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1. Status and purpose of the Code
The Code states that it is public policy in Ontario to recognize the inherent dignity and worth of every person and to provide for equal rights and opportunities without discrimination. As stated in its Preamble, the purpose of the Code is to create a climate of understanding and mutual respect for the dignity and worth of each person, so that each person feels a part of the community and feels able to contribute to the community. Every person in Ontario has a right to equal treatment with respect to housing[20] without discrimination.
The Code has primacy over all other legislation in Ontario, unless the other legislation specifically states that it applies despite the Code.[21] This means that if another piece of legislation contains a provision that conflicts with or contravenes the Code, the Code will prevail.
This primacy is recognized specifically in the context of rental housing. The Residential Tenancies Act (the RTA) contains a provision that states that the Act will override any other Act that may conflict with it, except for the Code.[22] As well, several Ontario Rental Housing Tribunal decisions have recognized the Code’s supremacy and special status in their rulings.[23]
1.1 Protections
The Code aims to ensure that everyone has the equal opportunity to access housing and its attendant benefits without discrimination on any of the grounds identified by the Code. Subsection 2(1) of the Code states:
Every person has a right to equal treatment with respect to the occupancy of accommodation, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status, disability or the receipt of public assistance.
Subsection 2(2) prohibits harassment in accommodation:
Every person who occupies accommodation has a right to freedom from harassment by the landlord or agent of the landlord or by an occupant of the same building because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, age, marital status, family status, disability or the receipt of public assistance.
While “sexual orientation” is not specifically listed as a ground in subsection 2(2) of the Code, it is the OHRC’s policy position that sexual orientation is included in the protection against harassment.
Subsection 4(1) provides protection to 16- or 17-year-olds in specific circumstances:
Every sixteen or seventeen year old person who has withdrawn from parental control has a right to equal treatment with respect to occupancy of and contracting for accommodation without discrimination because the person is less than eighteen years old.
Subsection 4(2) states that such contracts are enforceable as if the person were 18 years old.
Subsection 7(1) specifically addresses sexual harassment by a landlord, agent of the landlord or co-tenant:
Every person who occupies accommodation has a right to freedom from harassment because of sex by the landlord or agent of the landlord or by an occupant of the same building.
Sexual solicitation by a person in a position of relative power with a tenant is prohibited by subsection 7(3):
(3) Every person has a right to be free from,
(a) a sexual solicitation or advance made by a person in a position to confer, grant or deny a benefit or advancement to the person where the person making the solicitation or advance knows or ought reasonably to know that it is unwelcome; or
(b) a reprisal or a threat of reprisal for the rejection of a sexual solicitation or advance where the reprisal is made or threatened by a person in a position to confer, grant or deny a benefit or advancement to the person.
In the context of private rental housing, the person in a position to confer or deny a benefit would most likely be a landlord, superintendent, building manager, etc. of a residential dwelling, or, in the case of social or co-op housing, it might be a service manager, Board member, etc.
1.2 Defences, exceptions and reprisal[24]
Section 18 of the Code offers a defence for some housing providers:
The rights under Part I to equal treatment with respect to services and facilities, with or without accommodation, are not infringed where membership or participation in a religious, philanthropic, educational, fraternal or social institution or organization that is primarily engaged in serving the interests of persons identified by a prohibited ground of discrimination is restricted to persons who are similarly identified.
This means that certain types of organizations are allowed to limit participation or membership based on Code grounds. For example, a religious, philanthropic, educational, fraternal or social institution or organization that mainly serves the interests of older people, or older people who belong to a particular religious or ethnic community, and that provides housing accommodation as part of their services may be able to restrict that housing to people who are similarly identified. However, to rely on this defence, providing accommodation alone is not sufficient. Some other “service or facility” must be provided.
Section 21 of the Code sets out three exceptions to the equality rights with regard to housing:
1. Shared accommodation
The right under section 2 to equal treatment... is not infringed by discrimination where the residential accommodation is in a dwelling in which the owner or his or her family reside if the occupant or occupants of the residential accommodation are required to share a bathroom or kitchen facility with the owner or family of the owner.
This subsection allows an owner of a residence to select occupants of his or her choice where the owner or his or her family will be living in the same residence and sharing a bathroom or kitchen with the occupants.
2. Restrictions on accommodation, sex
The right under section 2 to equal treatment ... without discrimination because of sex is not infringed by discrimination on that ground where the occupancy of all the residential accommodation in the building, other than the accommodation, if any, of the owner or family of the owner, is restricted to persons who are of the same sex.
This subsection is an exception to the rule that housing must be offered without discrimination based on sex. It allows an owner of a residence to restrict who lives there to men only or women only (excluding the part of the residence, if any, occupied by the owner or his or her family).
3. Prescribing business practices
The right under section 2 to equal treatment with respect to the occupancy of residential accommodation without discrimination is not infringed if a landlord uses in the manner prescribed under this Act income information, credit checks, credit references, rental history, guarantees or other similar business practices that are prescribed in the regulations made under this Act in selecting prospective tenants.
