rent an apartment. Unfortunately, most of these types of questions are not illegal. If applicants are offended by certain questions, they may, of course, refuse to provide the information. However, unless a question shows an intent to discriminate, a refusal to answer the question may be used as a basis to refuse an application.
THE HUMAN RIGHTS COMPLAINT PROCESS
Tenants or prospective tenants who believe that a landlord or property manager has discriminated against them can file a formal human rights complaint with the Ontario Human Rights Commission. Unfortunately, there is a lot of cynicism about the human rights complaint process in Ontario. Many people feel that it is far too slow and that formal complaints, in most cases, do not get anywhere. While there are significant problems with the process of enforcing rights under the Code, the Commission is now processing complaints much faster than it had in the past. With help from CERA, many complainants are succeeding in getting discriminatory policies changed, getting places to live and getting monetary compensation for discrimination.
There are a number of stages through which a human rights complaint goes once it has been filed with the Commission. This final section of the guide will outline these stages.
a) After Filing the Complaint:
Once the complaint has been filed with the Commission, Commission staff will send a copy to the landlord and any other parties to the complaint. The landlord will then be given an opportunity to provide a written response to the complaint. If the complaint is outside of the jurisdiction of the Commission, if it is frivolous, vexatious or made in bad faith, or if it was filed more than six months after the incident of discrimination, the Commission may decide not to deal with it.
Generally within 90 days from when the complaint is filed with the Commission, mediation is scheduled at the Commission office. This is an opportunity for the landlord and the tenant to craft their own resolution to the complaint. A staff member from the Commission will act as mediator to assist with the discussions.
If mediation is unsuccessful, the Commission will launch a formal investigation of the complaint. Over the course of the investigation, an officer with the Commission should interview all of the parties to the complaint, and should also talk with potential witnesses and collect any other relevant information. On conclusion of the investigation, the officer will draft a Case Analysis, summarizing his/her findings and recommending whether, in the officer's opinion, the complaint should be referred to a Board of Inquiry.
d) The Commission's Decision about Whether to Refer the Complaint to a Board of Inquiry:
The Human Rights Commission does not have authority to make a decision about whether a landlord has violated the Human Rights Code and to order a remedy. Only a Board of Inquiry can decide that. Unfortunately, complainants cannot go directly to the Board of Inquiry. They must first convince the Human Rights Commission to refer the complaint there. This is the most difficult stage of the process, as the Commissioners make their decision behind closed doors and often dismiss complaints which would have a good chance of winning at a board of inquiry. If a Case Analysis recommends that the Commission dismiss a complaint, it is important to get assistance in preparing a response to it for the Commissioners to read. In recent years the Commission has reduced the backlog of complaints by dismissing far too many complaints, but as the backlog has been largely eliminated, complaints that do not settle are now more likely to be referred to a hearing before a board of inquiry.
e) The Board of Inquiry Hearing:
A Board of Inquiry is an independent tribunal similar to a court, though it is less formal and less intimidating. When the Human Rights Commission refers a complaint to a Board of Inquiry, the Board will conduct a hearing and decide whether or not the Human Rights Code has been violated. Should it find that the Code was violated, the Board will also determine the remedy. CERA tries to provide complainants with legal representation at the hearings, particularly where the issues raised are important to clarify the law and the responsibilities of landlords and of the Human Rights Commission. The Human Rights Commission, however, is also at the hearing and is responsible for presenting evidence and argument in favour of upholding the complaint, so complainants do not necessarily need their own legal representative. The board of inquiry cannot order legal costs against the complainant even if the complaint is not upheld.
Centre for Equality Rights in Accommodation (CERA)
340 College Street, Suite 101A, Box 23,
Toronto, ON M5T 3A9 Canada
1-800-263-1139 (outside of Toronto)
(416) 944-1803 (fax)