Housing discrimination and the individual

This section discusses the most significant rental housing issues affecting individual tenants and housing providers. Many of the experiences of discrimination and harassment, tenant screening and accommodation are intrinsically linked to the systemic elements discussed in section 5. For example, the individual barriers to housing experienced by tenants in receipt of social assistance are, in many cases, linked to the broader societal issues of inadequate income levels and poverty. However, this section focuses attention on the human interactions, actions and inactions that are at the heart of human rights in rental housing.

4.1. Highlighting discrimination based on specific Code grounds

The Commission recognizes that most landlords and housing providers are anxious to comply with the Code and work hard to meet the needs of their tenants. However, as the Commission heard in this consultation, for some tenants, discrimination in housing in Ontario is not an unusual occurrence. As was noted in a recent decision of the Human Rights Tribunal of Ontario, “[d]iscrimination relating to a person’s home is particularly egregious.”[20]
Discrimination and harassment may arise when tenants respond to advertisements for rental units, when their applications for tenancy are reviewed and processed, during occupancy, and, in some cases, when the tenancy relationship ends. In housing, as with employment or other social areas, persons in positions of power may be held responsible if they condone or further discrimination that has already occurred and if they fail to investigate a complaint of discrimination.[21]

The information gathered in the consultation shows that a variety of discriminatory stereotypes and biases exist in today’s rental market. When there is an imbalance in bargaining power, such as that between landlords and tenants, there is potential for these kinds of stereotypes to give rise to discriminatory treatment. The lack of affordable and adequate housing, when combined with overt and subtle discrimination in housing, means that many people protected by the Code are excluded from the housing market, forced to pay higher rents than they can actually afford, or relegated to poor quality housing options.

The submissions of tenants and their advocates indicated that many Ontarians expect to experience discrimination when seeking and occupying rental units, even when they are assisted by professionals and community workers. As one tenant advocate noted, the search for a rental unit for a lone mother on social assistance is essentially a search for a landlord or property manager willing to rent to her.

The Commission heard repeatedly that often the involvement of workers from community agencies actually serves as a trigger for discrimination. In some of these cases, it appears that the worker’s organization or role is viewed as an indication of the tenant’s membership in a group protected under the Code. The Algoma Community Legal Clinic gave an example of landlords screening out prospective Aboriginal tenants who were being helped by an Aboriginal homeless program. A front-line worker indicated that landlords did not respond to his calls when he called on his office line. However, if he called from a phone that showed only “private” through caller-identification, the phone would be answered. Similarly, the involvement of social service workers or medical practitioners helping people with mental illnesses to obtain housing may cause some landlords to incorrectly assume the person will be a problem and refuse tenancy (Psychiatric Patient Advocacy Office – PPAO).

This section highlights situations that arise in relation to particular grounds such as sex, disability or race. As with past consultations, a major theme in this consultation was the intersecting impacts of multiple grounds of discrimination. The particular forms of disadvantage experienced by people are based on the combination of their identities – a racialized lone mother’s experience in seeking and obtaining quality housing differs from that of a gay couple with disabilities. In the past, the Commission has recognized the importance of applying an intersectional approach to complaints of discrimination.[22]

Discrimination based on sex

Women’s experiences of housing discrimination are frequently related to their sex, and are often related to other characteristics such as their family or marital status, their race or race-related characteristics, age or disability. CERA/SRAC, with the National Women’s Working Group, said that although low-income women experience the most severe housing disadvantage, their experience of the housing and homelessness crisis tends to be less visible than that of other groups. They listed the following factors, among others, as having contributed to the inadequate housing conditions and homelessness experienced by women:

  • poverty – single mothers, young women and racialized women are disproportionately poor
  • systemic discrimination and inequality in accessing and retaining housing, income support, employment and education programs
  • the unjust application of regulations, laws and policies related to income support and housing programs
  • women’s over-representation as sole-support households
  • lack of social supports to offset the burden women experience in care giving roles
  • a shortage of affordable housing
  • social exclusion
  • lack of a safe living environment.

Many consultees commented on the power imbalance between landlords and tenants who are women with low incomes. The Commission heard that this power imbalance may result in inappropriate behaviour by landlords and property managers, particularly when women are at risk of losing their tenancy due to financial difficulty or a personal crisis. For example, the Commission was told that some landlords may seek sexual favours from low-income women in lieu of rent if they have fallen into arrears, to prevent eviction or if they require maintenance services. This can make an affordable and otherwise adequate rental unit uninhabitable. As the Commission heard, for some women, homelessness is a preferable alternative to this kind of infringement of fundamental human rights.

Women living in subsidized housing in certain areas of Kingston voluntarily leave their rent-geared-to-income units and stay in homeless shelters for months on end because of concerns about their safety and sexual harassment (Kingston Community Legal Clinic – KCLC).

After the breakdown of a relationship, women may be disadvantaged in obtaining a rental unit on their own without a credit rating or landlord references. The Commission also heard that women leaving or returning to situations of domestic violence are at increased risk of having their children removed by child welfare authorities because of housing that is unsuitable due to violence or poor living conditions. See also section 5.2 “Adequate and affordable housing.”

The Commission was concerned to hear that the lack of affordable housing and assistance prevents some women from leaving abusive relationships.[23] The Commission was also told about the limited availability of shelter options for women with disabilities trying to leave abusive situations. CERA recently called 10 women’s shelters and found that none were fully accessible and two were only partly accessible. This means that for women with disabilities, access to temporary shelter or transitional housing may not be a viable alternative. This denies them some of the benefits associated with such options[24] and increases their already extreme vulnerability as women trying to leave abusive relationships.

Consultees reported that discrimination against, and stereotypes about, women who have experienced domestic violence are also factors affecting the availability of housing.[25] One legal clinic indicated that housing providers increasingly view women who have experienced violence as “damaged” and likely to create problems in housing services because of returning partners and troubled children.

For Aboriginal women, who experience higher rates of violence compared to non-Aboriginal women,[26] the situation is particularly bleak. The lack of adequate and affordable housing, financial assistance and social supports – coupled with other intersecting grounds – leaves many Aboriginal women with no choice but to return to their abusers. The Ontario Federation of Indian Friendship Centres (OFIFC) told the Commission that some women turn to the homes of family or friends, but may be subject to unwarranted intervention of child welfare authorities due to perceived overcrowding reported by neighbours or housing providers. The Commission was told that the combination of these factors results in the children of Aboriginal women being apprehended at a much higher rate than the children of other women.

Although women are particularly at risk of housing discrimination due to their low social and economic status, the Commission also heard about instances in which men are differentially treated because of their sex. For example, the Housing Help Centre described a case in which a man seeking housing was asked to provide custody papers for his children because he was a man. Women were not asked to provide such proof.

Transphobia and discrimination based on gender identity

Under the current Code, claims based on gender identity may be filed based on the ground of sex, and calls have been made for its inclusion in the Code as a separate ground. See also section 4.5 “Enforcing housing rights.”

People who are transgendered may be exposed to stereotypes, harassment or demeaning comments. These can affect their experience in accessing housing and may result in the outright denial of a rental application. One participant in the consultation described her experience in trying to find accommodation in a student residence following her transition from male to female.

In the spring of 2000, I needed to look for rental accommodation, and there were three choices: there was mixed, there was male, and there was female. So, being a woman, I phoned up a few places looking for female accommodation. The first phone call, I identified as a woman, and I was told by the person renting that indeed, I wasn’t a woman. I was very frustrated, so I decided to phone the next number on my list. I phoned them and identified myself as a woman, and they told me the apartment was already taken.

Transgendered people may be exposed to comments or conduct that poison their environment and undermine their dignity during tenancy. For example, one consultee described having been told that she was “lumbering like a man” by one landlord and referred to as “that” rather than as a woman by another. This consultee said “I worry every time I look for housing, about what kind of response I’m going to get, what kind of experience I’m going to have.”

Family status and marital status

CERA/SRAC/NWWG said that although men and women are protected under the ground of family status, lone mothers and especially women who are fleeing abuse and domestic violence are most affected by discrimination based on family status.

Consultees raised concerns about advertisements for “adult-only” buildings and units that are described as “not suitable for children,” or suitable for “a single person or couple” or “professional people.” All of these may be euphemisms used to exclude families with children. These kinds of ads are not permitted under the Code.[27] Yet, they continue to exist and families with children are discouraged from applying for housing or are denied access to housing opportunities.

Families with children may be turned away, particularly when applying to small owner-operated apartment buildings or second units. The Commission heard that landlords commonly say that the apartment is “not appropriate” for a family with children or that it is “too small.” In some cases, this may be based on assumptions about children’s noise or damage to the unit. However, the normal noise and activities of children should not be used as reasons to exclude them, and their families, from housing.[28] A lone mother with a toddler stated that although she may be told that there are no units available, when she gets her friends to call, there are.

Lone mothers with older children, particularly teens and pre-teens, may face additional barriers in trying to obtain shelter or permanent housing. One woman noted that after she and her husband separated, she had difficulty renting housing because she had two teenage boys and a younger son and a credit history and landlord references that were affected by the circumstances of the marriage breakdown. Yet, she could not get into a shelter because they were full, or because her family was ineligible as one son was over age 16. She expressed her fears of homelessness due to lack of other options to house her children.

Many submissions drew the Commission’s attention to the prevalent sexual exploitation of tenants who are lone mothers, an issue discussed in the section “Discrimination based on sex.” The Commission also heard about situations in which families, particularly those headed solely by young women, were subjected to unsanitary or unsuitable living conditions.

Consultees indicated that some landlords still use restrictive definitions of family to be able to evict existing tenants and increase the rents. This was said to result from vacancy decontrol under the Residential Tenancies Act (RTA).[29] The Ministry of Municipal Affairs and Housing (MMAH) noted that the definition of tenant in the RTA has been expanded to include spouses, to prevent potential evictions in cases where the original tenant dies or leaves. However, this provision does not apply to buildings with three or fewer units in which the landlord lives. In addition, one consultee noted that definition of tenant still affects other family members, such as parents, who may not be recognized by landlords as “authorized occupants.”

Families with children may be told that they have to rent an apartment with a specific number of bedrooms to accommodate the size of the family. This affects both small and large families. As is noted further in section 4.2. “Tenant screening practices,” such policies have the effect of limiting access for families with children to rental units. The Commission was told a number of times that tenants feel that they need to lie about their families to qualify for or find a decent apartment, but are scared to do so because of the fear of eviction when their children are discovered. In some cases, when the landlord becomes aware of the existence of these children, they force the tenants to pay extra rent (MTCSALC). Similarly, tenants may face rent increases or eviction when additional family members move into the rental unit even if municipal occupancy standards have not been violated (The Community Legal Clinic of York Region).

Guest policies under the Social Housing Reform Act (SHRA) were also described as having a disproportionate impact on lone mothers. Section 21(3) of the SHRA allows housing providers to establish rules for the temporary accommodation of guests in its rent-geared-to-income units. Consultees told the Commission that these rules seem to be aimed at “boyfriends” or partners whose incomes were not considered by the housing provider when calculating the subsidy amount. The Commission was told that strict enforcement of these policies can have far-reaching effects on the ability of tenants to maintain their privacy and lead normal lives while at the same time maintaining their housing. If the guest is deemed to be an illegal occupant, the tenant’s subsidy can be revoked and the tenant may be evicted. The Hamilton Mountain and Community Legal Clinic provided this example:

In one case at this office, a single mother of four children relied on her ex-husband to babysit while she attended the hospital with her four-year-old undergoing cancer treatment. She was repeatedly requested to provide proof that he was not staying overnight. Despite supplying affidavits and proof of his residency elsewhere, the provider removed her subsidy and brought an application to the housing tribunal to evict her family on the basis of sightings by neighbours and the superintended of his alleged overnight stays. When the so-called evidence was challenged, the matter was withdrawn, but not before serious suffering was inflicted on the entire family over the extended period.

The Commission heard that Aboriginal people, and in particular women, are frequently discriminated against in rental housing because of their family status. This arises from stereotyping and a lack of understanding of Aboriginal cultural and social norms and practices, familial and kinship ties, and the importance of extended families (OFIFC). Concerns were raised that the definition of “family status” in the Code poses a significant barrier for Aboriginal families in the context of obtaining rental housing. This is because “family status” as defined does not include extended families, kinship networks or alternative family structures that are very common, and the social and cultural norm in Aboriginal cultures and communities. Finally, it was noted that single people, particularly single Aboriginal males, have difficulty obtaining affordable housing. These difficulties are heightened for single Aboriginal people with mental illnesses, addictions or who are transitioning out of homelessness.

Families of people with mental illnesses also suffer from stigma and discrimination when applying for and occupying housing (People Advocating for Change through Empowerment – PACE). As a result, they may conceal mental illness or addiction problems and face these issues in isolation because they have distanced themselves from friends, family and the community (Ontario Federation of Community Mental Health and Addiction Programs – OFCMHAP). Parents of children with mental disabilities may be under particular scrutiny from neighbours and landlords with regard to noise or other manifestations of their children’s disabilities. In some cases, these kinds of issues can lead to eviction.

Criminal records and record of offences

Although “record of offences” is not currently a prohibited ground of discrimination in housing, a number of important human rights issues were raised in the consultation. Submissions relating to Code amendments are discussed in section 4.5. “Enforcing housing rights.”

About 10% of the adult population has a criminal record.[30] Consultees noted that due to discrimination, historical disadvantage and other factors, there may be links between criminal records and prohibited grounds of discrimination, such as disability, race or receipt of social assistance. For example, Aboriginal people comprise 16.7% of federally sentenced adult offenders but only 2.7 of the Canadian adult population.[31] Conflict with the law may be associated with the racialization of poverty and the criminalization of poverty (John Howard Society of Toronto). For example, the Commission was told that people with low incomes, including people on social assistance, tend to be viewed more reprehensively and receive more severe criminal sanctions than wealthy people who have similarly broken the law.[32]

The Commission heard that differential treatment based on one’s criminal history is widespread and yet very difficult to prove. In many cases, the unit in question may suddenly become “unavailable” when the landlord finds out about a prospective tenant’s criminal record through a criminal record check or a discussion. In other cases, prospective tenants walk away from a suitable unit when they find out that a criminal check is a required condition of tenancy. When successful in obtaining a unit, some people with criminal records are told that they will be watched and more closely scrutinized than other tenants. These kinds of experiences may also arise from the intersection of a criminal record and other grounds of discrimination such as being in receipt of social assistance and/or being racialized.

