V. Identifying discrimination in rental housing

1. Defining discrimination

The Code provides that every person has the right to be treated equally in the area of housing without discrimination because of any of the grounds set out in the Code. The purpose of anti-discrimination laws is to prevent the violation of human dignity and freedom through the imposition of disadvantage, stereotyping, or political or social prejudice.

There are several ways of defining and identifying discrimination. Discrimination includes any distinction, including any exclusion, restriction or preference based on a prohibited Code ground, that impairs the recognition of human rights and fundamental freedoms.^[103]

The most important issue to determine is whether a prohibited Code ground was a factor in the discrimination. Even if a Code ground is only one of the factors in a decision to restrict a person’s equal access to housing, this may be a violation of the Code.^[104]

The right to equal treatment in rental housing 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.

2. Forms of discrimination in rental housing

2.1 Negative attitudes, stereotypes and bias

Discrimination can take many forms. In some cases, discrimination may be direct and intentional, where an individual or organization deliberately treats an individual unequally or differently because of a Code-protected ground. This type of deliberate discrimination generally arises from negative attitudes and biases about people identified by Code grounds.

Example: A landlord decides that she does not wish to rent apartments to families with young children, and designates her building as “adults-only.”

Example: Two women of Aboriginal ancestry were seeking to rent a house. Upon learning that they were Aboriginal, the owner’s wife stated she didn’t rent to “Indians” and made further disparaging comments. She then asked what the women did and when one of the women said she received social assistance responded, “That’s just as bad.”^[105]

It is a principle of human rights that people should be judged on their individual attributes, skills, and capacities, rather than on stereotypes and assumptions based on the groups to which they belong. Negative attitudes and stereotypes may lead to harassment and discrimination, and affect a person’s access to housing. Individual assessment combats the effects of negative attitudes and stereotypes based on Code grounds.

2.2 Subtle discrimination

In some instances, discrimination takes on more subtle or covert forms. Intent or motive to discriminate is not a necessary element for a finding of discrimination – it is sufficient if the conduct has a discriminatory effect. Also, as previously mentioned, discrimination based on a Code ground need only be one of several reasons for the decision or treatment.^[106]

Subtle forms of discrimination can usually only be detected upon examining all of the circumstances. Individual acts themselves may be ambiguous 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.

Example: A Black man responded to an ad for an apartment and was invited to view it. After the viewing he was told that another person was coming to view the suite and that he would be advised if it would be available. On phoning the landlord he was told that the suite had been rented. However, when his girlfriend’s sister phoned back, she was told the suite was still available. The tribunal rejected the landlord’s evidence that the man’s demeanor made her uncomfortable and the evidence of another tenant, a woman of Chinese origin, that the landlord could not have practiced racial discrimination toward the Black man as she had rented a suite to her.^[107]

It can be difficult to determine whether subtle discrimination is a factor in such situations. They may therefore require further probing and analysis that examines the context, including the presence of comparative evidence contrasting how others were treated, or evidence that a pattern of behaviour exists. A departure from usual practices with tenants, such as a demand for a security deposit or
a guarantor, may establish a claim of discrimination.^[108] Rental criteria that are applied to some tenants but not others may be evidence of discrimination if it can be shown that people and groups identified by the Code are being singled out for differential treatment.

Example: A housing provider asks a tenant with a mental illness to provide verbal or written assurances that he will take psychiatric medications and seek medical treatment as a condition of getting rental housing.

It is the OHRC’s position that housing providers are not allowed to ask tenants to sign additional contracts outside of their lease, simply because they are a member of a group identified by the Code.

It is not necessary for language or comments related to a protected Code ground to be present in the interactions between the parties to show that discrimination has occurred. However, where such comments are made, they can be further evidence that a protected Code ground has been a factor in a person’s treatment.

Auditing studies conducted in the rental housing context have revealed the extent of subtle discrimination on several different grounds. For example, the U.S. Department of Housing and Urban Development has backed several broad housing audits that produced significant evidence of discrimination toward and differential treatment of racialized people across major U.S. cities.^[109] Comparable audits conducted in Canadian cities, although on a smaller scale, have revealed similar trends. These audits indicate that people from Black and Aboriginal communities, in particular, face discriminatory treatment when seeking to rent housing.^[110] Other similar audits have shown discriminatory practices in renting to people who disclosed they were gay or lesbian or had mental health issues.^[111]

In July 2009, the Centre for Equality Rights in Accommodation (CERA) released a report entitled “Sorry It’s Rented: Measuring Discrimination in Toronto’s Rental Housing Market.” The report estimates that 1 in 4 households receiving social assistance, South Asian households, and Black lone parents experience moderate to severe discrimination when they inquire about an available apartment. Discrimination increases to a rate of 1 in 3 for housing seekers who have a mental illness. Lone parents also experience significant discrimination when attempting to access housing opportunities.^[112]

2.3 Harassment

Section 2(2) of the Code provides that every person who occupies accommodation has a right to freedom from harassment by a landlord or agent of the landlord or by an occupant of the same building because of a Code-protected ground.

Harassment is defined in section 10(1) of the Code as "engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome.” The reference to comment or conduct "that is known or ought reasonably to be known to be unwelcome" establishes both a subjective and an objective test for harassment.

The subjective part of the test considers the harasser’s own knowledge of how their behaviour is being received. This knowledge may arise in different ways. In some cases, it should be obvious that the conduct or comments will be offensive or unwelcome. Some conduct or comments relating to Code-protected grounds may not, on their face, be offensive. However, they may still be "unwelcome" from the perspective of a particular person. If similar behaviour is repeated despite indications from the person that it is unwelcome, there may be a violation of the Code.

Example: An Ontario human rights tribunal found that a landlord engaged in a vexatious course of conduct to control the life of a woman with cerebral palsy, as both a tenant and as a person. Among other things, the landlord entered the woman’s apartment when she was not there, turned off the hallway light when she was partly down the stairs, and banged repeatedly on her ceiling. The landlord was also found to have made verbal slurs regarding the woman’s disability.^[113]

Example: A racialized man was harassed by his landlords when they uttered several abusive racial slurs, routinely violated his privacy, and accused him of being a pedophile.^[114]

The objective component of the test considers, from the point of view of a “reasonable” third party, how such behaviour would generally be received. The determination of the point of view of a “reasonable” third party must take into account the perspective of the person who is harassed.^[115]

It is important to note that there is no requirement that a person must object to the harassment at the time for a violation of the Code to exist, or for a person to claim their rights under the Code. A person who is the target of harassment may be in a vulnerable situation, and afraid of the consequences of speaking out. Housing providers have an obligation to maintain an environment that is free of discrimination and harassment, whether or not anyone objects. Each situation must be assessed on its own merits.

Example: When a couple with a small child moves into a new apartment, one of their neighbours comments to them that she has raised her kids and now “has a right to peace and quiet.” This neighbour repeatedly tells them that “children shouldn’t be in apartments – they need yards to play in.” No matter how hard they try to keep their child quiet, this neighbour constantly complains to their landlord about them. The landlord provides the neighbour with information about rights and responsibilities under the Code, and offers either to provide some further soundproofing or to relocate the complaining neighbour to the first available vacant apartment.

Harassment may take on different forms depending on whether the affected person is identified by more than one Code ground at the same time.

Example: A housing provider makes several comments to a woman who is a lesbian with a small child about the child’s lack of “proper role models” and a “real family.” The woman may claim harassment based on both sexual orientation and family status.

While “sexual orientation” is not specifically listed as a ground in section 2(2) of the Code, it is the OHRC’s policy position that sexual orientation is included in the protection against harassment. This approach is consistent with human rights jurisprudence.^[116]

2.3.1 Sexual harassment

Section 7(1) of the Codestates that every person who occupies housing has a right to freedom from sexual harassment by their landlord, an agent of their landlord, or an occupant of the same building.

Sexual harassment includes unwelcome sexual contact and remarks, leering, inappropriate staring, unwelcome demands for dates, requests for sexual favours and displays of sexually offensive pictures or graffiti. A person has the right to be free from unwelcome advances or requests for sexual favours made by a landlord, superintendent, an employee of the facility, another person in a position of power, or another tenant.

The following is not an exhaustive list but should help to identify what may constitute sexual harassment or inappropriate gender-related comments and conduct:

• gender-related comments about a person’s physical characteristics or mannerisms
• unwelcome physical contact
• suggestive or offensive remarks or innuendoes about members of a specific gender
• propositions of physical intimacy
• gender-related verbal abuse, threats, or taunting
• leering or inappropriate staring
• bragging about sexual prowess
• demands for dates or sexual favours
• offensive jokes or comments of a sexual nature
• display of sexually offensive pictures, graffiti, or other materials
• questions or discussions about sexual activities
• paternalism based on gender which a person feels undermines their
• self-respect or position of responsibility
• rough and vulgar humour or language related to gender
• threats to report a woman to government authorities (e.g. Children’s
• Aid Society, immigration officials) if she refuses to comply with sexual advances.

