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VI. The duty to accommodate

Organizational responsibility
duty to accommodate
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Under the Code, housing providers have a duty to accommodate the Code-related needs of tenants, to make sure that the housing they supply is designed to include people identified by Code grounds, and to take steps to remove any barriers that may exist, unless to do so would cause undue hardship.

“Housing providers” includes landlords and other responsible parties, such as governments or agencies that provide housing-related services. The obligation of government to meet its own duty to accommodate does not relieve housing providers and others from fulfilling their respective duties under the Code. For example, in constructing new social housing buildings, governments have a responsibility to consider inclusive design requirements; where accommodation needs continue to exist, however, housing providers have a duty to accommodate these remaining needs.

1. The legal test

Housing providers are only required to implement accommodations that would not amount to undue hardship. The test for undue hardship is set out fully in the OHRC’s Policy and Guidelines on Disability and the Duty to Accommodate. The same standard applies to all grounds of the Code.

The Code prescribes three considerations when assessing whether an accommodation would cause undue hardship. These are:

  • cost
  • outside sources of funding, if any
  • health and safety requirements, if any.

No other considerations, other than those that can be brought into these three, can be properly considered. For example, a housing provider is not justified in denying accommodation to a tenant based on the discriminatory views of other tenants.

Example: A housing provider takes steps to child-proof the apartment of a tenant who becomes pregnant, even though several of the building’s older tenants would prefer that the building remain “adults only.”

The onus of proving that an accommodation would cause undue hardship lies on the housing provider. The evidence needed to show undue hardship must be real, direct, objective, and in the case of costs, quantifiable.

In most cases, accommodations for Code-identified people will not require significant expenditures, and will often have the potential to benefit many other tenants not just in the present, but also in the future.

Example: Installing a ramp for a tenant who uses a wheelchair has the potential to make the premises more accessible for other people with mobility disabilities, older people, and families with children in strollers.

In other cases, accommodation may simply involve making policies, rules and requirements more flexible. This may involve some administrative inconvenience, but inconvenience by itself is not a factor for assessing undue hardship. Section 11 of the Code, combined with section 9, operates to prohibit discrimination that results from requirements, qualifications, or factors that may appear neutral but that have an adverse effect on people identified by Code grounds. Section 11 allows a housing provider to show that the requirement, qualification or factor is reasonable and bona fide by showing that the needs of the tenant cannot be accommodated without undue hardship.

The Supreme Court of Canada has set out a framework for examining whether the duty to accommodate has been met.[177] If prima facie discrimination is found to exist, a housing provider must establish on a balance of probabilities that the standard, factor, requirement or rule

  1. was adopted for a purpose or goal that is rationally connected to the function being performed
  2. was adopted in good faith, in the belief that it is necessary for the fulfilment of the purpose or goal, and
  3. is reasonably necessary to accomplish its purpose or goal, in the sense that it is impossible to accommodate the claimant without undue hardship.[178]

As a result of this test, the rule or standard itself must be inclusive and must accommodate individual differences up to the point of undue hardship rather than maintaining discriminatory standards and then providing accommodation for people who cannot meet them. This makes sure that each person is assessed according to their own personal abilities instead of being judged against presumed group characteristics.[179]

The ultimate issue is whether the housing provider has shown that they have provided accommodation up to the point of undue hardship. In this analysis, the procedure to determine what changes are needed is as important as the substantive content of the accommodation.[180]

The following non-exhaustive factors should be considered during the analysis:[181]

  • whether the housing provider investigated alternative approaches that do not have a discriminatory effect
  • reasons why viable alternatives were not put in place
  • ability to have differing standards that reflect group or individual differences and capabilities
  • whether the housing provider can meet their legitimate objectives in a less discriminatory way
  • whether the standard is properly designed to ensure the desired qualification is met without placing undue burden on those to whom it applies
  • whether other parties who are obliged to assist in the search for accommodation have fulfilled their roles.

2. Principles of accommodation

The duty to accommodate is comprised of three principles:

  1. respect for dignity
  2. individualization
  3. integration and full participation.

2.1 Respect for dignity

Dignity will include consideration of how accommodation is provided and the person’s own participation in the process. Housing providers should consider different ways of accommodating people identified by Code grounds along a continuum, ranging from those ways that most respect privacy, autonomy, integration and other human rights values, to those that least respect those values.

2.2 Individualization

There is no set formula for accommodating people identified by Code grounds. Each person’s needs are unique and must be considered afresh when an accommodation request is made. While some accommodations may meet one person’s needs and not another’s, housing providers will likely find that many of the identified changes that they implement will benefit large numbers of people.

2.3 Integration and full participation

Accommodations should be developed and implemented with a view to maximizing a person’s integration and full participation. Achieving integration and full participation requires barrier-free and inclusive design and removing existing barriers. Where barriers continue to exist because it is impossible to remove them at a given point in time, then accommodations should be provided to the extent possible, short of undue hardship.

Example: In response to concerns from an older tenant with a hearing loss, a landlord installs, as part of the building’s fire safety system, a visual alerting component with a flashing light. This feature allows the tenant, and all other tenants with hearing loss, to live their lives independently and not have to rely on their neighbours in the event of an emergency.

3. Inclusive design

The Supreme Court of Canada has made it clear that society must be designed to include all people.[182] It is no longer acceptable to structure systems in a way that ignores needs related to Code grounds. Instead, systems should be designed in a way that does not create physical, attitudinal or systemic barriers for people identified by Code grounds.

