Discrimination in rental housing can take various forms. One does not have to show that the discrimination was deliberate, malicious or even intentional. Even actions that are unintended or comments that are “only a joke”, are prohibited if they are offensive and discriminatory based on a ground in the Code.
Equal treatment with respect to rental housing accommodation offers protection in a broad range of situations. The right to be free from discrimination in housing includes not only the right to enter into an agreement and occupy a residential dwelling, but also the right to be free from discrimination in all matters relating to the accommodation.
For example, discrimination because of prohibited grounds under the Code may occur in a number of situations:
- Differential treatment in the application process (e.g. screening out an applicant on the basis of a racialized name)
- Outright denial of accommodation (e.g. refusal to rent to someone with children)
- Differential treatment relating to the statutory obligations of a landlord during occupancy (e.g. refusal to allow a tenant to sublet, refusal to do required repairs) that can be tied to a Code ground
- Differential treatment with regard to the amenities associated with some accommodation (e.g. inaccessible recreational facilities)
- Negative impact as a result of a seemingly neutral rule (e.g. an inflexible “no pets” policy that impacts on a person with a disability who uses a service animal)
- Differential treatment as a result of association[81] (e.g. refusing to rent to someone because he or she is in an interracial relationship)
Sometimes a housing provider discriminates through another person. For 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 complaint because she used the superintendent indirectly to discriminate against people based on their ethnic origin.
Discrimination exists not just in individual behaviour but can also be systemic or institutionalized. Systemic or institutional discrimination is one of the more complex ways in which discrimination occurs. Housing providers have a positive obligation to ensure that they are not engaging in systemic or institutional discrimination. Systemic discrimination consists of patterns of behaviour, policies or practices that are part of the social or administrative structures of an organization, and which create or perpetuate a position of relative disadvantage for persons identified by the Code. These may appear neutral on the surface but, nevertheless, have an exclusionary impact on Code-identified persons.[82]
The Commission has heard about a number of common rental policies and practices among housing providers that create systemic barriers for individuals and families attempting to access housing. For example, the use of minimum income criteria by housing providers will, in many cases, have a discriminatory impact on many individuals protected by the Code who tend, disproportionately, to have low incomes.[83]
Sometimes a rule or practice unintentionally singles out particular people and results in unequal treatment. This type of unintentional discrimination is called "constructive” or “adverse effect” discrimination and may create significant systemic barriers. For example, a landlord might have a rule that no pets are allowed in an apartment building. This rule would have an adverse effect on tenants who require “service” dogs to help them in their mobility, such as a blind person who uses a seeing eye dog.[84]
[81] An individual cannot be discriminated against because of his or her association, relationship or dealings with another person identified by a ground in the Code. A person has this protection whether or not he or she is identified by a Code ground. For example, a landlord will likely be engaging in discriminatory behaviour if he refuses to rent an apartment to a man because his co-tenant is a woman with a very young child.
[82] Systemic discrimination may also overlap with other types of discrimination that are not neutral. For example, a discriminatory policy can be compounded by the discriminatory attitudes of the person who is administering it.
[83] For a more detailed discussion of minimum income criteria, please see the section Minimum Income Criteria.
[84] A rule or practice can be justified if it is reasonable and genuine. However, it will only be allowed if a change or exception to the rule or practice would be too costly or would create a health or safety danger. If this cannot be shown, the rule or practice must be changed or an exception made so that there is no discrimination against an individual or particular group of people protected by the Code.