The comments or conduct do not have to be sexual in nature. Someone may tease or bother a woman because of gender-based ideas about how men or women “should” look, dress or behave.

Example: A landlord repeatedly makes comments to a female tenant about her choices of clothing. He tells her that she should wear skirts more often because they make her look “feminine” and that she looks “prettier” when she wears her hair down.

Sexual harassment may be subtle or ambiguous in nature. Depending on the context, sexual harassment may include unwanted prying into a woman’s personal life.

Example: A single woman living in a co-op is asked intrusive questions by other co-op members about her single status such as: “Are you seeing anyone?” and “When are you going to settle down and have kids?” When she expresses her discomfort with these questions, she’s told to “lighten up.”

It may also include uninvited visits to a woman’s unit (either when she is home, or when she is not home), refusals to make necessary repairs and/or conduct maintenance, threats to cut services, and threats of eviction.

Transgender people are protected in housing accommodation from degrading comments, insults or unfair treatment because of gender identity.

While some men do experience sexual harassment in rental housing, it is women who are most often affected. The typical power imbalance that exists between landlords and tenants is often heightened by gender inequalities. In a recent case, the Human Rights Tribunal of Ontario commented on this power imbalance:

A superintendent is in a position of power over tenants. They can make the living situation of a tenant uncomfortable or unbearable. An abuse of this power can have a significant effect on a tenant's enjoyment of her living space. When the superintendent is an older male inappropriately exerting power over a younger female in the form of sexual harassment, this undermines her expectation of peaceful occupation of her home.^[117]

Feedback provided to the OHRC in its housing consultation indicates that women who depend on rent supplement programs and who live in private housing units are especially vulnerable to threats and sexual harassment from their neighbours or landlords. Some landlords may sexually harass low-income female tenants by seeking sexual favours in lieu of rent if they have fallen into arrears, to prevent eviction or if they need maintenance services.

Often, sexual harassment will take place based on more than one Code ground. Racial stereotypes about the sexuality of women, for example, have played a part in a number of sexual harassment claims. Women may be targeted because of a belief that based on racialized characteristics, they are more sexually available, more likely to be submissive to male authority, more vulnerable, etc. Young women, women with disabilities, lone mothers and lesbians may also be targets for sexual harassment.

Example: A property manager and property management company were found liable for the sexual harassment of a young female tenant due to the manager’s inappropriate behaviour toward her. In addition to making unwanted comments of a sexual nature, he attempted to impose a friendly relationship on her, and his “open door” policy included leaving his door open into a common hallway while he was having sex. ^[118]

2.4 Poisoned environment

The Code definition of harassment refers to more than one incident of comment or conduct. However, even a single statement or incident, if sufficiently serious or substantial, can have an impact by creating a poisoned environment.^[119] Context is critical in determining whether a single incident may be considered harassment.

Example: A landlord’s comment that his tenant should “get out of my home and get out of my country” was sufficient to create a poisoned environment and therefore constituted harassment because it was accompanied by the use of considerable profanity and physical aggression.^[120]

A poisoned environment is based on the nature of the comments or conduct and the impact of these on the person, rather than on the number of times the behaviour occurs.

In the employment context, tribunals have held that the atmosphere of a workplace is a condition of employment just as much as hours of work or rate of pay. A “term or condition of employment” includes the emotional and psychological circumstances of the workplace.^[121] It is the OHRC’s position
that this principle applies equally to rental housing. The atmosphere of rental accommodation is a condition of tenancy, and as such will include the emotional and psychological circumstances of the rental accommodation.

Example: A poisoned environment was found to exist where a landlord provided substandard maintenance to a tenant of Cambodian ancestry, and other tenants of Asian ancestry. The landlord had also made derogatory comments about Asians in a newspaper article.^[122]

A consequence of creating a poisoned environment in rental housing is that certain people are subjected to terms and conditions of tenancy that are quite different from those experienced by people who are not subjected to those comments or conduct. Such instances give rise to a denial of equality under the Code.

Housing providers, including management personnel, or housing co-operative Board members, who know or ought to know of the existence of a poisoned atmosphere but permit it to continue discriminate against affected employees even if they themselves are not involved in creating that atmosphere.^[123] Inappropriate comments or conduct not only poison the environment for racialized people, but also affect everyone’s environment and are disruptive. Every housing provider is responsible for ensuring that its environment is free from this sort of behaviour, even if no one objects.

A poisoned environment can be created by the comments or actions of any person, regardless of their position of authority or status in a given environment. Therefore, a housing provider, a co-tenant, a member of the Board of Directors, a service person, etc. can all engage in conduct that poisons the environment of a person identified by Code grounds.

Behaviour need not be directed at any one person to create a poisoned environment. A person can experience a poisoned environment even if they are not a member of the group that is the target.

Example: A Hindu man lives in a social housing complex where slurs and stereotypical language about Muslims are commonly used by other tenants in common recreation areas. Although none of these remarks are directed specifically at him, but rather at his Muslim co-tenants, he is also being subjected to a poisoned environment and could file a human rights claim on this basis.

Other examples of situations that could be viewed as a violation of the Code by creating a poisoned environment include the following:

• a landlord saying to a tenant “I don’t know why you people don’t go back to where you came from because you don’t belong here”
• comments, signs, caricatures or cartoons displayed in a common area that show people identified by Code grounds in a demeaning manner
• discriminatory graffiti that is tolerated by a housing provider who does not act promptly to have the graffiti removed
• discriminatory remarks, jokes or innuendo about a tenant. Also, discriminatory remarks, jokes or innuendo made about other people or groups identified by Code grounds may create an apprehension that similar views are held about the tenant.

2.5 Systemic discrimination

Discrimination in rental housing may often take on systemic or institutional forms. Systemic or institutional discrimination consists of patterns of behaviour, policies or practices that are part of the social or administrative structures of an organization, and that create or perpetuate a position of relative disadvantage for people identified by Code grounds. These may appear neutral on the surface, but nevertheless have an exclusionary impact based on Code protected grounds. Systemic or institutional discrimination is a major barrier for people identified by Code grounds.

Systemic or institutional discrimination may be experienced differently when more than one Code ground is at play and when these grounds intersect.

Example: A building manager requires prospective tenants to provide an employment history before entering into a rental agreement. This condition could impose three layers of disadvantage on a young mother who recently emigrated from Africa, on the bases of her age, family status and her status as a new Canadian.

Systemic discrimination may have its roots in broader societal structures and social attitudes. Individual housing providers may hold assumptions about people who receive social assistance, gay and lesbian couples, people with mental disabilities, people of specific racialized groups, and/or “ideal” family forms, for example. These assumptions may, consciously or subconsciously, influence the policies and practices implemented by housing providers. For example, since people identified by Code grounds are disproportionately more likely to have low social and economic status, the practice of requesting unaffordable (and illegal) rental deposits may be a tactic to deter tenants that a landlord does not want to rent to.

Housing providers may engage in systemic discrimination if they systematically fail to maintain buildings inhabited primarily by people identified by Code grounds. This phenomenon has been seen particularly in low-income housing complexes. People who live in these dwellings may be especially vulnerable to sub-standard housing conditions due to their lack of social and economic power and their unwillingness to complain for fear of reprisal.

It is also contrary to the Code for housing providers to “stream” people identified by Code grounds into less desirable housing units.

Example: A building manager of a four-building rental housing operation routinely directs prospective tenants who have low social and economic status into one particular building. This building is less well-maintained and more expensive than the other three buildings.

The interaction between these societal realities and institutional policies and practices is complex. Inadequate levels of social assistance and minimum wage rates, for example, place many people and families at significant disadvantage in securing housing. The shortage of adequate and affordable housing options further compounds the situation. Add to this, minimum income requirements imposed by some landlords and the chronological allocation of subsidized housing based on waiting lists which may create additional barriers for people identified by Code grounds. Not taking this broader context into account may perpetuate the disadvantage of people identified by Code grounds.

In some situations, the existence of historical disadvantage is also a factor that gives rise, or contributes to, systemic discrimination. It is, therefore, necessary to consider a person’s or group’s already disadvantaged position in Canadian society as part of any analysis of whether systemic or institutional discrimination is taking place.

Housing providers must take into account the broader societal context when determining whether their programs, policies and structures may be having a disproportionate impact on people identified by Code grounds. Systemic discrimination may arise when housing providers, particularly larger housing providers, fail to take into account the reality of people identified by the Code when designing their policies, programs and structures. Where housing providers fail to design in a way that includes people identified by Code grounds, these people may find themselves disadvantaged and excluded.

