The Ontario Human Rights Code and licensing | Ontario Human Rights Commission

The Code prohibits actions that discriminate against people based on a protected ground in a protected social area.

Protected grounds are:

Age
Ancestry, colour, race
Citizenship
Ethnic origin
Place of origin
Creed
Disability
Family status
Marital status (including single status)^[4]
Gender identity, gender expression
Receipt of public assistance (in housing only)
Record of offences (in employment only)
Sex (including pregnancy and breastfeeding)
Sexual orientation.

Protected social areas are:

Accommodation (housing)
Contracts
Employment
Services
Vocational associations (unions).

Rental housing bylaws discriminate if they cause someone to be disadvantaged in a protected social area – like housing – because of the person’s association with a protected ground.

If a bylaw is found to be discriminatory, a municipality would have to show that the absence or variation of the bylaw would cause them “undue hardship” in terms of health and safety or cost ramifications.

In some cases, the absence of the bylaw will not cause “undue hardship” because less discriminatory alternatives to the bylaw exist, that would meet the same fundamental goals. For example, if a municipality argues that its bylaw is required to meet a certain standard for preventing fires, but existing Fire Code provisions apply a lesser standard (which causes less disadvantage to Code-protected groups) then it is arguable that the absence of the bylaw does not cause the municipality undue hardship.

Licensing bylaws are a Code-protected “social area”

The OHRC looks at rental housing licensing bylaws from the perspective of two social areas under the Code: services and housing.

Services

Municipalities provide a service to their residents through residential rental licensing bylaws. For example, a rental housing licensing bylaw may provide renters (and other residents in the area) with the comfort of knowing that the landlord has established a maintenance and snow removal plan, or has met health and safety standards, for his or her house.

Housing

The Code prohibits indirect discrimination. Section 9 provides:

No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.

Although a municipality is not a landlord or housing provider, it has a responsibility to ensure that it does not indirectly discriminate with respect to the social area of housing when it licenses rental housing through a bylaw.

Licensing bylaws can disadvantage Code-protected groups

The OHRC conducted a consultation on human rights and rental housing in 2007. It reported on this consultation in Right at Home: Report on the consultation on human rights and rental housing in Ontario, and the consultation helped to form the OHRC’s Policy on human rights and rental housing.

During the consultation, the OHRC heard that certain Code-protected groups rely on rental housing, and can be disadvantaged by measures that limit it. Examples of groups that may be affected include:

Aboriginal people (ancestry)
Racialized groups (race, colour, ethnic origin)
Newcomers (place of origin, citizenship, ancestry)
Lone parents (family status and marital status)
Seniors (age, sometimes disability or receipt of public assistance)
Large families (family status, sometimes creed, ancestry or ethnic origin).^[5]

During the consultation and also through its recent inquiries into rental housing licensing in Waterloo and North Bay, the OHRC also heard that groups not as obviously connected to Code grounds – such as students and low-income individuals – might be disadvantaged by measures that limit affordable rental housing.

Sometimes the link to the Code is clear. For example, if a student is told that they cannot rent a unit because they are single, then they have experienced a disadvantage (denial of a rental opportunity) because of their association with a Code ground (marital status). But what if someone appears to have experienced a disadvantage because of their student status, or because of their low-income status?

If student status, or low-income status, are “one of the many identifying features” of being a member of a particular Code group, or are “inextricably bound up together” with being a member of a Code group, then student status or low-income status are a proxy for that Code group. In that case, there will be a link between any adverse impacts experienced by students or low-income groups, and a Code ground. For example, if student status is significantly or overwhelmingly associated with being young, then actions that disadvantage students will disadvantage people protected by the Code ground of age.^[6]

Students

Though students may be more likely than some other community residents to move away after a few years, they are still residents of a community. Students contribute greatly to the economic and social life in their communities. They are as entitled to housing as any other resident.

Student status could be a proxy for age, because the two characteristics appear to be inextricably bound up together. In general, while students may range in age, an overwhelming majority of students are young people. Data from Statistics Canada shows that in 2010, 49% of university graduates were between the ages of 15 and 24, and over 76% of university graduates were under age 30.^[7] The data also shows that over 63% of college graduates were under the age of 24, and over 76% were under age 30.^[8]

Large percentages of young people are students. For example, 79% of 18-20 year-olds are students.^[9] In communities where students are commonly referred to as “young people,” “kids” or other age-related terms, the association between student status and the Code ground of age is even clearer.

