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The Ontario Human Rights Code
The Ontario Human Rights Code (the Code) is the law that provides for equal rights and opportunities, and freedom from discrimination. The Code recognizes the dignity and worth of every person in Ontario. It applies to the social areas of employment, housing, goods, facilities and services, contracts, and membership in unions, trade or professional associations.
Mental health issues and addictions are “disabilities” that are protected under the Code. For example, the Code protects people who have anxiety disorders, panic attacks, post-traumatic stress disorder (PTSD), depression, schizophrenia, bipolar disorder, or addictions to alcohol or drugs, just to name a few.
The Code applies to every part of buying or renting housing. This includes private, social, supportive and co-operative housing. When renting a place to live, the Code covers:
- Applying to rent a unit
- Tenant rules and regulations
- Repairs and maintenance
- Using related services and facilities
- Your general enjoyment of the place you rent
- Evictions.
Mental health and addiction disabilities
People with mental health or addiction disabilities experience impairment and barriers in different ways. Disabilities are often “invisible” and episodic, with people experiencing periods of wellness and periods of disability. All people with disabilities have the same rights to equal opportunities under the Code, whether their disabilities are visible or not.
People with addictions have the same right to be free from discrimination as other people with disabilities. There is often a cross-over between addictions and mental health disabilities, and many people experience both. The Code also protects people from discrimination because of past and perceived disabilities.
Example: A human rights tribunal found that a person with multiple physical disabilities was discriminated against when she was denied a first floor apartment that would have accommodated her. Her physical disability prevented her from cleaning and maintaining her apartment. Her landlord assumed that this was due to a mental health disability and that the building was not appropriate for her. He thought she should live in a long-term care home instead. The tribunal rejected this assumption and said that the landlord imposed a “socially constructed” disability on her.[1]
People with a mental health or addiction disability who also identify with other Code grounds (such as sex, race or age) may be distinctly disadvantaged when they try to find or keep housing. Stereotypes may exist that are based on combinations of these identities that place people at unique disadvantage.
Example: In the Ontario Human Rights Commission’s mental health consultation, it heard that young African-Canadian men with a mental health disability will experience specific barriers renting housing based on intersecting stereotypes that relate to sex, age, race and disability.
Discrimination
Discrimination against people with mental health or addiction disabilities is often linked to prejudicial attitudes, negative stereotyping, and the overall stigma surrounding these disabilities.
Discrimination in housing may happen when a person experiences negative treatment or impact because of their mental health or addiction disability. Discrimination does not have to be intentional. And, a person’s mental health or addiction disability needs to be only one factor in the treatment they received to be able to show that discrimination took place.
Forms of discrimination
Discrimination may take many different forms. It can happen when housing providers specifically exclude people with mental health disabilities or addictions in housing, withhold benefits that are available to others, or impose extra burdens that are not imposed on others, without a legitimate reason. This discrimination is often based on negative attitudes, stereotypes and bias.
Example: A landlord learns that a housing applicant is recovering from an alcohol addiction. The landlord asks personal questions about the person’s addiction. The landlord says he doesn’t feel comfortable renting to someone who has an alcohol addiction.
Discrimination may also happen indirectly. It may be carried out through another person or organization.
People associated with persons with mental health or addiction disabilities are also protected from discrimination and harassment. This could include family, friends, or someone advocating on a person’s behalf.
Discrimination is often subtle. It may not be likely that discriminatory remarks will be made directly. Subtle forms of discrimination can usually only be detected after looking at all of the circumstances of a situation to see if a pattern of behaviour exists. Individual acts themselves may be unclear or explained away, but when viewed as part of a larger picture, may lead to an inference that discrimination based on a Code ground was a factor in the treatment a person received.
Adverse effect discrimination
Sometimes seemingly neutral rules, standards, policies, practices or requirements have an “adverse effect” on people who have mental health or addiction disabilities.
Example: A person with a severe mental health disability and addictions who was homeless applied for supportive housing and went for an assessment. The application form was very technical and long. Due to factors relating to his disabilities and social situation, he didn’t understand and couldn’t answer the many questions. Because of this, the housing providers denied the housing, instead of offering to help him answer the questions.
Harassment
Harassment happens when someone shows a vexatious (which means distressing or annoying) pattern of doing or saying something based on a person’s mental health or addiction disability that they know, or ought to know, is unwelcome.
