Status and Purpose of the Code
The Code is quasi-constitutional legislation which has primacy over all other legislation in Ontario, unless the other legislation specifically states that it applies despite the Code. This means that if another piece of legislation contains a provision which conflicts with or contravenes the Code, the Code will prevail.
This primacy is specifically recognized in the context of rental housing. For example, the RTA contains a provision which states that the Act will override any other Act that may conflict with it, except for the Code. In addition to this, several Ontario Rental Housing Tribunal decisions have recognised the Code’s supremacy and special status in their rulings.
The purpose of the Code, as stated in its Preamble, 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 able to contribute fully to the development and well-being of the community and the Province.
The Preamble also recognizes that it is public policy in Ontario:
...to recognize the dignity and worth of every person and to provide for equal rights and opportunities without discrimination...
In relation to housing, the Code aims to ensure that everyone has the equal opportunity to access housing accommodation and its attendant benefits without discrimination on any of the grounds protected by the Code. In this regard, subsection 2(1) of the Code provides:
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.
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 vis-à-vis 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 rental housing, the person in a position to confer or deny a benefit would most likely be the landlord or superintendent of a residential dwelling.
Defences and Exceptions
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.
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.
- (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.
- (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 which are prescribed in the regulations made under this Act in selecting prospective tenants.
The regulations related to subsection 21(3) permit landlords to use, in the manner prescribed by the Code and regulations, income information, credit checks, credit references, rental history, guarantees or other similar business practices for selecting prospective tenants. With respect to the use of income information, Reg. 290/98 under the Code permits landlords to request income information from a prospective tenant only if the landlord also requests credit references, rental history, and credit checks, and to consider income information only together with all the other information that the landlord obtained. The subsection and regulations do not allow a landlord to engage in adverse effect discrimination or to refuse to rent to someone because of an enumerated ground under the Code.
An individual who believes his or her rights have been violated may choose to make a complaint under the Code. A person cannot be punished or threatened with punishment for exercising these rights. 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.
 Subsection 47(2) of the Ontario Human Rights Code, R.S.O. 1990, c. H. 19.
 Subsection 3(4) of the Residential Tenancies Act, supra note 11.
 See, for example, Karoli Investments Inc. v. Reid,  O.R.H.T.D. No. 8 at para. 75 and Hillhurst Park Apartments v. Wolstat,  O.R.H.T.D. No. 33.
 A discussion of case law interpreting the regulations is contained in the section Minimum Income Criteria.