Human Rights and Housing in Ontario

Prospective Renters of Rental Housing Do Have Rights

Feb 18, 2009 Angela Browne

In Ontario, renters are protected by two key pieces of legislation. This is a brief analysis on how human rights legislation affects one's right to rental housing.

Tenants are protected by two laws in Ontario: Residential Tenancies Act, and Ontario Human Rights Code. First, the Residential Tenancies Act sets out rules on how landlords and tenants interact, how much rent can be raised each year and what each parties rights and obligations are to one another. Disputes of this nature are settled at the Landlord and Tenant Board, which is a specialized tribunal that hears these types of cases. Decisions from this tribunal hold the weight of a court and can be appealed to the Ontario Divisional Court.

The Human Rights Code is a different type of legislation. It is often referred to as quasi-constitutional, because its law has primacy (or an over-riding interest) over most other laws in the province and the same governs all services, contracts, employment, housing, union or trade association membership, among other social areas. That means if the Landlord and Tenant Board makes a decision about a tenancy issue, the Human Rights Code must be considered. The adjudicator which is like a judge at this Board can delay or refuse to grant an eviction to a landlord when there are circumstances governing the Code, as well as other matters concerning procedural fairness.

For example, in Walmer Developments v Wolch [2003] O. J. No 3435, 67 O. R. (3rd) 246 (Div. Crt), the tenant disturbed other tenants in her building when she went off her medication for schizophrenia. After several notices to terminate were served on her by her landlord, her family intervened. While an order to evict was eventually granted, the Divisional Court cited that the adjudicator at the Board must consider the Human Rights Code in any circumstances like this. This duty only extends to the point of undue hardship as demonstrated in the case of Canadian Mental Health Association v Warren [2004] O. J. No 2487 (Div Crt) where another tenant tried to appeal an eviction based on the Wolch decision, but it was found the landlord had already accommodated the tenant to the point of undue hardship.

What rights do people have when trying to find an apartment? First, s. 2 (1) of the Human Rights Code prohibits discrimination with respect to accommodation … because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status, disability or receipt of public assistance. A landlord cannot deny a prospective tenant an apartment because their main source of income is social assistance, for example. Sometimes this discrimination is subtle, where a landlord will only rent to you if you agree to have welfare pay them directly.

Sometimes a policy may be in place that is not intended to discriminate, but in fact does disadvantage persons covered by the Code’s enumerated grounds. A landlord may have a policy that the rent charged must not take up more than 30% of a person’s income. In Kearney v Bramalea Ltd. [1998] O. H. R. B. I. D. No. 21 (Ont Brd Inquiry), the Commission’s then board of inquiry ruled it illegal to have such a practice. The Ontario Government then passed a regulation in 1998 that permits landlords to conduct credit, landlord and reference checks on prospective tenants, but information about income cannot alone be used to determine eligibility for the apartment.

Please note rules are different for tenants living in social housing or rent-geared-to-income units in private holdings, where one’s rent is set in accordance to one’s income. In one case, Innes v Caroline Cooperative Homes Inc. 2006 CarswellOnt 9316, 2006 HRTO 19, 57 C.H.H. R.D./1 (Ont. Human Rights Tribunal), it was decided that housing cooperatives must treat the income of its members the same way, whether they get their money from social assistance or from a job – and regardless the source of subsidy. For example, a co-op cannot charge a “working poor” family only 30% of their income, but charge the maximum amount of the shelter portion of a social assistance recipient, as this is not equal treatment.

The Ontario Human Rights Commission recently published a consultation report on housing issues entitled Right at Home: Report on Human Rights and Rental Housing in Ontario, which is an attempt to update its policies on accommodation issues.

The copyright of the article Human Rights and Housing in Ontario in Law, Crime & Justice is owned by Angela Browne. Permission to republish Human Rights and Housing in Ontario in print or online must be granted by the author in writing.