Section 2 of the Code protects older persons against discrimination in housing. This right applies to renting, being evicted, building rules and regulations, repairs and use of services and facilities. Housing includes a range of accommodation options including rental accommodation, condominiums, retirement homes and care facilities. There can be some overlap between housing and services, for example seniors’ residences in which services such as housekeeping, meals or medical assistance are provided.
The Code prohibits either direct or adverse effect discrimination in housing. For example, a housing provider should not turn away older persons because it wishes to attract more youthful residents. Similarly, older persons who may be paying lower rents due to longer tenure in their rental unit should not be targeted for eviction by landlords who wish to attract new tenants at a higher rent.
While there are some exceptions, older persons tend not to be turned away from housing due to discriminatory perceptions about age. Rather the main barrier to housing experienced by older persons is a lack of housing to meet their needs both in terms of affordability and also in terms of accessibility.
It is the OHRC’s view that older persons benefit from the support, community and income security offered by seniors’ housing projects. As well, the concept of “aging in place” has been recognized by the OHRC as a central consideration so that in some cases it may be appropriate to offer “seniors’ housing” to those under the age of 65 who may have special needs that will remain as they age.
Therefore, the OHRC would encourage housing aimed at older persons, including those less than 65 years of age, which will foster the objectives of the Code. However, those responsible for such housing must be aware that age restrictions are prima facie discriminatory and that they must be able to justify them using one of the defences in the Code. Possible options include:
- Section 15: provides a defence to preferential treatment of persons 65 and over. This insulates housing that is limited to persons over age 64 from challenge by those too young to qualify.
- Section 14: permits special programs to alleviate hardship and disadvantage. This may allow social housing aimed at older low-income persons over a certain age, but starting at less than 65, if it can be shown that this group experiences particular disadvantage associated with their socio-economic status that younger persons do not experience. This might also permit specially designed barrier-free housing projects offered exclusively to older persons with disabilities.
- Section 18: religious, philanthropic, educational, fraternal or social institutions or organizations which primarily serve the interests of older persons, or older persons who belong to a particular religious or ethnic community, and which provide housing accommodation as part of their services may be able to restrict that accommodation to persons who are similarly identified. However, in order to rely on this defence, the provision of accommodation alone is not sufficient, some other “service or facility” must be provided.[46]
Example: A synagogue runs a seniors’ residence the purpose of which is to foster the religion and culture of its residents. Prayer services are provided and kosher food is served. It restricts membership to persons of the Jewish faith who are over the age of 60.
There is no defence, however, that will permit “adult lifestyle” housing that results in the exclusion of children or persons under a certain age.[47]
Older persons may require accommodation in order to enjoy housing on an equal basis with other residents. The person responsible for the housing, such as the landlord in the case of rental accommodation or the condominium corporation in the case of condominium units, has a duty to accommodate the needs and capabilities of older residents, subject to the undue hardship standard[48] :
Example: A tenant in a rental unit develops arthritis and requests that doorknobs in her suite as well as to common areas such as the laundry room be changed from round knobs, that are difficult to grip, to handles that are suitable for persons with arthritis. The landlord willingly makes this change as it is not an undue hardship to do so. Moreover, it will benefit other tenants in the building who are also aging.
The duty to take steps to address special needs might include changes to an older person’s apartment (except where owned by the person him or herself), building entrance, sidewalks, parking facilities and common areas. This might include physical modifications such as installing elevators, ramps, visual fire alarms and doorbells for the hearing impaired, different door handles, lower counters etc. It can also require other forms of accommodation such as waiving or changing a rule, allowing transfer to another unit without penalty[49], providing better maintenance such as more frequent snow removal and so on.
[46] See Gregory v. Donauschwaben Park Waldheim Inc. (1990), 13 C.H.R.R. D/505 at para. 29 (Ont. Bd. Inq.). In that case, this defence was successfully relied upon by a non-profit society whose objectives were to foster and preserve the culture and heritage of Danube Swabians. The sale of property within the Park would only be approved by the respondent if the purchaser were German-speaking.
[47] A condominium corporation was found to be in breach of the Code because of by-laws which barred families with children younger than 14 or 16 from occupying the condominium units; York Condominium v. Dudnik (1991), 14 C.H.R.R. D/406 (Ont. Div. Ct.).
[48] In Julie Ramsey v. S.W.M. Investments (August 22, 1994), (Ont. Bd. Inq.) #642 [unreported], a tenant alleged discrimination because of disability due to the landlord’s lack of designated “handicapped” parking. Under a settlement, the landlord agreed to provide two designed parking spots for tenants, one designated spot for visitors and further designated spots for tenants as required so that each tenant entitled to a spot would have one. The landlord also agreed to maintain the parking spots by clearing snow, sanding or salting the parking spots and the route to the door of the building.
[49] For example, during its consultations, the OHRC heard that older persons who become widowed face particular hardship when they seek to move to a smaller unit that they can better maintain but face significant rent increases. A possible accommodation in this situation may mean facilitating transfer to another unit in the building without treating the situation as a new lease to which higher rents would apply.