The regulations related to subsection 21(3) permit landlords to use income information, credit checks, credit references, rental history, guarantees or other similar business practices for selecting prospective tenants. The Code is clear, however, that none of these assessment tools may be used in an unfair way to screen out prospective tenants based on Code grounds. The criteria must be used in a genuine and non-discriminatory way. For more detailed information, see the section of this Policy entitled “Income Requirements” under “Rental Criteria.”
A person who believes their rights have been violated may choose to exercise their rights under the Code, and this may include filing a human rights claim. A person cannot be punished or threatened with punishment for doing so. Any attempt or threat to punish someone for exercising their human rights is called a “reprisal” and is prohibited under section 8 of the Code.
2. Grounds of discrimination
The Code contains provisions to help make sure that everyone has the equal opportunity to access housing, and the benefits that go along with it, without discrimination or harassment based on the following grounds:
- race
- colour
- ancestry
- creed (religion)
- place of origin
- ethnic origin
- citizenship
- sex (including pregnancy, gender identity[25] )
- sexual orientation
- age
- marital status (including same-sex partnerships)
- family status
- disability
- receipt of public assistance.
This protection extends to access to rental opportunities, renting, being evicted, building rules and regulations, repairs, maintenance, harassment, the use of services and facilities, etc.
To date, housing discrimination has not been researched to the same extent as discrimination in employment, for example. However, based on its own research, human rights claims filed, and extensive feedback from its housing consultation, the OHRC has developed a clearer picture of the ways that discrimination takes place in rental housing.
For example, the OHRC knows that low social and economic status is a common factor in many types of housing discrimination. People identified by Code grounds are disproportionately likely to have low incomes. The shelter allowance rates for people and families who receive social assistance are far below market levels. This, together with a limited supply of adequate and affordable housing in many parts of the province, puts such people at a significant disadvantage when seeking shelter.
What follows is a brief discussion of some of the main ways that people identified by specific Code grounds experience discrimination in rental housing. The sections that follow are not meant to cover all scenarios where discrimination may take place under the ground in question. Instead, they are intended to give an overview of common forms of discrimination relating to a specific ground or combination of grounds. Where applicable, examples relating to discrimination based on specific grounds are used throughout the Policy.
2.1 Intersection of Code grounds
Discrimination issues in rental housing often arise because of a combination of human rights grounds. For example, a young lone mother receiving social assistance who is looking for rental housing might experience discrimination based on her sex, age, family status and receipt of social assistance. If she is a racialized person or has a disability, her experience of discrimination may change or be compounded.
The OHRC has explored this “contextualized” or “intersectional”[26] approach to discrimination analysis at length in its Discussion Paper entitled An Intersectional Approach to Discrimination: Addressing Multiple Grounds in Human Rights Claims.[27]
The OHRC has identified the intersection of protected grounds as an important consideration in all of its work. It is the OHRC’s position that an intersectional approach is needed to make sure that a claimant’s rights and a landlord or service provider’s obligations under the Code are given full force and effect,
and to fully understand the complex and multifaceted ways that many people experience discrimination in rental housing.
Tribunals and courts have increasingly used an intersectional approach in the human rights cases they hear. For example, in one case alleging discrimination in housing where the claimant was a young racialized man, the tribunal stated:
I conclude that [the landlords’] reactions to the requests for assistance by [the claimant] were affected by their perception of him as an angry and threatening young Black man. I am satisfied that the intersection of his race, colour, age and sex were at least a factor in this perception. In my view, [the claimant] would not have been treated in the same way based on his age and sex alone. It was the combination of those factors with his race and colour that led to the discrimination.[28]
Although the following sections discuss each ground individually, it is important to be aware of the potential for more than one ground to be at issue at the same time, and for these grounds to intersect.
2.2 Race, creed and related Code grounds
The Code prohibits discrimination in rental housing based on race and several related grounds, including colour, ethnic origin, ancestry, place of origin, citizenship and creed (religion).[29]
Racial discrimination in rental housing may take a variety of forms. It is likely that the most common problem that racialized[30] people continue to face is the denial of opportunities to apply for rental housing or to view properties. Landlords may use subtle screening methods to bypass certain people in the tenant selection process. There have been cases where racialized people are advised that an apartment has already been rented only to have a White friend inquire and be told that it is still available.[31]
This kind of discriminatory treatment is often the result of negative attitudes and stereotypes on the part of the housing provider. In one case, a human rights tribunal found that a landlord had discriminated against a Black woman because of her race, when he refused to rent her an apartment. The tribunal found that the landlord made assumptions about the woman based on negative stereotypes about Black people.[32]
Specific people may be singled out for differential treatment based on their creed and/or their ethnic origin. For example, people identified as, or perceived to be, Muslim, Arab, Middle Eastern and/or South Asian have been subjected to increased Islamophobia in the rental housing market since the terrorist attacks of September 11, 2001. Islamophobia can be described as stereotypes, bias or acts of hostility towards individual Muslims or followers of Islam in general, or people who are perceived to be Muslim. In addition to individual acts of intolerance and racial profiling, Islamophobia leads to viewing Muslims as a greater security threat on an institutional, systemic and societal level.[33]
Other racialized groups have also been subjected to racial stereotypes. Aboriginal people, for example, may face discriminatory stereotypes in the rental housing market. In a recent case, a tribunal found that the director of a housing provider stated that “Indians are the dirtiest people to rent to.”[34] In another case[35], a tribunal found that when a respondent owner discovered the claimant was an Aboriginal lone mother, he refused to rent to her by avoiding her phone calls, and then telling her he was looking to rent to a married couple instead. The tribunal recognized the intersectional nature of the case and found that the housing provider had based his decision not to rent to the woman on the characteristics he attributed to Aboriginal people, combined with his stereotypical views of lone mothers as being unable to shoulder childcare responsibilities alone.