Housing providers, and other responsible parties, including government, should use the principles of universal design when they are developing and constructing the physical features of housing, and when they are designing housing policies, programs, and procedures. New barriers should never be created when building new facilities or when renovating old ones. Instead, design plans should incorporate current accessibility standards such as the Canadian Standards Association’s Barrier-Free Design[183] and the Principles of Universal Design.[184] This type of planning makes premises attractive to a larger pool of prospective tenants and decreases the need to remove barriers and provide accommodations at a later date.

Example: As part of a renovation initiative to modernize her rental housing complex, a housing provider decides to sound-proof five of her units. This example of forward-thinking inclusive design will allow her to provide comfortable units to older tenants who use canes or walkers, and families with small children. It will also stave off potential complaints from other tenants about excessive noise.

Example: A co-op housing program ensures that design plans for a new housing complex include units of varying sizes, ranging from bachelor units to four-bedroom apartments. This design choice is meant to make its premises accessible to a diverse range of tenants, from people who have mental illnesses who may prefer to live alone, to new Canadians or extended families who may have multiple generations living under one roof.

The Ontario Building Code Act[185] governs the construction of new buildings and the renovation and maintenance of existing buildings. The OHRC has expressed concerns that the accessibility requirements set out in the Building Code do not always result in equal access to people with disabilities as required by the Human Rights Code.[186] Many housing providers continue to rely only on the requirements of the Ontario Building Code without considering their obligations under the Human Rights Code. However, the Human Rights Code prevails over the Building Code and housing-providers may be vulnerable to a human rights claim if their premises fall short of the requirements of the Human Rights Code. Relying on relevant building codes has been clearly rejected as a defence to a complaint of discrimination under the Human Rights Code.[187]

The Accessibility for Ontarians with Disabilities Act[188] provides a mechanism for developing, implementing and enforcing accessibility standards to provide full accessibility for Ontarians with disabilities in goods, services, facilities, accommodation, employment, buildings, structures and premises by January 1, 2025. Under the AODA, housing providers will be required to comply with accessibility standards for people with disabilities. Accessibility Standards for Customer Service have already been passed into Regulation and begin to apply to designated public sector organizations on January 1, 2010 and for other providers of goods and services on January 1, 2012. Accessibility standards for communications, transit, employment, and the built environment have been proposed, but have not yet passed into regulation as of the date of this Policy. If accessibility standards under the AODA fall short of the requirements in the Code, the requirements of the Code will prevail.

Inclusive design is not just a principle of human rights - it also makes good sense. Housing providers who do not consider the Code-related needs of people are likely to experience higher levels of vacancy, and turnover among tenants. Flexible and inclusive practices can be a considerable draw in attracting and retaining tenants. Similarly, housing providers who do not take into account the Code-related needs of people and families may alienate a significant potential target market.

Along with the expectation to prevent barriers at the design stage through inclusive design, organizations should be aware of systemic barriers in systems and structures that already exist. They should actively identify and seek to remove these existing barriers. Where barriers have been identified, organizations must remove the barriers rather than making “one-off” accommodations, unless to do so would cause undue hardship.

Administrative tribunals and other decision-makers should also take steps to make sure that their facilities, procedures and requirements are designed inclusively. For example, decision-makers might consider making information about their processes available in multiple languages to ensure equal access to people whose first language is not English. Interpretation services for adjudicative proceedings and other more informal procedures should also be available.

4. Appropriate accommodation

Where an accommodation need related to Code grounds has been identified, a housing provider must identify and implement the most appropriate accommodation, short of undue hardship. Determination of what is and is not an appropriate accommodation is separate from an undue hardship analysis.

An accommodation will be considered appropriate if it will result in equal opportunity to attain the same level of performance or to enjoy the same level of benefits and privileges experienced by others, or if it is proposed or adopted to achieve equal opportunity and meets the person’s Code-related needs.

Example: A housing co-op sends out its monthly newsletter and other communications in both electronic and print versions so that it is accessible to members who have visual disabilities and use assistive devices.

The most appropriate accommodation will be the one that most promotes inclusion and full participation, respects dignity, meets individual needs, and effectively addresses any systemic issues.

A housing provider that has not taken steps to investigate and implement policies and practices that support and include all people will have a more difficult time justifying a failure to accommodate individual requests for flexibility.

Where the most appropriate accommodation would cause undue hardship, a housing provider should consider next-best, phased-in, or interim accommodations.

Example: Within a short time, a landlord receives several requests for Code¬-related accommodations that, when combined, would require significant capital outlay. Because the total cost of the changes would amount to a financial undue hardship that would jeopardize the organization’s viability, the landlord develops a timeline for completing the work required. The timeline projects that all of the accommodations would be completed within the calendar year. After the landlord completes the work, he creates a reserve fund and makes regular monthly deposits. The sole purpose of the fund is to cover the cost of Code-related accommodation expenses that may arise in the future.

Appropriate accommodation should be provided promptly. Housing providers may contravene the Code if they do not provide accommodations in a timely way.[189]

A housing provider need not provide more than a tenant requires to meet the actual identified needs related to grounds in the Code. For example, if a tenant with a physical disability cannot shovel snow and cut grass as part of his co-op duties, it would be an appropriate accommodation to relieve him of these specific duties. It would not be necessary, however, for the co-op to relieve him of all co-op duties if the tenant is able to complete other tasks, such as office paperwork.