Example: In designing a new rental housing complex, a property management company hires a design expert to ensure that the physical structure is built according to the principles of inclusive design. This step ensures that the rental units are equally accessible to people with physical disabilities, families with small children and older people.^[124]

As is discussed at greater length in the OHRC’s Policy and Guidelines on Racism and Racial Discrimination,^[125] the OHRC uses the following three considerations in identifying and addressing systemic discrimination:

1. Organizational culture
   Organizational culture can be described as shared patterns of informal social behaviour, that are the evidence of deeply held and possibly unconscious values, assumptions and behavioural norms.
2. Numerical data
   Numerical data that shows that members of certain groups are disproportionately represented may be an indicator of systemic or institutional discrimination. For example, the under-representation of racialized people and families in a large rental housing complex may indicate inequitable rental practices. By itself, numerical data is usually not proof of systemic discrimination; however, it may form strong circumstantial evidence that inequitable practices exist, particularly if representation of certain groups is disproportional to demographic data controlling for social and economic status.
3. Policies, practices and decision-making processes
   Policies, practices and decision-making processes that do not take into account the realities of people identified by Code grounds may lead to exclusion and result in systemic discrimination.
   Specific policies and practices that may create systemic barriers for people identified by Code grounds are outlined in the section on “Discrimination trends in rental housing.”

2.6 Discrimination by association

The Code provides protection to people who experience discrimination or harassment because of their association, relationship or dealings with a person identified by a ground of the Code.^[126] A person has this protection whether or not they are identified by a Code ground themselves.

Therefore, a person who is denied housing, treated differently during a tenancy (including being subjected to negative comments), or evicted because of their relationship with a person who is identified by a ground of the Code can file a claim of discrimination based on association.

Example: A housing provider was found to have discriminated against a woman by making it a condition of occupancy that she not associate with “coloured” people. The woman, who was White with two racialized children, was deeply offended, and even though she did not disclose to the housing provider that she could not rent the apartment because of her family, the Tribunal found that discrimination had occurred and awarded compensation.^[127]

It would likewise be discriminatory for a housing provider to deny an apartment to someone because of their relationship with someone who has young children, a disability, is gay or lesbian, etc.

Discrimination because of association in the housing context can also arise where landlords prevent tenants from subletting to people identified by a ground of the Code.

Example: A landlord was found to have discriminated against a tenant when he prevented him from subletting his apartment to a couple with Aboriginal ancestry. ^[128] In another case, a landlord was found liable for discrimination when he refused to allow assignment of a lease to people of “East Indian” or Pakistani origin.^[129]

2.7 Discriminatory neighbourhood opposition, or “NIMBYism”

The right to be free from discrimination in housing under the Code could extend to the development of affordable housing projects for people and groups identified by the Code. Discriminatory neighbourhood opposition, also known as “Not in My Backyard” attitudes, or “NIMBYism,” refers to opposition to housing projects that are based on stereotypes or prejudice towards the people who will live in them. It can refer to discriminatory attitudes as well as actions, laws or policies that have the effect of creating barriers for people, such as people with low income and disabilities, who seek to move into affordable housing or supportive housing in a neighbourhood.

NIMBYism does not refer to legitimate public consultations or concerns around land use and planning and security, but to the response to affordable and supportive housing because of negative attitudes towards the people who will live there. NIMBY responses are often unfounded concerns that such housing will bring down property values, create safety risks, or otherwise ruin the neighbourhood.^[130] It may cause housing providers to feel that they need to make design compromises, even when these compromises undermine the dignity and well-being of their residents. The result of NIMBYism is that affordable and supportive housing development is unnecessarily delayed, halted or restricted.

People typically affected by NIMBYism are people who need to rely on affordable housing, such as rooming houses (lodging houses), group homes, social housing and supportive housing, boarding houses, institutional care homes, and shelters. These types of housing often serve people identified by Code grounds, including people receiving social assistance, racialized people, Aboriginal people, immigrants and refugees, students (who are often young people), older people, single people, people with disabilities, including mental health issues, and families with young children.

It is the OHRC’s position that people or groups identified under the Code should not have to ask permission from prospective neighbours before moving into a neighbourhood.^[131] Concerns about affordable housing projects should be anchored legitimately in planning issues, rather than stereotypical assumptions about the people for whom the housing is being built. For example, efforts to keep out people with disabilities, including mental illnesses, are no less offensive than preventing racialized people from moving into a neighbourhood. To the greatest extent possible, people should be able to live in the community of their choice.

NIMBY opposition to affordable housing projects can violate the Code when it results in changes to existing planning processes, barriers to access to housing or exposes proposed residents to discriminatory comment or conduct. Also, when planning policies or practices are directed towards, or disproportionately affect, Code-protected populations, they may be seen to violate the Code.

Example: A university town indicates that it is responding to residents’ complaints about student behaviour by instituting a by-law that limits the number of bedrooms for rent in a rental house to four, regardless of the number of legal bedrooms in the house. The by-law is only applied to the student area around the university, where the complaints have originated. Most rental housing in the area is occupied by students under the age of 22. The by-law could be seen to raise human rights concerns because it will result in restrictions for young people in being able to access housing in the area.

2.7.1 Zoning by-laws 

Historically, zoning by-laws are often embedded in the urban plan of a municipality. Zoning by-laws that are not based in a legitimate urban planning rationale and have the effect of “people zoning,” as opposed to zoning the use of the land, are deemed to be invalid^[132]and could be open to human rights challenges if they result in restrictions to people identified by Codegrounds.

Zoning by-laws that define and restrict the location of dwellings based on the characteristics of their users, instead of the type of building structure, have been deemed to be discriminatory.

Example: The Manitoba Court of Appeal ruled that a city’s zoning by-law violated s. 15(1) of the Canadian Charter of Rights and Freedoms by defining its group homes through reference to characteristics of the users (people who were “aged,” “receiving supervision or treatment for alcohol or other drug addiction,” “convalescent or disabled people,” or “discharged from a penal institution”). As well, the court deemed that the people living in these homes were discriminated against because they and they alone had to apply to the various community and city committees for permission to form and live together as a group or “family.” The court also indicated that the impugned provisions of the by-law were those that intended to regulate where these homes could be situated in the city.^[133]

Municipalities and decision-makers should be aware that zoning definitions that restrict the occupants of housing based on whether or not they are related (or defining the use of certain types of housing either explicitly or implicitly on definitions of “family”) can have the effect of discriminating against unrelated people from Code-protected groups who are likely to share accommodation.

2.7.2 Types of NIMBYism 

Where the decisions are not grounded in legitimate urban planning rationale and are based on the residents of the affordable housing, the following can be seen as examples of types of NIMBYism that people protected under the Code and affordable housing providers may encounter:

• requiring housing providers to adopt restrictions or design compromises to affordable or supportive housing that are not applied to other housing in the area. For example:
  • requiring fences or walls around the property to separate it from other neighbourhood homes because of the intended residents
  • arbitrary caps on the numbers of residents allowed
  • adding visual buffering or removing balconies so tenants cannot look out on their neighbours
  • requiring residents to sign contracts with neighbours as a condition of occupying the building.
• requiring additional public meetings, amendments to the planning process, lengthy approval processes, or development moratoria because the intended residents of a proposed housing project are people from Code-identified groups
• zoning by-laws that restrict affordable housing development that serves people identified by Code grounds (such as lodging houses) in certain areas while allowing other establishments of a similar scale

• by-laws that define dwellings (e.g. group homes) based on the characteristics of their users^[134]
• zoning by-laws that have the effect of distinguishing between people who are related or unrelated in respect to the occupancy or use of a building or part of a building^[135]
• minimum separation distances, caps on the number of residents allowed, or quotas on the number of housing projects allowed in an area, that are not justified in a rational planning basis, nor passed in good faith^[136]
• discriminatory comments or conduct towards the intended residents of a housing project at public planning meetings or in published or displayed notices, signs, flyers, pamphlets or posters.^[137]

City Councils, councillors, neighbourhood associations, developers, decision-makers such as the Ontario Municipal Board, and individuals all have a responsibility to refrain from discrimination against people identified by Code grounds based on NIMBYism, and to make sure policies and practices do not give rise to differential treatment. Even though these organizations and individuals may not provide housing directly, they still have an obligation not to contribute to indirect discrimination in the context of housing.

Example: A City councillor recognizes the potential for abusive language to occur at a community meeting about a proposed housing development for people with addictions. Because of this, she lays out ground rules at the beginning of the meeting stating that discriminatory language will not be tolerated and actively interrupts and objects to this type of language if it happens.

