What Poor Treatment is Discrimination Regarding a Tenancy?
A complaint must set out facts that, if proved, could be discrimination under the Human Rights Code against each person named as a respondent.
This means that a complaint must include information showing:
- The complainant (or another person) has a personal characteristic (or is perceived to have a characteristic) protected under the Code.
- The respondent’s conduct had a negative effect on the complainant regarding a tenancy.
- The personal characteristic is a factor in the negative effect.
Personal characteristics that are protected from discrimination in tenancy
To have a complaint regarding tenancy, the complainant must have a personal characteristic protected under the Human Rights Code or another person or group must have a personal characteristic protected under the Human Rights Code.
This means that the Code protects people from discrimination based on their own personal characteristics, but also based on another person’s personal characteristics.
For example, a landlord refuses to rent a house to the complainant because her roommate is First Nations.
The Code also protects people if someone thinks they have a personal characteristic.
For example, a landlord refuses to rent a house to the complainant because the landlord thinks the complainant is gay.
The characteristics protected in tenancy are:
Negative effect regarding tenancy
To make a complaint regarding tenancy, the respondent’s conduct must have a negative effect on the complainant regarding the tenancy. This includes:
- Refusing to rent a space that is advertised for rent (or that is represented as being available for rent in some other way)
- Terms and conditions of a tenancy
- Harassment based on a personal characteristic is discrimination if it interferes with a tenant’s right to the quiet enjoyment of their space
A negative effect can arise where a person is treated the same as others, but this has a negative effect on them.
For example: A tenant uses a wheelchair and cannot access the apartment building because the only access is by stairs.
For there to be discrimination in this kind of situation, the respondent must reasonably be aware that the complainant needs accommodation.
For example: The complainant told the respondent they need accommodation or it is clear that the complainant needs accommodation.
There is a duty to accommodate to avoid a negative effect based on a personal characteristic.
Connection between negative effect and personal characteristic
Poor treatment is discrimination only if it is connected to a personal characteristic. This means that a personal characteristic must be at least a factor in the negative effect. It does not need to be the only factor or the most important factor. A complainant does not need to show that the respondent meant to discriminate or was motivated by discrimination.
A person may believe that a personal characteristic was a factor, but a complaint must set out facts supporting the belief. Examples:
- The respondent identifies the personal characteristic.
For example: A landlord says they will not rent to a person receiving long term disability benefits because the landlord assumes the person would not be able to pay the rent.
A building manager repeatedly makes sexual comments to a tenant.
- The respondent’s actions affect the complainant because of a personal characteristic.
For example: The complainant uses a wheelchair due to a disability and cannot access their suite because the only access is by stairs.
Note: this is enough to file a complaint. However, if the respondent justifies its action by showing that they acted in good faith and took all reasonable and practical steps to avoid the negative effect, then there is no discrimination.
- The circumstances show the characteristic is a factor. (The facts support a “reasonable inference”.) For example:
A landlord refuses to rent a suite to a couple with a child, but rents it the following week to a couple with no children
Note: this is enough to file a complaint. However, the respondent may have an explanation. At a hearing, the complainant must prove the characteristic was a factor in the negative effect.
Who can be named as a respondent in a tenancy complaint?
- The landlord. The owner of the space is responsible for the tenancy and is usually the respondent in a tenancy complaint.
- A person who exercised some authority or control over the complainant’s access to or use of the space.
For example, a building manager makes the decision to evict or a person induces the landlord to terminate the tenancy based on a personal characteristic.
Note: Another tenant cannot be a respondent unless they have the ability to negatively affect a term or condition of the complainant’s tenancy.
Note: A landlord is responsible for the discriminatory conduct of their agents and employees. The landlord would not be responsible for the actions of other tenants, but may have a duty to take action, within the landlord’s power, to address the situation.
How can bad treatment in tenancy be justified? (Defences)
There is one main defence to discrimination in tenancy, where the respondent proves their conduct was justified. There are also some specific defences, described below.