Not all of a tenant’s disability-related accommodation needs will necessarily fall under the direct responsibility of the housing provider. Some tenants might rely on attendant care or other support services, personal assistive devices, mobility aids, or public para-transit services. In these situations, a housing provider may have a duty to help facilitate a tenant’s access to and use of such accommodations, where appropriate.

5. Forms of accommodation

There are various ways a housing provider may be called upon to accommodate a person’s Code-related needs. People with disabilities, older people, families and others may have specific requirements that necessitate accommodation in the housing context.

Example: To make his high-rise apartment building accessible to families with children, a building manager installs safety devices on all the windows and balconies.

Inaccessible buildings and non-inclusive housing design are among the obstacles people with disabilities often face. Accommodations may include physical modifications such as installing ramps and elevators, visual fire alarms and doorbells for the hearing impaired, different door handles, lower counters, etc.

Example: A tenant in a rental unit develops arthritis. She requests that doorknobs in her suite and to common areas such as the laundry room be changed from round knobs that are difficult to grip to handles that are suitable for people with arthritis. The landlord willingly makes this change as it is not an undue hardship to do so. It will also benefit other tenants in the building who are aging.

The duty to accommodate may require waiving or changing a rule (for example, allowing guide dogs or other service animals in a building with a “no pets” policy.[190] ) It may also require flexibility when enforcing rules and requirements. [191] In social housing programs, for example, tenants must promptly report changes in income and family size. Where a tenant is unable to meet a reporting deadline for a Code-related reason, the duty to accommodate may require a housing provider to extend the timeline.

Example: Due to unforeseen symptoms arising from a change in medication, a tenant with a mental disability fails to meet the deadline for filing information on a change in income. Before this incident, the tenant had complied fully with the rules and requirements of his social housing program and had been very proud of his demonstrated ability to live independently. The social housing provider, in this instance, uses his discretion to extend the deadline, thus avoiding much embarrassment for the tenant and a possible revocation of the tenant’s subsidy.

Housing providers may need to inquire further into a prospective tenant’s inability to meet a specific rental requirement, and, where appropriate, provide alternative ways for a tenant to satisfy the requirement. New Canadians, women who are leaving an abusive relationship, and people who have spent time in public institutions may not have a recent rental history, for example. In such circumstances, the lack of a rental history should not count against the applicant. An appropriate accommodation may be for the landlord to allow the tenant to establish their reliability in other ways. At all times, a housing provider’s inquiries should be consistent with the Code’s housing regulation and with Code objectives, that is, to prevent discrimination and unequal treatment, and to respect a tenant’s dignity and privacy.

Often, it is neither difficult nor a major imposition for a housing provider to provide needed accommodations. In one case, a tenant alleged discrimination because of disability due to the landlord’s lack of designated “disabled” parking. Under a settlement, the landlord agreed to provide two designated parking spots for tenants, one designated spot for visitors and further designated spots for tenants as needed 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.[192]

6. Balancing the duty to accommodate with the needs of other tenants

There may be situations where the conduct of one tenant causes tension and affects the enjoyment of the living environment by others. A housing provider, when faced with such a situation, may feel challenged to meet the needs of an individual tenant or family while also preserving the harmony of the larger housing community. Situations where a tenant’s conduct is disruptive, or perceived to be disruptive, may be linked to a Code-protected ground. For example, a family with small children may be perceived by a neighbour to be too noisy. Or, the behaviour in question may be linked to the ground of disability. Certain forms of mental illness, for example, may lead to disruptive behaviour. Disruptive behaviour may also stem from a tenant reacting to being harassed or treated differently based on a Code ground, such as race or sexual orientation.

Under the Code, a housing provider has a duty to consider such factors and take prompt and appropriate action, to the extent possible, including exploring and implementing any interim or long-term accommodation solutions that might help address the situation. At the same time, housing providers are also responsible for managing the legitimate concerns of other tenants, while not tolerating any discriminatory views and preferences. Tenants may be asked to cooperate and help facilitate situations, to the best of their ability, including aiding in the provision of accommodation to themselves and, where appropriate, to their fellow tenants.

The duty to accommodate under the Code exists for needs that are known. Housing providers and others responsible for accommodation are not, as a rule, expected to accommodate Code-related needs of which they are unaware. However, some people may be unable to disclose or communicate their needs, particularly in a situation that involves some forms of mental illness. While most people with a mental illness will be capable of identifying their own needs and fully taking part in the accommodation process, some people will have difficulty acknowledging a mental illness, or will be unable to do so due to the nature of their disability.

Before taking any kind of punitive action, a housing provider should try to offer assistance and accommodation, where appropriate, to a person who is clearly unwell or perceived to have a disability. Even if a housing provider or landlord has not been formally advised of a mental disability, the perception of such a disability will engage the protection of the Code.

Several decisions stand for the principle that decision-makers must consider a tenant’s Code-related circumstances and needs and whether that person could be accommodated before considering or ordering an eviction.[193] General Comment 7: The Right to Adequate Housing: Forced Evictions by the United Nations Committee on Economic, Social and Cultural Rights also states that forced evictions are incompatible with the Covenant, and that evictions should not result in a person ending up homeless.[194] A housing provider has a duty to assess each tenant individually before imposing measures that may affect the tenant negatively, such as threatening eviction, starting eviction proceedings, revoking subsidies, etc.