Racialized people may be subjected to unequal rental requirements. For example, housing workers have reported that new Canadians are sometimes asked to pay their rent up to 12 months in advance, despite such practices being illegal.[36] Some have speculated that the practice of requesting unaffordable deposits may in itself be a tactic to deter tenants that a landlord does not deem “desirable .” Legitimate rental requirements, such as a request for a rental history, may have an adverse impact on new Canadians, most of whom will not be able to meet this requirement.[37] For a more detailed discussion of rental requirements and their impact on people identified by the Code, see the section of this Policy entitled “Rental criteria” under “Discrimination patterns in rental housing.”
Racialized people may also experience unequal access to housing-related services or may otherwise be subjected to different treatment during their tenancies. For example, a racialized tenant may be subjected to substandard living conditions or a failure to carry out repairs and/or maintenance.[38]
Discrimination may occur as a result of issues being made about the cultural practices of racialized tenants. For example, cooking odours have been the subject of tribunal decisions. In one case[39], a tribunal found that South Asian tenants were denied an apartment because of stereotypes about cooking odours. In another case[40], the claimant was found to have cooked foods in her home, that were an expression of her ethnicity and ancestry, that produced odours. She experienced differential treatment when she was ordered to cease producing these odours or face eviction. The right to express and enjoy one’s ethnicity and ancestry was found to be central to one’s dignity. Also, the landlord was not found to have a reasonable and bona fide justification for its conduct.
2.3 Sex
Women will often experience sex discrimination in housing combined with discrimination on one or more Code-protected ground(s), for example, family or marital status, race or race-related characteristics, age or disability. A lone woman with children, for example, may be denied a housing opportunity because a landlord has views about lone mothers not being desirable tenants based on negative stereotypes.[41]
Lone mothers, young women, older women, racialized women, Aboriginal women, and women with disabilities, for example, are disproportionately poor. Landlords may deny a woman a housing opportunity both because of her sex and, by association, her perceived financial situation.[42]
Low social and economic status, combined with few adequate housing opportunities, worsens the power imbalance that already exists between tenants and landlords, and makes many women vulnerable to possible sexual harassment by some housing providers. The OHRC has been informed of various cases where women have been subjected to sexual harassment in their homes. These situations have often led to the filing of human rights claims.[43] For more detailed information, see the section in this Policy entitled “Sexual harassment” under “Forms of discrimination in rental housing.”
For a woman trying to leave an abusive relationship, the shortage of affordable, adequate housing options will create a significant obstacle. In many cases, she will not have a credit rating and/or landlord references - information required by most housing providers. Many women are unable to leave abusive relationships because they lack other options.
A woman’s situation may be even more precarious if she is pregnant and/or has children. In one case, upon learning that a tenant had become pregnant, the landlord asked her if she was “intending to give the baby up for adoption” and said that the owners “didn’t want kids in the building .” A human rights tribunal found that the claimant had been discriminated against because of her sex and family status. In the tribunal’s view, one of the main reasons she was evicted “was her pending motherhood.”[44]
Transgender people are protected from discrimination and harassment under the ground of sex. This includes protection from degrading comments, insults or unfair treatment because of gender identity, and applies to all aspects of the rental housing relationship, from applying for tenancies, to occupying housing, to being evicted.
Men may also be discriminated against based on negative gender stereotypes. Some housing providers prefer female tenants due to a belief that women are cleaner and more responsible as tenants.[45]
2.4 Marital status
The Code protects people against discrimination in housing based on their marital status. Justice L’Heureux-Dubé has stated the following about the situation of unmarried people in relationships:
Persons involved in an unmarried relationship constitute an historically disadvantaged group. There is ample evidence that unmarried partners have often suffered social disadvantage and prejudice. Historically, in our society, the unmarried partner has been regarded as less worthy than the married partner. The disadvantages inflicted on the unmarried partner have ranged from social ostracism through denial of status and benefits.[46]
A number of cases have determined that denying someone housing because they are unmarried or do not conform to traditional family models is a violation of their human rights.[47]
Single people may experience discrimination when they inquire about or apply for rental housing. Some landlords prefer to rent to married couples, rather than single people or common-law couples.[48] A parent who is unmarried or divorced may also experience difficulties when trying to view or apply for rental housing. This experience may be made worse if the lone parent is female, young, racialized, Aboriginal, gay or lesbian, and/or receives social assistance.[49]
When considering prospective tenants, housing providers may not screen out people who are not married, or ask about marital status on a rental application. Also, housing providers are not allowed to treat unmarried tenants differently during their tenancies.
