The Code protects against discrimination in rental housing on the following grounds:
- Creed (religion)
- Place of Origin
- Ethnic Origin
- Sex (including pregnancy, gender identity)
- Sexual Orientation
- Marital Status
- Family Status
- Receipt of Public Assistance
In recent years, human rights analysis has evolved to take into account the context in which discrimination occurs. Under the Code, individuals are protected from discrimination and harassment on the grounds listed above. However, there is an increased recognition that discrimination is often based on more than one ground, and that these grounds may intersect thus producing unique experiences of discrimination.
The Commission has explored this “contextualized” or “intersectional” approach to discrimination analysis at length in its Discussion Paper entitled An Intersectional Approach to Discrimination: Addressing Multiple Grounds in Human Rights Claims. It is the Commission’s view that a contextual approach is needed in order to fully appreciate and do justice to the complex and multifaceted ways in which many people experience discrimination in the area of rental housing accommodation.
The phenomenon of intersectionality is frequently evident in complaints of discrimination in the area of rental housing accommodation. Often, tenants will experience differential treatment based on more than one ground, and these grounds will play off one another. For example, a young lone mother in receipt of public assistance who is looking for rental housing could potentially experience discrimination on the basis of her gender, age, family status and receipt of public assistance. If she is a racialized person and/or if she has a disability, she might experience discrimination on these grounds as well.
While the following sections discuss each Code ground individually, it is important to be mindful of the potential for more than one ground to be at issue simultaneously, and for these grounds to intersect. As such, this Paper highlights some of the more common intersections of grounds, where appropriate.
Race and Related Code Grounds
In addition to race, the Code prohibits discrimination in rental housing on several related grounds, as outlined above. These grounds include primarily the grounds of colour, ethnic origin, ancestry, place of origin, citizenship and creed (religion).
Depending on the circumstances, a human rights complaint of discrimination based on race may cite race alone or may include one or more related ground(s). However, as a social construct, the ground of race is capable of encompassing the meaning of all of the related grounds, and any characteristic that is racialized and used to discriminate.
Racial discrimination in rental housing may take a variety of forms. It is likely that the most common problem that racialized persons continue to face is the denial of opportunities to apply for rental housing or to view properties. In this regard, landlords may use subtle screening methods to bypass certain individuals in the tenant selection process. Racialized persons may be advised that an apartment has already been rented only to have a White friend inquire about the availability of the accommodation and be told that it is still available.
There are several human rights cases in Ontario that have dealt with this type of racial discrimination. For example, in Richards v. Waisglass, a Board of Inquiry found that the respondent discriminated against the complainant, a Black woman, because of her race when he refused to rent her an apartment. When the complainant and the respondent met, the respondent appeared reserved, refused to take any information from her and stated that he wished to keep showing the apartment to other prospective tenants. When the complainant’s friend, a White woman, went to see the apartment at the complainant’s request, she was greeted warmly and was offered the apartment by the respondent. The respondent claimed that the reason he had acted differently with the complainant was because he had been tired the day they met; had thought that another person was going to take the apartment; and, had judged from the complainant’s behaviour that she appeared “gregarious” and might have parties. The Board found that the respondent could not have come to a reasonable conclusion that the complainant would be loud and have noisy parties during their brief encounter and concluded that he had decided it was unlikely that the complainant would be financially stable and would likely have parties. The Board found that both assumptions were based on negative stereotypes about Black people.
One of the ways in which researchers have attempted to gauge the extent of racial discrimination in rental housing is through auditing studies. These studies have been conducted extensively in the United States since the 1970s. For example, in the 1970s and 1980s, the U.S. Department of Housing and Urban Development backed several broad housing audits that produced significant evidence of discrimination toward and differential treatment of racialized persons across major U.S. cities. For instance, Black and Hispanic auditors posing as prospective apartment renters were shown 25 percent fewer units than White auditors with comparable income qualifications.
Researchers in urban Philadelphia conducted a large-scale telephone audit in 1999 to compare the experiences of male and female speakers of “White Middle-Class English”, “Black Accented English”, and “Black English Vernacular” when they sought to rent an apartment. The researchers’ hypothesis was that racial discrimination in the rental housing market has become extremely subtle and covert. The authors relied on socio-linguistic research that shows that individuals are able to make fairly accurate racial attributions on the basis of linguistic cues alone. Therefore, landlords are able to screen out prospective tenants by simply saying, after hearing the tenant speak, that the apartment is “already rented”. This practice has been referred to as “linguistic profiling.” Moreover, in an age of sophisticated technology where most individuals have access to voice-mail messaging and/or call display features, landlords, if so inclined, are able to screen out prospective tenants, for example based on an accent or a name, without ever needing to have any personal contact with them. Based on a large number of carefully controlled telephone inquiries, the audit found “clear and often dramatic evidence of phone-based racial discrimination.” In particular, the researchers concluded that:
Compared with whites, African-Americans were less likely to get through and speak to a rental agent, less likely to be told of a unit’s availability, more likely to pay application fees, and more likely to have credit worthiness mentioned as a potential problem in qualifying for a lease. These racial effects interacted with and were generally exacerbated by gender and class. Lower-class blacks experienced less access to rental housing than middle-class blacks, and black females experienced less access than black males. By far the most distinguished group, however, was lower-class black females. Across all measures, female speakers of Black English Vernacular consistently fared the worst. As a result of this unusually intense discrimination, poor black women in Philadelphia are forced to spend far more of their time and put in much greater effort making phone calls just to reach prospective landlords. They experience by far the lowest probability of making contact and speaking with a rental agent, and even if they get through, they face the lowest likelihood of being told of a unit’s availability and the highest chance of paying an application fee.
Comparable audits conducted in Canadian cities, albeit on a smaller scale, have revealed similar themes. These audits indicate that individuals from Black and Aboriginal communities, in particular, are subjected to discriminatory treatment when seeking to rent housing.
There has also been an increase in discrimination against persons identified as, or perceived to be, Muslim, Arab and South Asian since September 11, 2001. The Commission has heard several reports of individuals being subjected to Islamophobia by housing providers when attempting to secure rental accommodations.
Racial discrimination in rental housing accommodation is not just about the denial of access to housing opportunities. Racialized tenants may experience unequal access to housing-related services or may otherwise be subjected to differential treatment throughout the course of their tenancies. For example, tenants may be subjected to substandard living conditions or a failure to carry out repairs. In Ontario (Human Rights Comm.) v. Elieff, the Divisional Court reversed a finding by a Board of Inquiry that found that no discrimination had taken place against the complainant in her tenancy. The complainant, a woman of Cambodian ancestry, alleged that her landlord had provided substandard maintenance of her apartment building to both herself and other tenants of Asian ancestry. Further, she alleged that he had discriminated against them by making derogatory comments about Asians in a newspaper article. The Board found that while the lack of water, broken windows and appliances, cockroach invasions and raw sewage on the property constituted substandard conditions, a successful complaint could not be made out for discrimination or harassment based on race since these conditions affected both non-Asian tenants as well as Asian tenants. It also gave little weight to the comments the landlord had made about Asians. The Board did, however, award compensation for reprisal actions taken by the respondent after the complainant had launched an action. On appeal, the Court upheld the reprisal judgment but reversed the finding that there had been no discrimination towards the complainant. The Court found that the derogatory remarks made about Asians resulted in differential treatment for members of that group, even though all of the tenants of the building were subjected to the same deplorable living conditions. It held that a poisoned environment had been created, which was a violation of the Code.
Racialized tenants may also be subjected to unequal rental requirements, particularly in a low vacancy rental climate. For example, landlords may attempt to charge more than the legal rent for a rental unit, or they may require that a tenant pay “key money,” which is an illegal one-off extra payment requested of the tenant by a landlord in order to secure a unit.
Discrimination may also occur as a result of issues being made about the cultural practices of racialized tenants. For example, cooking odours have been the subject of two Tribunal decisions. In Fancy v. J & M Apartments Ltd., a Tribunal found that South Asian tenants were denied an apartment because of stereotypes regarding cooking odours. In Chauhan v. Norkam Seniors Housing Cooperative Association, the complainant was found to have cooked foods in her home that were an expression of her ethnicity and ancestry which produced odours. She experienced differential treatment when she was ordered to cease producing these odours or face eviction. The right to express and enjoy one’s ethnicity and ancestry was found to be central to one’s dignity. Moreover, the landlord was not found to have a reasonable and bona fide justification for its conduct.
Racialized tenants may also experience harassment after a tenancy has been granted. In King v. Bura, a Tribunal found that the respondent owners of a shared house harassed and discriminated against the complainant for several years, which had a serious effect on him both emotionally and physically. The Tribunal accepted the complainant’s testimony that the respondents uttered several abusive racial slurs, some of which were on tape, harassed him after he was evicted and accused him of being a pedophile. The Tribunal was satisfied that this behaviour constituted discrimination and that it created a poisoned environment for the complainant.
Tenants may also be subjected to discriminatory treatment due to their association with a racialized person. For example, in John v. Johnstone, a housing provider was found to have breached the Code when he evicted his tenant, a White woman, after she had a Black friend over for dinner. In Hill v. Misener (No. 1), a more recent case from Nova Scotia, a Board of Inquiry found that the respondent had discriminated against the complainant by making it a condition of occupancy that she not associate with “coloured” people. The complainant, a White woman with two bi-racial children, was deeply offended, and even though she did not disclose to the respondent that she could not rent the apartment because of her family, the Board found that discrimination had occurred and awarded compensation.