Some consultees raised concerns about blanket policies that restrict or ban people with criminal records from housing, such as those which exist in various parts of the United States. One consultee notes that: ” if such a situation were to become a reality here in this province and throughout Canada, our hopes of housing this very vulnerable population would be lost.” A legal clinic drew the Commission’s attention to an example of a regional crime reduction project in Ontario between a social housing provider and a local police force, which could result in the exclusion of people with criminal records.

CERA pointed out that such policies will result in human rights violations for individuals who have addictions, or other disabilities such as mental illness or cognitive disabilities, if housing providers are not sensitive to the individual circumstances of each prospective tenant. “If a person’s disability was a contributing factor to criminal activity, that person should not be refused housing for having a criminal record unless the housing provider can prove that providing them with accommodation would pose undue hardship.”
ARCH Disability Law Centre (ARCH) noted that adding a “crime free addendum” to a tenant’s lease has a disproportionate impact on people with mental health disabilities, as related police record checks would identify detentions under the Mental Health Act.[33] Similar concerns were raised about the impact of safety-oriented policies on racialized families.

As part of the “guns and gangs” initiatives by the Toronto Police Service, members of certain racialized communities, and in particular the African Canadian community, have been made targets of police raids which result in charges being laid. The family members of these individuals are then being given eviction notices by [the social housing provider] on the ground of “‘illegal activities”’ by the tenants. This ‘“law and order’” and “‘zero tolerance”’ approach results in hardship to many families” (MTCSALC).

Age discrimination

The Commission heard about examples of discrimination experienced by people at both ends of the age spectrum.

The Commission heard that discrimination experienced by young people is usually experienced on the intersection of grounds such as age, race, receipt of public assistance, family and/or marital status and disability, particularly mental illness. They also face challenges arising from the lack of safe and affordable housing in various communities across the province. Due to discrimination and other barriers to housing, young people may be drawn to high-risk neighbourhoods, return to abusive family situations, become homeless or pay high fees to private companies that will find them housing. Rooming houses provide a common alternative. However, the youth who live in them, in particular the young women, are vulnerable to human rights violations.

Young people are frequently stereotyped as being irresponsible, having too many parties, not paying the rent or destroying the property, and consequently have a difficult time finding rental housing (Housing Help Centre). The Commission heard that young people may be told that they have to be 18 years of age to enter into tenancy agreements.[34] They may also be subjected to tenant screening measures that are not required of others – such as direct payments of rent. See also section 4.2. “Tenant screening practices.”

The Commission was told that Aboriginal youth face tremendous difficulties obtaining housing due to the intersection of age discrimination, racism, income and other factors. These youth may not have landlord or employer references, credit histories and guarantors. Children’s aid societies noted that the requirement that youth leave care at age 18 means that Aboriginal youth may be forced into independent living when they are not fully ready. The Commission was told that when safe and affordable housing is not available, these vulnerable youth end up renting units in buildings where criminal activities including drug use and dealing are commonplace. This can hamper efforts to overcome addictions or push them to expensive units that leave them with hardly any money for other necessities.

Young lone parents face barriers to housing such as being on social assistance, the lack of integrated support, and not having job, housing or credit histories in addition to experiencing stigma because they are young and have children (Young Parents No Fixed Address). In some cases, the fact that they have children and are young leads to the perception that they have made poor choices and would be unable to maintain a household (Jessie’s Centre for Teenagers). The Commission was told that the combination of discrimination, inexperience and lack of resources can affect young parents’ ability to provide stable and suitable living conditions for their children. For example, landlords may enter their units without giving notice, make unwelcome advances and refuse to make necessary repairs to the property. One clinic described an experience of stereotyping at a hearing before the Landlord and Tenant Board in which a young lone mother, who was crying because she was being evicted over $400 in rent arrears, was asked by the adjudicator, “Why are you sniffling, are you on drugs?”

Tenant advocates noted that older tenants are often denied housing because landlords perceive them to be at greater risk of injury and death or unable to pay and carry out proper maintenance. Difficulties obtaining accommodation to allow tenants to continue to live independently in their units were raised by a number of consultees as being a major issue of concern to older tenants. Some social housing providers sought greater flexibility in setting eligibility for seniors’ housing based on needs and preferences rather than the threshold of age 65 set out in section 15 of the Code.[35]

The Commission was told that vacancy decontrol may increase the vulnerability of older tenants to eviction as they may be viewed as limiting the landlords’ ability to raise the rents. One tenant advocate described attending a landlord and property manager’s conference in which a speaker described seniors as a huge problem because “the only way you usually ‘get rid of them’ is ‘to the seniors’ home or to the funeral home,” which was responded to by a very raucous round of laughter from most of the landlords and property managers in attendance.”

Throughout the consultation, the Commission heard about barriers to access and the lack of accommodation to meet the needs of older people with disabilities, including hearing loss, mobility issues and mental illnesses. These are discussed in section 4.3. “Housing and the duty to accommodate.”[36]

Disability (including mental illness)

The Code ground of disability is broadly interpreted. It protects people who are perceived to have disabilities and people with disabilities such as mental illnesses, physical disabilities, chemical sensitivities and a range of other conditions that expose people to unequal treatment in housing and other social areas. The protections in the Code overlap with the United Nations’ Convention on the Rights of Persons with Disabilities,[37] which requires signatories, including Canada, to take appropriate measures to ensure the independence and full participation of people with disabilities in housing. When people with disabilities are discriminated against, or excluded from housing, this leads to further exclusion, isolation and stereotyping – all of which can lead to institutionalization, homelessness and further discrimination.

Discriminatory advertising was a significant concern for persons with disabilities. Phrases in advertisements such as “suits a working person” may indicate that people who receive social assistance or are unable to work due to disabilities, or other Code grounds, are not welcome or need not apply. One participant in the consultation described what happened on two occasions when he called in response to such ads. On disclosing that he received benefits through the Ontario Disability Support Program (ODSP), one landlord said that he had made a mistake and the unit had already been rented and another implied that he was somehow unsuitable for the unit.

The Commission heard that, along with the lack of affordable housing, stigma and discrimination are major factors for some tenants with disabilities. For example, a third of people living with HIV/AIDS report that they have experienced discrimination in trying to access housing and 20% have experienced stigma.[38] The Commission also heard that people with disabilities may be screened out of tenant selection processes because of concerns about having to meet the duty to accommodate. In some cases, this is explicitly stated (KCLC). In other cases, the reasons for turning away a prospective tenant with a disability, such as hearing loss, are not said up front. But, it is easier to rent to a person who is perceived as not requiring accommodation (Canadian Hearing Society). Further issues relating to accommodation are discussed in section 4.3. “Housing and the duty to accommodate.”

Submissions and discussions about discrimination based on mental illness[39] formed a significant portion of this consultation. People with mental illnesses are protected under the Code ground of disability, and the principles set out in the Commission’s Policy and Guidelines on Disability and the Duty to Accommodate[40] apply. For example, the principles of respect for dignity, individualized accommodation and integration and full participation must be extended to people with mental illness in their housing.

People with mental illnesses may have difficulty acknowledging their own mental illness, and in some cases their disabilities may interfere with their ability to take care of themselves and their living spaces (PACE). Lack of knowledge of housing services and how to access them, intimidation and fear of being misunderstood can prevent people with mental illnesses from getting the help they need. These kinds of issues pose difficulties for housing providers, many of whom make their best efforts to comply with the Code.

While many people with mental illnesses successfully live in the community, the Commission heard that other people with mental illnesses rely on subsidized social housing. Supportive housing for people with mental illness in this context may require social work, nursing or intensive case management. However, concerns were raised about the lack of appropriate supportive housing for people with mental health disabilities and physical disabilities. It was also noted that the closure of inpatient hospital programs places people with mental illnesses and addictions in unsafe living conditions that interfere with their treatment and increase their risk of relapse.

The power imbalance that exists between landlords and tenants may be exacerbated where the tenant is a person with a mental illness. This, and prevailing stigma and misinformation, may lead to discrimination and harassment against people with mental illnesses. For example, the Commission heard of situations in which landlords have denied housing to people with mental illnesses once their mental health status is disclosed. In other cases, people with mental illnesses are subjected to additional requirements, such as providing a guarantor, that are not asked of other tenants, as a condition of being able to rent the unit. See also section 4.2 “Tenant screening practices.”

Once living in rental units, the Commission heard that people with mental illnesses continue to be at risk of discrimination and harassment. For example, some landlords may harass tenants or fail to address harassment between tenants, ignore valid complaints and permit substandard living conditions for people with mental illness due to negative attitudes and stereotypes. When landlords exercise their right to enter a tenant’s unit,[41] tenants with mental illness may experience harassment if the landlord imposes his or her own values on the tenant (Psychiatric Patients’ Advocacy Office – PPAO). Conversely, tenants with mental illnesses may feel hesitant to raise legitimate concerns about neglect or disrepair of their rental units because of financial and other constraints on their ability to move out.

People with mental illnesses combined with other grounds face particular challenges. For example, PPAO said that access to housing is “exponentially difficult” for a female with mental illness who receives social assistance and is a member of a religious minority. Access to appropriate supports and services is a major challenge for people with mental illness along with other disabilities, such as developmental disabilities or drug dependencies. Without such supports, they may be denied housing or evicted for not following housing rules (PACE).

Youth with mental illness face particular challenges due to the combination of their relative inexperience in the rental market and their disabilities. The Commission heard that landlords may be “overly watchful” or “unsympathetic” and that this can make it difficult for them to maintain their homes.

There is little tolerance or empathy for behaviours due to illness or mistakes due to inexperience. Landlords have been quick to evict, or to take advantage of their inexperience or lack of knowledge of their rights by simply ordering them to leave.” (CAS, London & Middlesex).

The Commission heard about the unique circumstances of Aboriginal people who also have mental illnesses or addictions.

The impact of colonization, the legacy of Indian Residential Schools and a number of resulting factors has led to higher rates of addictions, substance abuse and mental illness among the Aboriginal population. Aboriginal people who suffer from addictions and/or mental illness have a particular difficulty obtaining social and rental housing and are often at a great risk of homelessness (OFIFC).

People with mental illnesses who have been involved in the criminal justice system are at a particular disadvantage in obtaining and keeping suitable housing. Some people get stuck in the hospital or in substandard housing because they are unable to obtain housing from community agencies. The Commission heard that these barriers to housing persist even if it has been many years since the offence, and even if the Ontario Review Board has cleared the person to live in the community (PPAO).

Race and race-related grounds

Stereotypes and biases based on race and race-related grounds create significant barriers in housing. The Housing Help Centre indicated that “[p]eople of African descent have difficulty finding housing because landlords believe they are criminals or have too many children.” The Commission was told that other stereotypes exist, such as that African Canadian tenants are more likely to be involved with drugs or be violent and that racialized people are dirty. A recent decision of the Human Rights Tribunal of Ontario makes it clear that housing providers may be found liable for making, or failing to address, comments based on these kinds of discriminatory stereotypes, and for acting in accordance with such stereotypes.[42]

In the course of the consultation, the Commission heard a number of examples of situations in which racialized tenants experienced differential treatment because of race.[43] For example, a South Asian man who identifies his skin colour as Brown described his personal experience of discrimination attempting to view an apartment in a predominantly White area:

... [when] I called to book an appointment ... I used a Canadian accent and the superintendent gave me the interview and was quite cordial and even went the extra mile. Once I showed up for the viewing with my family, the superintendent was making various excuses which seemed quite unusual at that particular time. He claimed that the apartment was already rented out. Later in the week I had my White friend call and go in for a viewing and it turned out to be the same apartment that I was supposed to view. My White friend was successful in viewing and applying for the apartment.

This Ontarian’s experiences were reflected by others throughout the consultation. The Commission heard that in many cases, the apartment mysteriously becomes “rented,” “off the market,” in use by a family member or otherwise unavailable once a prospective tenant is identified as racialized. This kind of racial discrimination in the rental market may be detected through paired testing research.[44] However, CERA pointed out that race cases are difficult to prove because few landlords will say directly that they will not rent to someone based on their race, and that the evidence to show that this is the case is usually circumstantial. It also explained that racism can be difficult to identify because it is often systemic in nature – existing in the very structures of the housing market.

Some racialized tenants may experience discrimination and harassment while occupying rental housing. For example, tenants stated that their requests for repairs and upkeep of the rental unit would be denied while those of non-racialized tenants would be met.

The topic of “ghettoization” and the segregation of African Canadian people, or other racialized groups, in subsidized housing communities and in the private rental market generated much discussion. Some expressed the view that how social housing is allocated results in racialized people being segregated and stigmatized in certain social housing projects. Others responded that residents choose which neighbourhood or building they want to live in, with buildings mirroring the makeup of the communities they are in. OFIFC pinpointed discrimination against Aboriginal people and the lack of affordable housing as critical factors leading to ghettoization for this population. When seeking housing, the Commission was told that Aboriginal people are referred to specific housing providers and neighbourhoods where the quality of the housing is lower but landlords are willing to rent to them.

The Commission heard that landlords may deny Aboriginal people housing because of discriminatory stereotypes about them. For example, the Housing Help Centre, and other consultees, indicated that common stereotypes are that they drink or do drugs, that they are all on Ontario Works (OW), or that they will not pay their rent. The Commission also heard that Aboriginal women may be asked discriminatory questions such as whether they had children, if their family would be visiting or if they were on welfare.