3. Special programs and special interest organizations

Section 14 of the Code permits the use of special programs in housing. This allows preferential treatment or programs aimed only at people identified by Code grounds, if the purpose of the program is to relieve hardship or economic disadvantage or to help disadvantaged people or groups achieve equal opportunity. Creating special programs is one step that governments can take to address the shortage of adequate and affordable housing.

Example: Based on research that indicates that Aboriginal people in Ontario are more likely to be in need of housing than the average household, a special program is created to provide social housing for Aboriginal people.

Example: A housing co-op develops a policy that provides for a mix of market rent units and rent-geared-to-income units to help low wage earners or people who receive social assistance.

It is important that special programs be designed so that restrictions within the program are rationally connected to the objective of the program. A failure to do so, can lead to a successful challenge of the program and a finding that it is discriminatory.^[138]

Section 14 recognizes the importance of addressing pre-existing hardship and economic disadvantage so that disadvantaged people or groups may be better able to achieve equal opportunity.^[139] It is the OHRC’s position that organizations and institutions should try to undertake special programs where hardship or disadvantage exist. To give full meaning to the rights and responsibilities outlined in Part I of the Code, a special program may be an appropriate response on the part of a housing provider who is aware that discrimination is taking place against specific groups identified by Code grounds.

Example: A social housing provider sets up a housing program to help new immigrants, a community that has historically had difficulty finding housing, and that is often subjected to discrimination in the rental housing market.

There are circumstances where housing aimed at the needs of older Ontarians will promote the objectives of the Code. Section 15 of the Code permits preferential treatment for people aged 65 and older, and therefore permits housing that is limited to people over the age of 64.

Section 18 of the Code allows certain types of organizations, which may also provide housing as part of their services, to limit participation or membership based on Code grounds:

18. 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.

Example: A synagogue runs a seniors’ residence that is meant to foster the religion and culture of its residents. Prayer services are provided and kosher food is served. It restricts membership to people of the Jewish faith who are over the age of 60.

An organization that wishes to rely on this defence must show it meets all of the requirements of this section.

4. Discrimination patterns in rental housing

4.1 Refusal to rent

While there are many housing providers who provide equal opportunities to all people applying to rent their premises, there are others who may deliberately refuse to rent to people identified by Code grounds. This type of direct and intentional discrimination generally arises from negative attitudes and biases.

Many housing providers, particularly smaller landlords who may be renting out portions of their own homes, are under the false impression that they may pick and choose tenants in whatever way they see fit. However, the Code applies to all rental housing arrangements in Ontario. Therefore, once a housing provider decides to offer a rental opportunity to the public, they must do so in a non-discriminatory way. A landlord or other housing provider who denies a rental opportunity to a person because of a personal characteristic that is identified by the Code is vulnerable to having a human rights claim filed against them.

A refusal to rent most commonly takes place in the form of discriminatory advertising and discriminatory tenant screening.

4.1.1 Discriminatory advertising

When listing rental opportunities, landlords may not exclude people identified by the Code. For example, phrases in rental advertisements such as “suits a working person” may indicate that people who receive social assistance or are unable to work due to a disability, or other Code ground, are not welcome or need not apply.

Other forms of inappropriate advertising include statements that a building is:

• “adults only”
• “adult lifestyle”
• “not suitable for children”
• “suitable for a single person or couple”
• “working people only”
• “professionals only.”

Discriminatory advertising that targets households with children may be more subtle. Where a landlord is attempting to discourage or deny applications from families with children, they may use specific euphemisms in their advertising.

Statements that a building is:

• a “quiet building”^[140]

• “not soundproof”
• “geared to young professionals”

may, however, when coupled with a refusal to rent to a family with children, indicate that discriminatory attitudes related to family status played a role in the refusal.^[141]

Section 13 of the Code prohibits the publication or public display of any notice, sign, symbol, emblem or other representation that indicates the intent to discriminate. Signs that include phrases such as the ones set out above may be in breach of section 13 of the Code.

4.1.2 Discriminatory tenant screening

4.1.2.1 Application forms
Some housing providers, and agencies hired to find tenants, may engage in practices that are designed to screen out certain people identified by the Code. Information on rental application forms, for example, may identify prospective tenants based on Code grounds. Application forms that ask for a person’s source of income may reveal that the person is receiving social assistance, or that a person is unemployed due to the presence of a disability.

Example: In designing a universal application form for the use of housing providers, a federation for landlords does not include questions about “source of income,” or “place of employment” as these questions could reveal information related to protected Code grounds. By having access to such information, a landlord is vulnerable to allegations that subsequent decisions about who they chose to rent to were made based on inappropriate considerations.

A person’s name, while a necessary piece of information for housing providers, may also indicate their membership in a specific racialized group, or identify them as a practitioner of a particular creed. Housing providers are not permitted to discriminate against people on the basis of Code-identified characteristics that may be revealed by their names.

Example: In one case, a woman was mistakenly assumed to be French-Canadian based on her surname. When the landlord realized that she was not actually French-Canadian, but of Aboriginal ancestry, he refused to rent the apartment to her and commented that, “once you rent to a couple of Natives, fifteen Indians come behind.”^[142]

Application forms are often used to ask the ages of prospective tenants. The Human Rights Tribunal of Ontario has found this practice to be a prima facie act of discrimination based on family status.^[143] Application forms may also be used to determine the number of children in a family. Where landlords ask such questions, the onus will shift to them to show that there was in fact no such discrimination. If landlords have a bona fide requirement for such information about tenants, they can request it after the housing application has been approved.

4.1.2.2 Telephone inquiries
Telephone inquiries may also provide information about a prospective tenant that a landlord may use for discriminatory purposes. When calling to ask about rental opportunities, a prospective tenant will be required to provide their name that, as indicated above, may reveal characteristics about their identity. Telephone communications will also indicate things such as the presence of an accent. Socio-linguistic research shows that people are able to make fairly accurate racial attributions based on linguistic cues alone.^[144] Therefore, landlords are able to screen out prospective tenants by simply saying, after hearing the tenant speak, that the apartment is “already rented.” This practice has been referred to as “linguistic profiling.”^[145]

As well, in an age of sophisticated technology where most people have access to voice-mail messaging and/or call display features, landlords, if so inclined, are able to screen out prospective tenants, based on an accent or a name, for example, without ever needing to have any personal contact with them.

A community agency or other advocacy organization calling on behalf of a person looking for rental housing may actually “tip off” a prospective landlord
to the fact that the person is identified by a Code ground and may, ironically, expose that person to discrimination.

Example: When a landlord sees “Aboriginal Legal Clinic” on his call display, or when the clinic name is left on his voice-mail, he may decide not to answer or return calls asking about rental opportunities if he has negative attitudes towards Aboriginal people.

Tenant screening of any kind that targets people based on Code grounds is contrary to human right principles and may result in a claim being filed with the Human Rights Tribunal of Ontario.

4.1.2.3 In-person meetings
After meeting with prospective landlords and agencies for the first time, people who are identified by Code grounds may find that the unit becomes mysteriously “unavailable.” In many cases, it may be difficult to prove that discrimination is at play in these situations.

As mentioned previously, auditing studies have been conducted that test for discrimination by comparing the experiences of people who are looking for rental housing and who are similarly situated except for one distinguishing personal characteristic (e.g. they are racialized, a lone parent, have a disability, are gay or lesbian, etc.). These studies have shown that racialized people, gays and lesbians, and people who have a mental disability are among the people identified by Code grounds who are highly vulnerable to being refused a rental opportunity outright.^[146]

Housing providers who routinely refuse to rent to people who are identified by specific Code grounds are usually motivated by negative attitudes, biases and/or stereotypes. Actions based on discriminatory stereotypes in the context of housing are a violation of the Code.^[147] Larger housing providers should rely on objective and standardized criteria when selecting occupants to minimize the chances that discrimination will play a role in the selection process. Assessments based on whether a person would “fit” into the culture of a residence, for example, open the door for biases and stereotypes to influence decision-making, and may result in the exclusion of Code-protected people.^[148]

Example: When interviewing prospective members, the selection committee of a housing co-op restricts its assessment to non-discriminatory and transparent criteria that are applied equally to every applicant.

Where a housing provider receives multiple tenant applications, they should be prepared to show how they chose the successful applicant. For example, a landlord may decide to rent to someone because they were the first person to apply for the unit.

4.2 Rental criteria

When assessing prospective tenants, landlords commonly use a number of criteria that may create systemic barriers for people identified by the Code. The Code, in section 21(3), provides specific guidance to housing providers on using certain criteria in assessing and selecting tenants. Landlords are permitted to use income information, credit checks, credit references, rental history and guarantees in assessing and selecting tenants.