While the Aboriginal population is subjected to many of the same experiences as other racialized groups in the rental housing market, this group also seems to encounter unique and distinct difficulties when attempting to secure rental housing. It has been observed that:
Aboriginals and the Aboriginal homeless are easy targets of discrimination in the housing market. There is a common perception that Aboriginals on the street are all ‘drunks.’ Perceptions can discourage landlords from renting to needy Aboriginal tenants... There are Aboriginal males and females who fall into the hard-to-house category. They face particular difficulties in locating housing, and many never really succeed or are evicted. In most cases, needy Aboriginal families and individuals do not have the financial resources to secure adequate housing.
In Flamand v. DGN Investments, a Tribunal found that the complainant was discriminated against because of her Aboriginal ancestry and family status. After the complainant had viewed an apartment, she contacted the respondent owner to tell him that she wished to rent it and set up an appointment to give him the deposit. When the respondent realised that she was Aboriginal instead of French-Canadian as he had assumed from her name, he asked her who the apartment was for and then commented that, “once you rent to a couple of Natives, fifteen Indians come behind”. He then informed her that he had to show the apartment to other people and would need references. When she contacted him later to provide the references, he avoided her phone calls and then informed her later that he was looking for a married couple to rent it instead. The Tribunal recognized the intersectional nature of the case and found that the respondent had based his decision not to rent to the complainant on the characteristics he attributed to Aboriginal people, in combination with his stereotypical views of lone mothers as being unable to shoulder childcare responsibilities alone.
In 2001, Aboriginal households living in Canada’s Census Metropolitan areas were over 50 percent more likely to be in core housing need than the average household. This was an improvement from 1996 when they were 80 percent more likely to be in core housing need. However, Aboriginal households are still much more likely to live in dwellings that are overcrowded and in inadequate condition. The CMHC has stated that Aboriginal groups are subjected to particular disadvantage with an urban poverty rate more than twice the national average. In the worst case scenarios, homelessness is the result.
Access to acceptable rental housing is a crucial step in the adaptation process for new Canadians. Housing is a portal through which one may access a whole range of other essential resources, including language training, employment opportunities and schooling. For this reason, housing is often used as a gauge by which to assess the degree to which new Canadians have adjusted successfully in their new homeland.
In addition to facing racial discrimination, new immigrants and refugees must cope with numerous barriers relating to their citizenship status in the area of rental housing accommodation. New Canadians often do not know their rights under provincial or federal law, and may be too intimidated to speak out if they have been taken advantage of.
According to Statistics Canada, seventy-five percent of new immigrant households settling in Canada use the rental market to satisfy their housing needs. At the time of their arrival, many in these households do not possess the employment, savings and/or credit rating required to purchase property.
Housing workers have consistently complained of landlords asking newcomers to pay their rent up to twelve months in advance, despite such practices being illegal. Some have speculated that the practice of requesting unaffordable deposits may in itself be a tactic to deter tenants that a landlord does not deem “desirable”. The Commission has also received complaints from recent immigrants and refugees who have been asked to provide exorbitant security deposits in order to secure rental housing.
Other obstacles include having to meet rental criteria that disadvantage newcomers. For example, new Canadians will generally not have rental or employment histories, credit ratings or landlord references in Canada. In Ahmed v. 177061 Canada Ltd., a Board of Inquiry found that even though the Code permits landlords to request income information, rental history and credit checks and references under certain circumstances, the landlord’s tenant selection policy was discriminatory in that it assumed a connection between the absence of a credit rating and the likelihood of a rental default.
According to a Statistics Canada report, many new Canadians are not able to access acceptable housing and end up as renters in core housing need. There are several possible explanations for this. A study conducted on Africans who had recently immigrated to Calgary concluded that discrimination was a major obstacle to finding acceptable housing. Another explanation may be that new Canadians tend to settle in urban areas where the cost of rental housing is particularly high. For example, the number of immigrants arriving in Toronto between July 1, 1996 and June 30, 2003 was 661,850. This number comprises 43.9 percent of the Canadian total. In 2001, 43.5 percent of recent immigrant households living in Toronto were in core housing need.
Statistics Canada and the CMHC have reported that not only are new Canadians at high risk of being in housing need, they are also more than twice as likely as non-immigrant households (not including Aboriginal households) to live in substandard housing conditions (e.g. in overcrowded housing or in housing in need of major repairs).
Statistics Canada and the CMHC report that women living alone are at high risk of being in core housing need. In 2001, for example, of the women living alone in Canada’s Census Metropolitan Areas, 33.8 percent were in core housing need. One of the main reasons for this is the high incidence of very low incomes affecting this group of renters. Women are frequently unemployed, employed part-time, or out of the labour force altogether and, in many cases, spend more than half of their incomes on housing. This situation is frequently exacerbated by the discrimination that many women face both in accessing and occupying rental housing. While both men and women may be subjected to sex discrimination, it is typically experienced by the latter.
Due to ongoing gender inequality in society, there may be other challenges that women face in relation to rental housing. As one organization has observed:
Women assume disproportionate responsibility for dealing with needs which may suddenly arise from illness and disability within the immediate or extended family. Women experience dramatic income loss after separation (an average 23% decrease in income while men experience a 10% increase). On divorce, women who are sole support mothers have an average 33% decrease in household income. Pregnancy and care of young children often results in interruptions in earnings.
All of these factors will have an impact on a woman’s ability to access acceptable rental housing.
Sex discrimination in the area of rental housing may occur in a number of different ways. For example, women may be subjected to gender-based stereotypes in their pursuit of housing accommodation. In Conway v. Koslowski, an Ontario Board of Inquiry found that the respondent discriminated against the complainant by refusing to rent a house to her in part because there was no man in her family to do the yardwork. The Board rejected the defence that the landlord’s advancing age and ethnic background were reasons for his refusal to consider the complainant on her own merits and found that the respondent had made his determination regarding the necessity of a man in a potential tenant’s family long before he had even met the complainant.
There have also been cases where men have been discriminated against based on negative gender stereotypes. For example, in Leong v. Cerezin, a B.C. Council found that the complainant was discriminated against by the respondent when he was refused occupancy of a suite because, according to the building manager, the owner preferred female tenants. Ultimately, the apartment was rented to a female for the same occupancy date the complainant had requested and for a lower rent.
Women in abusive relationships or attempting to leave abusive relationships may experience particular challenges in the rental housing market. As one organization notes: “Domestic violence and sexual assault may suddenly create housing needs that were not anticipated a few months earlier, and may suddenly render emergency housing options or shared accommodation untenable.” In addition, a woman may face eviction because of her abusive partner’s behaviour, for example because of complaints of noise created by the abuse or due to police involvement in the domestic violence. In attempting to leave an abusive situation, a woman may not be able to get a good reference from her landlord due to her spouse’s conduct. When looking for new housing accommodation, she may face discrimination if she has children, or is in receipt of public assistance, and she may be asked for an abnormally large monetary deposit if she does not have her own credit history or has a negative credit history. Many women return to abusive relationships because they have no other place to go. The jury in the Coroner’s Inquest into the murder of Gillian Hadley by her former husband recognized the key role of the lack of affordable rental housing alternatives in the ongoing exposure of Gillian Hadley to her ex-husband. The jury made a number of recommendations aimed at increasing the access of women and children to affordable rental housing.
Women will often experience sex discrimination in combination with discrimination on one or more Code-protected ground(s). For example, a lone woman with children may be denied a housing opportunity because a landlord has views about lone mothers not being desirable tenants based on negative stereotypes. A woman may be denied a housing opportunity both because of her sex and, by association, her perceived financial situation. For example, in Turanski v. Fifth Avenue Apartments, the B.C. Human Rights Council found that the respondent discriminated against the complainant based on sex because she was employed as a waitress and he assumed that this traditionally female occupation would pay such a low salary that it would prevent her from being able to make her rent payments.
Young women are at an increased risk of living in poverty and in a state of homelessness. Recent studies show that women between the ages of 15–24 increasingly have low incomes and face barriers to housing by the use of minimum income criteria in rental housing. Similarly, young women are at a disadvantage by not yet having a credit history, significant employment experience or previous landlord references. While young men may experience similar challenges in the rental housing market, young women are at an increased disadvantage due to their vulnerability to sexual harassment and other forms of violence against women.
Older women are also vulnerable to housing insecurity. Like young women, they may, due to life circumstances and years spent cohabiting with (usually male) homeowners, be unable to provide independent credit and reference information when their life circumstances change and they are looking for housing on their own. Older women are also much more likely to live in poverty. Statistics Canada reported that in 1997 approximately 50 percent of lone women aged 65 years and older were living in low income circumstances. Lesbian women, either living alone or in same-sex partnerships, are also frequently subjected to discrimination in the rental housing market.
Requirements for rental and employment histories are also likely to have an adverse effect on women who have taken time out of the workforce to raise children, provide care-giving for others, who are leaving abusive relationships or otherwise attempting to establish and support themselves independently.
According to CERA, Aboriginal women have the highest incidence of poverty in Canada, more than twice the rate of non-Aboriginal women. Aboriginal women are, therefore, at a heightened risk of experiencing discrimination on a number of grounds when they seek accommodation in the rental housing market.