Some Aboriginal people have difficulty accessing housing and related social services because of language barriers and a lack of translators, particularly in Northern Ontario. When applying for rental units in the private market, Aboriginal people may be asked to provide written references, a signed lease and significant deposits to secure the rental when these are not required of others. Further concerns were raised about harassment of Aboriginal tenants, particularly tenants who are Aboriginal women, in the form of racist remarks, stereotyping and sexual harassment by the landlord or neighbours. The lack of maintenance and repairs was also an issue for Aboriginal tenants.

Immigrants and newcomers are very marginalized in our society, with people who have newly arrived being more likely to be unemployed or under-employed, living in poverty and in rental accommodations (MTCSALC). Newcomers are particularly at risk of discrimination precisely because they are new and viewed as being unlikely to know their rights.

We have seen cases in which the same apartment building applies different rents to different tenants depending on how well the tenants know their own rights, or how new they are to Canada. As a result, immigrants are vulnerable to exploitation by unscrupulous landlords and are sometimes unable to avail themselves of legal remedy even when one exists (MTCSALC).

CERA indicated that it receives more calls from racialized newcomers compared to other newcomers, since they experience discrimination based on immigrant status as it intersects with race and other race-related characteristics. For example, the Commission heard that a landlord may require co-signors of all newcomers, but will only be concerned about “cooking smells” and “extended family” for South Asian or African newcomers. This results in additional barriers for racialized newcomers to overcome in trying to secure housing. Yet, it was noted that discrimination based on ancestry, place of origin, ethnic origin and citizenship is under-reported because these communities may not have the resources, financial or otherwise, to fight discrimination or are unaware of their legal rights. Families without permanent residency or refugee status fear deportation and are reluctant to raise complaints against landlords.

Newcomers and immigrants may be exposed to stereotypes – for example that they “won’t pay their rent, are sponging off the system, are terrorists, have too many children, or are violent” (Housing Help Centre). The most common forms of discrimination against newcomers and immigrants identified in the consultation are requirements that they obtain guarantors with substantial incomes or pre-pay 4 – 12 months’ rent as a condition of being able to rent a unit. These practices continue despite a decision of the Board of Inquiry that these policies disadvantage newcomers to Canada, discriminate because of citizenship and place of origin and are illegal under the Code.[45] See also section 4.2. “Tenant screening practices.”

Concerns were raised about section 5(i) of the Residential Tenancies Act (RTA) which provides that the RTA does not apply to “living accommodation whose occupant or occupants are required to share a bathroom or kitchen facility with the owner, the owner's spouse, child or parent or the spouse's child or parent, and where the owner, spouse, child or parent lives in the building in which the living accommodation is located.” Such units provide a valuable source of income for homeowners and affordable housing for tenants. However, the Commission heard that newcomers and immigrants tend to live in accommodation where they share facilities with the landlord and are disproportionately excluded from the protections in the RTA (MTCSALC). Similar concerns about the exemption in the Code for shared accommodation are discussed in section 4.5. “Enforcing housing rights.”

In the roundtable sessions, the Commission heard that when newcomers are charged more than others, the only way they can afford the rent is to have many members of an extended family live in what are often small housing units. This results in overcrowding and sometimes exposes them to further discrimination relating to occupancy policies. For example, CERA told the Commission that newcomers and refugees are often denied housing as a result of occupancy by-laws that are based on “Western” notions of family as including two parents and two children.

Sexual orientation

Prospective tenants may be asked invasive questions about the nature of their relationships or subjected to other inappropriate comments because of their sexual orientation. Consultees, such as the Housing Help Centre, emphasized that people who are lesbian, gay or bisexual may be refused housing because of homophobia. People should not have to hide their identities, relationships or sexual orientation just to be able to rent a unit. One consultee spoke about her experience of discrimination and homophobia when apartment hunting with her partner:

When together we are generally identifiable as a lesbian couple. As soon as we showed up, the landlord, who had been waiting on the sidewalk for us to arrive, didn't want to show the apartment to us. When I insisted on being shown the apartment, the landlord said we'd only want to stay there until we got married, anyway, and asked us if we had boyfriends. He went on to make a bunch of other negative comments about other issues, I think just to make us angry and leave. I was very upset and I wondered if this was why we hadn't heard back about other apartments we had applied for.

Submissions relating to sexual orientation and Code amendments are discussed in section 4.5. “Enforcing housing rights.”

Social assistance

Many housing providers appear to be unaware that receipt of social assistance is a prohibited ground of discrimination under the Code. This may result in the overt denial of housing to people because they are in receipt of benefits. It was reported that housing workers have difficulties finding landlords willing to rent to people on social assistance. The Commission also heard that advertisements for “working people only” or “professionals” are not uncommon and that this shows the extent to which discrimination against low-income households is normalized in our society. KCLC noted that discrimination against people on social assistance is so common that many do not complain about it and instead only mention it when seeking advice on other matters.

In some cases, housing providers’ hesitance to rent to people on social assistance may be based on misunderstandings or misinformation. For example, the Housing Help Centre discovered that landlord organizations in Ottawa were under the erroneous impression that people receiving public assistance are not able to obtain a security deposit for the last month’s rent deposit. In other cases, the Commission heard that this reluctance may be linked to discriminatory stereotypes about people who receive social assistance such as that they are unreliable, untrustworthy or unable to pay.

Landlords often try to justify discrimination against social assistance recipients on the basis of supposed financial risk – arguing that these tenants are more likely to default on their rent than those who are employed. There is, of course, no empirical evidence to support these claims. The majority of rental arrears tend to be the result of an unforeseen drop in income – caused by a loss of employment and sudden disability or caregiving responsibilities – rather than because of being in receipt of social assistance at the time of application (CERA).

Even where a landlord has initially agreed to rent a unit to a person on social assistance, this does not guarantee equal treatment. One legal clinic described a situation in which a landlord tried to back out of a rental agreement on finding out that the tenant was in receipt of social assistance and refused to provide the keys. In this case, the tenant had a signed application and receipt for rent deposit to prove that she was entitled to access. In other cases, social assistance recipients may be required to have social services agencies pay the landlord directly, regardless of the tenant’s proven ability to pay rent on time.

The Commission also heard that recipients of social assistance experience discrimination in housing because the level of the shelter allowance is too low to allow them to secure or maintain housing. Human rights concerns also arise from co-operatives’ practices around subsidies for people on social assistance and calculation of rent based on a percentage of total income or equivalent to the shelter component of the member’s social assistance. This issue has come to the attention of the Ontario Human Rights Commission through the Iness case[46] and other cases involving receipt of public assistance and accommodation. Submissions indicated that this is an area where greater clarification and guidance is necessary. See also section 5.3. “Poverty and inadequate income levels.”

According to the CMHA, Ontario, approximately one-third of clients on ODSP have a primary diagnosis of mental illness. These people are particularly vulnerable to negative stereotypes, such as being seen as “‘bums’ who chose to be idle at tax-payers’ expense” since their disability may not be evident (PACE).

People who are homeless and on social assistance face particular barriers in accessing housing. Consultees, including the Algoma Community Legal Clinic, indicated that when someone is staying in a shelter, landlords often do not call them back. If they do call back, when they find out the prospective tenant is staying at a shelter, they hang up. This phenomenon has been documented in relation to women staying in shelters for victims of violence.[47]

4.2. Tenant screening practices

When discussing tenant screening and legitimate reasons to restrict access to housing, it is important to keep in mind the context of housing as a fundamental human right in international covenants ratified by Canada.[48] Tenant selection practices must be consistent with this approach to housing and with an expansive and progressive interpretation of the protections in section 2 of the Code. This would include applying the duty to accommodate to the point of undue hardship when assessing and screening prospective tenants – see also section 4.3. “Housing and the duty to accommodate.” Where there are legitimate reasons for particular housing providers to deny housing to an individual, there still remains a societal and governmental obligation to make sure that this person is adequately housed.

Screening practices were a major concern for both tenants and landlords. Both tenants and housing providers noted that the Code does not clearly set out specific acceptable and unacceptable requirements and questions. Overall, there was no consensus between consultees about what were appropriate screening methods that would not infringe the Code. Tenants and their advocates were not in agreement as to what requirements were legitimate. Housing providers advocated for continuing current practices and guidance provided in section 21(3) and Regulation 290/98 as providing a suitable balance between human rights of tenants and the business needs of landlords.

Tenants and their advocates talked about difficulties posed by some of the most common practices used by landlords, housing providers and agencies hired to conduct such screening. The most common discriminatory barriers to access identified by tenants were minimum income requirements and rent-to-income ratios, credit and reference requirements and co-signor and guarantor requirements. The Commission was told that most often a combination of these requirements apply making it even more difficult for tenants to qualify for housing and increasing their likelihood of being under-housed, housed in units of poor quality or homeless. Tenant advocates expressed concern that the use of discriminatory practices seems to be the norm and that this brings the administration of justice into disrepute.

The Commission recognizes that housing providers have a legitimate interest in being able to use non-discriminatory tenant screening techniques to select tenants. The Landlord’s Self Help Centre noted that the process of screening prospective tenants is a fundamental business practice used to manage risks and stave off potential financial loss. A wide range of housing providers indicated that it was important for them to be able to assess whether tenants would be able to pay for rental units and keep them in good repair.

Some housing providers emphasized the importance of tenant screening based on non-discriminatory business practices since eviction proceedings for non-payment of rent take a number of months, during which time the landlord has to pay the mortgage, taxes, utilities and for repairs. Housing providers, including St. Joseph’s Care Group, noted that the cost of bad tenancies, such as rent arrears, LTB costs and potential unit damage can be significant. Social housing providers noted that they were more at risk of incurring such costs than private sector providers as they have less capacity to absorb these additional costs and lack the tools to mitigate these risks.

On the other hand, tenant advocates argued that tenant screening plays a small role in the overall viability of rental housing businesses[49] and that restricting a landlord’s ability to screen tenants would not impose undue hardship. It was also suggested that there may be a business argument for minimal screening as it would fill units more quickly and reduce vacancy rates.

Housing providers were also concerned that they could be viewed as having discriminated against someone because of a Code ground even if they have rejected the tenant because of legitimate reasons such as bad references or obviously inadequate income. Accordingly, there was an interest in having greater certainty about what is and is not allowed. As the CMHA, Ontario noted, the requirements must be flexible and balanced to protect the human rights of tenants while at the same time protecting landlords from potential hardships.

CERA/SRAC argued that there needs to be a shift in how housing providers screen prospective tenants – that in rental housing, landlords should not be able to deny a tenant an available unit unless they can show clear and compelling reason why the tenant should be disqualified instead of the tenant having to show that he/she qualifies. It was submitted that tenants should be accepted on a first come, first served basis – that where there are no legitimate reasons for disqualification, the first person to apply should be offered the unit, similar to applying for an essential service like telephone or hydro.

Finally, a number of consultees pointed out that there are many reasons why tenants may be in arrears,[50] a number of which cannot be predicted by screening methods commonly used by landlords. For example, the Federation of Metro Tenants’ Associations noted, “the reality is that no amount of credit checks, income verification or other business practices allowed by O. Reg 290/98 will prevent a tenant from losing their job, falling severely ill, or experiencing a family breakdown.”

Section 21(3) of the Code and Regulation 290/98

Under section 10 of the RTA, landlords are permitted to select prospective tenants based on the information prescribed in the regulations under the Code. Section 21(3) of the Code and Regulation 290/98 permit landlords to request income information from a prospective tenant only if the landlord also requests, and considers it with, credit references, rental history and credit checks.[51] “Income information” includes information about the amount, source and steadiness of a potential tenant’s income. All of these assessment tools must be used in a bona fide, meaningful and non-discriminatory fashion.[52]

For the most part, landlords and housing providers viewed the regulation as providing sufficient guidance on how to use credit checks and reference checks in a non-discriminatory manner. However, most tenant advocates indicated that both section 21(3) and the regulation itself are unclear and that this may result in discrimination. There was wide consensus among tenant advocates that the requirement that the landlord use the financial information along with other information is not sufficient to protect tenants against discrimination. This is illustrated by the following example:

... if a landlord can use a combination of financial information to screen a prospective tenant they could use the information to discriminate. If a landlord does a credit check and finds out that the tenant is on ODSP and has an infraction on the credit rating (e.g. paid a bill late) they could use that credit infraction to deny the tenant the rental property when it’s really because the landlord doesn’t want to rent to someone on ODSP (Housing Help Centre).

Income information is used by a majority of landlords to confirm a tenant’s identity and ability to pay rent. However, tenant advocates expressed concern that when information verifying income, such as a pay stub or social assistance stub, is requested, decisions may be made based on the source of the income rather than the amount of the income. For example, this information can be used discriminatorily to screen out people because they are on social assistance instead of working (Children’s Aid Society of Toronto – CAST). As is noted in section 5.3. “Poverty and inadequate income levels,” the shortfall between the shelter allowance on social assistance and the amount of money actually needed to pay for rent in Ontario may create a further incentive for housing providers to screen out tenants on social assistance based on income.

CERA/SRAC asserted that income information should not be used to disqualify prospective tenants, except in extreme circumstances such as where the information clearly indicates illegal activity or where the tenant states that he/she has no intention to pay. It was argued that where there is no history of rental default, it is reasonable to assume that an applicant will apply for an apartment at a rent he/she can pay. Finally, CERA/SRAC suggested that if the prospective tenant has no apparent income, landlords should be free to inquire as to where the tenant will be receiving funds to pay the rent, but an absence of income should not be used to deny a prospective tenant housing, except in extreme circumstances.

On the other hand, housing providers noted that it is very difficult for tenants to pay their rent if their other expenses are too high and they do not have adequate income. Some housing providers suggested that there must be a point at which a determination can legitimately be made that a unit is unaffordable for a particular applicant – for the benefit of both the tenant and the landlord.

How can a person pay a rent that is higher than their income? Accepting a tenant who is unable to pay the rent can lead to eviction, collection, bad credit rating and other consequences for the tenant far into the future (St. Joseph’s Care Group).

