Housing: Accommodation and Justified
Housing, with includes tenancy and accommodation in various forms, are protected areas in all Provincial and Territorial human rights legislation in Canada. Meaning, that you cannot be discriminated against based on a protected ground under human rights legislation. However, as in all other protected areas in establishing a claim for discrimination, and a) establish a prima facie case of discrimination by showing that you experienced negative or differential treatment based on a protected human rights ground and that the ground was a factor in the negative or differential treatment, and b) is the conduct or practice justified under one of the exemptions available under the applicable human rights legislation.
To establish a prima facie case of discrimination, as articulated in the case of Moore v British Columbia (Education)(2012) you must show:
1. That you have a characteristic that is protected from discrimination;
For example, that you identify as an individual with a disability.
2. That you have experienced an adverse impact in a protected area; and
For example, the landlord did not allow you to apply for an apartment in their building a despite a listed vacancy.
3. That the characteristic identified was a factor in the adverse impact.
For example, the landlord did not allow you to fill out an application for the apartment because of your disability.
After establishing a prima facie case of discrimination, you move onto the second part of the test where the respondent to the human rights complaint must show that their conduct or practice is justified. To do so, the respondent must justify the conduct or practice within the framework protected under human rights statutes. If the respondent cannot justify the conduct or practice, then discrimination will be found to occur.
It should be noted that the purpose of the remainder of this section is to provide legal information regarding human rights and housing. It is not legal advice, if you feel that you have been discriminated against in the area of housing, please contact a lawyer. Furthermore, each Province and Territory’s protected ground in their human rights legislation varies. Please consult the section titled “Prohibited Grounds of Discrimination in Canada by Jurisdiction” to ensure that the characteristic that you may be relying upon is protected in your jurisdiction.
Discrimination based on Prohibited Grounds:
Provincial and Territorial Human Rights legislation prohibits discrimination and harassment, in housing and/or tenancy based on a protected ground. In doing so, it is the landlord’s responsibility to ensure that their tenants are free from discrimination and harassment. Meaning, a landlord must provide protection against being denied an apartment, or situations that may occur during your tenancy/residency on their premise. Furthermore, you are protected from discrimination for the duration of your tenancy; from the time you inquiry and apply for accommodation until the time the tenancy ends, and any situations that may arise between these periods. In British Columbia, for discrimination to occur the respondent’s conduct must have a negative effect on the complainant which includes: refusing to rent to the complainant, the terms, and conditions of the tenancy, harassment based on a protected ground and eviction. In addition, the adverse impact that is connected to a personal characteristic does not need to be the only or most important factor; it just needs to be a factor in the discrimination.
In Manitoba, the responsibility to ensure that you are not discriminated against or harassed extends not only to the landlord but also to the property manager or agent.
In Ontario, the protection against discrimination in the area of housing extends to the protection from harassment and discrimination based on a protected ground of a friend or relative. Meaning, that a landlord cannot discriminate against you because a friend or relative has a characteristic that is protected under human rights legislation.
While generally, discrimination is prohibited in housing based on protected grounds, there are situations where discrimination can occur. For example, in Ontario, the Human Rights Code states that the Code does not apply if you reside in a residence that has a shared bathroom or kitchen accommodation with the residence owner or family. An example, of this, is when you rent a room in a house, in which the owners still live, and you have shared use of the bathroom and kitchen. This situation would be an exception, and the owners can choose whomever they want to rent the room available.
In addition to protecting a tenant from discrimination, the landlord or owner of the property has a legal duty to accommodate a tenant’s needs, if they are real and based on one or more of the protected grounds under human rights legislation. A landlord must accommodate a tenant up to the point of undue hardship, which is assessed based on the following factors: cost, the availability of outside sources of funding, or health and safety concerns.
If accommodation is necessary to ensure that a tenant is not discriminated against, both landlord and tenant have a duty to take an active role in the accommodation process and act in a good faith manner to find a solution. Typically, this means making changes to rules, standards, policies, the physical environment of the premise all of which could affect the needs of a tenant.
The duty to accommodate means that the landlord needs to engage in an adequate process to determine if the accommodation requested can be made, and the landlord needs to make a sufficient effort and measure to implement the accommodation requested. Furthermore, a mere belief that the accommodation would create a situation of undue hardship on the landlord is not enough to rely on the defence of undue hardship. It must be shown that the requested accommodation creates an undue hardship.
In some Provinces and Territories, the human rights legislation stipulates that the respondent’s conduct will be justified in certain situations. For example, in Ontario, if the applicant shares a kitchen or bathroom with the owner or owner’s family, then they fall outside the human rights legislation. In British Columbia, the respondent’s conduct will be justified if there is a legitimate tenancy related purpose for their conduct, the respondent adopted the practice or particular conduct in good faith, as it was necessary to accomplish the purpose of the conduct, and that the respondent could not accommodate the complainant without undue hardship. Other areas in which discrimination is justified is buildings designated for adults over 55 years of age, and buildings for persons with physical and mental disabilities.
The Supreme Court of Canada’s decision in British Columbia (Superintendent of Motor Vehicles) v British Columbia (Council of Human Rights),  3 SCR 868 sets out a three-part test for justification. Once the plaintiff has established a prima facie case of discrimination, the defendant then must prove that the discriminatory practice or conduct is reasonably justified by proving that:
- That the purpose or goal of the practice or standard adopted is rationally connected to the function it performs;
- The practice or standard was adopted in good faith, with the belief that it was necessary to fulfill the purpose or goal; and
- The practice or standard is reasonably necessary to accomplish the purpose or goal, and that the defendant cannot accommodate the complainant without incurring undue hardship.
Undue hardship is a fact-specific analysis but typically occurs in situations where accommodation is impossible, creates a serious risk or excessive cost to the respondent. In the case of Cooperative d’habitation L’Escale de Montrel v Commission des droits de la personne et des driots de la jeunesse, 2010 QCCA 1791 (CanLII), the Quebec Court of Appeal further outlined that the definition of undue hardship does not have an exhaustive list of factors. However, when dealing with tenancies, the focus of the analysis for undue hardship typically focuses on the cost of the accommodation requested on the respondent and the amount it would interfere with the accommodation would cause to the landlords business, as well as, the possible impact on other tenants. Undue hardship is not measured on the basis that the accommodation is “inappropriate” or “unsuitable,” it is measured on the standard of “excessive” or disproportionate” accommodation.