Aboriginal women have also experienced discrimination when they have attempted to find housing on reserves. For example, in Raphael v. Conseil Des Montagnais du Lac Saint-Jean, a federal Tribunal found that a band council had discriminated against four native women on the basis of sex by denying them housing and/or other services on the reserve. The four women had lost their Indian status under the Indian Act, but the passage by the Federal Government of Bill C-31 in 1985 restored their status. In September 1985, the Band Council imposed a moratorium on providing services to "Bill C-31 Women" because the Band anticipated the arrival of many new people on the reserve. The Tribunal found the Band's actions to be discriminatory. The complainants were refused such services as building permits, hunting permits, language courses, housing, and permission to live on the reserve.
At present, when there is a breakdown of a marriage or common law relationship on reserve, there is no legal provision for an equitable division of the matrimonial real property, that is the family home and the land on which it is situated. Therefore, Aboriginal women and their children have no legal claim to occupy the family residence. They may have to leave their home and, due to housing shortages, may be forced off reserve into urban housing markets where they may be highly vulnerable to rental housing discrimination.
Women from other racialized groups also encounter many barriers when they attempt to access rental housing. Racialized women are nearly twice as likely as non-racialized women to have low incomes. As a result, they may be subject to “triple” discrimination, that is, discrimination on the basis of sex, race, and, possibly, receipt of public assistance.
Women with disabilities are also more likely to live in poverty and to experience discrimination on an intersection of grounds.
All Ontarians have the right to be free from sexual harassment in the occupancy of housing accommodation. While some men do experience sexual harassment in rental housing, it is women who are most often affected. Sexual harassment includes unwelcome sexual contact and remarks, leering, inappropriate staring, unwelcome demands for dates, requests for sexual favours and displays of sexually offensive pictures or graffiti. A person has the right to be free from unwelcome advances or requests for sexual favours made by a landlord, superintendent, an employee of the facility, another person in a position of power, or another tenant.
The comments or conduct do not have to be sexual in nature. Someone may tease or bother a woman because of gender-based ideas about how men or women “should” look, dress or behave.
Transgendered persons are protected in housing accommodation from degrading comments, insults or unfair treatment because of gender identity.
According to the National Working Group on Women and Housing, women who depend on rent supplement programs and who live in private housing units are especially vulnerable to threats and sexual harassment from their neighbours or landlords.
One study found that the type of harassment experienced by a female tenant in housing may range from unwanted prying into her personal life, unannounced visits to her unit when she is not home, refusals to make necessary repairs, threats to cut services, and threats of eviction. In Reed v. Cattolica Investments Ltd, a respondent sexually harassed a tenant who was also his employee. When the complainant was forced to resign after being subjected to weeks of verbal and physical sexual harassment, the respondent then increased her rent without notice, threatened to evict her and repeatedly subjected her to sexual threats and obscenities during uninvited visits to her apartment. An Ontario Board of Inquiry found that the respondent had violated the tenant’s right to equal treatment and had subjected her to a reprisal.
The typical power imbalance which exists between landlords and tenants is often heightened by gender inequalities. It is hard to overstate the impact of being sexually harassed in one’s home. As one theorist has observed, “the interaction of private property relations and gender relations take on new meanings when coercive sexuality invades the privacy of women’s homes, homes that frequently are the private property of men”. It is quite possible that women underreport such incidents due a fear of retaliation by the harasser.
Marital status is broadly defined in the Code as the status of “being married, single, widowed, divorced or separated and includes the status of living with a person in a conjugal relationship outside marriage”. In the case of Miron v. Trudel, the Supreme Court of Canada stated the following about the situation of unmarried persons in relationships:
Persons involved in an unmarried relationship constitute an historically disadvantaged group. There is ample evidence that unmarried partners have often suffered social disadvantage and prejudice. Historically, in our society, the unmarried partner has been regarded as less worthy than the married partner. The disadvantages inflicted on the unmarried partner have ranged from social ostracism through denial of status and benefits.
There have been a number of cases dealing with discrimination on the basis of marital status in the housing context. Often, these cases deal with situations in which single individuals are seen as less preferable or are rejected outright in lieu of married couples. For example, in Vander Schaaf v. M & R Property Management Ltd., the complainant alleged that her rental application was refused by the superintendent because of a preference for married couples. Even though the complainant and her roommate earned enough together to make the rent-to-income ratio cutoff of 25 percent, neither could maintain that percentage independently. However, there was evidence to show that spousal co-tenants would have been treated differently since it would have been their combined and not individual incomes which would have been considered. An Ontario Board of Inquiry found that the respondents had directly discriminated against the complainant.
A parent who is unmarried or divorced will often experience compounded disadvantage because of the continuing social stigma associated with being a lone parent, as well as the added financial, practical and emotional responsibilities of solo parenting. Lone mothers are disproportionately likely to experience poverty and to find themselves shut out of the rental housing market. For example, in Booker v. Floriri Village Investments Inc., an Ontario Board of Inquiry found that the complainant was discriminated against because she was a single parent and the superintendent expressed a preference for married couples instead. There was evidence to indicate that the property was viewed as a “family building” and management did not consider lone parent households as constituting a “family”.
In Raweater v. MacDonald, the complainant, a lone mother of Aboriginal ancestry, alleged that the respondent criticized the behaviour of her children and asked her about the whereabouts of their father. He stated that her children would be “less disturbed” and “more controllable” if their father were present. The respondent also periodically invaded her privacy and once made an offensive comment to her regarding her Aboriginal heritage. A B.C. Tribunal concluded that, in isolation, these comments might not have been sufficient to conclude that the complainant had been discriminated against on the grounds of marital status, family status and Aboriginal ancestry individually. However, when they were considered along with his other actions, the Tribunal found that the respondent treated the complainant in a disdainful manner because of the combination of stereotypical views that he held about Aboriginal persons and unmarried mothers.
The particular vulnerability of sole-support mothers in receipt of public assistance was recognized by the Ontario Court of Appeal in Falkiner v. Ontario (Ministry of Community and Social Services). The Court found that there was significant evidence of historic disadvantage and continuing prejudice against this group, noting the resentment and anger they face from others in society who see them as “freeloading and lazy”, and the history of stigmatization, stereotyping and offensive restrictions on their personal lives.
Other cases have dealt with situations in which common-law couples are discriminated against in favour of married couples. For example, in Matyson v. Provost, the respondents would not rent to common-law couples because it offended their religious beliefs. A Saskatchewan Board of Inquiry found that while the respondent’s freedom of religion was protected under the Charter of Rights and Freedoms and the Saskatchewan Human Rights Code, the respondents had a responsibility to provide housing accommodations in a non-discriminatory manner once they made it available to the public.
Section 10(1) of the Code defines “family status” as the status of being in a parent and child relationship. Complaints regarding discrimination on this ground range from individuals being denied rental housing accommodation formally or informally because they have or will have children, to prospective or current tenants receiving discriminatory treatment because of the particular form or composition of their family.
Recent years have seen increasing diversity in the nature of the Canadian family. The numbers of lone parent and blended families continue to grow. As well, it is only recently that any recognition has been given to families headed by same-sex parents. Housing providers have not necessarily adjusted their policies, programs and practices to deal with these new realities.
Numerous reports detail the lack of access to safe, affordable, adequate rental housing for families with children, particularly female-headed lone parent families. According to the CMHC, 42 percent of lone parents are in core housing need. The Golden Report stated that families represented 46 percent of the people using hostels in Toronto in 1996. At that time, 19 percent of the homeless population in Toronto, or 5,300 homeless people were children. Of the 100,000 people on the waiting list for subsidized housing, 31,000 were children.
Lack of access to adequate, affordable housing has long-term consequences. For example, children in families spending the majority of their income on rent are at a higher risk of malnutrition and respiratory and other diseases. Links have also been made between housing and neighbourhood characteristics and children’s educational achievements. Children’s socio-emotional health is strongly associated with housing quality. A recent study found that the deteriorating housing circumstances in Toronto are a significant factor in the admission of children to the care of the Children’s Aid Society: families and children who are clients of the CAS in Toronto face substantial obstacles to obtaining adequate and appropriate housing, and for some this affects their ability to care for their children.
In the most extreme circumstances, families find themselves living in shelters. Discrimination against lone female parent-headed families, in particular, can easily result in an entire family becoming homeless. Shelter surveys indicate a dramatic increase in usage by women with children, particularly Aboriginal and Black women. Lone parent families enter the shelter system at twice the rate of two-parent families. 
In many, if not most, cases, an individual will experience discrimination on the basis of family status along with one or more Code-protected grounds and these grounds may intersect, producing unique experiences of disadvantage and discrimination. Since women continue to be the primary caregivers of most families in Ontario, discrimination on the basis of family status will very often include a gender component. In addition, families with young children may be marginalized in the rental housing market, particularly where family status intersects with marital status, receipt of public assistance, or the race-related grounds of the Code. Same-sex couples and gay or lesbian lone parents raising children may also be subjected to negative attitudes and stereotypes because they do not conform to normative familial models.
It is important to pay particular attention to the complex ways in which family status intersects with the race-related grounds of the Code. Negative stereotypes about families take specific forms for various racialized groups. Research that has been done in the area of access to affordable rental housing, for example, suggests that sole-support families from racialized and Aboriginal communities may be the most disadvantaged of all families seeking shelter.