Minimum income requirements and rent-to-income ratios

Concerns have long existed about the use of minimum income requirements, such as that a tenant not pay more than 30% of his or her income on rent, and their discriminatory impact on people protected under the Code. The Commission’s position is that section 21(3) and Regulation 290/98 do not permit landlords to use minimum income requirements, income criteria or rent-to-income ratios.[53] Despite this, the Commission heard that these continue to be used by a range of landlord types. CERA/SRAC said that the use of minimum income criteria is more common among public, non-profit and co-operative housing providers because of an interest in having an “acceptable income mix.”

Key concerns about the use of minimum income criteria are that they have a systemic impact on Code-protected groups and do not accurately predict a tenant’s ability to pay the rent.[54] The Commission was told that many people from protected groups, including people with mental illnesses, will make the personal choice to pay 70 – 80% of their income on rent rather than the typical 20 – 30% rent-to-income ratio. In practical terms, the disparity between minimum wage or social assistance income and average rents across the province means that the majority of renters spend much more than 30% of their income on rent each month.

CERA/SRAC provided the following examples of the pitfalls of using a 30% rent-to-income rule:

  • a prospective tenant with a gross income of $900 per month would be denied an apartment that costs more than $300 per month
  • a single parent with a child and salary of $50,000 per year would be denied housing approximately 50% of the time as 30% of monthly income is around $1,250 per month and average rent for a two-bedroom apartment in Toronto is over $1,000 a month.

Social Insurance Numbers 

Some housing providers require prospective tenants to give their Social Insurance Number (SIN) on applications usually for the stated purpose of conducting a credit check. While this may be convenient, credit checks can be conducted by a landlord based on other information. Consultees noted that a person’s SIN is very private information, the disclosure of which makes tenants vulnerable to identity theft. Service Canada, a part of the federal government, specifically discourages private sector organizations, including landlords negotiating leases, from asking for a SIN.[55]

The CMHA, Ontario commented that people with mental illnesses often lose or have their SIN cards stolen during periods of homelessness, and that when a SIN is required, it puts them at risk of continued homelessness. CERA also noted that a SIN can identify that an applicant is a refugee, thereby increasing the likelihood of the household experiencing discrimination.

Police or criminal background record checks

Although record checks and background checks are not listed as permitted practices under section 21(3) of the Code and Regulation 290/98, the use of these screening tools was alleged to be fairly widespread, particularly among social housing providers.

In many cases, application forms and interviews include intrusive questions about a person’s criminal history as well as details of the nature of their charges and/or convictions. Some specialized housing providers refuse to house individuals based on this history, or require them to be placed under greater supervision, disguised as “support” (John Howard Society of Toronto).

Housing providers suggested that such checks are a reasonable way of weighing the risks posed by prospective tenants. Other consultees stated that the right to housing is so fundamental that it should not be set aside based on the idea that, just because a person has offended in the past, they may commit an offense in the future. It was pointed out that there are mechanisms available to the landlord to address actual illegal activity or the failure to pay rent, should either of these occur. Further, the argument was made that if landlords are legally permitted to inquire about the criminal history of prospective tenants, it would make it difficult to house people who have had any criminal involvement – a population that is already at heightened risk of homelessness. In many cases, the mere fact that a police record check is required discourages people with criminal records from applying for a unit and they will walk away instead of waiting to be turned down by the landlord.

Parkdale Community Legal Services raised the concern that police record checks adversely affect people with mental illnesses.[56] CERA/SRAC also noted that restricting access to housing based on a criminal record could result in a violation of the Code where the criminal activity was at least in part the result of a disability, such as an addiction, mental or cognitive disability. In these situations, the housing provider would be expected to accommodate the person unless it would amount to undue hardship. The Commission was pleased to hear that when housing providers have been advised of this, some have decided not to implement criminal record checks. See also “Criminal records and record of offences” in section 4.1 “Highlighting discrimination based on specific Code grounds.”

Rent deposits

The RTA allows housing providers to request a last month’s rent deposit.[57] FRPO indicated that this is the only type of security deposit a landlord is allowed to collect in Ontario and that is fair to tenants while serving as a legitimate business practice for housing providers. On the other hand, the Commission heard that this can result in the exclusion of low-income people, in particular people on social assistance, from housing. Algoma Community Legal Clinic said:

Individuals on OW/ODSP cannot get access to a community start-up and maintenance benefit (thereby a deposit) without a letter of intent from a landlord guaranteeing the apartment; however a landlord often will not guarantee the apartment without first getting a deposit. The end result is that OW/ODSP recipients are excluded from a vast number of available rental units.

In a meeting with newcomers receiving services from COSTI and throughout the consultation, the Commission heard about tenants being asked to pay exorbitant amounts of money as deposits to be able to rent units. In the most egregious cases, prospective tenants, many of whom are Aboriginal, new Canadians or permanent residents, were asked to pay up to 12 months rent in cash before occupancy.

Many clients are new to Canada and are not aware of their rights as a tenant. They feel obligated to comply and find it extremely tortuous to go through this pressure when they have to deal with difficulties in every aspect of their life. Sometimes newcomers have to empty their bank account and borrow money from relatives to meet this condition. If they do not find employment soon, which is often the case, they are forced to go on social assistance, which could be prevented had they been able to keep the money in the bank (Flemingdon Neighbourhood Services).

Co-signers, guarantors and requests for direct payments 

The Commission’s position is that it is appropriate for a housing provider to ask for a co-signer or guarantor if there are legitimate reasons for the request, such as a history of default on rent.[58] FRPO submitted that requests for guarantors are justified when there are concerns that a prospective tenant may not be able to pay the rent, money to pay the rent is coming from another person, there is a lack of tenancy history or an insufficient credit record, among other reasons.

The Commission heard from tenant advocates that guarantors are most often requested only because of a prospective tenant’s membership in a Code-protected group. The Commission heard that most commonly guarantors are required of lone mothers, newcomers and refugees, youth, people in receipt of public assistance, and persons who are more likely to have low incomes because of intersecting Code grounds, such as Aboriginal lone mothers. Child welfare may be asked to be a co-signer when youth leave care, even though the tenant has no prior rental history or evidence of arrears (CAST).

While some tenants may comply with such a requirement just to get housing, for others, this puts the rental unit out of reach. For example, many newcomers do not have any relatives or friends in Canada and are not able to provide a guarantor. The Commission heard that people with mental illnesses tend to have less contact with family and friends and are unable to find a guarantor or co-signer in the private market. Low-income applicants from equality seeking groups may not even know anyone with the minimum income required of a guarantor, such as when the landlord requires the guarantor to have an income of $100,000 or above.

It was also reported that a growing number of housing providers require rent payments direct from social services or another source of income regardless of the tenant’s proven ability to pay rent on time. This is often the case with social assistance recipients, especially newcomers (Hamilton Mountain Community Legal Clinic).

Credit checks 

The Commission was told that while many landlords rely on credit checks, this information is a poor proxy for ability to pay the rent in the future. Many consultees emphasized that clients may have a poor credit rating because they have prioritized paying their rent over other bills. Jessie’s Centre for Teenagers indicated that in some cases bad credit can itself be linked to Code grounds. Conversely, the Housing Help Centre noted that a tenant with a good credit rating could easily have been evicted or moved without notice, since these matters rarely end up in the Credit Bureau.

While credit check information can be used fairly, the Commission heard that the inflexible use of it may be a barrier to access for equality seeking groups including newcomers and refugees, young first-time renters, and women entering the rental market after a relationship breakdown. Similar to the process used by other essential service providers such as telephone and hydro, CERA/SRAC proposed that only negative credit checks/references that relate to a history of non-payment of rent (rather than other bills) should be considered and that the duty to accommodate should also apply.

Tenant insurance 

The Commission heard that some landlords require applicants to provide proof of annual apartment insurance, at an average cost of $30/month, before they will rent them a unit. As CAST pointed out, this requirement has an adverse impact on lower-income people, households on social assistance, poor single parents, youth and newcomer families. It also poses a financial barrier for Aboriginal people and members of racialized communities (CERA/SRAC).

Rental history and landlord references

Housing providers have a legitimate interest in knowing if the applicant pays their rent on time and whether they have a good history of tenant behaviour. However, tenant advocates pointed out that newcomers, refugees, young first-time renters, women entering the rental market after relationship breakdown and homeless people may not have landlord references. Similarly, Aboriginal people moving from a reserve to an urban area may not be in a position to provide a reference from a private-sector landlord because of the ways that housing can be owned and allocated on a reserve. It was submitted that the absence of any rental history should not be treated as equivalent to a poor rental history.

In some cases, references are viewed as being unsuitable because of the nature of the housing previously occupied. When landlords refuse to accept tenants whose only references are from rooming houses, the Commission was told that this has a disproportionate impact on young people and people in receipt of public assistance.

In some cases, poor landlord references may be linked to Code grounds such as family status or disability and a failure to accommodate. For example, a previous landlord may provide a negative reference because of children’s reasonable noise or behaviour linked to a mental disability. While some consultees suggested that asking questions about a person’s history of evictions might be appropriate, others noted that people with mental illnesses are at a greater risk of being screened out of selection processes in which eviction history is one of the criteria used to assess suitability as a tenant. The Commission heard that people with mental illnesses are more likely to be evicted because of a lack of accommodation by housing providers, and because of difficulties advocating for themselves in eviction proceedings.

Concerns were also expressed about requirements relating to length of residency as a systemic barrier to access. OFIFC said that many Aboriginal people are more transient than non-Aboriginal people, migrating between urban and reserve communities because of employment, family, access to health care and discrimination. For these reasons, refusal to rent based on having a short length of residency may act as a systemic barrier to access for Aboriginal people.

Rent arrears 

The issue of rent arrears as a barrier to access was raised in relation to rent-geared-to-income (RGI) housing. One of the eligibility criteria for receipt of RGI is that the person not owe money to a social housing provider (MMAH). The Commission was told by tenant advocates that some social housing providers require a “clean” 12-month rental record and that others will not consider individuals for housing until all rent arrears or fees for damages to previous rental units have been paid. When local community organizations try to advocate for low-income prospective tenants and work out plans to pay off arrears, sometimes these efforts are not welcome as the housing provider would rather rent to someone else.

Confirmation of employment

The Commission heard that many housing providers in the private rental market prefer to hire “working people.” Some housing providers require tenants to have been employed full-time with one employer for a certain period of time.[59] Consultees indicated that requirements to provide employment references may be a tool used to screen out people who are viewed as undesirable because of poverty and/or Code grounds. The Commission was told that the following groups protected under the Code are negatively affected when they are asked to confirm employment:

  • people with mental illnesses or other disabilities who cannot work
  • people receiving social assistance benefits from ODSP or OW
  • older people receiving benefits from the Canada Pension Plan
  • Aboriginal people who are seasonally employed, work on contract or are hunters deriving or supplementing their sustenance in this way
  • people who are unable to work due to caregiving responsibilities
  • young people and students who are more likely to have short-term or part-time employment and shorter employment histories.

In practical terms, it was noted that while employment verification can provide information about a tenant’s current ability to pay rent, there is no guarantee that the applicant will not be laid off or unable to work in the future. In addition, employment income may not always keep pace with rent increases for long term tenants (Housing Help Centre).

Assurances and contracts that are not required of other tenants

The Commission was told that some housing providers may require that tenants with mental illnesses provide verbal or written assurances that they will take psychiatric medications or seek treatment as a condition of obtaining rental housing (PPAO). As well, tenants in receipt of subsidies may be asked to sign contracts requiring them to disclose to their neighbours what subsidies they are receiving so that overpayments can be reported. These kinds of requirements could infringe the dignity and rights of tenants protected under the Code.

Occupancy rules

In this consultation, and the Commission’s earlier consultation on Family Status, the Commission heard about the discriminatory impact of arbitrary occupancy rules on families with children. For example, denying a three bedroom apartment to a single mother of three children because the “Canadian standard” was that such an apartment should be rented to a couple with two children was found to be discriminatory.[60] Such policies pose a particular barrier for “non-Western” or extended families. Occupancy rules about the sharing of bedrooms by children of opposite sexes also act as a discriminatory barrier to families in accessing appropriate rental housing.

As was noted in the Commission’s Policy and Guidelines on Family Status, occupancy policies must be based on bona fide requirements.[61] However, the Commission was told that many occupancy policies appear to be based on housing providers’ personal assumptions and preferences rather than municipal health and safety or over-crowding by-laws.

While most families would like to rent apartments that include bedrooms for each child, the reality across Ontario is that larger apartments are rare and expensive. Many families simply cannot find and/or afford these apartments. Arbitrary occupancy policies force families with children to rent marginal, substandard housing, stay in shelters or double-up with family or friends for extended periods of time. In the absence of legitimate health or safety concerns, it should be the responsibility of families – not landlords – to determine the size of apartment that is most appropriate for their needs (CERA/SRAC).

The Commission heard that occupancy policies used by social housing providers or co-operatives pose particular problems, because they are written down in policies and by-laws that are not easy to modify and are sometimes based on government guidelines. For example, Regulation 298/01 under the SHRA sets out the standard that there has to be one bedroom for every two members of the household.[62] The National Occupancy Standard (NOS) developed by the Canada Mortgage and Housing Corporation, suggests that parents should have a bedroom separate from their children and opposite sex children above age five should not share a bedroom.[63] It may be discriminatory for a housing provider in Ontario to apply and enforce such policies if they do not meet the tests for bona fide requirements established by the Supreme Court of Canada in Meiorin.[64] For example, if social housing providers identify barriers that are imposed on them by government (or others) then they have an obligation to follow up with government to seek changes or the removal of those barriers:[65] The Commission is also of the view that government, in turn, has an obligation to work with the provider to remove those barriers.

The Commission was told that when these kinds of policies are applied inflexibly, low-income families may be denied access to subsidized housing altogether. For example, a lone mother with a young son may be disqualified from a one-bedroom apartment because of an occupancy policy, even though there is a very long wait list for a two-bedroom apartment.

