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Guideline on Rental Housing

Introduction to Human Rights

The Newfoundland and Labrador Human Rights Act protects individuals from discrimination or harassment throughout their daily lives, including in employment matters, with services that are offered to the public, and housing rentals. Within the housing setting, landlords and tenants should be aware of which personal characteristics are protected from discrimination under the Act. The prohibited grounds of discrimination are as follows:[1]

 

·         Race

·         Colour

·         Nationality

·         Ethnic Origin

·         Religious Creed

·         Religion

·         Age

·         Disability

·         Disfigurement

·         Sex (including pregnancy)

·         Sexual Orientation

·         Gender Identity

·         Gender Expression

·         Marital Status

·         Family Status

·         Source of Income

·         Political Opinion

 

 

If you have any questions regarding the prohibited grounds of discrimination, please refer to the Human Rights Commission’s FAQ section.

It is important to note that discrimination under this Act does not require an intention to discriminate.[2] A person can be held liable under the Act if their actions, whether intentionally or unintentionally, result in a discriminatory effect.

How does the Human Rights Act apply to landlords and tenants?

When it comes to rental properties, the Act states that no person, or class of persons, shall be discriminated or harassed on the basis of one or more of the prohibited grounds of discrimination. The Act covers any house, apartment or other similar place of residence that is intended or designed to be used as separate accommodation for sleeping and eating.[3]

Thus, a landlord may be held to have infringed on a tenant’s human rights if, on the basis of one or more of the prohibited grounds of discrimination, they do one of the following:

  1. Deny a person occupancy of the unit.[4]
  2. Discriminate by requiring different rental criteria or imposing a condition in a rental agreement that does not apply to other tenants in the building.[5]
  3. Harass a tenant – meaning that the comment(s) or conduct of the landlord is known or ought reasonably to be known to be unwelcome by the tenant.[6]
  4. Publish or display a notice, sign or any other form of advertisement for a rental unit which indicates an intention to discriminate.[7]
  5. Evict or otherwise discriminate against a tenant due to a previous complaint submitted by the tenant under the Human Rights Act.[8]

Exceptions under the Human Rights Act

While the Act does provide the above protections when renting an apartment or unit, there are also reasonable exceptions built into the Act:

  1. If the landlord is renting a bedroom within their own private residence (i.e. the tenant and the landlord share eating and common areas), then the Act does not apply.[9] However, if the tenant is renting a separate unit within the residence (i.e. the tenant has their own eating and living areas), then the Act does apply.
  2. A landlord may deny a person with a disability occupancy of a rental unit, only if the landlord has a good faith qualification or a reasonable justification for creating such a limitation, exclusion, denial, or preference due to the tenant’s disability.[10] Denying a person with a disability occupancy is never an easy decision and should not be made lightly. If you need assistance or further information on ways a landlord can accommodate potential tenants, please feel free to contact us at the Human Rights Commission.
  3. The Act does not apply if the landlord has decided to restrict a building or premise to persons who have reached 55 years of age. However, in order for this exception to apply, every unit within the rental premise must be similarly reserved for people who have reached age 55, or to 2 or more people where at least one has reached the age of 55.[11]

 

Common Examples of Discrimination

Below are some common policies or practices used by landlords that may result in discrimination of one or more of their tenants:

