The ultimate responsibility for a healthy and inclusive housing environment rests with landlords, housing providers and other housing-related organizations covered by the Code. There is an obligation to make sure that environments are free from discrimination and harassment. It is not acceptable from a human rights perspective to choose to remain unaware of the potential existence of discrimination or harassment, or to ignore or fail to act to address human rights matters, whether or not a human rights claim has been made.
A housing provider or other related organization violates the Code where it directly or indirectly, intentionally or unintentionally infringes the Code, or where it does not directly infringe the Code but rather authorizes, condones, adopts or ratifies behaviour that is contrary to the Code. Organizations should make sure that rules, policies, procedures, decision-making processes and organizational culture are non-discriminatory on their face, and do not have a discriminatory impact.
Example: A building manager who instructs her superintendent not to rent to people of a particular ethnicity because their food “smells too much” would be engaging in discrimination. The manager could also be named in a human rights claim because she used the superintendent indirectly to discriminate against people based on their ethnic origin.
In addition, there is a human rights duty not to condone or further a discriminatory act that has already occurred. To do so would extend or continue the life of the initial discriminatory act. The obligation extends to people who, while not the main actors, are drawn into a discriminatory situation nevertheless, through contractual relations or otherwise. A housing provider should also refrain from punishing a person because of how they responded to discrimination or harassment: people who reasonably believe that they are being discriminated against can be expected to find the experience upsetting and might well react in an angry and verbally aggressive manner.
Human rights decisions often find organizations liable, and assess damages, based on an organization’s failure to respond appropriately to address discrimination and harassment. An organization may respond to complaints about individual instances of discrimination or harassment, but they may still
be found to have failed to respond appropriately if the underlying problem is not resolved. There may be a poisoned environment, or an organizational culture that excludes or marginalizes people based on Code grounds, despite sanction of individual harassers. In these cases, the organization should take further steps, such as training and education, to address the problem more appropriately.
The following factors have been suggested as considerations for determining whether an organization met its responsibilities to respond to a human rights complaint:
- procedures in place at the time to deal with discrimination and harassment
- the promptness of the institutional response to the complaint
- the seriousness with which the complaint was treated
- resources made available to deal with the complaint
- whether the organization provided a healthy living environment for the person who complained
- the degree to which the action taken was communicated to the person who complained.
Under section 46.3 of the Code, a corporation, trade union or occupational association, unincorporated association or employers’ organization will be held responsible for discrimination, including acts or omissions, committed by employees or agents in the course of their employment. This is known as vicarious liability and it applies to human rights violations in housing.
Example: A contracted maintenance worker makes homophobic comments to two gay men who are leaving their apartment unit. The men complain to their landlord. The landlord has a duty to promptly address the conduct of the worker and to make sure that the living environment is inclusive and poison-free.
Simply put, it is the OHRC’s position that vicarious liability automatically makes an organization responsible for discrimination arising from the acts of its employees or agents, done in the normal course, whether or not it had any knowledge of, participation in, or control over these actions.
Vicarious liability does not apply to breaches of the sections of the Code dealing with harassment. However, since the existence of a poisoned environment is a form of discrimination, when harassment amounts to or results in a poisoned environment, vicarious liability under section 46.3 of the Code is restored. Further, in these cases the “organic theory of corporate liability” may apply.
That is, an organization may be liable for acts of harassment carried out by its employees if it can be proven that it was aware of the harassment, or the harasser is shown to be part of the management or "directing mind" of the organization. In such cases, the decisions, acts, or omissions of the employee will engage the liability of the organization where:
- the employee who is part of the “directing mind” engages in harassment or inappropriate behaviour that is contrary to the Code
- the employee who is part of the ”directing mind” does not respond adequately to harassment or inappropriate behaviour of which they are aware, or ought reasonably to be aware.
Generally speaking, managers and central decision-makers in an organization are part of the “directing mind.” People with only supervisory authority may also be part of the “directing mind” if they function, or are seen to function, as representatives of the organization. Even non-supervisors may be considered to be part of the “directing mind” if they have de facto supervisory authority or have significant responsibility.
More often than not, many people share the responsibility to protect and promote human rights. In some cases, fellow tenants may be asked to be flexible to facilitate a person’s accommodation needs.
Example: A man who rents an apartment in a housing complex is on a waiting list for a transfer to a larger unit within his building. A family that has recently immigrated to Canada also living in the building receives word that their bid to sponsor their in-laws has been successful. If they are not able to move to a larger unit quickly, they will not be able to help their in-laws adjust to their new country. The man understands the family’s situation and agrees to let them by-pass him in the transfer waiting list.
While housing providers may not necessarily be responsible for the full extent of a tenant’s Code-related accommodation needs, they may need to assist and cooperate with others who are.
Example: A co-op with a singular mandate to offer mixed income housing (but offering no other support services), may not have any obligation to accommodate a tenant’s personal care needs within their unit. On the other hand, they may need to make sure the building is physically accessible, and may need to provide disability-related support services at monthly or annual general meetings, particularly if the tenant does not have access to outside resources for this purpose.
Note that in addition to the Code, housing providers will have obligations under the Accessibility for Ontarians with Disabilities Act and regulations including: the new Customer Service Accessibility Standard and the forthcoming Information and Communications, Employment and Accessible Built Environment standards, and possibly the Accessible Transportation Standard for providers who also offer bus or other forms of transportation services to their residents.
 See Fancy v. J & M Apartments Ltd. (1991), supra, note 39; Chauhan v. Norkam Seniors Housing Cooperative Association (2004), supra, note 40; and Peroz v. Yaremko, (2008), supra, note 40.
Payne v. Otsuka Pharmaceutical Co. (No. 3) (2002), 44 C.H.R.R. D/203 (Ont. Bd. Inq.) at para. 63: “The nature of when a third party or collateral person would be drawn into the chain of discrimination is fact specific. However, general principles can be determined. The key is the control or power that the collateral or indirect respondent had over the claimant and the principal respondent. The greater the control or power over the situation and the parties, the greater the legal obligation not to condone or further the discriminatory action. The power or control is important because it implies an ability to correct the situation or do something to ameliorate
Wall v. University of Waterloo (1995), 27 C.H.R.R. D/44 at paras. 162-67 (Ont. Bd. Inq.). These factors assist in assessing the reasonableness of an organization’s response to harassment. A reasonable response by the organization will not affect its liability but will be considered in determining the appropriate remedy. In other words, a housing provider that
has reasonably responded to harassment is not absolved of liability but may face a reduction
in the damages that flow from the harassment.
 “Employee” in this context could refer to a landlord, a co-op Board member, a housing agent, a housing manager, service personnel, etc.