Before considering evicting or sanctioning a tenant for disruptive behaviour, a housing provider should try to determine whether the conduct in question is related to a Code ground, and whether any mitigating circumstances (for example, harassment) are present. If the behaviour is connected to a Code ground (for example, a mental health disability), then the housing provider should consider:

  • accommodation-related medical information supplied by the tenant, or the tenant’s support worker or representative
  • observations of the tenant
  • whether the accommodations provided were appropriate
  • whether the tenant’s disability impaired their ability to understand the impact and consequences of their conduct
  • whether the tenant’s disability impaired their ability to control the conduct in question
  • whether the tenant has undetected Code-related needs that require accommodation.

Where a tenant’s conduct is objectively disruptive, housing providers and landlords must consider a range of strategies to address such behaviour. Strategies will include assessing, and where necessary, reassessing and modifying any accommodations that are already in place for the tenant, and/or providing or arranging for additional supports.

Example: The erratic behaviour of a woman with schizophrenia had the potential to endanger the safety of other tenants in her building. For example, on several occasions, she screamed loudly in the halls and other common areas, and once she left food on her stove unattended. By working with the woman and members of her family, a housing provider developed a crisis response plan, which included the woman’s brother and mother being available by phone and being willing to intervene when the tenant’s behaviour was disruptive.[195]

Tension and conflict between tenants can often be minimized by putting appropriate accommodations in place.

Example: A tenant using a walker made thumping noises as he walked around his apartment, causing considerable disruption to the tenants who lived beneath him. The landlord installed carpeting in the man’s apartment, thus minimizing the noise for other tenants.

It may be necessary to tolerate a certain amount of disruptive behaviour in the interim, while more ideal accommodations or solutions are being worked out. However, an accommodation that would call for permanent tolerance of significantly disruptive behaviour may be neither appropriate nor required.

Being a tenant comes with a number of responsibilities, including: paying the rent on time, keeping your unit clean, avoiding damage to the property, respecting health, fire, safety and noise regulations, not disturbing the peace and well-being of others, and generally being a good neighbour.

The extent of a housing provider’s obligation to accommodate a tenant’s behaviour related to a Code ground may be limited if ultimately the tenant is unable to substantially fulfill the responsibilities of being a good tenant, particularly where there is a real risk to the health and safety of other tenants, the landlord, etc. See “Health and Safety Concerns” in the “Undue Hardship Standard” section of the Policy for more detailed information.

Once a landlord has provided appropriate accommodation to a tenant, the tenant can then be expected to live in the housing environment without causing unreasonable disruption to the greater harmony of the housing community. Where a tenant’s conduct continues to interfere significantly with the tranquility of the larger housing environment, despite appropriate accommodations being in place and despite diligent and active participation on the part of the housing provider to engage in the accommodation process, the housing provider may have no other choice than to end the tenancy. It is important, however, that housing providers not rush to such a conclusion, and continue, where possible, to explore possible solutions where they exist.

While housing providers and tenants have a responsibility to come together to develop creative solutions to help address disruptive behaviour, government and other social service agencies may offer programs and services that can also help tenants live independently as good neighbours.[196] Housing providers may still have a role to remove any existing barriers, design systems and practices inclusively, and otherwise help facilitate these external forms of support.

6.1 Smoking

Smoking can be a major source of tension when balancing the rights of tenants.

Social policy already helps promote the well-being of tenants in many ways including current fire, health and building code standards and inspections.[197] Public health laws such as the Smoke-Free Ontario Act[198], as well as public awareness initiatives on curbing the harmful affects of cigarette smoke have advanced considerably in the last decade or so in other areas, particularly in
the workplace, restaurants, bars and hotel services. Improved standards for elements that affect indoor air quality for occupants, especially people with environmental sensitivities, have been set out in the proposed Accessible Built Environment Standard under the Accessibility for Ontarians with Disabilities Act.[199] The proposed Standard identifies a number of building contaminants including gases from materials used in construction and finishes, poor ventilation, cleaning chemicals, scented personal care products, and tobacco smoke. Advocacy organizations are also seeking further progressive change on such issues.[200]

It is clear that cigarette smoke can have a detrimental effect on the health and well-being of others, particularly people with respiratory and chemical sensitivity related disabilities, pregnant women and children. Landlords may be asked to provide accommodation to tenants whose disabilities are worsened by exposure to second-hand smoke.

At the same time, the medical community recognizes that smoking is an addiction detrimental to one’s health. Different forms of addictions, such as alcohol and drug dependences, have been found to be a disability within the meaning of the Code. At this time, the case law is divided on whether addiction to nicotine is a disability.[201]

Smoking has also been shown to be related to other disabling conditions such as emphysema and cancer. Research shows that people with mental illness are about twice as likely to smoke as other people.[202] Similarly, the OHRC has heard that people with physical disabilities, such as multiple sclerosis or chronic back pain, may smoke cigarettes or may be prescribed medicinal marijuana to control symptoms.[203]

A housing provider has a duty to explore accommodation requests from tenants with any form of disability. Tenants may also be asked to cooperate and help facilitate the provision of accommodation for themselves, and where appropriate, for their fellow tenants as well.