- Justification defence (bona fide and reasonable justification)
- Defence if shared bathroom, kitchen or sleeping space
- Buildings for adults 55 and over
- Buildings for persons with physical or mental disabilities
Can each of these headings, if clicked, scroll the reader to the heading below?
There is also an exemption for non-profit organizations.
Justification defence: bona fide and reasonable justification (BFRJ)
If the complainant proves that the respondent’s conduct had negative effect on them in their tenancy, and that a personal characteristic was a factor in the negative effect, this is called a prima facie case of discrimination.
Even if a complainant proves a prima facie case of discrimination, a respondent may argue that there is no discrimination because its conduct was justified (i.e., based on a bona fide and reasonable justification or BFRJ).
Section 10 of the Human Rights Code does not explicitly include a justification defence, but the Tribunal has interpreted the section to allow for it. To succeed with this defence, a respondent must prove three things:
- There is a legitimate tenancy-related purpose for the respondent’s conduct
In some cases, a respondent applies a defined standard that affects the complainant, such as a minimum occupancy requirement for a two bedroom apartment. In other cases, there is no defined standard. For example, access to building is by stairs, and the complainant uses a wheelchair due to a disability.
The respondent must identify the (non-discriminatory) purpose for its standard or conduct. For example, the purpose of an occupancy requirement might be to maximize the efficient use of a co-op’s resources.
A respondent must also show how the purpose relates to the tenancy or management of the tenancy.
In many cases, the complainant may not dispute that the respondent’s conduct is based on a legitimate, tenancy-related purpose.
- The standard was adopted in good faith in the belief that it was necessary to accomplish the purpose
This means that the respondent adopted the standard or acted to accomplish its purpose, and did not mean to discriminate. In many cases, the complainant may not dispute that the respondent acted in good faith with no intent to discriminate.
- The respondent’s standard or conduct is reasonably necessary to the purpose, such that the respondent could not accommodate the complainant (or others sharing their characteristics) without undue hardship
This means that the respondent fulfilled its duty to accommodate. To do so, the respondent must prove that it took all reasonable and practical steps to avoid the negative effect.
This includes proving:
- What the respondent did to explore options to find a reasonable result
- Why further steps were not reasonable or practical (would result in undue hardship)
- The respondent’s basis for concluding that it could not accommodate the complainant without giving up the legitimate tenancy-related purpose or incurring undue hardship
Proof that a respondent reasonably accommodated a complainant’s disability may also require the respondent to show that it took any necessary steps to inform itself of the nature of the complainant’s medical condition, prognosis, and capabilities (including limitations or restrictions) for work.
It is not enough to point to some hardship and say no more could be done. A respondent must prove undue hardship by giving evidence about the effect that the accommodation would have on the respondent.
For example, if a respondent relies on excessive cost, it must prove both the costs of the requested accommodation, and how this cost would result in undue hardship to it given its financial situation. It is not enough to rely on the high cost of accommodation without showing the respondent cannot reasonably afford it.
Factors a respondent may rely on to establish undue hardship include financial cost and the size of the respondent’s organization.
A complainant must participate in the search for accommodation. The respondent may establish a justification defence if it proves that it was taking all reasonable and practical steps but the process failed because the complainant did not reasonably participate or rejected a reasonable offer of accommodation.
Defence if shared bathroom, kitchen or sleeping space
It is a defence to discrimination if the person renting the space shares sleeping, bathroom or cooking facilities with the tenant.
Buildings for adults 55 and over
It is a defence to discrimination (based on age or family status) if every space in the residential building is reserved for rental to:
- a person who is 55 or older or
- two or more persons, at least one of whom is 55 or older
Buildings for persons with physical or mental disabilities
It is a defence to discrimination (based on physical or mental disability), if a space in a residential building is offered for rental only to:
- a person with a disability (or two or more persons, at least one of whom has a disability, and
- the space and the building are designed to accommodate persons with disabilities and conform to any prescribed standards.