
Human Rights & Duties
Housing – Tenancy
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
- Evictions
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 can be a respondent if they have negatively affected a term or condition of the complainant’s tenancy, including the right to quiet enjoyment of the space.
For example: another tenant harasses a person based on their race in a way that interferes with the person’s ability to live in their space.
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
There is also an exemption for non-profit organizations.