2.5 Family status
Section 10(1) of the Code defines “family status” as the status of being in a parent and child relationship. There is a lengthy history of families with children being turned away from housing because of negative attitudes and perceptions. These negative perceptions are compounded for young families, lone-parent families, families from racialized and Aboriginal communities, and people who receive social assistance.
The continued prevalence of “adult only” housing despite the clear prohibition in the Code is a strong example of this. Landlords may also use a number of euphemisms to discourage or deny applications from families with children. Statements that a building is a “quiet building,” an “adult lifestyle” building, “not soundproof,” or “geared to young professionals” may, when coupled to a refusal to rent to a family with children, indicate that discriminatory attitudes related to family status played a role in the refusal.
Often, a person will experience discrimination based on family status along with one or more Code-protected ground(s). Since women continue to be the primary caregivers of most families in Ontario[50], discrimination based on family status will very often include a gender component. Also, families with young children may be marginalized in the rental housing market, particularly where family status intersects with marital status, receipt of public assistance, or the race-related Code grounds. Same-sex couples and gay or lesbian lone parents raising children may also be subjected to negative attitudes and stereotypes because they do not conform to typical family models.
Some landlords prefer not to rent to families with children because they believe that children are noisy, disruptive, and will damage the property. As well, there are specific negative stereotypes about teenage children, especially if they are male or from Aboriginal or racialized communities. Female-headed lone-parent families face a range of negative attitudes, particularly if they are Aboriginal, racialized, young, or receive social assistance, including stereotypes that they are less responsible, less reliable, and more likely to default on their rent.[51] Foster families also face extra difficulties in accessing housing because of negative attitudes towards foster children and foster families.
Families may be discriminated against during their tenancies. For example, tenants may be treated differently or subjected to negative comments due to the form or composition of their families.
Families may also be affected negatively by occupancy policies. For example, Tribunals have found that the stipulation by landlords of a minimum number of bedrooms based on the number and gender of the children may have the result of impeding the access of lone-parent families to housing.[52] See the section of this Policy entitled “Number of Occupants per Room or Bedroom” under “Occupancy Policies” for more information. A tribunal has also stated that restricting apartment buildings to “families,” where that designation excludes lone-parent families or common-law couples, is discriminatory. [53]
Some landlords have policies prohibiting tenants from transferring between rental units in the same building. Such policies may have a negative impact on families with children, because their rental housing needs change as their families grow, forcing them to leave their building to accommodate their need for additional space. At least one tribunal has found that “no transfer policies” have a negative impact on families with children, and violate the Code.[54]
The case law has steadily expanded the scope of the family status protection to include the denial of housing to pregnant women, lone-parent families, and parents who are not legally married.[55]
2.6 Sexual orientation
People may be subjected to discrimination in rental housing based on their sexual orientation in several different ways. For example, they may be denied the opportunity to view available units because of negative attitudes about their sexual orientation. They may be asked invasive questions about the nature of their relationships or subjected to inappropriate comments or treatment because of their sexual orientation. They may not receive equal access to housing-related services during their tenancies, be subjected to harassment, or face eviction due to homophobic attitudes.[56]
The experience of same-sex couples (whether married or living together outside of marriage) or lone gay, lesbian and bisexual people who are parents is also unique. These parents may find themselves facing negative stereotypes, and may experience discriminatory treatment because they do not conform to the typical “nuclear family” norm. In some cases, they and/or their children may be subjected to harassment because of their living arrangements.
2.7 Age
The Code prohibits discrimination in housing accommodation based on age only for people aged 18 or older.[57] In other words, with the exception of people who are 16 or 17 years old, who have withdrawn from parental control, housing providers are entitled, under the Code, to not rent to minors. It should be noted, however, that a recent tribunal decision has indicated that the definition of age in the Code can be an unjustifiable abridgement of the equality rights of children under the Charter of Rights and Freedoms.[58]
Discrimination in rental housing based on age can take place in several different ways. For example, young people are often subjected to discriminatory perceptions about age.[59] They may be stereotyped as being irresponsible, having too many parties, not paying the rent or destroying the property, and as a result, may have a hard time finding rental housing. Young people may be told that they have to be 18 years old to enter into tenancy agreements.[60] They may also be subjected to rental conditions that are not required of others – such as being asked to provide a guarantor or direct payments of rent. Due to their often low income, rent-to-income ratios may have a negative impact on this group.[61] Negative attitudes about young people, in particular that groups of young people living together create noise and may reduce property values, have contributed to municipal licensing by-laws that restrict student housing.