However, Regulation 290/98 under the Code restricts the way these business practices may be used, and specifically reaffirms that landlords may not use these assessment tools in an arbitrary way to screen out prospective tenants based on Code grounds. The criteria must be used in a bona fide and non-discriminatory way. Where income information, credit checks, credit references, rental history, or guarantees are being applied in a way that creates systemic barriers for people identified by a Code ground, the landlord will be required to show that this is a bona fide requirement – that is, that the criteria could not be applied in a way that was more accommodating without creating undue hardship for the landlord.

Applying rental criteria and practices in an arbitrary way (e.g. applying different rents to different tenants; asking for a security deposit from some tenants, but not others; asking only some people for “direct payment” of rent) may be evidence of discrimination where it can be shown that there is a pattern of Code-protected people being singled out for different treatment.

4.2.1 Income requirements

Section 21(3) and Regulation 290/98 permit landlords to seek and consider income information from prospective tenants. “Income information” encompasses “information about the amount, source, and steadiness of a potential tenant’s income.”[149] Because of the prohibition in the Code against discrimination in housing based on receipt of public assistance,[150]it is the OHRC’s position that landlords may only verify the fact that the prospective tenant has a source of income, but they may not assess or judge the source type. In other words, landlords are not permitted to discriminate against a prospective tenant because they do not approve of the source of the person’s income (e.g. Ontario Works).

Income information may be sought and considered only if the landlord also seeks and considers information about the prospective tenant’s credit references and rental history. Only if the prospective tenant, when requested, provides no credit references or rental history information, can the landlord consider income information in isolation. Any assessment of all the available information must be bona fide, meaningful, and non-discriminatory.

It has been and still is a common practice for landlords to assess prospective tenants by applying income ratios (e.g., no more than 30% of a tenant’s income should be required to pay the rent). This practice was assessed in Shelter Corp. v. Ontario^[151] and found to have a systemic impact on a range of groups identified by Code grounds.^[152] An Ontario human rights tribunal found that these practices were not bona fide requirements because they had no value in predicting whether a tenant would default on the rent. The later addition of section 21(3) to the Code and the enactment of Regulation 290/98 do not permit landlords to apply income ratios, as has been clarified in a later decision of the tribunal.^[153] This means that landlords must only assess whether an applicant has enough income to pay the rent. They must not assess whether the balance of an applicant’s remaining income is adequate for non-housing related expenses.

Example: A lone mother with one child applies for an apartment renting at $800 per month. She proves her gross monthly income to be $1,627, provides contact information for three previous landlords, and signs permission for an Equifax credit check. Her three previous landlords provide very positive references and her Equifax credit rating checks out solid. The landlord sees she has enough income to pay the rent, and offers her the apartment. She provides photocopies of her monthly social assistance cheque of $904, Child Benefit cheque of $323, and her part-time job paystub of $400, totalling $1,627 as her monthly income. The landlord hands over the keys to her new apartment, welcoming her and her daughter to the building.

Regulation 290/98 makes a specific exception for rent-geared-to-income housing. In assessing applicants for rent-geared-to-income (RGI) housing, landlords may request and consider income information on its own.

Section 4 of the Regulation specifically states that nothing in the regulation permits housing providers to discriminate against a prospective tenant based on any of the grounds set out in the Code.

4.2.2 Rental history

Regulation 290/98 permits landlords to request information on rental history, and to consider it, either alone or in combination with other factors, when assessing a potential tenant.

Prospective tenants may lack a rental history for reasons related to Code grounds. For example, recent immigrants and refugees may have no rental history in Canada. Women attempting to re-establish themselves after a marital breakdown may find themselves in a similar situation.

Landlords should not treat the lack of a rental history as equivalent to a negative rental history.^[154] Where a prospective tenant lacks a rental history for reasons related to a Code ground, landlords should look at other available information on the prospective tenant to make a bona fide assessment.

Landlords should also refrain from refusing to rent to a tenant solely based on where they may have lived previously, and for how long they may have lived there. Some people identified by Code grounds may be more likely to have lived in rooming houses, for example, and/or to have lived at past residences for shorter periods of time.

4.2.3 Employment history

Some landlords require that potential tenants have “stable” long-term employment. This requirement can be a problem for people identified by several grounds of the Code. For example, requirements for employment histories are likely to have an adverse effect on women who have taken time out of the workforce to raise children, provide care-giving for others, or who are otherwise trying to establish and support themselves independently. Such requirements also affect new Canadians, people with disabilities who are unable to work, people who receive social assistance, including older people receiving benefits from CPP, seasonal workers, and young people starting out who will have shorter employment histories.

It should be noted that nothing in Regulation 290/98 permits housing providers to ask prospective tenants for information about employment history. Requirements that applicants be employed on a permanent basis or satisfy a criterion of minimum tenure with an employer have been found to discriminate on Code grounds.^[155]

4.2.4 Credit history

Regulation 290/98 permits landlords to request credit references and to conduct credit checks (with permission from the prospective tenant), and to consider this information in selecting or refusing a tenant.

However, this requirement may have an adverse impact on people identified by Code grounds. For example, women returning to the workforce after lengthy periods of care-giving or after the breakdown of a marriage, young people, and newcomers, for example, may have little or no credit history. Human rights tribunals have found that the practice of refusing applicants with little or no credit history may have a disparate impact based on Code grounds. Landlords cannot equate the absence of a credit rating with a bad credit rating. Landlords should not reject tenancy applications based on a lack of credit history.^[156]

Even with a bad credit rating, there may be extenuating circumstances relating to Code grounds that should be examined before rejecting the person. The person should be able to explain their situation and potentially ask for accommodation (e.g. a landlord might be able to look at other forms of rental criteria).

In all cases, a credit history must only be considered as part of a bona fide attempt to validly assess potential tenants.

4.2.5 Social Insurance Number (S.I.N.) information

Some landlords require that applicants provide their Social Insurance Numbers (e.g. on rental application forms) usually to conduct a credit check. A person’s Social Insurance Number may potentially reveal information about that person that is not relevant to securing a rental premise, for example, that the applicant is a refugee. Since the disclosure of such information may expose a person and their household to potential discrimination, it is the OHRC’s position that housing providers should use means other than Social Insurance Numbers to conduct credit checks. Service Canada, a part of the federal government, specifically discourages private sector organizations, including landlords negotiating leases, from asking for a Social Insurance Number.^[157]

4.2.6 Guarantors

Section 2(1) of Regulation 290/98 permits landlords to require guarantees for rent. While the use of co-signers may be appropriate where a tenant has poor references, a poor credit history, or a history of default, landlords are not allowed to require guarantors simply because the prospective tenant is a member of a Code>-protected group, such as being a lone parent, a newcomer to Canada, a youth, a person with a past, present, or perceived mental illness, a person who receives social assistance, or a racialized person.[158]

When landlords request a co-signer or guarantor, they cannot require that this person meet minimum rent-to-income ratios that they could not impose on the prospective tenant.

4.2.7 Security deposits and extra rent requirements

Regulation 290/98 under the Codepermits landlords to “require a prospective tenant to pay a security deposit in accordance with [the Residential Tenancies Act].”[159] However, in some circumstances, this requirement may be seen to have an adverse impact on certain people receiving social assistance.[160]

While the use of security deposits may be appropriate where a tenant has poor references or a history of default, it is not permissible to require security deposits simply because the prospective tenant is a member of a Code-protected group, such as being in receipt of social assistance, or a lone parent.

In some cases, housing providers may ask prospective tenants for cash sums (or “key money”) that are far larger than what is allowed by the Residential Tenancies Act. In addition to contravening the Residential Tenancies Act, landlords may also be violating the Code where it can be shown that they are using such practices to target groups identified by Code grounds, such as new Canadians, permanent residents, or Aboriginal people.

Some landlords may also attempt to charge more than the legal rent for a rental unit. In addition to violating the Residential Tenancies Act, housing providers may also be contravening the Code where it can be shown that they are using such practices to target Code-identified people.

4.2.8 Direct payment

Housing providers are not allowed to require that a tenant have their rent paid directly by a third party simply because the tenant is a member of a group identified by the Code. Some housing providers ask prospective tenants to arrange to have their rent paid directly, either from social services if they are receiving social assistance, or from another source of income, regardless of the tenant’s demonstrated ability to pay their rent on time. An Ontario human rights tribunal found this practice, when applied to recipients of social assistance, to amount to a violation of the Code.[161]

At the same time, direct payment of rent may, in some cases, be shown to be a bona fide and reasonable requirement if it is tied to other non-discriminatory considerations such as: a situation where there is evidence of a tenant defaulting on their rent; direct payment has been ordered by a social assistance program following misuse of benefits; or direct payment is a condition for eligibility for rent-geared-to-income units. Even where direct payment may be shown to be a bona fide requirement, it is the OHRC’s position that housing providers should adopt an individualized approach to implementing such an arrangement, and be mindful of a situation where a tenant’s circumstances may require the landlord
to be flexible.