There has been significant litigation regarding family status issues in the area of rental housing, particularly in the Ontario context. As a result, the caselaw in Ontario generally recognizes broad protection in the rental housing context for the parent-child relationship. Beginning with Fakhoury v. Las Brisas Ltd., tribunals have recognized the rights and importance of families and of the need to protect housing rights. The caselaw has steadily expanded the scope of the family status protection to include denial of housing to a woman because she is pregnant, to combat animus against lone parent families, and to provide protection to families where the parents are not legally married.
Many family status cases deal with systemic barriers encountered by families seeking to access housing. Tribunals have found that the stipulation by landlords of a minimum number of bedrooms based upon the number and gender of the children may have the result of impeding the access of lone-parent families to housing. Tribunals have also found against restricting apartment buildings to “families” where that designation excludes lone parent families or common-law couples.
Some landlords have policies prohibiting tenants from transferring between rental units in the same building. Such policies may have a negative impact on families with children, because their rental housing needs change as their families grow, but they must leave their building in order to accommodate their need for additional space. In Ward v. Godina, a Board of Inquiry found that “no transfer policies” have an adverse impact on families with children, and violate the Code.
Policies regarding the number of occupants per number of rooms or bedrooms may also have an adverse impact on families with children. In Desroches v. Quebec (Commission des droits de la personne), the complainant was denied the opportunity to rent the apartment of her choice when the landlord discovered that she was in the process of a divorce, and that her two daughters would be visiting her every Sunday. The landlord had a standing policy not to rent any of his four and a half room apartments to more than two occupants. The Quebec Court of Appeal found that this policy constituted “ a very effective anti-child barrier”, since the policy had the effect of excluding all children who live with two parents, as well as all lone parent families with more than one child. The policy therefore violated the Quebec Charter of Human Rights and Freedoms. The opposite situation could also raise concerns. For example, a policy that a single person cannot rent an apartment with more than one bedroom may prevent a divorced parent from having his or her children visit and stay overnight.
In a more recent case, a landlord had an informal policy of renting one-bedroom apartments only to couples or singles; two bedrooms to a couple with one child; and three bedrooms to couples with two children. Although he might rent a three bedroom apartment to a person or a couple with three children, he would only do so if the children were very young, and even so the family would have to move to a bigger unit fairly soon. The complainant in this case was a lone mother of three children, who was seeking (and was denied) a three-bedroom apartment. This policy was found to have a discriminatory effect on the basis of family status. Concerns have also been raised with respect to policies that place restrictions on the sharing of rooms by opposite sex siblings, on the basis that such policies may reduce the ability of families with children to access affordable rental housing. These types of policies may have a significant impact on the social and economic rights of families, as they effectively deny access to the type of housing that is affordable for them.
Despite these advancements in the caselaw, however, family status is still among the most commonly cited grounds of discrimination in complaints filed with the Commission regarding housing. A number of reports have indicated that discrimination continues to play a substantial role in determining who gets and is able to keep adequate, affordable rental housing. The Golden Report on Homelessness states that:
[I]t is not uncommon for families that are staying in shelters or in motels, families with good credit histories and good references, to be refused an apartment by many different landlords. Discrimination can make the housing market impenetrable for those most in need of housing.
This observation is corroborated by the consistent pattern of complaints to the Commission on housing issues. As one report stated, “focussing on the supply of rental housing will not solve the housing crisis if those that most need housing are still turned away by the unchecked discrimination of landlords”.
In a recent decision, an Ontario Human Rights Tribunal found that a lone mother was denied the opportunity to rent an apartment after the landlord discovered that she had a child. The landlord stated that he would not rent the apartment to a family with children, and further refused to return the complainant’s deposit. The complainant testified that it took her five months to find another suitable apartment: on approximately five occasions she was turned down by landlords who stated that they did not rent to people with children.
A variety of negative attitudes and stereotypes may also be at play behind a refusal to rent to families with children. For example, landlords may refuse to rent to families with small children on the basis that small children are “noisy” and will disturb other tenants. Landlords insisting that tenants have a “quiet lifestyle” or informing tenants that the building is “not soundproof” are common themes in the rejection of rental applicants with small children. In the course of occupying a residence, families may be subjected to harassment by other tenants and housing providers, and may even be threatened with eviction, due to the normal behaviour of their children. Issues may arise with regard to entire families being evicted due to inappropriate activities engaged in by a child.
The practice of landlords asking the ages of prospective tenants on application forms has been found by the Tribunal to be a prima facie act of discrimination on the basis of family status. Where landlords ask such questions, the onus will shift to them to demonstrate that there was in fact no such discrimination:
[T]here is great merit in the argument of the Commission that a landlord only asks the question as to the age of the prospective co-occupant so he can deny the application if the answer discloses the prospective co-tenant to be a child or perhaps an elderly person. While it might be argued a landlord needs to know the ages of co-occupants in his building in case of fire and for numerous other reasons, such information can be acquired by the landlord after apartment units have been rented.
The Commission has also received complaints where the actions of the landlord are based, not on the presence of children per se, but on the number of children in the family. The Commission has considered such complaints to fall within the ground of family status.
The Commission is concerned about the widespread practice of designating rental apartments and other housing as “adults only” or “adult lifestyle communities”. It is common to see rental housing advertised as “adult lifestyle”, and the Commission has referred for Tribunal hearings a number of complaints where applicants with children have been refused tenancy in such housing. Such landlords are, in effect, advertising their intent to discriminate against families with children.
Discrimination may also be based on specific stereotypes or negative attitudes about lone mothers, families on social assistance, gay or lesbian-headed families, or families from racialized communities.
Housing providers have a duty to accommodate housing needs related to family status up to the point of undue hardship. The Commission has heard reports that families have been barred from rental housing because of concerns for children’s safety. There may, on occasion, be situations where some alterations may be required to housing to accommodate the needs of children. For example, it may be necessary to place safety devices on windows or balconies in high-rise apartments. Such steps may be necessary accommodations on the part of a housing provider. Families with children should not be barred from rental housing because such reasonable steps are required.
The Commission has also heard reports that families are being evicted from their apartments because of the noise of children crying. Life in apartment-type housing inevitably involves some exposure to the noises and activities of one’s neighbours. Many normal activities cause noise – listening to music or socializing, for example. Children, like other tenants, may cause noise as part of their normal activities, such as playing, talking and crying. Noises associated with children’s normal activities should not be treated differently from other types of noise that may be experienced when living in close quarters. Nor should the noise normally associated with children be an excuse for refusing to rent to families with children. Where children’s noise is genuinely disruptive to other tenants, all parties can work cooperatively to resolve the issue. Parents can take reasonable steps, consistent with good parenting practices, to minimize children’s noise. Housing providers also have a responsibility to attempt to resolve matters without evicting families. For example, extra soundproofing for an apartment could be considered, or moving a family to a different apartment.
The Code provides that every person has a right to equal treatment in the area of housing accommodation without discrimination because of sexual orientation. Landlords and other housing providers must ensure that they are not denying housing to individuals based on their sexual orientation. They must likewise ensure that their treatment of current tenants is non-discriminatory and not influenced by subjective judgements relating to sexual orientation, or negative attitudes about homosexuality and/or towards gays and lesbians.
Housing providers must also address any discrimination or harassment relating to sexual orientation that may arise within their rental housing environment, whether between tenants, or involving agents of the housing provider, or others who are part of the housing environment (e.g. contracted maintenance workers). If a housing provider becomes aware of discrimination or harassment, either through a complaint or other means, they must respond appropriately. Housing providers who fail to take steps to address a poisoned environment or a complaint of discrimination or harassment may be found liable.
Gays and lesbians may be subjected to discrimination in rental housing in several different ways. For example, they may be denied the opportunity to view a unit due to their sexual orientation. In a telephone audit conducted in the cities of Windsor and London, Ontario and Detroit, Michigan in the late 1990s, 180 phone calls were made, with half of the callers making simple inquiries about rental unit availability and the other half making similar inquiries, but also making a specific point of disclosing their sexual orientation as either gay or lesbian. To the latter group, units were significantly more likely to be described by landlords as unavailable.
As one researcher commented, in the case of private rental housing situations,
It would appear that, despite increased knowledge in society about homosexuality, persons identified in this way still face many of the same rejecting situations they have faced for many years – at least when such rejection is privately expressed, seemingly ‘legitimate,’ and likely to be assumed by its perpetrator to be undetectable.
The experience of same-sex couples (whether married or living together outside of marriage) or lone gays and lesbians who are parents is also unique. These parents may find themselves bearing the brunt of negative stereotypes, and may face discriminatory treatment because they do not conform to the typical “nuclear family” norm. In some cases, they and/or their children may be subjected to harassment because of their living arrangements.
At this time, there are few reported cases dealing with discrimination and harassment on the basis of sexual orientation in housing. In Ontario, there have only been two cases to date and the complainants in both were unsuccessful. However, this is an evolving area of law and social policy, and in other provinces, successful complaints have been made out.
The Code prohibits discrimination in housing accommodation on the basis of age only for persons aged 18 or older. In other words, with the exception of persons who are sixteen or seventeen years old, who have withdrawn from parental control, housing providers are entitled, under the Code, to restrict the housing accommodation they provide to minors. It should be noted, however, that a recent Tribunal decision has indicated that the definition of age in the Code can be an unjustifiable abridgement of the equality rights of children under the Charter of Rights and Freedoms.
In any case, restrictions in housing to children that have the effect of limiting access to housing for their parents may discriminate on the basis of family status. For example, the designation of housing accommodation as “adult lifestyle” would, in addition to banning minors, effectively ban families. Therefore, this type of restriction would be treated as discrimination on the basis of family status. Arbitrary age restrictions should not be used to enforce mere preferences for “child-free” spaces.