Older people also face unique challenges in the rental housing market. The main barrier to housing experienced by older people appears to be a lack of housing to meet their needs both in terms of affordability and accessibility. Housing providers may be reluctant to rent to older people due to a belief that it will be costly to provide necessary age-related accommodations. They may turn away older tenants out of a desire to attract more youthful residents. Or, in an effort to generate greater rental income, some landlords may try to evict older people paying lower rents due to longer tenure in their rental units. Older people, like young people, often have low incomes and will, therefore, also be affected negatively by rent-to-income ratios. In many cases, older people are unemployed, employed part-time, or retired. Further, a large number of people in this group will depend on social assistance for the majority of their household income.
2.8 Disability
Discrimination based on disability in rental housing may occur in various ways.[62] Inaccessible buildings and non-inclusive housing design are among the obstacles often encountered by people with disabilities. Housing providers have a duty to accommodate the needs of tenants with disabilities to the point of undue hardship.[63] However, some housing providers will deny housing to a person with a physical disability due to an unwillingness to provide required accommodations.
People with disabilities, especially specific types of disabilities, may be subjected to negative attitudes and stereotypes. For example, people living with HIV/AIDS have reported having difficulty finding rental housing, and/or experiencing stigma during a tenancy. Other people with disabilities may also experience differential treatment due to negative attitudes. For example, in one case, an Ontario human rights tribunal found that the respondents willfully and recklessly discriminated against the claimant, a blind woman, when they cancelled an apartment viewing without notifying her, later refused to let her enter the unit, and generally treated her rudely. The tribunal held that a landlord and/or superintendent contravenes the Code when they refuse to show an apartment to a prospective tenant with a visual handicap and fail to provide a reasonable explanation for this.[64]
People with mental health issues face particular challenges in the rental housing market due to negative attitudes and stereotypes.[65] Some landlords may believe that a tenant with a mental disability will be an unpredictable, disruptive tenant, a threat to other neighbours, or will generally compromise the desirability of the rental establishment. There may be limited understanding of how to accommodate the tenant’s needs, particularly if the person engages in disruptive behaviour due to the disability.
People with past or present psychiatric illnesses continue to experience extreme marginalization and discrimination in rental housing. The formidable stigma around mental illness has also influenced the phenomenon of “Not in My Back Yard” or NIMBY opposition to affordable and supportive housing options. NIMBY opposition has resulted in municipal zoning by-laws that bar people with mental disabilities (and others identified by Code grounds) from living in certain neighbourhoods. For a more detailed discussion on the discriminatory effects of NIMBY opposition, see the section of this Policy entitled, “Discriminatory neighbourhood opposition, or ‘NIMBYism.’”
2.9 Receipt of public assistance
Many housing providers continue to be unaware that the Code protects tenants against discrimination based on receipt of public assistance. “Public assistance” – more commonly referred to as social assistance – includes Ontario Works, OSAP, ODSP, Old Age Security, Employment Insurance, etc. Rental advertisements for “professionals” or “working people only” are common
and indicate a pervasive mentality to exclude low-income tenants.
People who receive social assistance often bear the brunt of negative attitudes and stereotypes. An expert witness in one case testified that the most prevalent stereotype about people in receipt of social assistance is a lack of work ethic. She also stated that there is a prevalent belief that people who receive social assistance are more associated with criminal behaviour. She stated that often social assistance recipients are portrayed as “fraudsters” who are “lazy, parasitic and irresponsible,” and as people who have “personal failings, and lack adequate virtue.” [66]
Several human rights cases in Canada have involved people being refused rental housing once it is discovered that they receive social assistance. [67] In one case, a landlord refused to rent to a woman because she was poor and her source of income was social assistance, without considering whether or not she was a reliable tenant. The landlord stated that poor people cannot pay their rent,[68] despite social science evidence to the contrary.[69] Other cases have dealt with landlords who have policies of not renting to people who receive social assistance regardless of their ability to pay the rent.[70]
In addition to experiencing outright denials of housing opportunities[71], people depending on social assistance are often subjected to rental requirements not imposed on others and differential treatment during their tenancies. For example, they may be asked to arrange for direct payment of government cheques[72], they may be charged unreasonably large and illegal rent deposits, and/or they may be subjected to intrusive questioning that violates their privacy and compromises their dignity. In a 1996 case, requests for “first and last month’s rent” were found to have a discriminatory impact on some people who relied on public assistance.[73] Minimum income criteria may similarly have an adverse impact on people in receipt of public assistance.[74]
[20] The Code refers to the social area of “occupancy of accommodation,” also known more simply as “housing.” The Code’s protections against discrimination in housing include the denial of a housing opportunity, imposing different standards during a tenancy, harassment, or threats of eviction.
[21] Subsection 47(2) of the Ontario Human Rights Code, R.S.O. 1990, c. H. 19.
[22] Subsection 3(4) of the Residential Tenancies Act, 2006, S.O. 2006 c.17.
[23] See, for example, Karoli Investments Inc. v. Reid, [2006] O.R.H.T.D. No. 8 at para. 75 and Hillhurst Park Apartments v. Wolstat, [2005] O.R.H.T.D. No. 33.