Example: A lone parent who lives in a rent-geared-to-income unit with a direct payment arrangement has insufficient funds to pay her rent one month due to an unforeseen and irregular financial expense. She asks her landlord to allow her to pay him later in the month so that she has time to sort the matter out. Her landlord agrees because the tenant normally pays her rent on time, and it is not an undue hardship for him to do this.

4.2.9 Criminal or other police record checks

Nothing in section 21(3) of the Code or Regulation 290/98 permits or prohibits the use of criminal or other police record checks in the context of rental housing. Requiring a criminal or other police record check as a condition of tenancy may have an adverse impact on people identified by Code grounds.^[162] For example, a person with a mental health disability may have had non-criminal contact with the police under the provisions of the Mental Health Act^[163] that would be exposed through a police record check, thus violating that person’s privacy and exposing them to potential discrimination.

There may be limited circumstances where it may be reasonable for a housing provider to conduct a criminal record check on a prospective tenant. For example, a lone mother with young children who rents out the basement of her house may be able to establish, due to safety concerns, that it is a bona
fide requirement that a tenant in her home not have a criminal record. In such circumstances, the housing provider should obtain permission from the prospective tenant before conducting the record check.

4.3 Tenancy

Discrimination in rental housing accommodation is not just about denying access to housing opportunities. Tenants may experience unequal access to housing-related services or may otherwise face differential treatment throughout their tenancy. The right to be free from discrimination in housing includes all matters relating to the accommodation, including:

• the right not to be subjected to negative comments and/or treatment relating to a Code ground (e.g. unsolicited commentary about one’s sexual orientation, marital status, etc.)
• equal treatment relating to the statutory obligations of a housing provider during occupancy (e.g. the right to sublet a unit, the right to receive prompt attention to needed repairs and/or maintenance, etc.) without discrimination based on a Code ground
• equal treatment with respect to the amenities associated with some types of rental housing (e.g. accessible recreational facilities, parking, common gardens, etc.)
• the right not to be affected negatively by a seemingly neutral rule (e.g. an inflexible “no pets” policy that would negatively affect a person with a disability who uses a service animal)
• the right to associate in one’s living space with people who are identified by Code grounds (e.g. a gay friend, a racialized girlfriend, etc.) without discrimination.

The following sub-sections discuss some of the more common ways that discrimination may take place during a tenancy.

4.3.1 Negative comments and treatment

A tenant has a right to be free from discriminatory comments and treatment throughout their tenancy. A housing provider has a corresponding duty not to subject tenants to negative Code-related comment and treatment, and to address immediately a situation where a tenant’s neighbours, or others, are making negative comments, or otherwise engaging in conduct that negatively affects the tenant, and is linked to a Codeground.

As is discussed earlier in this Policy, some comments or conduct, even a single statement or incident, may be serious enough to create a poisoned environment. For a more detailed discussion, see the section of this Policy entitled “Poisoned environment” under “Forms of discrimination in rental housing.”

Negative comments and/or conduct often arise out of the personal assumptions and prejudices of a housing provider about specific groups identified by Code grounds.

Example: A lone mother of Aboriginal ancestry is criticized by her landlord for the behaviour of her children and asked the whereabouts of their father. He states that her children would be “less disturbed” and “more controllable” if their father were present. He also periodically invades her privacy and made an offensive comment to her about her Aboriginal heritage. A British Columbia tribunal concluded that, in isolation, these comments might not have been sufficient to conclude that the claimant had been discriminated against on the grounds of marital status, family status and Aboriginal ancestry individually. However, when they were considered along with his other actions, the tribunal found that the landlord treated the claimant in a disdainful manner because of the combination of stereotypical views that he held about Aboriginal people and unmarried mothers.^[164]

Example: A landlord’s behaviour toward an Afghan man and his family became negative and aggressive when they told him they were moving out because they bought a home in an affluent area. A tribunal found that the landlord’s behaviour was motivated, in part, by his resentment about the man’s improved economic status and his view that immigrants were not entitled to upward mobility.^[165]

Sometimes negative attitudes and stereotypes underlie a housing provider’s unwanted interference in a tenant’s affairs.

Example: A landlord repeatedly “checks up” on a woman who has recently spent time in a psychiatric hospital, despite the fact that she has told him that his behaviour is intrusive and unwelcome.

In all cases, the Code acts to protect tenants from being singled out, adversely affected, or otherwise subjected to negative comments and treatment based on Code grounds.

4.3.2 Provision of services 

A violation of the Code may take place where it can be shown that a tenant is subjected to substandard accommodation-related services, or a denial of or delay in the provision of such services, and that the tenant’s treatment is related to a Code ground.

Example: A young lone mother repeatedly asks her landlord to fix a leaky faucet and broken stove-top burner in her kitchen. He tells her he will get to it when he can. A couple of months go by without the landlord making the repairs. After talking to other tenants, the woman discovers that she and two other lone mothers have had their repair requests ignored, while others have had repair requests tended to promptly.

Example: An Aboriginal man hears his landlord making derogatory comments in the building’s courtyard about renting to “drunken Indians.” He approaches the landlord and asks that he not make these comments. The landlord “blows up,” becomes aggressive, and says that he can say whatever he wants. The tenant tries to avoid him after this incident. However, when his mother falls ill, the man must return to his home province to care for her. Not knowing how long he will be away, he arranges to have a friend sublet his apartment. When he asks his landlord to approve the arrangement, the landlord refuses. Not being able to identify any other legitimate reason for the refusal, and knowing that other subletting arrangements have taken place in his building, the tenant wonders if he is being discriminated against.

4.3.3 Occupancy policies

A number of common rental policies and practices may create systemic barriers for people identified by the Code. 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

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 a particular person or group of people.

Occupancy policies must be based on bona fide requirements. Some of the more common occupancy polices that may have an adverse impact on people and groups are discussed below.

4.3.3.1 Number of occupants per room or bedroom
Arbitrary rules on the number of occupants per room or bedroom may have an adverse impact on Code-protected groups, such as families with children, pregnant women, and/or “non-Western” or extended families. Landlords are not obliged to permit overcrowding of their units^[166], but restrictions on the maximum number of occupants in rental accommodation must relate to legitimate health and safety requirements.

A human rights tribunal found a violation of the Code where a landlord denied a three bedroom apartment to a lone mother of three children because the “Canadian standard” was that such apartments should be rented to couples with two children.^[167] In another case, a claimant was denied the opportunity to rent the apartment of her choice when the landlord discovered she was in the process of a divorce, and that her two daughters would be visiting her every Sunday. The landlord had a standing policy not to rent any of his four and a half room apartments to more than two occupants. The Quebec Court of Appeal found that this policy constituted “ a very effective anti-child barrier,” since the policy had the effect of excluding all children who live with two parents, as well as all lone-parent families with more than one child. The opposite situation could also raise concerns. For example, a policy that a single person cannot rent an apartment with more than one bedroom may prevent a divorced parent from having their children visit and stay overnight.^[168]

Housing policies that set out a minimum number of bedrooms based upon the number and gender of the children may result in impeding the access of lone-parent families to housing.^[169] Tribunals have also found against restricting apartment buildings to “families” where that designation excludes lone-parent families or common-law couples.^[170]

In a more recent case,^[171] a landlord had an informal policy of renting one-bedroom apartments only to couples or singles; two bedrooms to a couple with one child; and three bedrooms to couples with two children. Although he might rent a three bedroom apartment to a person or a couple with three children, he would only do so if the children were very young, and even so the family would have to move to a bigger unit fairly soon. The claimant in this case was a lone mother of three children, who was seeking (and was denied) a three-bedroom apartment. This policy was found to have a discriminatory effect based on family status. Concerns have also been raised about policies that restrict the sharing of rooms by opposite sex siblings, on the basis that such policies may reduce the ability of families with children to access affordable rental housing. These types of policies may have a significant impact on the social and economic rights of families, as they effectively deny access to the type of housing that is affordable for them.