Harassment could include:
- Slurs and name-calling
- Graffiti, images or cartoons showing people with mental health disabilities in a negative light
- Singling out a person for teasing or jokes related to their mental health disability or addiction
- Unwanted personal questions or remarks about someone’s disability, medication or accommodation needs
- Repeatedly excluding people from the housing environment, or “shunning” them
- Revealing someone’s mental health or addiction disability to people who do not need to know
- Circulating offensive material about people with mental health disabilities or addictions at an organization by email, text, the Internet, etc.
Example: A tenant decided to move from her apartment. The landlord was aware that she had a mental health disability. The landlord became angry that she was moving, and subjected her to slurs such as “mental,” “crazy” and “sick” in the weeks before her move. This was harassment because of her mental disability.[2]
Poisoned environment
A poisoned environment may be created when unwelcome comments or conduct are widespread in a housing environment, which may result in a hostile or oppressive atmosphere for one or more people from a Code-protected group. Although the definition of harassment refers to “repeated” actions or comments, sometimes a single remark or action can be so serious that it results in a poisoned environment.
Mental health profiling
Mental health profiling is any action taken for reasons of safety, security or public protection that relies on stereotypes about a person’s mental health or addiction disability instead of on reasonable grounds, to single out a person for greater scrutiny or different treatment. A “stereotype” is a generalization about a person based on assumptions about qualities and characteristics of the group they belong to.
Example: A housing co-operative evicts a man when the board finds out he has schizophrenia. They assume he will put other people at risk, even though there have been no concerns about his behaviour. This is discriminatory.
Systemic discrimination
Systemic discrimination refers to patterns of behaviour, policies or practices that are part of the structure of an organization or sector, that create a position of relative disadvantage for people with mental health disabilities or addictions. The policies or practices may appear neutral on the surface, but have an adverse effect or exclude people with mental health disabilities or addictions.
Example: A municipality developed a bylaw restricting the location of group homes for people with disabilities in response to concerns of neighbours who don’t want tenants with mental health or addiction disabilities living in their neighbourhood. The municipality also continues to enforce its longstanding bylaws that make rooming houses illegal, and restrict many renters from sharing a house. These rules and bylaws, whether intentionally or not, will have an adverse impact on people with psychosocial disabilities who are more likely to use these types of housing. The municipality’s actions may be evidence of systemic discrimination.
Failure to accommodate
When an organization does not accommodate a person’s mental health or addiction disability to the point of undue hardship, this also violates the Code (see below).
Reprisal
It is also against the Code for a person to be punished or threatened with punishment because they try to enforce their rights under the Code (for example, by making a complaint). This is called reprisal (or “payback”).
Removing barriers and designing inclusively
People with mental health disabilities or addictions face many kinds of barriers every day. These could be attitude, communication, physical or systemic barriers. Organizations should identify and remove barriers voluntarily instead of waiting to answer individual accommodation requests or complaints. Effective inclusive design will reduce the need for people to ask for individual accommodation. Housing providers should use the principles of inclusive design when creating policies, programs, procedures, standards, requirements and facilities.
Example: A social housing provider ensures that several of its one-bedroom units are available to people who, due to a mental health disability, need to live in quiet, private spaces on their own.
Negative attitudes about people with mental health disabilities or addictions can be barriers too. Taking steps to prevent “ableism” – attitudes that devalue and limit the potential of people with disabilities – will help promote respect and dignity, and help people with disabilities to fully take part in community life.
Duty to accommodate
Under the Code, housing providers have a duty to accommodate the needs of people with mental health or addiction disabilities to the point of undue hardship to make sure they have equal opportunities, equal access and can enjoy equal benefits. The goal of accommodation is to allow people to equally benefit from and take part in housing.
This means that housing providers may need to change their rules, procedures, policies and requirements to allow for equal access and equal opportunities.
Three key principles drive the duty to accommodate:
- Respect for dignity
- Individualization, and
- Integration and full participation.
The steps taken to assess an accommodation (the “procedural” part of the duty to accommodate) are just as important as the accommodation that is provided (the “substantive” part of the duty to accommodate).
A person who needs a disability-related accommodation must:
- Tell the housing provider what their disability-related needs are in relation to their housing, in writing, if they can
- Provide supporting information about the needs and limitations relating to their disability, including information from health professionals where appropriate and as needed
- Co-operate with the housing provider on an ongoing basis to manage the accommodation process.
Housing providers must:
- Accept requests for accommodation from tenants in good faith, unless there are legitimate reasons for acting otherwise
- Ask only for information they need to provide the accommodation.
- Take an active role in looking at accommodation solutions that meet individual needs
- Deal with accommodation requests as quickly as possible, even if it means creating a temporary solution while developing a long-term one
- Respect the dignity of the person asking for accommodation, and keep information confidential
- Cover the costs of accommodations, including any needed medical or other expert opinion or documents.