However, given the inherent risks associated with smoking, a housing provider may have little or no obligation to accommodate a tenant’s need to smoke when to do so would amount to undue hardship, for example, by negatively affecting the health and safety of other tenants. For more information, see the “Undue Hardship Standard” section of this Policy.

7. Roles and responsibilities

Accommodation is a multi-party process. Everyone in the accommodation process should work together cooperatively and respectfully to develop and implement appropriate accommodation solutions.

The person seeking accommodation is responsible for telling the accommodation provider (landlord, housing provider, decision-maker, etc.) that they have Code-related needs that require accommodation.

Before asking the housing provider, landlord, etc. for accommodation, people may be expected to make reasonable efforts to first avail themselves of outside resources available to them, such as funding through government programs. However, such resources should most appropriately meet the accommodation needs of the person. Accommodation seekers are often in the best position to identify and evaluate such outside resources. At the same time, it is a best practice for landlords, housing providers, decision-makers, etc. to help people to find information on such resources; for example, by keeping information in a common location, or posting information on a website.

Accommodation providers should accept requests in good faith, unless there are objective reasons not to do so. Where necessary, landlords and other accommodation providers may make reasonable requests for information that is necessary to clarify the nature and extent of the accommodation need.

Example: A woman applying for tenancy in a housing complex asks the landlord if he will accept a guarantor in lieu of a credit history. She explains that she is leaving an abusive relationship and that her spouse controlled all of the couple’s finances during the years they were together. She states that she is staying at a women’s shelter and is in the process of setting up a bank account, ordering cheques, getting a credit card, etc. The landlord asks for a letter from the women’s shelter to verify the woman’s explanation. Upon being satisfied that the explanation is legitimate, the landlord accommodates the woman’s needs.

The accommodation provider may also ask a tenant about any available outside resources that the person has enquired into.

As information related to Code grounds may be highly personal, landlords and other accommodation providers should take steps to make sure that information related to accommodation requests is kept confidential, and shared only with people who need it.

Adjudicative bodies and other decision-makers are responsible for making their proceedings accessible to people identified by Code grounds. Where an accommodation need is identified, these bodies have a duty to accommodate that need to the point of undue hardship. For example, where a person is not able to make submissions in writing due to a disability, a decision-maker should provide an alternative way for them to provide the required information. Also, all documents should be available in alternate formats. Where a person’s failure to comply with required procedures is due to a Code-identified ground, decision-makers have a duty to accommodate related needs.

Example: A woman fails to show up at an eviction hearing before an adjudicative tribunal. Rather than proceed with the eviction in her absence, the tribunal adjourns. In follow-up communication, the woman reveals that she has a mental illness that she is generally able to manage quite well, but that on the date of the hearing she had a crisis that prevented her from attending. The tribunal agrees to re-schedule the hearing and allow the woman to bring a representative with her for support.

Accommodation providers should act in a timely way, take an active role in seeking solutions, and bear any appropriate costs associated with the accommodation. Accommodation seekers should cooperate in the accommodation process, provide relevant information, and meet any agreed-upon standards once accommodation has been provided.

Before initiating the revocation of a subsidy, eviction proceedings, or any other measure that may affect the tenant in a negative way, a housing provider is expected to consider whether a Code-related need exists, and whether that need has been accommodated appropriately.

Example: A tenant fails to make his rent payment on time. Before contemplating consequences, his landlord inquires into the tenant’s circumstances and discovers that he has been bedridden in the hospital due to a workplace accident. He allows the tenant to pay his rent late as it is not an undue hardship for him to do so.

The accommodation seeker has a responsibility to:

  • advise the accommodation provider of the need for accommodation related to a Code ground
  • make their needs known to the best of their ability, so that the accommodation provider can make the requested accommodation
  • answer questions or provide information on relevant restrictions or limitations, including accommodation-related information from health care professionals, where appropriate and as needed
  • take part in discussions on possible accommodation solutions
  • co-operate with any experts whose assistance is required
  • fulfill agreed-upon responsibilities
  • work with the accommodation provider on an ongoing basis to manage the accommodation process
  • advise the accommodation provider of difficulties they may be experiencing with arranged accommodations.

As a party to the accommodation process, the accommodation provider (landlord, housing provider, decision-maker, etc.) has a responsibility to:

  • accept an accommodation seeker’s request for accommodation in good faith (even when the request does not use any specific formal language), unless there are legitimate reasons for acting otherwise
  • take an active role in making sure that alternative approaches and possible solutions are investigated
  • get expert opinion or advice where needed, and, in the case of a larger housing provider, bear the costs of any required information or assessment, up to the point of undue hardship
  • maximize an accommodation seeker’s right to privacy and confidentiality, including only sharing information with people directly involved in the accommodation process
  • limit requests for information to those reasonably related to the nature of the need or limitation, and only to facilitate access to housing
  • deal with accommodation requests in a timely way
  • take immediate remedial action in situations where harassment is or may be taking place.

In providing housing, a housing provider has a responsibility to:

  • review the accessibility of the living environment as a whole, including all recreational services
  • design and develop new or revised facilities, services, policies, processes, rules and requirements inclusively, with the needs of people identified by the Code in mind
  • make sure that accommodation costs are spread as widely as possible throughout the operation, if required and where appropriate.