4.3. Housing and the duty to accommodate

The duty to accommodate to the point of undue hardship applies to housing providers and other responsible parties, such as governments or agencies that provide housing-related services. The obligation of government to meet its own duty to accommodate does not relieve housing providers and others from fulfilling their respective duties under the Code. Tenants bear the responsibility, where they are able, to make their needs known and to participate in the accommodation process. Accommodation must be provided in a manner that respects dignity, that is individualized and that provides for the integration and full participation of people protected under the Code. Where the most appropriate accommodation cannot be provided, other options in the continuum such as phased-in, interim or alternative accommodation must be implemented. The Commission’s position has long been that only the three factors set out in subsection 17(2) of the Code may be considered in assessing undue hardship: cost, outside sources of funding, and health and safety.[66]

There was considerable consensus among housing providers, housing advocates, tenants and other consultees about the lack of awareness of the duty to accommodate and its application in the housing context. Many tenant advocates said that housing providers need more help to understand that accommodation is not just a good idea – it is a legal responsibility – and to learn how to fulfill this requirement. FRPO requested that the Commission develop policy and guidelines dealing with accommodation and assessing undue hardship in the housing context.

Accommodation needs may be related to a range of Code grounds including family status, creed (religion), sex, and race and race-related grounds. However, most of the discussion on accommodation focussed on disability, and in particular mental illness.

Accommodation in tenant screening and during tenancy

Both housing providers and tenant advocates described challenges arising from the expectation that tenants identify accommodation needs. Housing providers felt that in many cases, accommodation needs are not clearly stated until an eviction hearing has commenced, making it difficult for them to respond in a proactive manner. On the other hand, the Algoma Community Legal Clinic expressed frustration that landlords may require tenants to officially notify them of an illness to receive accommodation, even if the nature of the tenant’s disability is obvious.

In terms of tenant screening, there are circumstances in which the duty to accommodate might require a housing provider to be flexible in considering credit history or a history of transient occupancy of rental housing, subject to the undue hardship standard. For example, CERA/SRAC proposed that it would be legitimate for a rental history of non-payment of rent to be considered but that before disqualifying a prospective tenant on this basis, the housing provider should have an obligation to ask the tenant about the circumstance surrounding the non-payment, ask whether the situation has changed and work with the tenant to reduce the risk of future default.

Consultees described common accommodations during tenancy, including ensuring wheelchair access into the building, installing alerting systems for persons with low hearing, or changing policies on behaviour expectations (ARCH). In co-operative housing, accommodation may include excusing a person with a disability from requirements to participate fully in the running of the co-op, such as shovelling snow, cutting grass or attending meetings.

The Canadian Hearing Society described problems in accommodation arising from a lack of respect for culturally deaf, oral deaf, deafened or hard of hearing tenants. Examples include housing providers or landlords who do not lift their heads or voices when speaking, and conversations between family and professionals that take place as if the deaf or hard of hearing person were not present.

The Commission heard that people with intellectual disabilities living in certain group homes[67] may be transferred without their consent, not allowed to make individual choices about what to wear or eat, and denied the right to leave the home, receive calls or attend events. The Advocacy Centre for the Elderly (ACE) told the Commission about the following practices in some retirement homes that appear to be inconsistent with the duty to accommodate older persons who rely on mobility aids:

  • only residents who do not require mobility devices such as wheelchairs or scooters are welcome in the communal dining areas
  • if residents cannot enter the dining area on their own (or with a walker), they must eat their meals in their room – and sometimes they must pay an extra fee for “tray service” for these meals to be delivered
  • there are policies providing that no motorized vehicles are permitted in the common areas of a retirement home, which limits access to the elevators, the front door and the dining area
  • these policies are applied even if the resident is able to demonstrate that he or she is able to safely operate the wheelchair.

A number of consultees described the need for modifications to units for older tenants with disabilities to allow them to continue to live in their units independently. When such accommodations are not provided, tenants are at risk of eviction due to perceived health and safety concerns. The Commission heard that the failure to accommodate, combined with the lack of accessible housing alternatives, may mean that these tenants cannot live independently and are forced to live with family or in nursing/care homes, in violation of the Code and of human dignity. Housing providers, particularly those providing specialized housing for older people, expressed significant concern about their ability to comply with Code requirements when many of their tenants simultaneously require significant modifications to their units to enable them to “age in place.”

Smoking 

The topic of smoking generated much discussion in the consultation. Since 2004, smoking has been prohibited in common areas of apartment buildings and other areas.[68] MMAH indicated that the RTA does not specifically address the issue of smoking in rental units, though there are options to deal with smoking when it interferes with other tenants’ reasonable enjoyment of the premises.

Exposure to second-hand smoke can have serious impacts on people’s health, particularly where they have medical conditions such as allergies, chemical sensitivities and other respiratory ailments. Where people live in close proximity to one another, travel of second-hand smoke can cause serious concern for people with certain disabilities and trigger a need for accommodation. For example, in a recent BC case, a woman who has hyper-reactive airway disease, caused and exacerbated by second-hand smoke, launched a human rights complaint against the Greater Vancouver Housing Corporation because of its alleged failure to provide her with smoke-free public housing.[69]

On the other hand, the Commission heard that low-income people may be adversely affected by no-smoking rules.[70] In addition, there appears to be a strong link between smoking and mental health issues. The PPAO estimates that 70 to 80% of psychiatric hospital patients smoke compared to 22% of the adult population in Canada. Medical research has shown that people with mental illness are about twice as likely to smoke as other persons.[71] Similarly, people with physical disabilities may smoke cigarettes or marijuana for symptom control.

The Commission’s Policy on Drug and Alcohol Testing gives examples of when a substance dependency may be recognized as a disability. Generally, the substance abuse or addiction would have to be severe, leading to maladaptive patterns of behaviour or significant distress.[72] However, there are conflicting decisions as to whether or not smoking can be considered a disability and whether allowing people to smoke is an appropriate accommodation.[73]

The Commission received several submissions from landlords and housing providers that cited smoking as a major source of tension when balancing the rights of some of their tenants with the rights of others. If smoking is unilaterally prohibited in rental housing, landlords and housing providers risk inadvertently excluding people protected by the Code from accessing affordable housing, resulting in fewer housing options for individuals who are already marginalized. At the same time, allowing smoking may negatively affect the health of other tenants, including people with disabilities. An assessment of such health and safety risks would be an essential element of an undue hardship analysis.[74]

Evictions and the duty to accommodate

A major theme in the consultation was the link between evictions and disabilities, including mental illness. This risk of eviction is linked to section 64(1) of the RTA, which allows a landlord to give a notice of termination of tenancy if the conduct of a tenant, another occupant of the rental unit, or a person permitted in the residential complex by the tenant is such that it “substantially interferes” with the reasonable enjoyment of the residential complex for all usual purposes by the landlord or another tenant. MMAH noted that the LTB must consider a tenant’s circumstance for eviction applications – for example if the tenant is in the hospital and cannot pay the rent. Consultees noted that when the tenant’s behaviour can be linked to Code grounds, a duty to accommodate may arise and no eviction order should be issued unless a finding of undue hardship under the Code is made.[75]

The Commission heard about many situations in which tenants were targeted for eviction, at least partly because of their disabilities. For example, in one case, a tenant using a walker who made a thumping noise when he walked was threatened with eviction even though the housing provider did not provide carpeting to minimize disturbance to the tenants below. The Commission also heard that landlords may use complaints about yelling, swearing and other sounds as an opportunity to get rid of a “difficult” tenant, even if the noises are a result of the tenant’s mental illness. In some cases, a landlord’s decision to start eviction proceedings may be based on or supported by the discriminatory views of other tenants. Threats of evictions and eviction proceedings can be very stressful for tenants, including people with mental illnesses.

One client’s disability was exacerbated by stress to such an extent that she was hospitalized for six weeks, and voluntarily moved from a rental unit she had maintained for many years because she could not cope with the landlord’s pending eviction proceeding (KCLC).

The Community Legal Clinic of York Region noted that much of the alleged “substantial interference” could be remedied (and eviction proceedings prevented) if landlords proactively explored options to accommodate the tenant’s disabilities, such as more effective soundproofing of rental units. However, a range of organizations representing tenants noted that some landlords prefer to eliminate the “problem” by evicting the tenant rather than working with the tenant and community agencies to accommodate the person or improve any behavioural issues.

Landlords and housing providers said that they feel pressure to balance human rights issues with their ability to conduct business and other tenants’ rights.
Landlords described feeling that they had no choice but to pursue eviction procedures when one person infringes on another’s rights to reasonable enjoyment of their premises without interference.

Ontario landlords are duty bound under the Residential Tenancies Act to take action to ensure all tenants have reasonable enjoyment of the rented premises. If unable to resolve issues, the landlord may have no choice other than seeking termination of the tenancy at the Landlord and Tenant Board, as the tenants who have been deprived from their reasonable use and enjoyment have a variety of options to enforce their rights (The Landlord Self-Help Centre).

Even where housing providers understand the duty to accommodate, they may be challenged in applying the Code because of other interests, such as the views of the other tenants, that may not amount to undue hardship. Unlike section 10 of the RTA which specifically refers to the Code requirements regarding selection practices, landlords may be unaware that the Code also applies to the assessment under section 64(1) of whether the behaviour of a mentally ill tenant or a family with multiple children is substantially interfering with the reasonable enjoyment of the residential complex.

From the social housing provider perspective, accommodating mental illness is a significant challenge, particularly where many of the tenants have mental illnesses and one tenant’s behaviour infringes the rights of other Code-protected tenants. The Service Manager Housing Network (SMHN) indicated that there is pressure to sustain tenancies even if they cause significant disruption to the housing community. There was a strong perception among social housing providers that they are held to a higher standard in these kinds of circumstances because they may be viewed as “housing of last resort.”

Recognizing that our tenants have fewer options, the Landlord and Tenant Board, for example, looks to social housing providers to go to greater lengths to accommodate the needs of tenants. But in the absence of adequate resources, housing providers are rightfully concerned about their ability to meet the people’s needs without compromising the needs of other households. Housing providers often find themselves forced to choose between the rights of individuals and the rights of the larger community. Ironically, the more legalized the issues become, the more difficult the management challenge is and the more resources are required to do a good job (OFCMHAP).

Tenant advocates raised concerns about accommodation and the criteria for eviction and eviction processes under the RTA for persons living in care homes.[76] Section 148(1) states that a landlord may apply to the LTB for an order transferring a tenant out of a care home and evicting the tenant if the tenant no longer requires the level of care provided by the landlord or the tenant requires a level of care that the landlord is not able to provide. An eviction order can only be made if appropriate alternate accommodation (housing) is available, and the level of care that the landlord is able to provide when combined with the community-based services provided to the tenant in the care home cannot meet the tenant's care needs (section 148(2)). ARCH Disability Law Centre (ARCH) pointed out that the “alternate accommodation” is most often a long-term care facility, a placement that does not promote inclusion and independence.

The Commission was told by consultees, including the Advocacy Centre for the Elderly, that section 148 of the RTA has a negative and disproportionate impact on persons with illnesses and disabilities in the following ways:

  • the criteria for eviction treat tenants, who live in care homes because of age and/or disability, differently from other tenants
  • a care home tenant’s security of tenure is inappropriately made contingent on his or her state of health
  • the process set out in the RTA for care home evictions provides less protections to vulnerable older people with disabilities living in care homes, when more protections are in fact warranted. For example:
  • the only recourse through which a care home tenant can dispute the eviction is mandatory mediation, which can lead to poor outcomes for tenants when adequate steps are not taken to address power imbalances
  • many care home tenants have mobility problems, cognitive difficulties and other impairments, yet they have less time than other tenants to seek advice and to obtain legal assistance
  • there are other means of addressing situations in which a care home tenant becomes disruptive or cognitively impaired with the consequence that he or she is a threat to the safety of others in the building. For example, other provisions of the RTA can be used to evict the tenant and the Mental Health Act may be used in extreme situations if a tenant develops a mental health problem and is a serious danger to him/herself or others as a consequence
  • threats of eviction under this section could be used by housing providers to make care home tenants more compliant and prevent them from raising legitimate complaints.

Section 83 of the RTA provides discretionary powers to the Landlord and Tenant Board (LTB) when dealing with an application for eviction. While it has the power, under subsection 83(1)(a), to refuse to grant such an application, the mechanisms by which such discretion is exercised may not be clear. For example, the Commission heard that in some cases, when tenants fail to appear for a hearing, the LTB asks the landlord if there are circumstances affecting the tenant that indicate that tenancy should not be terminated, even though it is the landlord who is seeking eviction. The Commission was also told that the LTB may not always apply the Code principles of the duty to accommodate to the point of undue hardship when considering a landlord’s application to evict a tenant for reasons relating to a Code ground.

Tenants with mental illnesses are vulnerable to eviction and homelessness when they are unable to effectively assert their rights under the RTA before the LTB. Consultees described the following challenges faced by tenants with mental illnesses before the LTB that can result in adverse outcomes for them:

  • they may not understand the legal issues at stake in a hearing at the LTB
  • there is no provision to appoint a litigation guardian or legal case worker to act on the behalf of a tenant who is mentally incapable of filing an application and pursuing a remedy at the Board. This interferes with the ability of tenants with mental illnesses to enforce their rights, including defending themselves against eviction
  • tenants may not properly recollect events, understand the legal process, remember to attend at hearings or retain legal representation until after an eviction order has been enforced.

Consultees pointed out that the LTB has information sheets on the RTA in many languages posted on its website, but has a policy of not providing language interpretation for litigants who speak neither French nor English. While it allows litigants to bring their own interpreters, the LTB does not pay interpretation costs. The Commission heard that this poses a barrier to access and justice for low-income tenants, such as newcomers, who need assistance in languages other than English and French. Although not raised in the consultation, similar concerns about accessibility could arise in the context of any adjudicative body’s policies and procedures. The Commission was told that the language barrier at the LTB, combined with a bias in favour of the landlord, can result in unfair treatment of some tenants and other serious consequences. As one legal clinic noted:

It is far less likely that such a tenant, without representation and an interpreter, will be able to adequately present his/her case. The consequences can be serious: the loss of a home. Yet the Board is committed to hearing cases as expeditiously as possible. This means that the Member may well proceed with a case if the tenant speaks a little English/French even through the tenant cannot fully understand and participate meaningfully in the hearing.