4.3.3.2 “No pets” policies
The Residential Tenancies Act prevents landlords from implementing “no pets” policies.^[172] Such policies also raise human rights concerns. A rule that attempts to prohibit pets in rental housing would have an adverse effect on tenants who require “service animals” to help them in their mobility, or other disability-related needs, such as a blind person who uses a seeing eye dog.^[173] A housing provider is required to accommodate the needs of a person with a disability who needs to use a service animal.^[174]

4.3.3.3 Guest policies
Some housing providers have “guest policies” aimed at regulating the temporary accommodation of guests in rent-geared-to-income units. It is acknowledged that, in some circumstances, landlords may need to determine whether someone is a guest versus an occupant. However, such policies must be reasonable and bona fide and landlords must be mindful of a tenant’s privacy and dignity. Such policies should not be used to target or penalize groups identified by Code grounds, such as lone mothers whose boyfriends or partners may spend the night, newcomers who have parents who visit for an extended period of time, a person with a disability who has regular overnight visitors for care, etc.

4.3.3.4 No transfer policies
Some landlords have policies prohibiting tenants from transferring between rental units in the same building. Such policies may have a negative impact on older people, for example, who, after becoming widowed, may wish to transfer to a smaller unit that they can better afford and maintain. Such policies may also have an adverse impact on families with children, because their rental housing needs change as their families grow, but they must leave their building to meet their need for additional space. In one case, an Ontario human rights tribunal found that “no transfer policies” have an adverse impact on families with children, and violate the Code.^[175]

Where it would not amount to an undue hardship, housing providers should facilitate transfers between units when the need for the transfer relates to a Code ground.

4.3.3.5 Access to recreational facilities and common areas
Age based restrictions on access to recreational facilities and common areas may be found to discriminate based on Code grounds including family status. For example, rules banning use of certain areas or facilities by children, or restricting their use as compared to other occupants have a negative effect on families.^[176]

Example: A housing co-op restricts use of its swimming pool and recreational facilities by people under age 18 to the hours between 3:00 p.m. and 5:00 p.m. For families who do not have an adult at home during working hours, this essentially means that they cannot use the pool or recreational facilities with their children. This may constitute grounds for a human rights complaint.

There may be legitimate health and safety concerns about children using certain facilities. Where a rule restricts or prohibits access to facilities or areas in a way that affects family use, the burden will be on the landlord to show that the rule is a bona fide requirement, and that a more inclusive rule could not be implemented without undue hardship.

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^[103] In keeping with the decision of the Supreme Court of Canada in Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143 at 174, discrimination in housing based on a protected Code ground may be described as any distinction, conduct or action, whether intentional or not, but based on a Code ground, that has the effect of either imposing burdens on an individual or group that are not imposed upon others, or withholding or limiting access to opportunity, benefits, and advantages available to other members of society. Recent case law has confirmed the applicability of the Andrews analysis to determining discrimination under section 15 of the Canadian Charter of Rights and Freedoms: R. v. Kapp, [2008] 2 S.C.R. 483 and Ontario Disability Support Program v. Tranchemontagne, et al., 2009 CanLII 18295.
^[104] Riggio v. Sheppard Coiffures Ltd. (1988), 9 C.H.R.R. D/4520 (Ont. Bd. Inq.); Stefanyshyn v. 4 Seasons Management Ltd. (4 Seasons Racquet Club) (1986), 8 C.H.R.R. D/3934 (B.C.C.H.R.).
^[105] DesRosiers v. Kaur (2000), 37 C.H.R.R. D/204 (B.C.H.R.T.).
^[106] Gray v. A&W Food Service of Canada Ltd. (1994), CHRR Doc 94-146 (Ont. Bd. Inq.); Dominion Management v. Velenosi, [1977] O.J. No. 1277 at para. 1 (Ont. C.A.); Smith v. Mardana Ltd. (No. 1) (2005), 52 C.H.R.R. D/89 at para. 22 (Ont. Div. Ct.).
^[107] Wattley v. Quail (1988), 9 C.H.R.R. D/5386 (B.C.C.H.R.).
^[108] See Styres v. Paiken (1982), 3 C.H.R.R. D926 (Ont. Bd. Inq.)
^[109] See www.hud.gov/news/release.cfm?content=pr03-060.cfm; and K.L. Dion, “Perceptions of Housing Discrimination in Toronto: The Housing New Canadians Project” (2001) 57 Journal of Social Issues 523 at 527.
^[110] See, for example, Dion, ibid, at 528.
^[111] S. Page, “Accepting the Gay Person: Rental Accommodation in the Community” (1998) 36(2) Journal of Homosexuality 31.
^[112] See “Sorry It’s Rented: Measuring Discrimination in Toronto’s Rental Housing Market,” available at www.equalityrights.org/cera/docs/CERAFinalReport.pdf .
^[113] Aquilina v. Pokoj (1991), 14 C.H.R.R. D/230 (Ont. Bd. Inq.).
^[114] King v. Bura (2004), 50 C.H.R.R. D/213, 2004 HRTO 9.
^[115] Dhanjal v. Air Canada (1996), 28 C.H.R.R. D/367 at para. 210 (C.H.R.T.).
^[116] See, for example, Crozier v. Asselstine (1994), 22 C.H.R.R. D/244 (Ont. Bd. Inq.).
^[117] See Kertesz v. Bellair Property Management (2007), supra, note 43 at 57. See also Reed v. Cattolica Investments Ltd. (1996), supra, note 43.
^[118] Kertesz, ibid.
^[119] See Peroz v. Yaremko (2008), supra, note 40; Kahsai v. Saskatoon Regional Health Authority (No. 2) (2005), 55 C.H.R.R. D/192; Dhanjal and Canadian Human Rights Commission v. Air Canada, supra, note 115; Canada (Human Rights Commission) v. Canada (Armed Forces) and Franke (1999), 34 C.H.R.R. D/140 (F.C.T.D.), Kafé et Commission des droits de la personne du Québec c. Commission scolaire Deux-Montagnes, (1993), 19 C.H.R.R. D/1 (T.D.P.Q.); Starr v. Karcher Holdings Ltd. (2007), supra, note 34.
^[120] See Peroz v. Yaremko (2008), supra, note 40.
^[121] Dhillon v. F.W. Woolworth Co. (1982), 3 C.H.R.R. D/743 at para. 6691 (Ont. Bd. Inq.); Naraine v. Ford Motor Co. of Canada (No. 4) (1996), 27 C.H.R.R. D/230 at para. 50 (Ont. Bd. Inq.)
^[122] Ontario (Human Rights Comm.) v. Elieff (1996), supra, note 38.
^[123] These principles are derived from a line of employment cases. See in particular: Ghosh v. Domglas Inc. (No.2) (1992), 17 C.H.R.R. D/216 at para. 76 (Ont. Bd. Inq.) and Naraine v. Ford Motor Co. of Canada (No. 4) (1996), supra, note 121, at para. 54, aff’d (1999), 34 C.H.R.R. D/405 (Ont. Ct. (Gen. Div.)), Board of Inquiry’s order upheld except with respect to the issue of reinstatement (2001), 41 C.H.R.R. D/349 (Ont. C.A.), leave to appeal denied [2002] S.C.C.A.
No. 69.
^[124] For more detailed information on inclusive design practices, see the section of this Policy entitled “Inclusive design” under “Duty to accommodate.”
^[125] See Ontario Human Rights Commission, Policy and Guidelines on Racism and Racial Discrimination, supra, note 30.
^[126] Section 12 of the Code states:
A right under Part I is infringed where the discrimination is because of relationship, association or dealings with a person or persons identified by a prohibited ground of discrimination.
^[127] Hill v. Misener (No. 1) (1997), 28 C.H.R.R. D/355 (N.S. Bd. Inq.). For a related case, see John v. Johnstone, (September 16, 1977), No. 82, Eberts (Ont. Bd. Inq.) in which a housing provider was found to have breached the Code when he evicted his tenant, a White woman, after she had a Black friend over for dinner.
^[128] Québec (Comm. des droits de la personne) v. Thibodeau (1993), 19 C.H.R.R. D/225
(Que. H.R.T.).
^[129] Tabar, Lee and Lee v. Scott and West End Construction Ltd. (1984), 6 C.H.R.R. D/2471
(Ont. Bd. Inq.).
^[130] S. Chisholm, Affordable Housing in Canada’s Urban Communities: A Literature Review prepared for Canada Mortgage and Housing Consultation (July 2003) at 23, online:
www.chra-achru.ca/english/View.asp?x=511 (date accessed October 26, 2006).
^[131] Chief Commissioner Barbara Hall, “Re: Residents angry over housing project,”
(November 14, 2007): www.ohrc.on.ca/en/resources/news/nimby/view
^[132] The Ministry of Municipal Affairs and Housing indicates that a zoning by-law is invalid if its effect is to regulate the user, as opposed to the use of the land. Ministry of Municipal Affairs and Housing submission to Commission’s Housing Consultation; R.v.Bell (S.C.C.), (1979), 98 D.L.R. (3^rd) 255.
^[133] Alcoholism Foundation of Manitoba v. Winnipeg (City of), (Man. C.A.), (1990),
69 D.L.R. (4^th) 697.
^[134] Ibid.
^[135] Planning Act, R.S.O. 1990, c.P.13. s.35 (2). The authority to pass a by-law under section 34, subsection 38(1) or section 41 does not include the authority to pass a by-law that has the effect of distinguishing between persons who are related and persons who are unrelated in respect of the occupancy or use of a building or structure or a part of a building or structure, including the occupancy or use as a single housekeeping unit.
^[136] The Ministry of Municipal Affairs and Housing indicates that separation distance requirements should be justified on a rational planning basis, passed in good faith, and in the public interest: Ministry of Municipal Affairs and Housing submission to Commission’s Housing Consultation.
^[137] Although the Code does not contain explicit provisions dealing with harassment or poisoned environment pertaining to community forums, municipalities and elected officials are expected to ensure that poisoned environments contrary to the Code are not created at their meetings.
^[138] Ontario (Human Rights Commission) and Roberts v. Ontario (Ministry of Health) (No. 1) (1989), 10 C.H.R.R. D/6353 (Ont. Bd. Inq.), aff’d 14 C.H.R.R. D/1 (Ont. Div. Ct.), rev’d (1994),
21 C.H.R.R. D/259 (C.A.).
^[139] For a discussion of the purposes of section 14 of the Code see Ontario (Human Rights Commission) v. Ontario (Ministry of Health) 21 C.H.R.R. D/259 (Ont. C.A.). The majority of the Court stated that s. 14(1) has two purposes. One is to protect affirmative action programs from being challenged as violating the formal equality provisions contained in Part I of the Code. The second purpose is to promote substantive or concrete equality. Affirmative action programs are aimed at achieving substantive equality by helping disadvantaged persons to compete equally with people who do not have the disadvantage. Section 14(1) is also an interpretive aid that clarifies the full meaning of equal rights by promoting substantive equality.
^[140] See, for example, Huot v. Chow (1996), CHRR Doc 96-178 (B.C.C.H.R.).
^[141] The Code does permit age restrictions in housing under some circumstances.