[24] See also the section of this Policy entitled “Special Programs and Special Interest Organizations.”
[25] Under the Code, claims based on pregnancy or gender identity may be filed under the ground of sex.
[26] The concept of “intersectionality” has been defined as “intersectional oppression [that] arises out of the combination of various oppressions that, together, produce something unique and distinct from any one form of discrimination standing alone...” M. Eaton, “Patently Confused, Complex Inequality and Canada v. Mossop” (1994) 1 Rev. Cons. Stud. 203 at 229.
[27] Ontario Human Rights Commission, An Intersectional Approach to Discrimination: Addressing Multiple Grounds in Human Rights Claims (Toronto: Queen’s Printer, 2001): www.ohrc.on.ca/en/resources/discussion_consultation/DissIntersectionalityFtnts/view
[28] Monsson v. Nacel Properties Ltd. (2006), CHRR Doc. 06-743, 2006 BCHRT 543 at para. 33.
[29] Depending on the circumstances, a human rights claim of discrimination based on race may cite race alone or may include one or more related ground(s). However, as a social construct, the ground of race is capable of encompassing the meaning of all of the related grounds, and any characteristic that is racialized and used to discriminate.
[30] “Racialization” is the process by which societies construct races as real, different and unequal in ways that matter to economic, political and social life. The term “racialized” is widely preferred over descriptions such as "racial minority," "visible minority" or "person of colour" as it expresses race as a social construct rather than as a description of people based on perceived characteristics. See Ontario Human Rights Commission, Policy and Guidelines on Racism and Racial Discrimination, available at: www.ohrc.on.ca/en/resources/Policies/RacismPolicy/view .
[31] See Watson v. Antunes (1998), CHRR Doc. 98-063 (Ont. Bd. Inq) in which a human rights tribunal held that the respondent discriminated against the claimants, a Black woman seeking to rent an apartment and her mother who was helping her, when she reluctantly showed them the apartment and then misled the mother about it being taken when she later called to rent it. Also, in Baldwin v. Soobiah (1983), 4 C.H.R.R. D/1890 (Ont. Bd. Inq.), a human rights tribunal held that a prima facie case of discrimination in housing rental was established when the respondent made statements to potential tenants of a certain race that a property was rented, but then stated to potential tenants of another race that the apartment was still available. In other words, a pattern of refusals on the part of a landlord to rent to people of a particular ethnic origin was found to be evidence of unlawful discrimination.
[32] See Richards v. Waisglass (1994), 24 C.H.R.R. D/51 (Ont. Bd. Inq.).
[33] See OHRC’s Racial Discrimination Policy, supra note 30, at section 1.4.
[34] Starr v. Karcher Holdings Ltd., (2007), CHRR Doc. 07-569 (Sask. H.R.T.).
[35] Flamand v. DGN Investments (2005), 52 C.H.R.R. D/142 (HRTO).
[36] F. Barahona. “Immigrants hit with ‘illegal' rents: Landlord demands up to year's rent from newcomers” Toronto Star (July 29, 2001); “Forum hears of discrimination in housing: Would-be tenants say they were victims of racism” Toronto Star (March 21, 2002). The OHRC also heard about these unlawful practices throughout its housing consultation.
[37] The Code and Regulation 290/98 permit landlords to request information about a prospective tenant’s rental history. However, based on the decision in Ahmed v. 177061 Canada Ltd. (2002), 43 C.H.R.R. D/379 (Ont. Bd. Inq.), treating the lack of a rental history in the same way as a negative rental history results in discrimination where the lack of a rental history is related to a Code ground.
[38] See Ontario (Human Rights Comm.) v. Elieff (1996), 37 C.H.R.R. D/248 (Ont.Ct. (Gen. Div.)), rev’g in part (1994), 25 C.H.R.R. D/163 (Ont. Bd. Inq.).
[39] Fancy v. J & M Apartments Ltd. (1991), 14 C.H.R.R. D/389 (B.C.C.H.R.).
[40] Chauhan v. Norkam Seniors Housing Cooperative Association (2004), 51 C.H.R.R. D/126, 2004 BCHRT 262. For a related case, see Peroz v. Yaremko, (2008), CHRR Doc. 08-769
(Sask. H.R.T.).
[41] See Conway v. Koslowski (1993), 19 C.H.R.R. D/253 (Ont. Bd. Inq.).
[42] See Turanski v. Fifth Avenue Apartments (1986), 7 C.H.R.R. D/3388 (B.C.C.H.R.).
[43] See, for example, Kertesz v. Bellair Property Management (2007), CHRR Doc. 07-632, 2007 HRTO 38 at 57 (Human Rights Tribunal of Ontario), and Reed v. Cattolica Investments Ltd. (1996), 30 C.H.R.R. D/331 (Ont. Bd. Inq.).
[44] Peterson v. Anderson (1992), 15 C.H.R.R. D/1 (Ont. Bd. of Inq.).