Young persons over the age of eighteen may face particular forms of disadvantage in the rental housing market. For example, rent-to-income ratios may have an adverse impact on this group of renters due to their frequently low incomes. In Sinclair v. Morris A. Hunter Investments Ltd., an Ontario Board of Inquiry found that the complainants were discriminated against when they were refused rental of an apartment because they could not meet a rent-to-income ratio of 33 percent. The Board accepted expert evidence that rent-to-income ratios discriminate against rental applicants at least up until their mid-twenties. The Board also found that rental policies requiring applicants to have permanent jobs and a minimum tenure with an employer discriminate on the basis of age since employment for younger people is more unstable and of a shorter duration than that of older adults.
Young persons may also be subjected to negative stereotyping. For example, there have been cases that have dealt with negative stereotypes about teenage children. In Bushek v. Registered Owners of Lot SL 1, a complaint that a family was forced to leave their apartment because it included two teenage children, was ultimately dismissed. However, the Tribunal expressed concerns about the negative attitudes towards teenagers expressed by building management:
Some of the evidence did suggest that in attempting to balance the interests of its residents, the strata council did not adequately concern itself with the interests of teenagers. Though teenagers were able to use the facilities and participate in events, the security problems appear to have cast a shadow of suspicion over teenagers. The suggestion that they put off prospective buyers and upset the elderly would understandably be offensive. Though these comments may have arisen out of the very real problems the building had experienced with some teenagers, they reflect the type of stereotyping that human rights legislation is designed to prevent.
Older persons also face particular challenges in the rental housing market. Older persons, particularly older women, are at high risk of being in core housing need. In 2001, for example, of older women living alone in Canada’s Census Metropolitan Areas, 57.5 percent were in core housing need. Of older men living alone, 44.6 percent were in core housing need. One of the main reasons for this situation is the high incidence of very low incomes affecting these groups of renters. In many cases, older persons are unemployed, employed part-time, or out of the labour force altogether. Further, a large number of individuals in these groups will be dependent on the government for the majority of their household income. The major source of income for over 90 percent of these households was government transfers. The average before-tax income of these individuals was under $15,000, almost half of which was spent on housing.
The Code prohibits either direct or adverse effect discrimination in housing. For example, a housing provider should not turn away older persons because it wishes to attract more youthful residents. Similarly, older persons who may be paying lower rents due to longer tenure in their rental unit should not be targeted for eviction by landlords who wish to attract new tenants at a higher rent.
Housing is a critical issue related to quality of life for older persons. In order to maintain their independence and well-being, older persons need housing that is safe, affordable, accessible and adaptable, allowing maximum freedom and continuation of a person’s lifestyle. The normal physical changes that occur as people age and the diseases or disabilities that affect some older persons have implications for housing. In designing and building housing for older persons, the aim should be a barrier-free environment, with recognition that barriers are both physical and psychological. This would enable those who may suffer from some degree of impairment to continue to perform the activities of life.
The Commission has recognized that older persons benefit from the support, community and security offered by older persons’ housing projects, and the importance of “aging in place”. Housing for older persons includes a range of options including rental accommodation, condominiums, retirement homes and care facilities. There can be some overlap between housing and services, for example older persons’ residences in which services such as housekeeping, meals or medical assistance are provided.
There are circumstances where housing aimed at the needs of older Ontarians will promote the objectives of the Code. Section 15 of the Code permits preferential treatment for persons aged 65 and older, and therefore permits housing that is limited to persons over the age of 64. Section 14 of the Code permits special programs to alleviate hardship and disadvantage, such as specially designed barrier-free housing projects aimed at older persons with disabilities. Section 18 creates a defence for religious, philanthropic, educational, fraternal or social institutions or organizations that primarily serve the interests of older persons and that provide housing as part of their services.
Older persons may require particular accommodations in order to enjoy housing on an equal basis with other residents. A housing provider has a duty to accommodate the needs and capabilities of older residents, subject to the undue hardship standard. Accommodations may include modifications to a rental apartment, building entrance, sidewalks, parking facilities and common areas. This might include physical modifications such as installing elevators, ramps, visual fire alarms and doorbells for the hearing impaired, different door handles, lower counters, etc. It can also require other forms of accommodation such as waiving or changing a rule, providing better maintenance such as more frequent snow removal, or allowing transfer to another unit without penalty. For example, during its consultation on age discrimination, the Commission heard that older persons who become widowed face particular hardship in the form of significant rent increases when they seek to move to a smaller unit that they can better maintain. A possible accommodation in this situation may mean facilitating transfer to another unit in the building without treating the situation as a new lease to which higher rents would apply.
The Code prohibits discrimination in housing accommodation on the basis of disability. Section 10(1) of the Code defines disability broadly to include any physical disability, mental disability, learning disability, mental disorder or any injury or disability where benefits are claimed under the insurance plan established by the Workplace Safety and Insurance Act, 1997. Section 10(3) also provides protection against discrimination to persons who have had disabilities and who are perceived to have or to have had disabilities.
Persons with disabilities face many challenges in society. Inadequate social supports, insufficient financial assistance, and a lack of appropriate mechanisms to facilitate deinstitutionalization all contribute to the difficulties that many face in their quest to live independently. These challenges are frequently compounded by the numerous barriers faced by persons with disabilities when they attempt to access rental housing.
These barriers can take many forms and often include outright denials of tenancy. For example, in Yale v. Metropoulos, an Ontario Board of Inquiry found that the respondents willfully and recklessly discriminated against the complainant, a blind woman, when they cancelled an apartment viewing without notifying her, later refused to let her enter the unit, and generally treated her rudely. The Board held that a landlord and/or superintendent contravenes the Code when he or she refuses to show an apartment to a prospective tenant with a visual handicap and fails to provide a reasonable explanation for this.
Inaccessible buildings and non-inclusive housing design are among the obstacles frequently encountered by persons with disabilities. Housing providers have a duty to accommodate the needs of tenants with disabilities to the point of undue hardship. Accommodations may include physical modifications such as installing ramps and elevators, visual fire alarms and doorbells for the hearing impaired, different door handles, lower counters, etc. It can also require other forms of accommodation such as waiving or changing a rule, for example, allowing guide dogs in a building with a “no pets” policy. Housing providers may also contravene the Code if they do not provide accommodations in a timely manner.
Often, it is neither difficult nor a major imposition for a housing provider to provide needed accommodations. In Julie Ramsey v. S.W.M. Investments, a tenant alleged discrimination because of disability due to the landlord’s lack of designated “handicapped” parking. Under a settlement, the landlord agreed to provide two designated parking spots for tenants, one designated spot for visitors and further designated spots for tenants as required so that each tenant entitled to a spot would have one. The landlord also agreed to maintain the parking spots by clearing snow, sanding or salting the parking spots and the route to the door of the building.
The Ontario Building Code Act governs the construction of new buildings and the renovation and maintenance of existing buildings. The Commission has expressed concerns that the accessibility requirements set out in the Building Code do not always result in equal access to persons with disabilities as required by the Human Rights Code. Many housing providers continue to rely only on the requirements of the Ontario Building Code without due consideration of their obligations under the Human Rights Code. However, the Human Rights Code prevails over the Building Code and housing-providers may be vulnerable to a human rights complaint to the extent that their premises continue to fall short of the requirements of the Human Rights Code. Reliance on relevant building codes has been clearly rejected as a defence to a complaint of discrimination under the Human Rights Code.
The Accessibility for Ontarians with Disabilities Act provides a mechanism for developing, implementing and enforcing accessibility standards in order to provide full accessibility for Ontarians with disabilities in goods, services, facilities, accommodation, employment, buildings, structures and premises by January 1, 2025. It should be noted that, under the AODA, housing providers will be required to set accessibility standards for persons with disabilities in housing.
Persons with disabilities may be subjected to harassment by housing providers, co-tenants, and others. For example, in Aquilina v. Pokoj, an Ontario Board of Inquiry found that the respondent landlord engaged in a vexatious course of conduct in order to control the life of the complainant, a woman with cerebral palsy, as both a tenant and as an individual. In this case, the respondent was also found to have made verbal slurs regarding the complainant’s disability.
Individuals with mental disabilities often face particular challenges in the rental housing market due to negative attitudes and stereotypes. In Weiher v. Polhill, the respondent landlord imposed specific rules on the complainant that were not forced upon anyone else, once he became aware of her mental disability. Under the impression that the respondent did not want her there, the complainant did not move in. The Human Rights Tribunal of Ontario found that there had been discrimination on the basis of the complainant’s mental disability and awarded compensation.
People with past or present psychiatric illnesses continue to experience extreme marginalization and discrimination in most social spheres, including rental housing accommodation. In a telephone audit conducted in the cities of Windsor and London, Ontario and Detroit, Michigan in the 1990s, 160 phone calls were made, with half of the callers making simple inquiries about rental unit availability and the other half making similar inquiries, but also making a specific point of disclosing that they were currently seeking psychiatric treatment but would soon require accommodation. To the latter group, units were significantly more likely to be described by landlords as unavailable. The formidable ostracism to which persons with mental disabilities are subjected in the rental housing market has the potential to, and frequently does, lead to homelessness.
