FTR Quarterly
Lifecycle of a Rental Tenancy: Human Rights Code Considerations and Best Practices for Compliance
Date: August 2, 2016
In Ontario, the occupancy of accommodation is a protected human right under the Ontario Human Rights Code (Code). While the same general legal principles apply as in employment and service-related matters, this particular area presents landlords and rental housing providers with uniquely complex challenges.
Throughout the lifecycle of a tenancy – from the posting of a vacancy, to the screening of potential tenants, to the ultimate termination of a tenancy – the process of renting housing engages duties and obligations under the Code. This article provides you with an overview of best practices and guidelines for ensuring compliance with the Code in all aspects of rental housing.[1]*
Key Legislative Requirements
The Code applies to landlords and their agents (e.g. superintendents or building managers) of a residential dwelling, and, in the case of social or co-operative housing, to service managers and Board members as well. Subject to certain exceptions, these providers must ensure:
- equal treatment relating to the occupancy of accommodation, without discrimination on the basis of any of the grounds identified by the Code
- accommodation free from harassment and sexual harassment by the landlord, any agent of the landlord or by an occupant of the same building because of any of the grounds identified by the Code, and
- equal treatment to persons who are 16 or 17 years old and who have withdrawn from parental control in relation to the occupancy of and contracting for accommodation.
Exceptions to these equality rights include certain situations of shared accommodation with the owner or his or her family (where the owner of a residence may select occupants of his or her choice), or for an owner of a residence who may restrict who lives there to men only or women only.
Compliance Considerations During the Lifecycle of the Tenancy
Rental housing providers should turn their minds to the specific Code duties and obligations that may arise at each phase of a tenancy, and consider adopting the best practices highlighted below.
1. Post a Code-Compliant Vacancy
The Code applies to every vacancy you advertise – including what you post online. When listing a rental opportunity, ensure your advertisements do not exclude prospective tenants on the basis of grounds identified by the Code. For example,
- avoid listings that indicate that a building is not suitable for children
- avoid advertisements that state that the residence is for working professionals only.
2. Screen Prospective Tenants Appropriately
Establish and maintain objective standardized criteria that are consistently applied when selecting a tenant. In the application form itself:
- avoid asking about Code-based characteristics (e.g. marital status, children, sexual orientation, physical disabilities, source of income – since the receipt of social assistance is protected under the Code with respect to the occupancy of accommodation – or age)*
- avoid asking a prospective tenant about their age from the outset, as such forms have been found by the Human Rights Tribunal of Ontario to be discriminatory on the basis of family status. As noted above, special rules apply to prospective emancipated minor tenants who are 16 or 17 years old.
The Residential Tenancy Act (RTA) and Code regulations permit certain selection criteria to be used when assessing the suitability of a prospective tenant based on income requirements, rental history, credit history and guarantors – however, specific rules apply to each information category and circumstance. For example, if a landlord wants income information, then they must also request information about credit references and rental history. Consider applying a standard practice of requesting the same information from all applicants in order to account for these nuances.
3. The Tenancy
During the tenancy, tenants are entitled to have equal access to housing-related services, including the right to sublet a unit, to receive repairs and/or maintenance, and to access amenities, such as recreational facilities, parking and common areas. Consider whether any occupancy policies negatively affect particular tenants in a different manner because of grounds that are identified in the Code. For example,
- avoid policies that require direct payment of government cheques or larger rent deposits because a tenant is in receipt of social assistance
- avoid rules limiting the number of occupants per room, absent legitimate health and safety requirements
- avoid “no pets” policies, as tenancy agreement clauses prohibiting the presence of animals are void under the RTA.* Moreover, there may be instances where a pet is in fact a disability-related service animal.
The Code also provides tenants with the right to be free from harassment by a landlord or agent of the landlord or by an occupant because of Code-protected grounds. This includes freedom from discriminatory comments and treatment throughout the tenancy. Housing providers who know or ought to know of the existence of harassment, but permit it to continue, have been found to have discriminated against the affected tenants – even if they themselves are not involved. Accordingly, consider having in place anti-harassment and anti-discrimination policies that provide an appropriate complaint procedure.
4. Duty to Accommodate Tenants
Housing providers have a duty to accommodate the needs of tenants with disabilities to the point of undue hardship. The principles that apply to accommodation of other Code-related needs apply to rental housing as well. For example:
- the tenant must make their need known, substantiate their accommodation request for both the application of the protected ground and differential treatment, and cooperate with the housing provider in both obtaining necessary information and in finding suitable accommodation.
- the accommodation process must include both a procedural and substantive element.
- a housing provider is obligated to provide “reasonable” accommodation, not the tenant’s preferred accommodation.
- the concept of undue hardship applies to limit the extent of the accommodation obligation. The tenant’s needs are balanced against the impact on the housing residence (e.g. where a tenant’s conduct is disruptive to other tenants, despite accommodations being put in place, a landlord may end the tenancy).
5. Terminating the Tenancy
Code protections apply to the termination of the tenancy itself. A tenancy cannot be terminated for reasons relating to a Code-protected ground (such as the birth of a baby or an elderly family member moving in absent legitimate health or safety concerns, disability-related accommodations or for religious affiliations or requested religious accommodations).
As the above overview illustrates, the application of familiar human rights principles in the accommodation and rental housing area is highly nuanced, and must always be approached on a case-by-case basis. Your Hicks Morley lawyer would be pleased to provide you or your organization with more information or assistance with a review of your current processes and procedures to ensure your risk of liability is minimized.
* Please note that special rules apply with respect to social housing and condominiums, which are beyond the scope of this article.
The articles in this client update provide general information and should not be relied on as legal advice or opinion. This publication is copyrighted by Hicks Morley Hamilton Stewart Storie LLP and may not be photocopied or reproduced in any form, in whole or in part, without the express permission of Hicks Morley Hamilton Stewart Storie LLP. ©