Housing providers, tribunals, government and others responsible for making housing decisions can plan to meet accommodation needs by proactively putting in place policies and procedures and informing themselves about the primacy of the Code and the duty to accommodate to the point of undue hardship.[204]

As mentioned previously, the duty to accommodate Code-related needs exists for needs that are known. Housing providers and others responsible for providing accommodation are not, as a rule, expected to accommodate needs they are unaware of. However, some tenants and others seeking housing-related accommodation may be unable to identify or communicate their needs because of the nature of their disability. There may be cases where housing providers should try to help the accommodation seekers, by offering assistance and accommodation. Once Code-related needs are known, the legal onus shifts to those with the duty to accommodate.

A housing provider is also responsible for facilitating accommodations provided by others, where appropriate. As mentioned previously, some tenants may rely on third parties for attendant care or other support services, personal assistive devices, mobility aids, public para-transit services, etc.

8. Undue hardship standard

Under the Code, every tenant who is identified by a Code ground is entitled to accommodation up to the point of undue hardship. The Code sets out only three factors that may be considered when assessing whether an accommodation would cause undue hardship: cost; outside sources of funding, if any; and health and safety requirements, if any.

It is the OHRC’s longstanding position that only factors that can be brought within these three factors will be considered.[205]

Example: A housing provider tells a tenant who has just announced her pregnancy that she will have to find another place to live once she has the baby as the majority of his tenants are older and some have expressed concern about the baby compromising the peace and quiet of the building. Unless the housing provider can show that allowing the woman to maintain her tenancy will cause undue hardship based on one of the three factors set out above, the preferences and opinions of other tenants will not, by themselves, be enough to establish undue hardship.

To claim the undue hardship defence, the party responsible for accommodation has the onus of proof. The accommodation seeker does not have to prove that the accommodation can be accomplished without undue hardship. As mentioned previously, the nature of the evidence required to prove undue hardship must be objective, real, direct, and, in the case of cost, quantifiable. The accommodation provider must provide facts, figures and scientific data or opinion to support a claim that the proposed accommodation in fact causes undue hardship. A mere statement, without supporting evidence, that the cost or risk is “too high” based on impressionistic views or stereotypes will not be sufficient.

Objective evidence includes, but is not limited to:

  • financial statements and budgets
  • scientific data, information and data resulting from empirical studies
  • expert opinion
  • detailed information about the activity and the requested accommodation
  • information about the conditions surrounding the activity and their effects on the person or group identified by Code grounds.

8.1 Elements of the undue hardship defence

8.1.1 Costs

The costs standard is a high one. Where possible, an accommodation provider may take steps to recover the costs of accommodation. This can be done, for example, by obtaining grants, subsidies and other outside sources of funding that help to offset accommodation expenses. Tax deductions and other government benefits flowing from the accommodation may also be considered. Also, inclusive design and other creative design solutions can often avoid expensive capital outlay.

In determining whether a financial cost would alter the essential nature or substantially affect the viability of a housing operation, consideration will be
given to:

  • The size of the operation – what might prove to be a cost amounting to undue hardship for a small housing operation will not likely be one for a larger housing operation.
  • Can the costs be recovered in the normal course of operation?
  • Can other divisions, departments, etc. of the housing operation help to absorb part of the costs?
  • Can the costs be phased in – so much per year?
  • Can the housing provider set aside a certain percentage of money per year to be placed in a reserve fund to be used for accommodation issues?[206]
  • Will the housing-related amenities, services, conditions, etc. for all tenants be substantially and permanently altered?

The government is required to make sure that social housing providers have access to sufficient funding to ensure equal access to housing. Where a housing provider receives funding from government for promoting accessibility and meeting the accommodation needs of tenants, the housing provider should track accommodation data and alert the government to any funding deficiencies that exist.

Housing providers cannot use limited resources or budget restrictions as a defence to the duty to accommodate without first meeting the formal test for undue hardship based on costs. Further, housing providers are not to decide which accommodations are most appropriate for a tenant based on financial considerations or budgetary constraints. Whether an accommodation is “appropriate” is a determination completely distinct and separate from whether the accommodation would result in "undue hardship." If the accommodation meets the tenant’s needs and does so in a way that most respects dignity, then a determination can be made as to whether or not this “most appropriate” accommodation would result in undue hardship.

Accommodation is a process and a matter of degree, rather than an all-or-nothing proposition, and can be seen as a continuum. At one end of this continuum would be full accommodation that most respects the person's dignity. Next is phased-in accommodation over time, followed by the most appropriate accommodation only being implemented once sufficient reserve funds have been set aside. Alternative accommodation, or “next best” accommodation, might be next on the continuum when the most appropriate accommodation is not feasible. Alternative accommodation might also be accomplished at a later date if immediate implementation would result in undue hardship. Or, alternative accommodation might be implemented as an interim solution while the most appropriate accommodation is being phased in or implemented at a later date.

If an accommodation exceeds a housing provider’s pre-determined accommodation budget, the housing provider must look to its global budget, unless to do so would cause undue hardship.[207]

Example: A social housing provider informs a tenant with small children that they cannot install child locks on her windows and balcony door because they only have a certain amount of resources to fund accommodations to tenants, and that they have already spent the money on the “most needy” tenants. The housing provider in this instance would be required to review its overall budget before supporting a conclusion that the accommodation could not be provided without causing undue hardship based on costs.