Receipt of Public Assistance
Discrimination on the basis of receipt of public assistance is one of the ways in which people living in poverty are discriminated against in the rental housing market. Despite the fact that the Code prohibits a housing provider from refusing to rent to a household that depends on public assistance, the Commission has heard numerous reports that this continues to be a widespread practise in Ontario and individuals continue to file complaints with the Commission on this basis.
When occupying housing, those depending on public assistance are often subjected to differential treatment and rental requirements not imposed on others. For example, they may be asked to arrange for direct payment of government cheques, they may be charged unreasonably large and often illegal rent deposits, and/or they may be subjected to intrusive questioning which violates their privacy and compromises their dignity. Similarly, a housing provider’s request for first and last month’s rent also has the potential to constructively discriminate against those in receipt of public assistance, as well as other members of disadvantaged groups protected by the Code, who frequently have lower incomes and will often be unable to generate such resources.
Those living in receipt of public assistance frequently bear the brunt of negative attitudes and stereotypes. In Iness v. Caroline Co-operative Homes Inc., a case which dealt with discrimination in accommodation on the basis of receipt of social assistance, Dr. Janet Mosher was called as an expert on discrimination against social assistance recipients. She testified that the most prevalent stereotype about individuals in receipt of public assistance is a lack of work ethic. She also stated that there is a prevalent belief that receipt of assistance is associated with criminal behaviour. She stated that frequently social assistance recipients are portrayed as “fraudsters” who are “lazy, parasitic and irresponsible”, and as individuals who have “personal failings, and lack adequate virtue.” In the case of lone mothers in receipt of social assistance, she stated that they are often perceived as “promiscuous,” and that they are perceived to have formed “deviant family formations, which are inadequate compared to two-parent families.” As mentioned previously, the Ontario Court of Appeal has also recognized the particularly harsh attitudes and stereotypes to which sole-support mothers in receipt of public assistance are routinely subjected. Due to this negative stigma, many depending on public assistance will make great efforts to hide their status.
There has been a fair amount of litigation in the Canadian context dealing with discrimination on the basis of receipt of public assistance. Many cases deal with situations where rental housing was denied outright. For example, in Willis v. David Anthony Philips Properties, a Board of Inquiry in Ontario found that the owner told the complainant that he did not want to rent to her because she was on social assistance. The Board found that wrongful discrimination had occurred. In a 1995 case, Kostanowicz v. Zarubin, a lone mother who was receiving social assistance was also denied an apartment. The Board found that the respondent had violated the Code by not renting to the complainant. In a Quebec case, Drouin v. Wittan and Lavalee, a landlord refused to rent to the complainant because she was poor and her source of income was social assistance, without considering whether or not she was a reliable tenant. The landlord in fact stated that poor people cannot pay their rent. The Tribunal found that exclusions based on low income may constitute indirect discrimination against lone parent families, and the respondents were found to have violated the Quebec Charter. In another Quebec case Laurente v. Gauthier the Board found that the respondent had a policy of not renting to welfare recipients irrespective of their ability to pay the rent. The tribunal found that the respondents had discriminated on the basis of social condition.
Other cases deal with individuals being treated differently during their occupancy of housing due to receipt of public assistance. The case of Québec (Comm. des droits de la personne) c. Coutu is noteworthy because the Quebec tribunal in that instance awarded the complainants, residents of a private nursing home, more than $2 million in general and special damages. The tribunal found that M. Coutu, the administrator of the nursing home, had violated the economical, physical, psychological and moral rights of residents who were all persons with disabilities in receipt of public assistance. The monthly social assistance allowances of residents had been redirected, and residents were overcharged for services and purchases such as haircuts, clothes, personal hygiene items and recreational activities. Residents were forced to work at the facility without remuneration. Staff were not qualified, verbally abused and humiliated residents, and treated them in ways that did not respect their dignity and privacy.
Still other cases deal with the negative impact of rental housing policies and requirements on people in receipt of social assistance. For example, in Garbett v. Fisher, an Ontario Board of Inquiry found that asking for last month’s rent is constructive discrimination against social assistance recipients because they do not receive their money in advance. A case in British Columbia, Larson v. Graham, reached a similar conclusion.
Inadequate Levels of Social Assistance
The Commission has heard numerous concerns that the Ontario government’s level of financial assistance for social assistance recipients is too low and results in constructive discrimination in housing. Individuals have argued that they are denied equal treatment in their attempts to house themselves and their children because of their inadequate income. They have further alleged that the levels of social assistance set by the province have resulted in the exclusion of large families from the rental housing market.
Each month, individuals in receipt of the Ontario Works social assistance program receive a shelter allowance along with a basic needs allowance. As of January 2007, the monthly shelter allowance provided by Ontario Works ranged from $342 for a household of one to $708 for a household of six or more. As is quite well known, these amounts are much less than the current average rent in Ontario, particularly in its cities, and the difference between these amounts creates a “shelter gap”. In order to afford rent or a mortgage on a home, families often combine their basic needs and shelter allowance. Despite these efforts, however, many households end up in core housing need.
Incidence of Core Housing Need for Renters in Major Centres in Ontario, 1991-2001 (%)
The shelter gap is particularly pronounced for sole support parents who rely on a single income to support their families. For example, in 2003, the maximum monthly allowance for a lone parent with two children under twelve years was $1,086 ($554 shelter allowance and $532 basic needs allowance). If this family rented a two-bedroom apartment in Toronto, they would have approximately $31 left after rent to cover all other needs for the month. Because rent takes up the majority of the assistance received, many sole support parent-led families are turning to food banks and other means to make ends meet. Also, the stress of having to do this every month may hinder their ability to find employment or participate in Ontario Works employment activities.
As of September 2006, over 50 percent of the beneficiaries of Ontario Works were members of lone parent families. For these, and other households in receipt of social assistance, the very low shelter allowances put beneficiaries in the untenable circumstance of having to choose between shelter and the other necessities of life. In many areas of the province, there is simply no adequate rental housing available to families in the private rental market within the limits of the shelter allowance. This situation can, and does, result in families finding themselves homeless.
International human rights treaty bodies have expressed strong criticisms of Canada regarding the increasing poverty and lack of access to housing among sole support mothers and other women. For example, the March 2003 Concluding Observations of the United Nations Committee on the Elimination of Discrimination Against Women expressed serious concern about “the high percentage of women living in poverty, in particular elderly women living alone, female lone parents, aboriginal women, older women, women of colour, immigrant women and women with disabilities, for whom poverty persists or even deepens, aggravated by the budgetary adjustments made since 1995 and the resulting cuts in social services”.. The Committee suggested that the Government assess the gender impact of anti-poverty measures and increase its efforts to combat poverty among women in general and vulnerable groups of women in particular. 
 The concept of “intersectionality” has been defined as “intersectional oppression [that] arises out of the combination of various oppressions which, together, produce something unique and distinct from any one form of discrimination standing alone...” M. Eaton, “Patently Confused, Complex Inequality and Canada v. Mossop” (1994) 1 Rev. Cons. Stud. 203 at 229.
 Ontario Human Rights Commission, An Intersectional Approach to Discrimination: Addressing Multiple Grounds in Human Rights Claims (Toronto: Queen’s Printer, 2001), online: <www.ohrc.on.ca>.
 Racialization is the process by which societies construct races as real, different and unequal in ways that matter to economic, political and social life. This term is widely preferred over descriptions such as "racial minority", "visible minority" or "person of colour" as it expresses race as a social construct rather than as a description of persons based on perceived characteristics. See Ontario Human Rights Commission, Policy and Guidelines on Racism and Racial Discrimination (Toronto: Queen’s Printer, 2005), online: <http://www.ohrc.on.ca> [hereinafter Racial Discrimination Policy].
Richards v. Waisglass (1994), 24 C.H.R.R. D/51 (Ont. Bd. Inq.).
 See also Watson v. Antunes (1998), CHRR Doc. 98-063 (Ont. Bd. Inq) in which a Board of Inquiry held that the respondent discriminated against the complainants, a Black woman seeking to rent an apartment and her mother who was assisting her, when she reluctantly showed them the apartment and then misled the mother about it being taken when she later called to rent it. Also, in Baldwin v. Soobiah (1983), 4 C.H.R.R. D/1890 (Ont. Bd. Inq.), a Board of Inquiry held that a prima facie case of discrimination in housing rental was established when the respondent made statements to potential tenants of a certain race that a property was rented, but then stated to potential tenants of another race that the apartment was still available. In other words, a pattern of refusals on the part of a landlord to rent to those of a particular ethnic origin was found to be evidence of unlawful discrimination.
 Data from auditing studies have been generally accepted by U.S. courts as strong evidence of racial discrimination. Please see D.S. Massey & G. Lundy, “Use of Black English and Racial Discrimination in Urban Housing Markets” (March 2001) 36(4) Urban Affairs Review 452 at 454.
 K.L. Dion, “Perceptions of Housing Discrimination in Toronto: The Housing New Canadians Project” (2001) 57 Journal of Social Issues 523 at 527.
 “Linguistic profiling” has been defined as the “determin[ation of] characteristics such as socio-economic status from the way a person uses language.” See http://www.wordspy.com/words/linguisticprofiling.asp (date accessed: January 3, 2007).
 Massey & Lundy, supra note 93 at 466-7.
 See, for example, Dion, supra note 94 at 528.