Student status may be a proxy for single status. A significant proportion of single people are students. Forty-four percent of single people in Canada are between the ages of 15 and 30 – and as noted above, 76% of college and university students are under age 30.^[10] The link between student status and single status is more clear in communities where students are commonly seen as being incompatible with a “family lifestyle.”

Student status may also be a proxy for receipt of public assistance. According to a Statistics Canada study, approximately 34% of post-secondary students in Canada receive a Canada Student Loan.^[11]OSAP is essentially a combination of Canada and Ontario Student Loans, so 34% is a very rough approximation of Ontario students receiving social assistance. These numbers do not, of course, take into account students receiving other types of social assistance, such as Ontario Disability Support Program (ODSP) benefits.

If student status is a proxy for age, marital status or receipt of public assistance, elements of the bylaw that disadvantage students because of their student status will be discriminatory and contrary to the Code.^[12]

Low-income groups

Low income or socioeconomic status is not a protected ground under the Code.^[13] However, it directly connects to the ground of receipt of public assistance.

In its work on housing, the OHRC has repeatedly heard that people who identify with certain Code grounds or combinations of grounds are more likely to be tenants, and are more likely to experience poverty or to have lower average incomes than the general population.^[14]The Code may be found to apply when low income is connected to grounds such as age, ancestry, disability, ethnic origin, family status, gender identity, place of origin, race, or being in receipt of public assistance.

For example, in Kearney v. Bramalea Ltd.^[15] the Ontario Human Rights Board of Inquiry found that:

[Expert witness] Dr. Ornstein's extensive analysis of the census and other surveys is clear evidence that income criteria [requiring that individuals meet a rent-to-income ratio in order to be eligible to rent a unit] differentially affect groups protected by the Code – groups defined on the basis of sex, marital and family status, age, citizenship, race, immigration status, place of origin, and being in receipt of public assistance. The result is to significantly restrict the housing choice of protected groups whose members often end up in higher priced accommodation of poorer quality.

On average, Code-protected groups have lower incomes than other groups in society. As a result, low income can sometimes be a proxy for those Code-protected groups, and rules that affect low-income people may affect a disproportionate number of Code-protected people.

Lower-income tenants have fewer choices in the rental market because many of the housing options are out of their price range. Also, more low-income households move per year compared with higher-income households,^[16] and when people move into new private rental units they may have to pay significantly higher rent.^[17]

This means that a municipality’s actions that directly or indirectly restrict or reduce the availability of low-cost market rental and other affordable housing can have an adverse impact on Code-protected people. Some groups of people who are more likely to have lower incomes and who may also be protected by specific grounds of the Code include:

Aboriginal Peoples (ancestry)
Newcomers (citizenship, ethnic origin, place of origin)
Racialized people (race, colour, ancestry, ethnic origin)
Young or lone-parent families or growing families seeking larger accommodation (family status, marital status)
Older people with low and fixed incomes (age, receipt of public assistance)
Students (age, marital status, receipt of public assistance)
People with disabilities (disability)
People receiving funds under OSAP, Ontario Works (OW) Ontario Disability Support Program benefits (ODSP), or other types of public assistance (receipt of public assistance)
Transgender people (gender identity, gender expression)
Women (sex, family status, age).

Discrimination issues in rental housing often arise because of a combination of Code grounds. For example, a lone mother who is receiving social assistance might experience discrimination based on her sex, family status, marital status and receipt of social assistance. Similarly, young people who are looking for rental housing may experience discrimination based on their age and marital status.

^[4] In Swaenepoel v. Henry (1985), 6 C.H.R.R. D/3045 (Man. Bd. Adj.), the Manitoba human rights tribunal (called the “Board of Adjudication”) found that three single women, residing together, were discriminated against by the respondents because of the respondents’ assumptions about the characteristics of single people of the same sex, who did not conform to the nuclear family model.

In Gurman v. Greenleaf Meadows Investment Ltd. (1982), C.H.R.R. D/808 (Man. Bd. Adj.) the same Manitoba tribunal found that the respondent discriminated against two sisters and a brother, because they were a group of single adults of mixed sexes.

In Wry v. Cavan Realty(C.R.) Inc. (1989), 10 C.H.R.R. D/5951 (B.C.C.H.R.), the British Columbia Human Rights Tribunal found that a single man was discriminated against because the respondent only wished to rent to families and married couples. The tribunal found that there was discrimination based on sex and marital status.