• Section 15 of the Code permits preferential treatment of persons aged 65 and over,
  and therefore permits housing that is limited to persons over the age of 64.
• Section 14 of the Code permits special programs to alleviate hardship and disadvantage, such as specially designed barrier-free housing projects aimed at older persons with disabilities.
• Section 18 creates a defence for religious, philanthropic, educational, fraternal or social institutions or organizations that primarily serve the interests of older persons and that provide housing as part of their services.

However, there is no defence that permits “adult lifestyle” housing that results in the exclusion
of children or people under a certain age. See York Condominium Corp. No. 216 v. Dudnik
(No. 2) (1990), 12 C.H.R.R. D/325 at paras. 165-66, aff’d (1991), 14 C.H.R.R. D/406 at para. 23 (Ont. Div. Ct.).
^[142] Flamand v. DGN Investments (2005), supra, note 35 at para. 137.
^[143] St. Hill v. VRM Investments Ltd. (2004), CHRR Doc. 04-023 at para. 32 (HRTO).
^[144] See D.S. Massey & G. Lundy, “Use of Black English and Racial Discrimination in Urban Housing Markets” (March 2001) 36(4) Urban Affairs Review 452 at 466-7.
^[145] Linguistic profiling” has been defined as the “determin[ation of] characteristics such as
social and economic status from the way a person uses language.” See www.wordspy.com/words/linguisticprofiling.asp (date accessed: January 3, 2007).
^[146] See D.S. Massey & G. Lundy, supra, note 144; K.L. Dion, supra, note 109; S. Page, supra, note 111; and CERA, “Sorry It’s Rented: Measuring Discrimination in Toronto’s Rental Housing Market,” supra, note 112.
^[147] Bekele v. Cierpich, 2008 HRTO 7 (CanLii) (Ontario Human Rights Tribunal).
^[148] See Bekele, ibid.
^[149] Vander Schaaf v. M & R Property Management Ltd. (2000), supra, note 48, at para. 105.
^[150] Public assistance” would include money from Ontario Works, Ontario Disability Support Program, Canada Pension Plan, Old Age Security, Child Benefit, Ontario Student Assistance Program, etc.
^[151] Shelter Corp. v. Ontario (1998), 34 C.H.R.R. D/1, aff’d (2001), 39 C.H.R.R. D/111
(Ont. Sup. Ct.).
^[152] Ibid. at para. 137.
^[153] Vander Schaaf v. M & R Property Management Ltd., supra, note 48, at para. 110.
^[154] Ahmed v. 177061 Canada Ltd. (2002), supra, note 37.
^[155] Sinclair v. Morris A. Hunter Investments Ltd. (2001), supra, note 61, at paras. 36-37. This decision found discrimination based on age, as younger people are less likely to have permanent employment or lengthy job tenure. However, similar issues arise with respect to other grounds in the Code.
^[156] Ahmed v. 177061 Canada Ltd., supra, note 37, at para. 85.
^[157] See Service Canada for more details: www.servicecanada.gc.ca/eng/sin/protect/provide.shtml.
^[158] In Styres v. Paiken (1982), supra, note 108, an Ontario human rights tribunal found that a landlord contravened the Code by imposing different terms or conditions of occupancy on the claimant from those that were imposed on the other tenants because of race, colour or ancestry.
^[159] Section 106(2) of the Residential Tenancies Act, supra, note 22 allows a landlord to require a tenant for a rent deposit that is not “more than the lesser amount of rent for one rent period and the amount of rent for one month.”
^[160] Garbett v. Fisher (1996), supra, note 61.
^[161] McEwen v. Warden Building Management Ltd. (1993), supra, note 72.
^[162] For more detailed information, see the OHRC’s publication, Interim Guide: Police Record Checks for Vulnerable Sector Screening, available at: www.ohrc.on.ca/en/resources/Guides/prc_interimguide/, and the OHRC’s draft Policy on Mental Health Discrimination and Police Record Checks, available at: www.ohrc.on.ca/en/resources/Policies/mhdraft .
^[163] Approximately 20% of Canadians will experience mental illness at some point in their lives. (Health Canada, A Report on Mental Illness in Canada [Ottawa: 2002], online: Canadian Mental Health Association Website: www.cmha.ca). For some, this may result in non-criminal contact with the police under the provisions of the Mental Health Act. The Mental Health Act authorizes the police to apprehend a person and take him or her to a hospital for examination in circumstances where the person appears to have a mental disorder that will likely result in serious bodily harm to self or to others, or serious physical impairment of the person, and the person engages in certain behaviour. In many cases, the person himself, or a family member, may have contacted the police for help. These contacts are recorded in police databases and may be kept there for years. In some cases they may never be removed. This record can then be a barrier when the person applies for housing.
^[164] Raweater v. MacDonald, (2004), supra, note 49.
^[165] Peroz v. Yaremko, (2008), supra, note 40.
^[166] Municipal by-laws often set out space restrictions in rental units. For example, the City of Toronto’s Municipal Code states “the maximum number of persons living in a habitable room
shall not exceed one person for each nine square metres of habitable room floor area.” See
City of Toronto Municipal Code, Chapter 629-25(C).
^[167] Cunanan v. Boolean Developments Ltd. (2003), supra, note 52.
^[168] Desroches v. Québec (Comm. des droits de la personne) (1997), supra, note 52.
^[169] Fakhoury v. Las Brisas Ltd., supra, note 52. In this case, there was a policy whereby a
four-person family, composed of one parent and three children, was required to rent at least
a three-bedroom unit. The tribunal held that there was no reasonable justification for this
unequal treatment.
^[170] Booker v. Floriri Village Investments Inc., supra, note 53.
^[171] Cunanan v. Boolean Developments Limited, supra, note 52. See also Fakhoury v.
Las Brisas Ltd., supra, note 52.
^[172] Section 14 of the Residential Tenancies Act, 2006, supra, note 22.
^[173] For a related case, see Fitzhenry v. Schememauer, (2008), C.H.R.R. Doc. 08-500
(Alta. H.R.P.).
^[174] See Di Marco v. Fabcic (2003), supra, note 63.
^[175] Ward v. Godina (1994), supra, note 54.
^[176] In Leonis v. Metropolitan Toronto Condominium Corp. No. 741 (1998), 33 C.H.R.R. D/479
at para. 62 (Ont. Bd. Inq.): rules banning people under 16 from accessing certain facilities, and severely restricting the use of others were found to discriminate based on family status. For a related case, see Dellostritto v. York Condominium Corporation No. 688, 2009 HRTO 221 (H.R.T.O.).