 “Islamophobia” can be described as stereotypes, bias or acts of hostility towards individual Muslims or followers of Islam in general. In addition to individual acts of intolerance and racial profiling, Islamophobia leads to viewing Muslims as a greater security threat on an institutional, systemic and societal level. See Commission’s Racial Discrimination Policy, supra note 90.
Ontario (Human Rights Comm.) v. Elieff (1996), 37 C.H.R.R. D/248 (Ont.Ct. (Gen. Div.)), rev’g in part (1994), 25 C.H.R.R. D/163 (Ont. Bd. Inq.).
Fancy v. J & M Apartments Ltd. (1991), 14 C.H.R.R. D/389 (B.C.C.H.R.).
Chauhan v. Norkam Seniors Housing Cooperative Association (2004), 51 C.H.R.R. D/126, 2004 BCHRT 262.
King v. Bura (2004), 50 C.H.R.R. D/213, 2004 HRTO 9.
 Additional examples of racial harassment in housing accommodation include: Morrison v. Effort Trust Realty Co. (1993), 26 C.H.R.R. D/119 (Ont. Bd. Inq.) and Fuller v. Daoud (2001), 40 C.H.R.R. D/306 (Ont. Bd. Inq.).
 As mentioned previously, section 12 of the Code provides protection against discrimination based on association with persons identified by Code grounds and allows persons to receive a remedy for having this right infringed.
John v. Johnstone, (September 16, 1977), No. 82, Eberts (Ont. Bd. Inq.).
Hill v. Misener (No. 1) (1997), 28 C.H.R.R. D/355 (N.S. Bd. Inq.).
 N. Klos, “Aboriginal Peoples and Homelessness: Interviews with Service Providers” (1997) 6:1 Canadian Journal of Urban Research 40 at 48.
Flamand v. DGN Investments (2005), 52 C.H.R.R. D/142 (HRTO).
Ibid. at para. 137.
 Engeland, Lewis, Ehrlich & Che, supra note 13 at 49.
Ibid. at 50.
 Chisholm, supra note 1 at 19.
 M.R. Grant & R.K. Danso, “Access to Housing as an Adaptive Strategy for Immigrant Groups: Africans in Calgary” (2000) 32(3) Canadian Ethnic Studies 19.
Rental Market Report: Toronto CMA, supra note 7 at 3.
 F. Barahona. “Immigrants hit with ‘illegal' rents: Landlord demands up to year's rent from newcomers” Toronto Star (July 29, 2001); “Forum hears of discrimination in housing: Would-be tenants say they were victims of racism” Toronto Star (March 21, 2002).
 The Code and Regulation 290/98 permit landlords to request information about a prospective tenant’s rental history. However, based on the decision in Ahmed v. 177061 Canada Ltd. (2002), 43 C.H.R.R. D/379 (Ont. Bd. Inq.), treating the lack of a rental history in the same way as a negative rental history results in discrimination where the lack of a rental history is related to a Code ground.
 Grant & Danso, supra note 113.
 Engeland, Lewis, Ehrlich & Che, supra note 13 at 20.
Ibid. at 52.
Ibid. at 53.
Ibid. at 50-51.
Women and Housing in Canada: Barriers to Equality, supra note 34 at 8.
Conway v. Koslowski (1993), 19 C.H.R.R. D/253 (Ont. Bd. of Inquiry).
Leong v. Cerezin (1992), 19 C.H.R.R. D/381 (B.C.C.H.R.). The respondent also made an issue of the complainant’s Chinese Canadian ancestry.
Women and Housing in Canada: Barriers to Equality, supra note 34 at 8.
 T. Carter & C. Polevychok, Housing is Good Social Policy (Canadian Policy Research Networks, 2004) at 8.
 The February 20, 2002 Recommendations are available online at www.owjn.org/issues/w-abuse/hadley2.htm.
 Discrimination on the basis of family status will be discussed in greater detail in the Family Status section of this Paper.
Turanski v. Fifth Avenue Apartments (1986), 7 C.H.R.R. D/3388 (B.C.C.H.R.).
 Statistics Canada, Women in Canada 2000: A Gender-based Statistical Report (Catalogue No. 89-503-XPE) at 138.
Ibid. at 139.
Women and Housing in Canada: Barriers to Equality, supra note 34 at 11.
Raphaël v. Conseil Des Montagnais du Lac Saint-Jean, (1995) 23 C.H.R.R. D/259 (C.H.R.T.).
 M.M. Mann, Aboriginal Women: An Issues Backgrounder (Prepared for Status of Women Canada, August 2005), online: <http://www.swc-cfc.gc.ca/resources/consultations/ges09-2005/aboriginal_e... (date accessed: March 30, 2007). A national consultation process was launched in September 2006 on the issue of the division of matrimonial real property on reserve; see Indian and Northern Affairs Canada, News Release, “Addressing Matrimonial Property Rights On Reserves: Canada, AFN And NWAC Move Forward With Consultations” (29 September, 2006).
Women and Housing in Canada: Barriers to Equality, supra note 34 at 10-11.
 National Working Group on Women and Housing, Some Facts on Women and Housing in Canada, online: <http://www.equalityrights.org/NWG/facts.htm> (date accessed: August 30, 2006).
 See Novac, Darden, Hulchanski & Seguin, supra note 48 at 3.
Reed v. Cattolica Investments Ltd. (1996), 30 C.H.R.R. D/331 (Ont. Bd. Inq.).
 S. Novac, “Sexual Harassment of Women Tenants” (1990) 11 Canadian Women’s Studies 2 at 58.
  2 S.C.R. 418 at para. LXXII, L’Heureux-Dubé J.
Vander Schaaf v. M & R Property Management Ltd. (2000), 38 C.H.R.R. D/251 (Ont. Bd. Inq).
 For other Canadian examples of discrimination on the basis of marital status, please see: Swaenepoel v. Henry (1985), 6 C.H.R.R. D/3045 (Man. Bd. Adj.) in which a Board found that the complainants, a group of three single women, were discriminated against by the respondents because of the respondents’ assumptions about the characteristics of single people of the same sex, residing together as tenants, who did not conform to the nuclear family model; in Gurman v. Greenleaf Meadows Investment Ltd (1982), C.H.R.R. D/808 (Man. Bd. Adj.), a Board found that the respondent had discriminated against the complainants, two sisters and a brother, because they were a group of single adults of mixed sexes; in Wry v. Cavan Realty (C.R.) Inc. (1989), 10 C.H.R.R. D/5951 (B.C.C.H.R.), the British Columbia Human Rights Council found that the complainant (a single man) was discriminated against because the respondent only wished to rent to families and married couples. The Council found that there was discrimination on the basis of sex and marital status.
Booker v. Floriri Village Investments Inc. (1989), 11 C.H.R.R. D/44 (Ont. Bd. Inq.).
Raweater v. MacDonald, (2004), 51 C.H.R.R. D/459, 2005 BCHRT 63.
Falkiner v. Ontario (Ministry of Community and Social Services) (2002), 59 O.R. (3d) 481 (C.A.). This decision under section 15 of the Canadian Charter of Rights and Freedoms struck down the definition of “spouse” under the Family Benefits Act, which presumed a spousal relationship as soon as a man and a woman began living together. The definition meant that many people, particularly women in receipt of social assistance, lost their entitlement. The Court found that the definition discriminated on the basis of marital status, sex, and the receipt of social assistance.
 In a federal case, Schaap v. Canada (Armed Forces) (1988), 12 C.H.R.R. D/451 (F.C.A.), the Court of Appeal held that the Canadian Human Rights Tribunal erred in law when it found that the protections against discrimination on the grounds of marital status do not protect persons in common-law relationships.
Matyson v. Provost (1987), 9 C.H.R.R. D/4623 (Sask. Bd. Inq.).
 Canada Mortgage and Housing Corporation, 2001 Census Housing Series. Research Highlight Socio-Economic Series 4-002 (Ottawa: 2004). In Canada, a household is considered to be in core need if: they are paying 30 percent or more of their before tax income on mortgage payments, taxes, utilities and rent; the dwelling is in need of major repairs; or, parents and children, or children of different genders over the age of five have to share a bedroom.
Report of the Mayor’s Homelessness Action Task Force, supra note 19.
 Carter & Polevychok, supra note 126 at 15.
 Canada Mortgage and Housing Corporation, Housing Canada’s Children (2000).
 S. Chau at al., One in Five ... Housing as a Factor in the Admission of Children to Care (Toronto: Centre for Urban and Community Studies, November 2001).
Women and Housing in Canada: Barriers to Equality, supra note 34.
Report of the Mayor’s Homelessness Action Task Force, supra note 19.
 Please see N. Zukewich, “Unpaid Informal Caregiving” (Autumn 2003) 70 Canadian Social Trends 14, online: <http://dsp-psd.pwgsc.gc.ca/Collection-R/Statcan/11-008-XIE/0020311-008-X...>.
 P. Khosla, If Low Income Women of Colour Counted in Toronto (Toronto: Community Social Planning Council of Toronto, 2003) at 23 and following, online: <http://www.socialplanningtoronto.org/Research%20&%20Policy%20Updates/Low....
Fakhoury v. Las Brisas Ltd. (1987), 8 C.H.R.R. D/4028 (Ont. Bd. of Inq.). This case is also important for its express consideration of public policy debates and international human rights documents, such as the Universal Declaration of Rights.