In larger housing operations, the costs of accommodation should be distributed as widely as possible within the operation so that no single complex or division disproportionately assumes the costs of accommodation. The appropriate basis for evaluating the costs is based on the budget of the housing operation as a whole, not the specific complex or division in which the tenant has requested an accommodation.

Larger housing operations may be in a better position to set an example or provide leadership in accommodating people with Code-related needs, as accommodation costs will likely be more easily absorbed by them.

8.1.2 Outside sources of funding

Housing providers are expected to investigate and access outside sources of funding, where they exist, to help defray costs associated with accommodation. Before being able to claim that it would be an undue hardship based on costs to accommodate a tenant with disability-related needs, for example, a housing provider would have to show that they took advantage of any available government funding (or other) program to help with such costs.

A tenant is also expected to avail themselves of any available outside sources of funding to help cover expenses related to their own accommodation.

8.1.3 Health and safety concerns

Maintaining a safe housing environment is clearly an important objective. Health and safety issues will arise in various housing contexts and have the potential to affect individual tenants and the broader housing community. Depending on the nature and degree of risk involved, it may be open to a housing provider to argue that accommodating a tenant’s Code-related needs would amount to an undue hardship.

A housing provider can determine whether modifying or waiving a health or safety requirement or otherwise providing an accommodation will create a significant risk by considering the following:

  • Is the tenant willing to assume the risk in circumstances where the risk is solely to their own health or safety?[208]
  • Would changing or waiving a requirement or providing any other type of accommodation be reasonably likely to result in a serious risk to the health or safety of other tenants, or staff, where appropriate?[209]
  • What other types of risks are assumed within the housing operation, and what types of risks are tolerated within society as a whole?

In evaluating the seriousness or significance of risk, the following factors may
be considered:

  • The nature of the risk: What could happen that would be harmful?
  • The severity of the risk: How serious would the harm be if it occurred?
  • The probability of the risk: How likely is it that the potential harm will actually occur? Is it a real risk, or merely hypothetical or speculative? Could it occur often?
  • The scope of the risk: Who will be affected if it occurs?

If the potential harm is minor and not very likely to occur, the risk should not be considered serious. If there is a risk to public safety, consideration will be given to the increased numbers of people potentially affected and the likelihood that the harmful event may occur.

Where a tenant identified by a Code ground engages in behaviour that affects the well-being of others, it may be open to a housing provider to argue that to accommodate that tenant would cause undue hardship based on health and safety concerns, specifically, that the accommodation would pose a risk to public safety. However, the seriousness of the risk will be evaluated only after accommodation has been provided and only after appropriate precautions have been taken to reduce the risk. It will be up to the housing provider to provide objective and direct evidence of the risk. Suspicions or impressionistic beliefs about the degree of risk posed by a tenant, without supporting evidence, will not be enough.

A claim of undue hardship must stem from a genuine interest in maintaining a safe environment for all tenants, rather than as a punitive action. Even where a tenant poses a risk to him or herself or the safety of others, a housing provider still has a duty to canvass accommodation options, where possible and appropriate.

Ultimately, a housing provider must balance the rights of the tenant with the needs of the larger housing community. There may be situations where a tenant poses a health and safety risk to themselves or to others that would amount to an undue hardship, or an otherwise appropriate accommodation is impossible to implement in the particular circumstances. However, it is important that housing providers not rush to such a conclusion. Further training for staff in larger housing complexes, or additional supports for the tenant may resolve the issue. The accommodation process must be fully explored, to the point of undue hardship.

[177] British Columbia (Public Service Employee Relations Commission) v. BCGSEU [“Meiorin”] [1999] 3 S.C.R. 3 at para. 54.
[178] See Hydro-Québec v. Syndicat des employé-e-s de techniques preofessionnelles et de bureau d’Hydro-Québec, section locale 2000, (2008) SCC 43 for the Supreme Court of Canada’s recent comments on what the third part of this test means, in a practical sense, in the context of a disability accommodation in the workplace.
[179] British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 S.C.R. 868 at para. 20.
[180] Meiorin, supra, note 177 at para. 66.
[181] Meiorin, ibid, at para. 65.
[182] In Meiorin, ibid, at para. 68, the Supreme Court said:

Employers designing workplace standards owe an obligation to be aware of both the differences between individuals and differences that characterize groups of individuals. They must build conceptions of equality into workplace standards. By enacting human rights statutes and providing that they are applicable to the workplace, the legislatures have determined that the standards governing the performance of work should be designed to reflect all members of society, in so far as this is reasonably possible

