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May 6, 2023
Context
The government of Ontario is seeking feedback on proposed changes to the Residential Tenancies Act, 2006 (RTA) which would clarify and enhance rules related to the installation of air conditioning (A/C) units.
Currently, under the RTA, landlords and tenants can agree to the installation of A/C units in exchange for a seasonal rent increase. In practice, some landlords may prohibit the installation of an A/C unit in their tenancy agreement; however, the RTA does not set out grounds for this prohibition.
The government is proposing changes which are intended to clarify and enhance the rules around tenant installation and use of A/C units.
Proposal:
Where the landlord does not provide A/C, the RTA would be amended to explicitly permit tenants to install window or portable A/C units, at the tenant's cost, if the following requirements are met:
- The tenant gives written notice to the landlord of their intention to install and provides the landlord with information about the efficiency of the A/C and the tenant's anticipated usage.
- The tenant must ensure the A/C units are installed safely and securely, without causing any damage to the rental unit or complex.
- The installation must comply with applicable laws, including municipal bylaws, and any rules which may be prescribed under the RTA.
Under these proposed amendments, if the landlord pays for electricity, they can charge a seasonal fee to the tenant based on the actual cost of electricity to the landlord or a reasonable estimate based on the information provided by the tenant. Tenants would be responsible for covering any costs associated with the installation.
The proposed amendments create a regulation-making authority to prescribe additional rules and circumstances if needed.
OHRC Submission
The Ontario Human Rights Commission (OHRC) welcomes the government’s efforts to strengthen tenants’ rights to access cooling in their homes.
As temperatures rise due to climate change, extreme heat waves have and will continue to disproportionately impact groups protected under Ontario’s Human Rights Code (Code).
At highest risk are people with disabilities, older people, Indigenous, Black, and other racialized communities, and people with low incomes who have little or no access to air conditioning and are more likely to live in areas with fewer parks and shaded outdoor areas.
On August 19, 2022, the OHRC issued a statement that called on the Government of Ontario to include air conditioning as a vital service, as with the provision of heat, under RTA regulations, and to establish a provincial maximum temperature to protect the health and safety of vulnerable tenants.
Given the disproportionate impact that lack of access to cooling has on people and groups protected by the Code, the OHRC has the following concerns with the proposed changes:
Cooling is a vital service
Under the RTA, tenants must have access to vital services such as heat, hot and cold water, electricity, and fuel (such as natural gas). A landlord or housing provider cannot shut off these services, even if a tenant has not paid their rent. Landlords and housing providers may pay for vital services or tenants may pay for them depending on the lease agreement.
Currently, the RTA regulations do not include cooling/air conditioning as a vital service. Only housing that has central air conditioning is required by some municipalities to maintain a maximum temperature of not more than 26°C between June and September.
The OHRC is pleased that the proposed changes aim to protect tenants’ ability to install A/C units in their homes. However, the legislation should ensure that cooling is deemed a vital service. This would provide protection to the tenants from having their cooling cut off for non-payment and will be an incentive to landlords to achieve cooling through other means.
The concern is that vulnerable and low-income tenants remain at higher risk of adverse health outcomes if the regulations under the RTA do not designate A/C or other means of cooling as a vital service.
Transferring the cost to the tenant
The proposed changes allow landlords to charge a seasonal fee to the tenant based on the actual cost of electricity to the landlord or a reasonable estimate based on the information provided by the tenant. Tenants would be responsible for covering any costs associated with the installation.
The OHRC is concerned that this approach will result in barriers to accessing cooling/air conditioning for low-income tenants who are disproportionally also protected by the Code.
Access to heat is a vital service under the RTA, tenants are not expected to pay to install heating, tell a landlord how efficient the heating device is, or pay seasonally in the winter for increased usage. Access to cooling/air conditioning must be treated the same way in the RTA as heat.
The OHRC welcomes the proposed changes that will protect tenants from eviction for installing A/C units. However, designating some form of cooling as a vital service, and not transferring all cost of that cooling to the tenant under lease agreements where the landlord has agreed to pay for utilities, better ensures that vulnerable tenants truly gain access to cooling/air conditioning in the face of increasing temperatures.