 For example, in Thurston v. Lu (1993), 23 C.H.R.R. D/253 (Ont. Bd. Inq.), a Tribunal held that denying a woman the right to apply for the apartment and rejecting her outright because she had a child resulted in prima facie discrimination. In Cunanan v. Boolean Developments Ltd. (2003), 47 C.H.R.R. D/236, 2003 HRTO 17, a Tribunal found a breach of the Code where the landlord refused to rent to a complainant because her family, which included three teenage children, was not the “ideal” size according to “Canadian” standards and was not suitable. In Peterson v. Anderson (1991), 15 C.H.R.R. D/1 (Ont. Bd. Inq.), a Tribunal held that the eviction of a pregnant tenant was discrimination on the ground of family status, as well as sex. The tribunal found evidence of stereotypes and disapproval of single parenthood and unmarried conjugal relationships, even though there was no general restriction on children in the building.
Fakhoury v. Las Brisas Ltd., supra note 157. In this case, there was a policy whereby a four-person family, composed of one parent and three children, were required to rent at least a 3-bedroom unit. The tribunal held that there was no reasonable justification for this unequal treatment.
Booker v. Floriri Village Investments Inc., supra note 143.
Ward v. Godina (1994), CHRR Doc. 94-130 (Ont. Bd. Inq.).
Desroches v. Québec (Comm. des droits de la personne) (1997), 30 C.H.R.R. D/345 (C.A. Qué.).
Cunanan v. Boolean Developments Limited, supra note 158. See also Fakhoury v. Las Brisas Ltd., supra note 157.
Report of the Mayor’s Homelessness Action Task Force, supra note 19 at 91.
 P. Khosla, supra note 156 at 23 and following.
St. Hill v. VRM Investments Ltd. (2004), CHRR Doc. 04-023. 2004 HRTO 1.
 See, for example, Huot v. Chow (1996), CHRR Doc 96-178 (B.C.C.H.R.).
St. Hill v. VRM Investments Ltd, supra note 166 at para. 29.
 The Code does, in some instances, permit the preferential treatment of older persons. For example, section 15 of the Code permits preferential treatment for persons aged 65 and older, and therefore permits housing that is limited to persons over the age of 64; section 14 permits special programs to alleviate hardship and disadvantage, such as specially designed barrier-free housing projects aimed at older persons with disabilities; and, section 18 creates a defence for religious, philanthropic, educational, fraternal or social institutions or organizations that primarily serve the interests of older persons and that provide housing as part of their services. However, there is no defence that permits “adult lifestyle” housing that results in the exclusion of children or persons under a certain age. See Ontario Human Rights Commission, Policy on Discrimination Against Older Persons because of Age (Toronto: Queen’s Printer, 2002), online: <http://www.ohrc.on.ca> [hereinafter the Age Policy].
 S. Page, “Accepting the Gay Person: Rental Accommodation in the Community” (1998) 36(2) Journal of Homosexuality 31.
Ibid. at 37.
 See A. v. Colloredo-Mansfeld (No. 3) (1994), 23 C.H.R.R. D/328 (Ont. Bd. Inq.) and Grace v. Mercedes Homes Inc. (No. 1) (1995), 23 C.H.R.R. D/350 (Ont. Bd. Inq.).
 See, for example, Québec (Comm. des droits de la personne et des droits de la jeunesse) et Dubé c. Martin (1997), 33 C.H.R.R. D/487 (T.D.P.Q.) in which a Quebec Tribunal found that trying to use freedom of religion as justification for a policy of refusing to rent to gays and lesbians was unacceptable. See also Outingdyke v. Irving Apartments Ltd. (2005), CHRR Doc. 05-565, 2005 BCHRT 443.
 Based on the definition of “age” in section 10 of the Code. However, section 4(1) of the Code also guarantees equal treatment in housing to sixteen and seventeen year-olds who have withdrawn from parental control.
 Arzem v. Ontario (Ministry of Community and Social Services (No. 6) (2006), 56 C.H.R.R. D/426, 2006 HRTO 17, in the context of complaints of discrimination in the provision of autism services on the basis of age and disability.
Sinclair v. Morris A. Hunter Investments Ltd. (2001), 41 C.H.R.R. D/98 (Ont. Bd. Inq).
 For a related case, please see Dominion Management v. Vellenosi (1989), 10 C.H.R.R. D/6413 (Ont. Bd. Inq.) in which an Ontario Board of Inquiry found that the complainant, a thirty-seven year old woman, had been discriminated against on the basis of age because the owners preferred to rent to older, wealthy couples. See also Garbett v. Fisher (1996), 25 C.H.R.R. D/379 (Ont. Bd. Inq.).
Bushek v. Registered Owners of Lot SL 1, Plan LMS13, Dist. Lot 384A, New Westminister Land Dist. (1997), CHRR Doc. 97-224 at para. 48 (B.C.C.H.R.). See also Watkins v. Cypihot (2000), CHRR Doc. 00-036, 2000 BCHRT 13, and Cunanan v. Boolean Developments Limited, supra, note 158.
 Engeland, Lewis, Ehrlich & Che, supra note 13 at 50-51.
 See the Commission’s Age Policy for more information on the Commission’s interpretation of the Code as it relates to housing discrimination and older persons, supra note 169.
 See Appendix B, Glossary of Terms, for the full definition of “disability”.
Yale v. Metropoulos (1992), 20 C.H.R.R. D/45 (Ont. Bd. Inq.).
 See Di Marco v. Fabcic (2003), supra note 87.
Julie Ramsey v. S.W.M. Investments (August 22, 1994), No. 642 (Ont. Bd. Inq.) [unreported].
 Ontario Building Code Act, 1992, S.O. 1992, c. 23.
 In March 2002, the Commission provided extensive input to the Ministry of Municipal Affairs and Housing on the barrier-free access requirements of the Building Code. The Commission’s submission outlined ways in which the Building Code can incorporate human rights principles, and emphasized the need to achieve greater harmonization between the two Codes. The Commission’s full submission to the Building Code consultation is available on the Commission Website at www.ohrc.on.ca.
 See, for example, Quesnel v. London Educational Health Centre (1995), 28 C.H.R.R. D/474 (Ont. Bd. Inq.).
Accessibility for Ontarians with Disabilities Act, 2005, S.O. 2005, c. 11.
Aquilina v. Pokoj (1991), 14 C.H.R.R. D/230 (Ont. Bd. Inq.).
Weiher v. Polhill (2003), 47 C.H.R.R. D/104, 2003 HRTO 13.
 See also the discussion of barriers to creating affordable and supportive housing for persons with mental disabilities in the section Access to Affordable Rental Housing.
 Page, supra note 170.
Iness v. Caroline Co-operative Homes Inc., supra note 42.
Ibid. at para. 43.
Falkiner v. Ontario (Ministry of Community and Social Services), supra note 145.
 Willis v. David Anthony Philips Properties (1987), 8 C.H.R.R. D/3847 (Ont. Bd. Inq.).
 Kostanowicz v. Zarubin (1994), 28 C.H.R.R. D/55 (Ont. Bd.Inq.).
Québec (Comm. des droits de la personne) c. Whittom (1993), 20 C.H.R.R. D/349 (Trib.Qué.), upheld on appeal, Whittom c. Québec (Comm. des droits de la personne) (1997), 29 C.H.R.R. D/1 (C.A. Qué.).
Québec (Comm. Des droits de la personne) v. Gauthier (1993), 19 C.H.R.R. D/312 (T.D.P.Q. ) [English Summary].
Québec (Comm. des droits de la personne) c. Coutu (No 2) (1995), 26 C.H.R.R. D/31 (Trib.Qué.).
Garbett v. Fisher, supra note 177.
 See Larson v. Graham (1999), 35 C.H.R.R. D/382 (B.C.H.R.T.).
 Information taken from <http://www.toronto.ca/socialservices/Policy/Basic.htm> (date accessed: January 9, 2007).
 The Golden Report on Homelessness recommended that “the shelter component of social assistance, which now disadvantages Toronto, should be adjusted to reflect local market condition.” See Report of the Mayor’s Homelessness Action Task Force, supra note 19 at vii.
 Information taken from Engeland, Lewis, Ehrlich & Che, supra note 13 at 45.
 Toronto Community and Neighbourhood Services, Social Assistance and Social Inclusion: Findings from Toronto Social Services’ 2003 Survey of Single Parents on Ontario Works (June 2004), online: <http://www.toronto.ca/socialservices/pdf/singleparentsurvey.pdf>.
 Ministry of Community and Social Services, Ontario Works: Quarterly Statistical Report, (December 2006), online: <http://www.mcss.gov.on.ca/NR/rdonlyres/F5EF844D-DE16-4AD5-A226-F109866B9....
 Social assistance rates were raised by 3% for both OW and ODSP recipients in early 2005 and by 2% in 2006. The maximum shelter allowance under Ontario Works ranges from $342 per month for a single person, to $708 per month for a family of six or more. A lone parent of two children would receive a shelter allowance of $583 per month, plus a basic needs allowance of $602 per month (depending on the ages of the children), for a maximum total monthly income of $1185 per month; submission of the Ministry of Community and Social Services to Commissions Family Status Consultation and Income Security Advocacy Centre, Social Assistance Rates Fact Sheet, online: <http://www.incomesecurity.org/documents/2PercentIncreaseDetailedFactshee....
 United Nations Committee on the Elimination of Discrimination Against Women, Concluding Observations of the Committee on the Elimination of Discrimination Against Women: Canada, (20 March 2003, A/58/38(Part I), paras.336-389 at paras. 357-8.