Organizations such as the CHS and ARCH provided the following examples of problems with accommodating people with disabilities at the LTB:

  • denying the request of a person with a visual disability for documents in an alternate format
  • denying an adjournment based on an individual’s disability
  • denying a request for a hearing by videoconference or telephone when a person could not get to a hearing because of his or her disability
  • failing to ensure that a tenant’s accommodation needs during the hearing process are met
  • lack of access to sign language and other services such as real-time captioners, computerized notetakers and assistive listening devices, for people with hearing impairments.

Application fees for tenants to get their matters before the LTB were also raised as a barrier to access for low-income tenants, especially people on social assistance. For example, tenants who have been overcharged or want to get a reduction in rent because of disrepair must pay $45. Parkdale Community Legal Services noted that this fee discourages tenants from making applications. This results in them being effectively denied the remedies they are entitled to and the landlord’s behaviour remaining unchallenged.

Accommodation and the Social Housing Reform Act

The Social Housing Reform Act (“SHRA”) was amended in July 2007. The Ministry of Municipal Affairs and Housing (MMAH ) indicated that the objectives of the amendments were to facilitate more equitable and transparent treatment of tenants. These amendments included:

  • exempting, when considering financial eligibility, certain assets held in trust for a member of a household with a disability
  • creating more consistency in the treatment of income for the purposes of calculating RGI subsidies
  • amending eligibility rules so that households that have made reasonable efforts to obtain repayment agreements for rents owed in prior social housing tenancies are eligible for assistance
  • changing internal review process to require disclosure to the household of information that led to the decision being reviewed
  • strengthening the Special Priority Policy (SPP), which provides priority access to social housing for victims of abuse.

Concerns were raised about the lack of individualized accommodation in, and the resulting adverse impact of, the application process for supportive housing on people with disabilities who have difficulties attending appointments, completing paper work and attending interviews (ARCH). The Commission also heard concerns about social housing providers giving prospective tenants applications that were not in their first language, or in the case of people with disabilities, in formats that were inaccessible. Further concerns were raised that extended family and kinship networks may not be taken into account when determining eligibility for housing of Aboriginal people.

Social housing providers noted that they are subject to funding provisions, legislation and administrative requirements established by federal, provincial and municipal governments that may constrain their ability to meet their legal obligation to accommodate. For example, some indicated that the SHRA is too prescriptive in that it contains many rules regarding funding, managing the waiting list and access to housing, including the selection of households, special priority programs, occupancy standards, and household income limits. SMHN noted that the SHRA does not allow social housing providers the flexibility to modify their procedures or raise the revenues needed to address tenants’ needs.

In this context, the Commission was told by tenant advocates that the lives of tenants are frequently scrutinized to determine compliance with administrative policies, such as those relating to overnight guests or reporting of income, with the distinct possibility that they could lose their homes over fairly minor infractions of the rules. Underlying this was said to be a “culture of contempt” in which tenants of subsidized housing are being treated as “less worthy, less important, less responsible and less honest than others in society, simply because they are poor and in need of a housing subsidy” (ACTO).

The ability to live independently with or without supports is an eligibility requirement for RGI assistance under the SHRA (MMAH). A person is considered to be able to live independently if he or she is able to perform the normal essential duties of day-to-day living or can do so with the aid of support services. However, numerous submissions pointed out that the SHRA does not direct how this is to be determined or what factors are to be taken into account. The individual must demonstrate that these support services will be provided to him or her when they are required.[77] A range of consultees, including the SMHN indicated that adequate funding for such services must be provided, when required, for social housing to be a viable option for people who require support to enter into and maintain tenancies. A number of submissions indicated that this requirement combined with the loss of homecare can result in the loss of housing or ineligibility for housing under the SHRA. These concerns also apply to co-operatives regulated under the SHRA.[78]

Prior to its reform, the SHRA stated that tenants in social housing were required to report any changes in income within 10 days. The SMHN noted that, following amendments to the SHRA in 2007, households are now required to report a change in income or household size if the change would result in an increase in the RGI rent payable by it, or would make the household no longer eligible for the unit if occupied. The amendments allow service managers, who make decisions on a household’s eligibility for a unit, to use their discretion to extend the 10-day timeline. They also have discretion to not make a person ineligible, if they fail to report certain changes (MMAH ). However, consultees raised concerns about the lack of guidance for service managers on how and when the discretion is to be exercised. The Commission received many submissions detailing how the 10-day reporting deadline can be extremely problematic for people from marginalized groups, and how strict adherence to these guidelines and a failure to accommodate Code needs can result in tenants losing their subsidy.

The Commission heard that people with disabilities, lone-support parents, and persons with English as their second language face barriers in meeting these reporting deadlines, and yet this may not be considered by housing providers (Community Legal Clinic of York Region). A failure to exercise discretion means that all of these groups are less likely to have equal access (Housing Help Centre). Despite this, there is a shortage of services to assist tenants in understanding and responding to requests for documentation within the timelines (North Peel & Dufferin Community Legal Services).

The Commission heard that housing providers may not apply the duty to accommodate to reporting requirements and the exercise of the discretion. For example, a tenant with a mental disability might be given a one-time extension to the deadline but strictly warned that they must meet the deadline the next time. In other cases, the Commission heard that tenants may be penalized for seeking accommodation relating to reporting deadlines. For example, by requesting this form of accommodation, a person may be viewed by a housing provider as being incapable of living independently as is required under the SHRA (North Peel & Dufferin Community Legal Services).

The Commission heard that the consequences of not meeting the reporting deadlines, even when linked to a Code-need for accommodation, can be disastrous for the tenant. Rather than agreeing to exercise discretion and extend the timelines for reporting, a housing provider may proceed to give notice of cancellation of subsidy, which requires the tenant to start an appeal to the service manager. A wide range of tenant advocates told the Commission that the service manager appeal is a cursory review of the paper record, including written submissions. The process of requiring written submissions disadvantages tenants for whom English is not a first language and tenants with disabilities, especially since findings of credibility may be made based on these submissions alone (North Peel & Dufferin Community Legal Services).

SMHN noted that there are variations in processes for internal review but that, in accordance with the SHRA, no person who participated in making the original decision is involved in the internal review of that decision. Tenant advocates said that the internal review is not an independent review of whether the decision to cancel the subsidy was correct, and that in many cases, the original decision is upheld. A legal clinic provided this example:

My clients were both developmentally delayed, married and have two children. They both had part-time jobs in addition to receiving Ontario Works benefits. They have a Child & Family Services Worker who assists them with correspondence and other paperwork. She advised them to report their income to Ontario Works and assumed this information would be shared with the municipal housing provider, because they are in the same offices. The information was indeed shared, however the tenant’s subsidy was removed because the information was not given directly to the housing provider. When this was explained by the worker at the “internal review” stage, the decision was not changed and the subsidy was lost.

As the Commission heard from so many, including the Community Legal Clinic of York Region, a tenant’s loss of subsidy usually leads to eviction for non-payment of rent because they cannot afford to pay the market rent. Consultees explained that under the RTA, applications relating to rent arrears must be decided by the LTB before an eviction order may be made (section 74(3)(a)). However, the RTA prevents the LTB from making or reviewing decisions concerning determinations of eligibility for subsidy or other prescribed assistance (section 203). Despite the serious consequences of the loss of subsidy and the connection to eviction proceedings before the LTB, the only way to get an independent review of the subsidy decision is for the tenant to file an application for judicial review in the courts – an option that may not be feasible for most low-income tenants (Hamilton Mountain Community and Legal Services).

Once evicted, tenants often stay at homeless shelters while looking for new housing. For vulnerable tenants with disabilities and/or language barriers, or seniors or sole-support parents, the loss of affordable housing is disastrous as these people already face significant barriers to finding housing in the private market and the wait time for subsidized housing is very lengthy (North Peel & Dufferin Community Legal Services).

MMAH noted that recent amendments have enhanced the internal review provisions by requiring disclosure to the household of information that led to the decision being reviewed, but noted that this has been a major concern for tenant advocates and that it is continuing to work with partners and stakeholders on this issue.

Submissions relating to the undue hardship standard

Tenant advocates expressed the view that the balance struck in the Code itself is reasonable in addressing the needs of the landlord and the tenant in situations where accommodation is required. For example, Code-protected tenants may still face eviction if the landlord can prove undue hardship based on costs or the health and safety risks to either the landlord or the other tenants in the complex where the tenant is housed.

Many landlords and service providers said that the standard of undue hardship is too high and too onerous, especially where buildings must be modified to appropriately accommodate people’s needs. Housing providers, including the Toronto Community Housing Corporation (TCHC), drew the Commission’s attention to situations in which the impact of combined requests for accommodation from multiple tenants might amount to undue hardship. An example is where a large proportion of tenants simultaneously require modifications to allow them to remain in their social housing units.
For the most part, housing provider submissions and discussions at the roundtables focussed on cost and funding. Social housing providers stated that accommodation requirements cannot be implemented without straining resources for other needs, such as building repair and maintenance (SMHN), and that generally, housing providers are not given the resources by the government to meet extensive needs for accommodation (ONPHA). A wide range of consultees expressed the view that governments and funders also have roles to play in meeting the duty to accommodate.

The legislation and program rules governing social housing limit the funding available to housing providers to meet extraordinary costs. The duty to accommodate needs to include those who draft policy and procedures. Funders should, and regularly do, provide additional funding to meet the costs of accommodating the special needs of those with addiction and mental health issues (OFCMAP).

More generally, private housing providers argued that accommodation is a societal responsibility and that the costs should not be borne by either landlords or tenants, instead government should defray the costs. Without this, the high costs of accommodation could translate into higher rents for all other tenants, with the burden being placed on low-income people (Eastern Ontario Landlord Organization – EOLO). The Landlord’s Self Help Centre indicated that for its clientele, small scale landlords in the secondary rental market,[79] the costs of renovation, legal fees and loss of rent on top of an already unstable housing stock could make the residential rental business a less attractive option.

Even tenant advocates were pragmatic about the difficulties that accommodation requirements pose for housing providers, and supported housing providers’ calls for government assistance in meeting their respective duties to accommodate:

Housing providers face financial difficulties when having to purchase devices, or conduct renovations to include our target group (i.e. persons with disabilities, including deaf people and individuals with hearing loss). The government needs to acknowledge these sometimes extensive costs and endeavours and create a funding body to apply to for assistance with these costs (CHS).

4.4.Raising awareness

Confusion about the Code and requirements under the RTA  

The Commission heard that while some provisions of the Residential Tenancies Act (RTA) overlap with those in the Code, there are many areas in which the RTA may be interpreted as allowing something that is contrary to the Code. For example, consultees noted that housing providers may interpret the RTA as permitting them to advertise “no pets” or offer “adult only” buildings while restrictions of this nature would be impermissible under the Code.
  
It is clear that landlords and housing providers may be unaware that the Code has primacy over the RTA and that it is not enough for them to meet only the requirements in the RTA. This is even though the RTA itself reflects the primacy of the Code in section 3(4): “If a provision of this Act conflicts with a provision of another Act, other than the Human Rights Code, the provision of this Act applies. 2006, c. 17, s. 3 (4).”  

Education and public awareness  

A major theme throughout the consultation was the need for further education across the province on human rights in rental housing and the corresponding obligations. It is clear that there is a broad need for human rights education – there is much work to be done across the province to create a culture of human rights and bring home a practical understanding of human rights.
 
Given the low proportion of human rights claims in housing, tenant advocates argued for measures by the Commission to increase tenants’ awareness of their rights and enforcement mechanisms. Many submissions also dealt with the need for training for adjudicators, decision-makers and government bodies on international obligations and the potential application of the Code to decisions made under other statutes and policies, practices or statutes that may be developed. Other submissions noted the need to bring an awareness of the Code and discriminatory impacts of NIMBYism to municipal decision-makers, local homeowner and business associations and individuals in communities.   
 
Consultees recognized that public education of this magnitude and scope is not a task that can be conducted by the Commission alone. Most consultees saw partnership opportunities between the Commission and local community organizations, including housing provider associations, tenant organizations and government ministries. Consultees also suggested that the Commission provide additional resources, such as training materials or resource guides, to support community organizations in their public education work. 
A number of consultees spoke about the need for the Commission to take on an expanded role in the community. Suggestions included more proactive enforcement, public education, problem solving and dispute resolution, working collaboratively with community organizations including specialty legal clinics, mental health courts and Local Health Integration Networks, and establishing a local presence and effective dialogue with communities across Ontario.
 
The need for clear communication with housing providers to help them proactively comply with the Code was raised repeatedly by both tenant advocates and the housing providers themselves. The Landlord’s Self Help Centre indicated that many of its clients do not necessarily have a clear understanding of the legal obligations they have assumed and the applicable regulatory framework, of which the Code is only one part. FRPO noted that ideally, education efforts will be focused on providing up-to-date information to landlords and managers to help prevent violations. Kensington-Bellwoods Community Legal Services advocated for measures that would tell landlords and property managers that human rights in housing will be vigorously enforced, including such steps as issuing media releases about Tribunal decisions.
 
In general, the following substantive topics for further housing provider education were identified in the consultation: 
  • the primacy of the Code over the RTA 
  • advertisements that may be viewed as discriminatory 
  • limitations on housing providers’ ability to screen out “undesirable” tenants  
  • the duty to accommodate and the undue hardship standard 
  • policies and procedures to deal with human rights concerns, including relating to harassment between tenants. 
     
While some suggested that these forms of education are most needed by smaller landlords who are not part of any housing provider association, the consultation revealed that there is a more widespread need. For example, it appears that large percentage of housing providers view the rights of landlords and other tenants as being equivalent to those of Code- protected tenants regardless of the primacy of the Code.  
 
Overall, landlords indicated that they welcome information about human rights as a tool in helping them comply with the applicable laws. The Commission heard that housing providers may have difficulty implementing human rights policies because they don’t understand them and feel that they don’t work for them – this leads to resentment and an inclination to ignore the policies rather than try to comply with them. One consultee noted that the challenge is to help landlords understand why the Code is important to enforce when it may be viewed as having “practical ramifications that are financially devastating to them.”   
 