Example: A tenant tells his landlord that he has been hospitalized due to a disability and cannot make his rent payment on time. Knowing that the person is in hospital, the landlord does not need the tenant to confirm that he has a disability, but asks for information to show that his need is temporary, and that he will be able to pay his rent once released in a few weeks’ time. The person provides this information, and the landlord makes an allowance for the late payment.
Maintaining confidentiality for people with mental health disabilities or addictions may be especially important because of the strong social stigmas and negative stereotyping that exist about these disabilities.
Sometimes, a person with a mental health or addiction disability cannot identify they need accommodation. Housing providers must try to help a person who is clearly unwell, or is thought to have a mental health disability or addiction. They must ask if the person has needs related to a disability and offer assistance and accommodation.
Example: A tenant starts showing that he is having real difficulty keeping his unit clean, to the point where major health and safety risks are starting to arise. The property manager perceives that this is happening because the person may have a disability. When she tries to talk to the tenant about his situation, the tenant has difficulty recognizing he has needs related to his housing that may warrant accommodation. The property manager suggests that the tenant contact a trusted friend or family member so they can all sit down together and work out a plan of action to help the tenant.
However, organizations are not entitled to try to diagnose illness or “second-guess” a person’s disability.
Forms of accommodation
Many accommodations can be made easily, and at low cost. Where putting the best solution in place right away may result in “undue hardship” because of significant costs or health and safety factors, housing providers still have a duty to look at and take next-best steps that would not result in undue hardship. Such steps should be taken only until better solutions can be put in place or phased in.
Depending on a person’s individual needs, examples of accommodation may include:
- Help filling out application forms (for example, for social or supportive housing)
- Adjusted criteria used to select tenants (such as using a guarantor when other information, such as credit history or rental history, is not available)
- Changed deadlines (such as deadlines to report income changes in social and supportive housing)
- Changes in the ways that information is communicated to tenants (for example, making sure legal language is explained plainly)
- A list of support people the landlord can call in emergency situations
- Structural changes to units (such as sound-proofing)
- The landlord working with outside professionals to address someone’s needs, if agreed to by the tenant (such as where people collect and store possessions to the point where this becomes a significant risk to themselves and others).
An accommodation provider should take steps to resolve any tension or conflict that may occur as a result of resentment on the part of others who are expected to help put an accommodation in place. In some situations, tension may be linked to a lack of awareness about the nature of the person’s disability or needs.
Medical information
The type of information that tenants seeking accommodation may generally be expected to provide includes:
- That the person has a disability or a medical condition
- The limitations or needs associated with the disability
- The type of accommodation(s) needed to allow the person to access their housing and fulfil the essential duties or requirements of being a tenant (such as paying rent).
Where more information about a person’s disability is needed, the information requested must be the least intrusive of the person’s privacy while still giving the accommodation provider enough information to make the accommodation.
Generally, the landlord does not have the right to know a person’s confidential medical information, such as the cause of the disability, diagnosis, symptoms or treatment, unless these clearly relate to the accommodation asked for. In rare situations where a person’s accommodation needs are complex, challenging or unclear, the person may be asked to provide more information, up to and including their diagnosis. In these situations, the housing provider must be able to clearly justify why the information is needed.
Accommodating a person’s mental health or addiction disability, by modifying processes, procedures, requirements or facilities to allow equal access, is not the same as treating someone’s mental health or addiction disability. A landlord or housing provider is generally not expected (or qualified) to give counselling, treatment or medication to a person or provide social work services as part of their duty to accommodate.
Preventing and responding to discrimination
Under the Code, housing providers must make sure their organizations are free from discriminatory or harassing behaviour. Housing providers violate the Code when they directly or indirectly, intentionally or unintentionally infringe the Code, or when they authorize, condone or adopt behaviour that is contrary to the Code.
Organizations must take steps to address negative attitudes, stereotypes and stigma to make sure they do not lead to discriminatory behaviour toward people with mental health disabilities or addictions.
Education on human rights works best alongside a strong proactive strategy to prevent and remove barriers to equal participation, and effective policies and procedures for addressing human rights issues that do arise. A complete strategy to prevent and address human rights issues should include:
- A barrier prevention, review and removal plan
- Anti-harassment and anti-discrimination policies
- An education and training program
- An internal complaints procedure
- An accommodation policy and procedure
See the OHRC’s A policy primer: Guide to developing human rights policies and procedures for more information.
For more information
The Ontario Human Rights Commission’s Policy on preventing discrimination based on mental health disabilities and addictions and other publications are available at www.ohrc.on.ca.