[45] In Leong v. Cerezin (1992), 19 C.H.R.R. D/381 (B.C.C.H.R.), a B.C. human rights tribunal found that the claimant was discriminated against by the respondent when he was refused occupancy of a suite because, according to the building manager, the owner preferred female tenants. Ultimately, the apartment was rented to a female for the same occupancy date the claimant had requested and for a lower rent.
[46] Miron v. Trudel, [1995] 2 S.C.R. 418 at para. 152.
[47] See Swaenepoel v. Henry (1985), 6 C.H.R.R. D/3045 (Man. Bd. Adj.) in which a human rights tribunal found that the claimants, a group of three single women, were discriminated against by the respondents because of the respondents’ assumptions about the characteristics of single people of the same sex, residing together as tenants, who did not conform to the nuclear family model; in Gurman v. Greenleaf Meadows Investment Ltd (1982), C.H.R.R. D/808 (Man. Bd. Adj.), a tribunal found that the respondent had discriminated against the claimants, two sisters and a brother, because they were a group of single adults of mixed sexes; in Wry v. Cavan Realty (C.R.) Inc. (1989), 10 C.H.R.R. D/5951 (B.C.C.H.R.), the British Columbia tribunal found that the claimant (a single man) was discriminated against because the respondent only wished to rent to families and married couples. The tribunal found that there was discrimination based on sex and marital status.
[48] In Matyson v. Provost (1987), 9 C.H.R.R. D/4623 (Sask. Bd. Inq.), the respondents would not rent to common-law couples because it offended their religious beliefs. A Saskatchewan human rights tribunal found that while the respondent’s freedom of religion was protected under the Charter of Rights and Freedoms and the Saskatchewan Human Rights Code, the respondents had a responsibility to provide housing accommodations in a non-discriminatory way once they made it available to the public. See also Vander Schaaf v. M & R Property Management Ltd. (2000), 38 C.H.R.R. D/251 (Ont. Bd. Inq) in which the claimant alleged that the superintendent refused her rental application because of a preference for married couples. There was evidence to show that the claimant was treated differently than spousal co-tenants would have been. An Ontario human rights tribunal found that the respondents had directly discriminated against the claimant.
[49] See Raweater v. MacDonald, (2004), 51 C.H.R.R. D/459, 2005 BCHRT 63.
[50] See N. Zukewich, “Unpaid Informal Caregiving” (Autumn 2003) 70 Canadian Social Trends 14, online: www.dsp-psd.pwgsc.gc.ca/Collection-R/Statcan/11-008-XIE/0020311-008-XIE.pdf.
[51] See, for example, Flamand v. DGN Investments (2005), supra, note 35, which involved a landlord who denied housing and made racial slurs to an Aboriginal woman who was a mother of one child.
[52] Fakhoury v. Las Brisas Ltd. (1987), 8 C.H.R.R. D/4028 (Ont. Bd. of Inq.). In this case, there was a policy whereby a four-person family, composed of one parent and three children, were required to rent at least a three-bedroom unit. The tribunal held that there was no reasonable justification for this unequal treatment. For related cases, see Desroches v. Québec (Comm. des droits de la personne) (1997), 30 C.H.R.R. D/345 (C.A. Qué.), and Cunanan v. Boolean Developments Ltd. (2003), 47 C.H.R.R. D/236, 2003 HRTO 17.
[53] Booker v. Floriri Village Investments Inc., (1989), 11 CHRR D/44 (Ont. Bd. Inq.).
[54] Ward v. Godina (1994), CHRR Doc. 94-130 (Ont. Bd. Inq.).
[55] For example, in Thurston v. Lu (1993), 23 C.H.R.R. D/253 (Ont. Bd. Inq.), a tribunal held that denying a woman the right to apply for the apartment and rejecting her outright because she had a child resulted in prima facie discrimination. In Cunanan v. Boolean Developments Ltd. (2003), supra, note 52, a tribunal found a breach of the Code where the landlord refused to rent to a claimant because her family, that included three teenage children, was not the “ideal” size according to “Canadian” standards and was not suitable. In Peterson v. Anderson (1991), supra, note 44, a tribunal held that the eviction of a pregnant tenant was discrimination on the ground of family status, as well as sex. The tribunal found evidence of stereotypes and disapproval of single parenthood and unmarried conjugal relationships, even though there was no general restriction on children in the building.
[56] See Wasylnka v. Bilich (2009), 2009 HRTO 265.
[57] Based on the definition of “age” in section 10 of the Ontario Human Rights Code, R.S.O. 1990, c.H.19.
[58] Arzem v. Ontario (Ministry of Community and Social Services (No. 6) (2006), 56 C.H.R.R. D/426, 2006 HRTO 17, in the context of claims of discrimination in the provision of autism services based on age and disability.
[59] See Bushek v. Registered Owners of Lot SL 1, Plan LMS13, Dist. Lot 384A, New Westminster Land Dist. (1997), CHRR Doc. 97-224 at para. 48 (B.C.C.H.R.); Watkins v. Cypihot (2000), CHRR Doc. 00-036, 2000 BCHRT 13; and Cunanan v. Boolean Developments Limited, (2003), supra, note 52.