Some consultees suggested licensing as a method of ensuring that landlords receive awareness training on the basic laws around housing, as well as human rights laws. This was an issue of much debate among housing providers and tenant advocates. Opponents of licensing indicated that it would discourage people from becoming landlords and reduce opportunities for creating more affordable housing. Some housing provider organizations indicated that similar objectives could be met through other means – for example by providing human rights training to members as a condition of registration through voluntary certification programs. 
 
Many consultees spoke about democratic decision-making and the lack of awareness of the Code in co-operatives as factors leading to Code violations and difficulties resolving human rights issues. For example, the Commission heard that member-approved by-laws, including those relating to eviction, may be applied even though they conflict with a need for accommodation under the Code. In other cases, the Commission was told that boards of individual co-ops believe that they can make up their own rules without taking the Code into account, or that existing rules cannot be modified to address human rights issues without approval from a majority of the membership. These types of issues indicate a need for further measures to raise human rights awareness within this sector.  

4.5. Raising awareness

Confusion about the Code and requirements under the RTA 

The Commission heard that while some provisions of the Residential Tenancies Act (RTA) overlap with those in the Code, there are many areas in which the RTA may be interpreted as allowing something that is contrary to the Code. For example, consultees noted that housing providers may interpret the RTA as permitting them to advertise “no pets” or offer “adult only” buildings while restrictions of this nature would be impermissible under the Code.

It is clear that landlords and housing providers may be unaware that the Code has primacy over the RTA and that it is not enough for them to meet only the requirements in the RTA. This is even though the RTA itself reflects the primacy of the Code in section 3(4): “If a provision of this Act conflicts with a provision of another Act, other than the Human Rights Code, the provision of this Act applies. 2006, c. 17, s. 3 (4).”

Education and public awareness 

A major theme throughout the consultation was the need for further education across the province on human rights in rental housing and the corresponding obligations. It is clear that there is a broad need for human rights education – there is much work to be done across the province to create a culture of human rights and bring home a practical understanding of human rights.

Given the low proportion of human rights claims in housing, tenant advocates argued for measures by the Commission to increase tenants’ awareness of their rights and enforcement mechanisms. Many submissions also dealt with the need for training for adjudicators, decision-makers and government bodies on international obligations and the potential application of the Code to decisions made under other statutes and policies, practices or statutes that may be developed. Other submissions noted the need to bring an awareness of the Code and discriminatory impacts of NIMBYism to municipal decision-makers, local homeowner and business associations and individuals in communities.

Consultees recognized that public education of this magnitude and scope is not a task that can be conducted by the Commission alone. Most consultees saw partnership opportunities between the Commission and local community organizations, including housing provider associations, tenant organizations and government ministries. Consultees also suggested that the Commission provide additional resources, such as training materials or resource guides, to support community organizations in their public education work.

A number of consultees spoke about the need for the Commission to take on an expanded role in the community. Suggestions included more proactive enforcement, public education, problem solving and dispute resolution, working collaboratively with community organizations including specialty legal clinics, mental health courts and Local Health Integration Networks, and establishing a local presence and effective dialogue with communities across Ontario.

The need for clear communication with housing providers to help them proactively comply with the Code was raised repeatedly by both tenant advocates and the housing providers themselves. The Landlord’s Self Help Centre indicated that many of its clients do not necessarily have a clear understanding of the legal obligations they have assumed and the applicable regulatory framework, of which the Code is only one part. FRPO noted that ideally, education efforts will be focused on providing up-to-date information to landlords and managers to help prevent violations. Kensington-Bellwoods Community Legal Services advocated for measures that would tell landlords and property managers that human rights in housing will be vigorously enforced, including such steps as issuing media releases about Tribunal decisions.

In general, the following substantive topics for further housing provider education were identified in the consultation:

  • the primacy of the Code over the RTA
  • advertisements that may be viewed as discriminatory
  • limitations on housing providers’ ability to screen out “undesirable” tenants
  • the duty to accommodate and the undue hardship standard
  • policies and procedures to deal with human rights concerns, including relating to harassment between tenants.

While some suggested that these forms of education are most needed by smaller landlords who are not part of any housing provider association, the consultation revealed that there is a more widespread need. For example, it appears that large percentage of housing providers view the rights of landlords and other tenants as being equivalent to those of Code- protected tenants regardless of the primacy of the Code.

Overall, landlords indicated that they welcome information about human rights as a tool in helping them comply with the applicable laws. The Commission heard that housing providers may have difficulty implementing human rights policies because they don’t understand them and feel that they don’t work for them – this leads to resentment and an inclination to ignore the policies rather than try to comply with them. One consultee noted that the challenge is to help landlords understand why the Code is important to enforce when it may be viewed as having “practical ramifications that are financially devastating to them.”

Some consultees suggested licensing as a method of ensuring that landlords receive awareness training on the basic laws around housing, as well as human rights laws. This was an issue of much debate among housing providers and tenant advocates. Opponents of licensing indicated that it would discourage people from becoming landlords and reduce opportunities for creating more affordable housing. Some housing provider organizations indicated that similar objectives could be met through other means – for example by providing human rights training to members as a condition of registration through voluntary certification programs.

Many consultees spoke about democratic decision-making and the lack of awareness of the Code in co-operatives as factors leading to Code violations and difficulties resolving human rights issues. For example, the Commission heard that member-approved by-laws, including those relating to eviction, may be applied even though they conflict with a need for accommodation under the Code. In other cases, the Commission was told that boards of individual co-ops believe that they can make up their own rules without taking the Code into account, or that existing rules cannot be modified to address human rights issues without approval from a majority of the membership. These types of issues indicate a need for further measures to raise human rights awareness within this sector.

4.6. Enforcing housing rights

Consultees described concerns about applying human rights principles in the context of decisions made under the RTA or the SHRA. Courts and tribunals must interpret and apply domestic law in a manner consistent with the state’s international human rights obligations.[80] The Supreme Court of Canada’s recent decision in Tranchemontagne[81] makes it clear that administrative decision-makers, such as the LTB or service managers under the SHRA, are required to consider and apply the Code. However, concerns were raised that the Code and international covenants are not appropriately being given effect by decision-makers applying the SHRA and the RTA in Ontario.

Proactively dealing with human rights issues

Housing providers, tenants and society-at-large benefit when housing providers create and maintain environments that are inclusive, diverse and free of discrimination. Yet, the Commission heard that housing providers may not have a sufficient understanding of what kinds of policies and procedures are necessary to prevent and address situations of discrimination. Many landlords indicated that they feel they do not have the tools to appropriately deal with human rights issues such as accommodation requests or allegations of harassment, to prevent these issues from turning into human rights claims. For example, in the roundtables and throughout the consultation, housing providers expressed concern about not knowing what to do when tenants harass each other.

In some cases, landlords themselves may feel disempowered when exposed to racism, harassment or other forms of discrimination because of their own membership in a Code-protected group. Such disempowerment, along with a lack of knowledge about ways to prevent and address discrimination, can hamper a housing provider’s effective response to situations of discrimination.

In this consultation, the Commission also heard that many tenants are unaware of their rights, and are fearful that they may jeopardize their housing if they raise human rights concerns while still living in the rental unit. For example, co-op members told the Commission that it can be difficult for them to raise human rights issues because of the emphasis on democratic decision-making.

A recently released Commission policy, Guidelines on Developing Human Rights Policies and Procedures, provides guidance on how organizations, including housing providers, can prevent and address human rights issues. It states that a complete human rights strategy with these goals should include a barrier prevention, review and removal plan, anti-harassment and anti-discrimination policies, an internal complaints procedure, an accommodation policy and procedure and an education and training program.[82]

Human rights claims under the Code

The Commission’s caseload is not a true reflection of the prevalence of discrimination in housing since only 4% of all complaints relate to discrimination in housing.[83] According to CERA, although employment complaints are 20 times more common than housing complaints, discrimination in housing affects the most disadvantaged groups at least as much as discrimination in employment. For example, refugee claimants, people on social assistance and people with disabilities who are unable to work are more likely to experience discrimination in housing than in employment. In addition, as almost one-third of low-income tenants move each year, there is great potential for exposure to discriminatory selection practices.[84]

Tenant advocates said that the low proportion of housing complaints, along with the scarcity of adjudicated human rights claims and nominal remedies, brings into question the effectiveness of the enforcement of equality rights in Ontario. As the Housing Help Centre pointed out, the low number of complaints leads to a misperception that housing discrimination is not a prevalent issue. Other tenant advocates noted that because housing discrimination cases and remedies for Code violations are so rare, housing providers may be less motivated to comply with the Code.

Consultees suggested a number of reasons for the low number of human rights claims in housing including:

  • lack of awareness of Code protections, difficulty recognizing violations when they occur and fear of reprisals for asserting housing rights
  • the characteristics and circumstances of people experiencing housing-based discrimination. For example, people with mental illnesses or first languages other than English or French may not be sufficiently empowered to deal with the complexities of the system. Others may not have a permanent mailing address or telephone number
  • barriers to accessibility in human rights processes including reliance on centralized offices, 1-800 numbers and Internet access rather than regional service provision, insufficient funding for tenant advocacy services and complex bureaucratic processes.

OFIFC recommended efforts to promote better access to resolution of human rights issues in housing for Aboriginal people through significant outreach, culturally-relevant materials, direct involvement of Aboriginal communities and organizations, and measures to simplify and make the complaints process more accessible. It said that such measures are warranted because of the unique history of colonization and ongoing experiences of systemic discrimination and historical disadvantage experienced by the Aboriginal people in Canada.[85]

Housing providers expressed considerable frustration about formal human rights claims made under the Code. For example, the CHFC noted that human rights complaints are perceived as an avenue for appeal beyond the co-op’s internal processes to resolve concerns or the processes prescribed under provincial legislation. Many landlords felt that they were viewed as being “guilty until proven innocent.” One private landlord expressed the fear that defending against false accusations would cost “bundles.”

A number of submissions discussed the Commission’s role in ensuring effective enforcement of human rights protections in the province. CERA/SRAC urged the Commission to respond promptly to identified violations of the right to adequate housing affecting Code-protected groups, and do everything in its power to pursue effective remedies to these violations. It also noted the Commission’s role, as a human rights institution, in promoting and ensuring the harmonization of national laws and practices with international human rights instruments and their effective implementation.[86] Finally, the Commission was asked to support important substantive equality claims before the Human Rights Tribunal of Ontario, addressing the issues of the most disadvantaged groups in housing in the new direct access system.

Enhancing Code protections through further amendments 

Many consultees called for Code amendments to include social condition as a listed ground of discrimination. This is in accordance with the recommendations of the CESCR that “federal, provincial and territorial legislation be brought in line with the State party’s obligations under the Covenant, and that such legislation should protect poor people in all jurisdictions from discrimination because of social or economic status.” [87]

As Homecoming Community Coalition noted, “[s]ome affordable housing residents are protected by the Code on other grounds, such as disability or receipt of social assistance, but others are not. The recognition of ‘social condition’ as a prohibited ground for discrimination would be a welcome protection for homeless or low-income people now waiting for an affordable home.” While supporting the call for amendments to include social condition as a prohibited ground of discrimination, other consultees submitted that this is not a precondition for effective enforcement of rights to housing under the Code. Even if the Code is not amended to include social condition, some submissions emphasized that policies or practices that discriminate against or deny access to housing to poor people may be viewed as violations of the Code because of the close connection between poverty and membership in Code-protected groups.[88]

FRPO indicated that adding the ground of social condition would make it more difficult, if not impossible, for housing providers to address discrimination. FRPO also raised practical concerns about the scope of this ground and how acknowledged that new affordable it would be applied, noting that claims based on it would be more ambiguous than those under existing grounds.

The Commission’s attention was drawn to the exclusion of “record of offences” as a prohibited ground of discrimination under section 2 of the Code, and to the narrow definition of “record of offences” in the Code. Under section 10(1), “record of offences” means a conviction for, (a) an offence in respect of which a pardon has been granted under the Criminal Records Act (Canada) and has not been revoked, or (b) an offence in respect of any provincial enactment.

As the John Howard Society of Toronto pointed out, although many people with criminal records are eligible for pardons, the process to obtain a pardon is very onerous, time-consuming and costly.[89] It was therefore argued that the Code should be amended to protect people who may have a conviction but have not been pardoned, as well as people who may have federal, and not just provincial, charges on their criminal record.

A number of consultees pointed out that “sexual orientation” is not listed as a ground for which harassment is prohibited under section 2(2) of the Code, and that the Code should be amended to include it. In the meantime, the Commission’s position is that harassment is also a form of discrimination and prohibited under section 2(1) of the Code.[90]

Submissions were also made that “gender identity” is not listed as a ground of prohibited discrimination in section 2(1), nor is it listed in section 2(2) as a prohibited ground of harassment. A few submissions asked for amendments to explicitly protect against discrimination and harassment because of gender identity. While the Commission supports making this change, until the Code is amended, the Commission’s position is that gender identity is protected under the ground of sex.

Subsection 21(1) of the Code provides an exemption from the application of the Code where a landlord or family member shares a bathroom or kitchen facility. Tenants and tenant advocates, including the Federation of Metro Tenants’ Associations, were very concerned about this exemption’s impact on vulnerable tenants such as newcomers. For example, one survey respondent noted that she felt terrible when her gender identity complaint against a landlord could not proceed because of this exemption.