[183] Document available at: www.csa-intl.org/onlinestore/GetCatalogItemDetails.asp?mat=2004958&Pa
[184] See www.design.ncsu.edu/cud/about_ud/udprinciples.htm
[185] Ontario Building Code Act, 1992, S.O. 1992, c. 23. See also O.Reg. 350/06 under the Building Code Act.
[186] In March 2002, the OHRC provided extensive input to the Ministry of Municipal Affairs and Housing on the barrier-free access requirements of the Building Code. The OHRC’s submission outlined ways the Building Code can incorporate human rights principles, and emphasized the need to achieve greater harmonization between the two Codes. The OHRC’s full submission to the Building Code consultation is available on the OHRC Website at www.ohrc.on.ca
[187] See, for example, Quesnel v. London Educational Health Centre (1995), supra, note 18.
[188] Accessibility for Ontarians with Disabilities Act, 2005, S.O. 2005, c. 11.
[189] Di Marco v. Fabcic (2003), supra, note 63.
[190] See Di Marco v. Fabcic (2003), ibid.
[191] See Walmer Developments v. Wolch (2003), 67 O.R. (3d) 246 (Ontario Superior Court
of Justice).
[192]J.R. v. S.W.M.I, (August 22, 1994), No. 642 (Ont. Bd. Inq.) [unreported].
[193] See, for example, Walmer Developments v. Wolch (2003), supra, note 191; Ottawa Housing Corporation and Mongeon, [2002] O.R.H.T.D. No. 36 (Ontario Rental Housing Tribunal); and, Longo Properties Limited v. Patricia Clarke, [2002] TSL-35686-SA (Ontario Rental Housing Tribunal). The Supreme Court of Canada has made it clear that administrative decision-makers are required to consider and apply the Code: see Tranchemontagne v. Ontario (Dir. Disability Support Program) [2006] 1 S.C.R. 513.
[194] See United Nations, General Comment 7: The Right to Adequate Housing: Forced Evictions, available on-line at: www.unhchr.ch/tbs/doc.nsf/(symbol)/CESCR+General+Comment+7.En?OpenDocument (date accessed: May 13, 2009).
[195] See Walmer Developments v. Wolch (2003), supra, note 191.
[196] As this Policy has noted, it is the OHRC’s view that governments have a primary role to play in ensuring that appropriate alternative housing is available to meet the needs of individuals who require more support than the average rental housing provider can reasonably provide.
[197] While Section 5.4. of Ontario Building Code Regulation 350/06 addresses air leakage between building components separating interior from exterior space and environmentally dissimilar interior spaces giving consideration to the health or safety of building users, it does not appear to address air leakage between apartment units.
[198] Smoke-Free Ontario Act, S.O. 1994, c. 10.
[199] For the proposed Accessible Built Environment Standard, see: www.cfcs.gov.on.ca/mcss/english/pillars/accessibilityOntario/accesson/business/environment/ built_standard/air.htm
[200] The Heart and Stroke Foundation of B.C. & Yukon, for example, commissioned a legal opinion to determine the legality, process and challenges for creating smoke-free multi-unit dwellings in compliance with the British Columbia Residential Tenancy Act. See: smokefreehousingbc.ca/tenants/legal-opinion.html.
[201] Heavily addicted smokers have been found to have a disability by an arbitrator in the labour relations context: see Cominco Ltd. v. United Steelworkers of America, Local 9705, [2000] B.C.C.A.A.A. No. 62, where a company policy, that affected workers addicted to nicotine by subjecting them to symptoms of withdrawal, was found to constitute discrimination based on disability. However, addiction to nicotine was found not to be a disability within the meaning of the Charter of Rights and Freedoms in a case challenging a smoking ban at a detention centre: see McNeill v. Ontario Ministry of the Solicitor General and Correctional Services, [1998] O.J. No. 2288 (Ont. Ct. Gen. Div.). More recently, in Club Pro Adult Entertainment Inc. v. Ontario, [2006] O.J. No. 5027 (S.C.J), the court acknowledged the possibility that it might reach the conclusion that smoking is a disability within the meaning of the Charter if the court had before it the type of evidence that was before the arbitrator in Cominco. The Court of Appeal did not comment on this observation; see Club Pro Adult Entertainment Inc. v. Ontario, [2008] O.J. No. 777 (C.A.). In a recent interim decision, the British Columbia Human Rights Tribunal agreed to hear a case alleging discrimination against a smoker based on disability: Stevenson v. City of Kelowna, B.C., (2009), 2009 B.C.H.R.T. 50.
[202] K. Klasser, MD et al., “Smoking and Mental Illness: A Population-Based Prevalence Study” (2000) 284 No. 20 The Journal of the American Medical Association 2608 (Reprinted).
[203] Vancouver Sun, Woman claims right to smoke-free housing (February 5, 2008).
[204] The OHRC’s publication, Guidelines on Developing Human Rights Policies and Procedures, provides guidance on how organizations, including housing providers, can prevent and address human rights issues. It states that a complete human rights strategy with these goals should include a barrier prevention, review and removal plan, anti-harassment and anti-discrimination policies, an internal complaints procedure, an accommodation policy and procedure and an education and training program. Please see Ontario Human Rights Commission, Guidelines on Developing Human Rights Policies and Procedures, (March 2008): www.ohrc.on.ca/en/resources/Policies/gdpp/view
[205] The broad and purposive interpretation of the Code and human rights generally means that rights must be construed liberally and defences to those rights should be construed narrowly. There are a number of cases that confirm this approach to the interpretation of human rights statutes. The Supreme Court has summarized these cases and outlined the relevant principles of human rights interpretation: see Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montréal (City); Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Boisbriand (City), 2000 SCC 27. Moreover, as per section 47(2), the Code has primacy over other legislation.
[206] Note that both phasing in and establishing a reserve fund are to be considered only after the accommodation provider has shown that the most appropriate accommodation could not be accomplished immediately.
[207] This is consistent with the OHRC’s approach in the employment context, where an employer or other entity cannot refuse to accommodate an employee with Code-related needs because the accommodation would exhaust the funds that the employer had earmarked for Code-related accommodations.
[208] Risk is evaluated after all accommodations have been made to reduce it.
[209] Ibid.