In Vander Schaaf v. M & R Property Management Ltd. (2000), 38 C.H.R.R. D/251 (Ont. Bd. Inq.) the Ontario Board of Inquiry (the precursor to the Human Rights Tribunal of Ontario) found that a landlord who preferred married couples had discriminated based on marital status by not renting to two single women who wanted to be roommates.

See, however, Simard v. Nipissing Condominium Corporation No. 4, 2011 HRTO 1554 and Nipissing Condominium Corporation No. 4 v. Kilfoyl, 2010 ONCA 217.

^[5]Family size and composition can be strongly influenced by a number of Code grounds or combinations of grounds, such as ethnic origin, ancestry, creed, race and/or place of origin. As a result, discrimination based on family size can be found to be discrimination based on a number of Code grounds.

For example, in a 2003 case called Cunanan v. Boolean Development Ltd., 2003 HRTO 17, the Human Rights Tribunal of Ontario found that an apartment owner discriminated against a mother and three teenage sons, when he would not rent them a three-bedroom apartment because of his policy of applying a “Canadian standard” of “ideal family” numbers per bedroom size.

See also Fakhoury v. Las Brisas Ltd. (1987), 8 C.H.R.R. D/4028 (Ont. Bd. Inq.).

^[6] In a case called Espinoza v. Coldmatic Refrigeration of Canada Inc. (1995), 29 C.H.R.R. D/35 (Ont. Bd.Inq.) (appeal to Ontario Court of Justice denied), a man reported being ridiculed and treated differently in the workplace for his use of the Spanish language. The company argued that there cannot be discrimination based on language, because it is not a protected ground. The Tribunal found that:

In my view, language as a protected ground is not the issue. To the extent that language can be incorporated in the protected ground of "ethnic origin" or "place of origin," it can be addressed, not as a sub-category, but as one of many identifying features of "ethnicity."

In a recent case called Oxley v. Vaughan (City), 2012 HRTO 1937, the Tribunal identified language as a proxy, and food as a potential proxy, for Code grounds such as place of origin.

In another recent case called Addai v. Toronto (City), 2012 HRTO 2252, the Tribunal stated:

…there are circumstances which are so inextricably bound up with a prohibited ground that they made [sic] be said to be a proxy for that ground. In pregnancy cases it is not a defence to an allegation of sex discrimination that a woman was denied benefits on the basis of pregnancy. Pregnancy and sex are so inextricably bound up together that denying a service to a woman because of pregnancy is synonymous with denying a service on the basis of sex.

In that case, the Tribunal went on to find that the man’s status as a taxi owner was not so inextricably bound up with his race, colour, ethnic origin and place of origin that any disadvantage he experienced as a taxi driver was synonymous with disadvantage based on those personal characteristics.

^[7]University graduates by age group, 1992-2010. Statistics Canada, Postsecondary Student Information System (PSIS).

^[8] College graduates by age group, 1992-2010. Statistics Canada, Postsecondary Student Information System (PSIS).

^[9] Participation, Graduation and Dropout Rates, Statistics Canada, www.statcan.gc.ca/pub/81-595-m/2008070/6000003-eng.htm.

^[10]Statistics Canada, Age distribution of college and university students, 1992 and 2007.

^[11]Canada Student Loans Program, Annual Report, 2010-2011.

^[12] While similar arguments have been raised (see, for example, Allen v. Canada (Canadian Human Rights Commission) [1992] F.C.J. No. 934, Wong v. University of Toronto, [1989] O.J. No. 979, and London Property Management Assn v. London (City), [2011] O.J. No. 4519), the OHRC is not aware of a decision which establishes that student status is a proxy for a Code ground.

^[13] See, for example, Sugarman v. Sugarman, 2010 HRTO 1049.

^[14]See the OHRC’s Policy on human rights and rental housing, 2009; Consultation paper: Human rights and rental housing in Ontario, 2007; Right at Home: Report of the consultation on human rights and rental housing in Ontario, 2008; In the zone: Housing, human rights and municipal planning, 2012.

^[15][1998] O.H.R.B.I.D. No. 21 at para. 124. The case was appealed to the Ontario Superior Court of Justice and varied – but not with respect to this point – see [2001] O.J. No. 297.

^[16] See the OHRC’s Right at Home: Report of the consultation on human rights and rental housing in Ontario, 2008.

^[17]Rent increases for ongoing tenancies are regulated under the Residential Tenancies Act, 2006 and are capped at a maximum of 2.5% per year, but these protections do not extend to new tenancies. See Residential Tenancies Act, S.O. 2006 c.17, s.120(1)-120(2).