[20]Bekele v. Cierpich, 2008 HRTO 7 (CanLii) (Bekele) at para 88.
[21]Ibid.
[22] Ontario Human Rights Commission, An Intersectional Approach to Discrimination: Addressing Multiple Grounds in Human Rights Claims (October 2001), online: www.ohrc.on.ca.
[23] This concern has previously been noted by the CESCR. See Concluding Observations of the Committee on Economic, Social and Cultural Rights, supra note 13 at para. 26. See also para 59 wherein the Committee recommended that the government ensure that low-income women and women trying to leave abusive relationships can access housing options and appropriate support services in keeping with the right to an adequate standard of living.
[24] For example, having a safe and secure place to stay for the woman and her children, time away from an abusive partner to consider options, and emotional support or counseling from staff. See YWCA Canada, Effective Practices in Sheltering Women: Leaving Violence in Intimate Relationships, Phase II Report (2006) at xiii, online: www.ywcacanada.ca.
[25] Canada Mortgage and Housing Corporation (CMHC), Housing Discrimination Against Victims of Domestic Violence (July 2006), online: www.cmhc-schl.gc.ca.
[26] The rate of spousal violence reported by Aboriginal women is three times that reported by non-Aboriginal people. Statistics Canada, Measuring Violence against Women, Statistical Trends 2006, online: http://www.statcan.ca/english/research/85-570-XIE/85-570-XIE2006001.pdf.
[27] Ontario Human Rights Commission, Policy and Guidelines on Discrimination Because of Family Status (March 2007) (Family Status Policy) at section 10.1. See also York Condominium Corp. No. 216 v. Dudnik (No. 2) (1990), 12 C.H.R.R. D/325; aff’d (1991), 14 C.H.R.R. D/406 (Ont. Div. Ct.).
[28]Ibid.
[29]Residential Tenancies Act, 2006 S.O. 2006, c. 17 (RTA), section 113 which states only that “subject to section 111 [which deals with rent discounts], the lawful rent for the first rental period for a new tenant under a new tenancy agreement is the rent first charged to the tenant.”
[30] John Howard Society of Toronto Submission. See Correctional Service of Canada, “Basic Facts About Federal Corrections, 2001Edition”, online:
http://dsp-psd.pwgsc.gc.ca/Collection/JS82-17-2001E.pdf. In 2001, Canada had 30,750,087 inhabitants of which 15,517,178 were women. In that same year, 2,600,994 men and 681,199 women had criminal records. These numbers include young offenders convicted of criminal offences.
[31] Correctional Services Canada, “Fact Sheet: Aboriginal Community Development in Corrections – Aboriginal Offender Statistics,” online: www.csc-scc.gc.ca/text/prgrm/abinit/know/4-eng.shtml.
[32] For example, PACE pointed out that “a welfare recipient who does not report baby-sitting income needed to buy food and other necessities is harshly condemned as a criminal by the same people who routinely arrange for cash-only work to avoid taxes or who routinely charge social expenditures as business expenses.” PACE referred to the Affidavit of J. Bruce Porter, October 2000 – Ontario Court of Justice (Toronto region) Between Her Majesty the Queen, Respondent and David Bank et al, Applicants.
[33]Mental Health Act, R.S.O. 1990, c. M. 7. See also Ontario Human Rights Commission, Draft Policy on Mental Health Discrimination and Police Record Checks (February 2008) (Record Checks Draft Policy). A crime-free addendum is a civil contract between a landlord and a tenant whereby a prospective tenant agrees not to participate in or allow criminal activity to take place in the rental unit.
[34] Section 4(1) of the Code provides that 16- or 17-year-olds who have withdrawn from parental control have the right to equal treatment with respect to occupancy of, and contracting for, accommodation. Such contracts are enforceable as if the person were 18 years old (section 4(2)).
[35] This section permits preferential treatment for persons aged 65 and over and therefore permits housing that is limited to age 65 and over.
[36] See also Time for Action, supra note 1.
[37]Convention on the Rights of Persons with Disabilities, Adopted by UN GA 13 December 2006: UN GAOR Plen., 61st Sess., 76th Mtg., UN Doc. GA/10554 (2006) at articles 9, 19 and 28. Note that Canada has not yet ratified this convention.
[38] Positive Spaces, Healthy Places, “Fact Sheet: Stigma and Discrimination in Housing” (December 2006), online: www.healthyhousing.ca.
[39] The Canadian Psychiatric Association defines mental illness as “significant clinical patterns of behaviour or emotions associated with some level of distress, suffering (pain, death), or impairment in one or more areas of functioning (school, work, social and family interactions). At the root of this impairment are symptoms of biological, psychological or behavioural dysfunction, or a combination of these." See Canadian Psychiatric Association, Mental Illness and Work (brochure), online: http://publications.cpa-apc.org.
[40] Ontario Human Rights Commission, Policy and Guidelines on Disability and the Duty to Accommodate (November 2000) (Disability Policy).
[41] Section 27(1)(4) of the RTA, supra note 29 provides that a landlord may enter a rental unit on 24 hours written notice to determine if the rental unit is in a good state of repair, fit for habitation and complies with health, safety, housing and maintenance standards.
[42]Bekele, supra note 20.
[43] Ontario Human Rights Commission, Policy and Guidelines on Racism and Racial Discrimination (June 2005) (Race Policy). Discrimination may be identified where a racialized person is treated differently than if he or she were White, in the absence of an acceptable non-discriminatory explanation for the difference in treatment.
[44] This is a kind of experiment to test for the existence of racism or other forms of discrimination. The purpose is to compare the experiences of a Code-protected person and one not similarly identified in performing the same task. For example, they may both apply to rent a number of units. If there are significant differences in the number of times they are told the unit is rented, this may be indicative of discrimination.
[45]Ahmed v. 177061 Canada Ltd. (2002), 43 C.H.R.R. D/379 (Ont. Bd. Inq.).
[46]Iness v. Caroline Co-operative Homes Inc. (No.5), 2006 HRTO 19 (Can LII) (Iness). Ms. Iness was expected to pay the full shelter component of her social assistance as rent to her co-operative, instead of paying 25% of her income as rent, which she had done previously. As a result, she was no longer able to pay her insurance and hydro costs out of the shelter portion of her benefit, resulting in her having to cover these out of her basic living costs. The Tribunal found that Ms. Iness was treated differently from other low-income tenants, who were not on social assistance and were expected to pay a percentage of their income in rent.
[47] Canada Mortgage and Housing Corporation, “Research Highlight – Housing Discrimination Against Victims of Domestic Violence” (2006), online: www.cmhc-schl.gc.ca/odpub/pdf/65096.pdf.
[48] See for example the Universal Declaration of Human Rights, signed Dec. 10, 1948, G.A. Res. 217A (III), U.N. Doc. A/810 (1948) and the International Covenant on Economic, Social and Cultural Rights, supra note 13, online: www.ohchr.org.
[49] For example, the CERA submission pointed out that the 2006 Annual Report of Cap Reit, a residential apartment investment trust which operates over 18,000 units in Ontario, shows that the combination of vacancies, tenant inducements and bad debt amounted to 3.5% of operating revenues in 2006. Cap Reit, Annual Report (2006) at p. 19, online: http://library.corporate-ir.net/library/12/124/124438/items/243891/AR2006.pdf. The CERA submission also referred to research conducted for the Board of Inquiry hearing in Shelter Corp v. Ontario (Human Rights Comm) (No. 2) (sub nom Kearney v. Bramalea Ltd. (No. 2)) (1998), 34 C.H.R.R. D/1 (Ont. Bd. Inq.) (Kearney) - N. Barry Lyon Consultants Ltd., The Impact of Rent Arrears on the Viability of Residential Landlords’ Businesses (1995).
[50] For example, the Metro Tenants’ Association Submission referred to statistics from Lapointe, Linda, Analysis of Evictions in the City of Toronto: Overall Rental Housing Market, (March 2004) in support of the following reasons for rent arrears: Job-related reasons (39%), Medical reasons (17%), Other financial reasons (12%), Family Issues (7%), Landlord/tenant conflict (13%), Other reasons (12%).
[51]Background Paper, supra note 33 at 49
[52]Family Status Policy, supra note 27 at section 10.2.1.
[53]Ibid.
[54]Kearney, supra note 49 and Vander Schaaf v. M & R Property Management Ltd. (2000), 38 C.H.R.R. D/251, at para. 105 (Ont. Bd. Inq.).
[55] Service Canada, www1.servicecanada.gc.ca/en/sin/protect/provide.shtml
[56] See also Record Checks Draft Policy, supra note 33.
[57]RTA, supra note 29, section 106.
[58]Background Paper, supra note at 49
[59] This kind of requirement can impact negatively on people who work part-time or contractually including people with caregiving obligations, Aboriginal people and young people. See for example, Sinclair v. Morris A. Hunter Investments Ltd. (2001), 41 C.H.R.R. D/98 (Ont. Bd. Inq.) in which a landlord’s requirement that applicants be employed on a permanent basis for a minimum length of time with one employer discriminated against young people.
[60]Cunanan v. Boolean Developments Ltd. (2003), 47 C.H.R.R. D/236, at paras. 65-66 (H.R.T.O.)
[61]Family Status Policy, supra note 27 at section 10.3.
[62]Social Housing Reform Act 2000, O. Reg. 298/01 ”Rent-geared-to-income Assistance and Special Needs Housing,” section 28(2)(a).
[63] Canada Mortgage and Housing Corporation, “Housing in Canada Online”, online: http://data.beyond2020.com/cmhc/HiCODefinitions_EN.html#_Housing_Standards. See also Industry Canada, Audit and Evaluation Services, Co-operative Housing Programs Evaluation (2003), online: http://dsp-psd.pwgsc.gc.ca/Collection/NH15-418-2003E.pdf.
[64]Meiorin, supra note 19.
[65]Iness, supra note 46 at paras. 302 to 335.
[66]Disability Policy, supra note 40.
[67] Group homes and retirement homes were not a focus of this consultation and these issues reflect only a small part of the issues that may exist.
[68]Smoke-Free Ontario Act, S.O. 1994, c. 10.
[69] Vancouver Sun, Woman claims right to smoke-free housing (February 5, 2008).
[70] See for example, Shelley, Jacob, University of Alberta, Environmental Tobacco Smoke as a Breach of the Covenant of Quiet Enjoyment (August 2007).
[71] K. Klasser, MD et al., “Smoking and Mental Illness: A Population-Based Prevalence Study” (2000) 284 No. 20 The Journal of the American Medical Association 2608 (Reprinted).
[72] Ontario Human Rights Commission, Policy on Drug and Alcohol Testing (September 2000).
[73] For example, Cominco Ltd. v. United Steelworkers of America, Local 9705, [2000] B.C.C.A.A.A No. 62 Award no. A-046/00, and McNeill v. Ontario (Ministry of the Solicitor General and Correctional Services), [1998] O.J. No. 2288.
[74]Disability Policy, supra note 40 at section 5.3.3.
[75] See for example, Walmer Developments v. Wolch (2003), 67 O.R. (3d) 246, online: www.canlii.org/en/on/onscdc/doc/2003/2003canlii42163/2003canlii42163.html
[76] The term “care home” is used to refer to retirement homes, rest homes, group homes and boarding houses where care services are offered or provided.
[77]SHRA, O. Reg. 298/01, supra note 62
[78] The Commission also heard that some co-ops have created their own by-laws allowing members to be evicted, sometimes on short notice, if they are assessed as being incapable of living independently.
[79] For example, owners of rental units located in houses, duplexes, triplexes, converted houses, apartments over stores and second suites in owner occupied houses. The Landlord’s Self Help Centre estimates that this type of accommodation represents 20% of rental housing stock.
[80] See United Nations Committee on Economic, Social and Cultural Rights, Nineteenth Session General Comment No. 9 The Domestic Application of the Covenant, Committee on Economic, Social and Cultural Rights, Geneva, E/C. 12/1998/24 at para. 15. See also Slaight Communications Inc. v. Davidson, [1989] 1 SCR 1038; and Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817.
[81]Tranchemontagne v. Ontario (Dir., Disability Support Program) [2006] 1 S.C.R. 513.
[82] Ontario Human Rights Commission, Guidelines on Developing Human Rights Policies and Procedures (previously called Developing Internal Policies and Procedures to Resolve Human Rights Complaints) (March 2008), online: www.ohrc.on.ca.
[83] Ontario Human Rights Commission, Human Rights and Rental Housing in Ontario: Background Paper (March 2007) (Background Paper)
[84] David Hulchanski, Discrimination: Routine Exclusion of Welfare Recipients in Toronto (1992) (Hulchanski), online: http://action.web.ca/home/housing/resources.shtml?x=67199&AA_EX_Session=....
[85] See for example, the discussion in the Commission’s Race Policy, supra note 43 at section 1.4 “Historical Context: The Legacy of Racism on Canada.”
[86] See for example National Institutions for the Promotion and Protection of Human Rights, GA Res. 48. 134, UN GAOR, 48th Sess., 8th Plenary Mtg, UN Doc. A/RES/48/134 920 December 1993); National Institutions for the Promotion and Protection of Human Rights, Res. 1994/54, UN HRC, 56th Meeting, UN Doc. R/CN.4/RES/1994/54 (4 March 1994). See also United Nations Committee on Economic, Social and Cultural Rights, Nineteenth Session General Comment No. 10 The Role of National Human Rights Institutions in the Protection of Economic, Social and Cultural Rights, Geneva, E/C. 12/1998/25 at para. 15.
[87] Concluding Observations of the Committee on Economic, Social and Cultural Rights, supra note 13 at para. 39.
[88]Kearney, supra note 49.
[89] The John Howard Society of Toronto indicated that pardons can only be granted after a sentence has been fully served and a waiting period of 3 – 5 years has been completed. It may take 12 – 18 months or longer to obtain a pardon once an application is submitted. Applicants are responsible for paying any costs associated with obtaining a full set of fingerprints ($25 in Toronto), obtaining a certified copy of their criminal record from the RCMP ($25) and paying a $50 fee to the National Parole Board to process their application. Once the application is submitted, it is up to the National Parole Board to decide whether or not to accept the application and grant the pardon. Success rates over the past seven years have varied from 26% of all applications made in a year to 116%. See also National Parole Board, Performance Measurement Division “ Performance Monitoring Report 2006-2007” (July 2007), online: www.npb-cnlc.gc.ca/reports/pdf/pmr_2006_2007/PMR_2006-2007-eng.pdf
[90] See also Crozier v. Asseltine (1994), 22 C.H.R.R. D/244 at para. 9 (Ont. Bd. Inq.) and Janzen v. Platy Enterprises Ltd., [1989] 1 S.C.R. 1252.