[60] As mentioned previously, 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 was 18 years old: see section 4(2) of the Code, supra, note 57.
[61] See Sinclair v. Morris A. Hunter Investments Ltd. (2001), 41 C.H.R.R. D/98 (Ont. Bd. Inq), a case where an Ontario human rights tribunal found that the claimants were discriminated against when they were refused rental of an apartment because they could not meet a rent-to-income ratio of 33 percent. The tribunal accepted expert evidence that rent-to-income ratios discriminate against rental applicants at least up until their mid-twenties. The tribunal also found that rental policies requiring applicants to have permanent jobs and a minimum tenure with an employer discriminate on the basis of age since employment for younger people is more unstable and of a shorter duration than that of older adults. For a related case, see Dominion Management v. Vellenosi (1989), 10 C.H.R.R. D/6413 (Ont. Bd. Inq.) in which an Ontario human rights tribunal found that the claimant, a 37 year old woman, had been discriminated against based on age because the owners preferred to rent to older, wealthy couples. See also Garbett v. Fisher (1996), 25 C.H.R.R. D/379 (Ont. Bd. Inq.).
[62] The definition of “disability” in section 10 of the Code is broad and includes physical disability, mental disability, learning disability, mental disorder or any injury or disability where benefits are claimed under the Workplace Safety and Insurance Act, 1997, S.O. 1997, c.16. The Code also provides protection against discrimination to people who have had disabilities and who are perceived to have or to have had disabilities.
[63] Accommodations may include physical modifications such as installing ramps and elevators, visual fire alarms and doorbells for the hearing impaired, different door handles, lower counters, etc. It can also require other forms of accommodation such as waiving or changing a rule, for example, allowing guide dogs in a building with a “no pets” policy. See Di Marco v. Fabcic (2003), CHRR Doc. 03-050, 2003 HRTO 4.
[64] Yale v. Metropoulos (1992), 20 C.H.R.R. D/45 (Ont. Bd. Inq.).
[65] See Weiher v. Polhill (2003), 47 C.H.R.R. D/104, 2003 HRTO 13.
[66] Iness v. Caroline Co-operative Homes Inc. (No. 5) (2006), CHRR Doc. 06-450, 2006 HRTO 19, at para. 43.
[67] See Willis v. David Anthony Philips Properties (1987), 8 C.H.R.R. D/3847 (Ont. Bd. Inq.); Kostanowicz v. Zarubin (1994), 28 C.H.R.R. D/55 (Ont. Bd.Inq.); and Québec (Comm. Des
droits de la personne) v. Gauthier (1993), 19 C.H.R.R. D/312 (T.D.P.Q. ) [English Summary].
[68] Québec (Comm. des droits de la personne) c. Whittom (1993), 20 C.H.R.R. D/349 (Trib.Qué.), upheld on appeal, Whittom c. Québec (Comm. des droits de la personne) (1997), 29 C.H.R.R. D/1 (C.A. Qué.).
[69] See, for example, Linda Lapointe, Analysis of Evictions in the City of Toronto: Overall Rental Housing Market, (March 2004) that establishes that the main reasons for rent arrears are the following: job-related reasons (39%), medical reasons (17%), other financial reasons (12%), family issues (7%), landlord/tenant conflict (13%), other reasons (12%).
[70] Québec (Comm. Des droits de la personne) v. Gauthier (1993), supra, note 67.
[71] See, for example, Willis v. David Anthony Philips Properties (1987), supra, note 67; Kostanowicz v. Zarubin (1994), supra, note 67; Whittom c. Québec (Comm. des droits de la personne) (1997), supra, note 68; Québec (Comm. Des droits de la personne) v. Gauthier (1993), supra, note 67.
[72] See McEwen v. Warden Building Management Ltd. (1993), 26 C.H.R.R. D/129 (Ont. Bd. Inq.). Note that direct payment of government cheques may not be discriminatory in the context of rent-geared-to-income housing arrangements, or other special programs.
[73] See Garbett v. Fisher (1996), supra, note 61. Note that Regulation 290/98 under the Code, which was enacted in 1998, effectively permits landlords to require security deposits. Please see the section of this Policy entitled “Security Deposits and Extra Rent Requirements” for more detailed information.
[74] See Kearney v. Bramalea Ltd. (No. 2), (1998), 34 C.H.R.R. D/1 (Ont. Bd. Inq.); aff’d Shelter Corp. v. Ontario (Human Rights Comm.) (2001), 39 C.H.R.R. D/111 (Ont. Sup. Ct.). The OHRC has expressed its concern about the inadequate level of public assistance. In particular, the OHRC has highlighted the “shelter gap” created when the shelter allowance portion of public assistance is dramatically lower than the average rent in Ontario (particularly in cities), and the tenuous situation this creates for people and families. For more information, see the OHRC’s housing background paper, supra, note 12 and consultation report, supra, note 14.