  • “Looking for working people” – Landlords sometimes include in their renal advertisement that they are looking for “working people” or “professionals”. Such a practice could discriminate against potential tenants, such as those who are unable to work due to a disability or those who have reached the age of retirement.
  • Age Restriction – Landlords may attempt to restrict a building or premise as “adult only”. Doing so could discriminate against potential tenants on the basis of family status. Even where all units in a building have been reserved for tenants age 55+, a landlord cannot deny a person who has reached the age of 55 occupancy because they also have a child.
  • “No Smoking” and Medical Marijuana – Landlords sometimes choose to enforce no smoking policies, often citing health concerns as their reasoning. However, people who require medical marijuana may face discrimination as a result of such a policy. A landlord has a duty to explore accommodation requests they receive from their tenants. If the request is reasonable, the landlord should do everything in their power to accommodate the tenant. With that being said, given the unavoidable risks associated with smoking, a landlord may have little or no obligation to accommodate a tenant’s need to smoke when to do so would amount to undue hardship (e.g. the smoking negatively affects the health and safety of other tenants). It should be noted that a landlord may request a letter from a physician confirming the prescription of medical marijuana if there is a “no smoking” policy in place. The landlord does not need to know the underlying condition that requires the prescription, just that the tenant has been prescribed the product. Also, a landlord and tenant may have a discussion surrounding the method of ingestion as part of the accommodation process; a tenant may be able to use a method that has less of an impact on others in the building.
  • Pets and Service Animals – No pet policies are often used by landlords. A rule prohibiting pets may have a discriminatory effect on tenants who require the use of a service animal. Service animals provide assistance to a wide range of people, including those with mobility issues and those who are visually impaired. A landlord should accommodate the needs of such people by allowing the use of a service animal. However, as with any accommodation process in the housing setting, a landlord must weigh the impact that the accommodation would have on other tenants. A landlord may be unable to accommodate the use of a service animal if there other tenants with severe allergies to the animal. It may be appropriate for a landlord to ask the tenant to provide a medical note or evidence of the animal’s training, however it is inappropriate to ask for information about the tenant’s diagnosis. Similarly, it would be inappropriate for the landlord to ask that the animal demonstrate its ability to perform the disability-related tasks.
  • Sex and Gender – In general, a policy of renting to only one sex or gender is discriminatory. While there have been no cases in Newfoundland and Labrador contesting this issue, there may be certain situations where restricting the rental of a unit to one sex or gender may be permitted. If the restriction was based upon the grounds of public decency or there exists a good faith reason for the policy, then an exception may be granted to the landlord. For example, 4 female tenants in a 5-bedroom house may request to the landlord that the 5th bedroom be rented out to another female tenant due to safety concerns.
  • New Canadians and Immigrants – Many new immigrants find it difficult to find rental housing, often citing discrimination as their main barrier. While there may be clear cases of discrimination against immigrants (i.e. denying a potential tenant due to the race, colour of their skin, nationality, etc.), new Canadians may also face more subtle types of discrimination. When vetting new Canadians as potential tenants, landlords should be careful not to deny a person occupancy based simply on a lack of rental history or credit history within Canada. Immigrants may lack such information due to their recent move to Canada. Thus, landlords should examine all information they have available to them when making their assessment.

A Landlord’s Duty to Accommodate

If a landlord is notified or discovers that a policy or practice it has implemented discriminates against one of its tenants, the landlord has a duty to accommodate the tenant. The landlord must take steps to remove any barriers that may exist, unless doing so would cause undue hardship on the landlord. When trying to determine whether such an accommodation would cause undue hardship, the landlord should consider how much it would cost to provide the accommodation, if there is any outside funding available to aid in the accommodation, and any health and safety requirements that may result from the accommodation.

If a tenant is seeking an accommodation, they have a responsibility to participate in finding the most appropriate accommodation, if possible. It is important for a tenant to make their needs clear and to provide any information to the landlord necessary to fulfill the accommodation. Landlord should be careful to only request information necessary to accommodate the tenant; the focus should be on what is needed for the accommodation rather than the underlying cause for the accommodation. As a general rule, landlords should accept a tenant’s request for accommodation in good faith, unless there are legitimate reasons to question such a request.

Example: A tenant informs a landlord that she requires an accommodation under the “no smoking” policy for her use of medical marijuana. It would be appropriate for the landlord to request a letter from the tenant’s physician indicating the prescription for medical marijuana. However, it would be inappropriate to ask about the underlying cause which requires the prescription. The tenant’s diagnosis or the reason for the use of medical marijuana is irrelevant in this consideration.

The process of accommodation can be complicated at times. There may be situations where the conduct or needs of one tenant negatively affects the enjoyment of the living environment of another tenant. In such cases, the landlord must do everything within its power to accommodate the tenant, up to the point of undue hardship. For example, a landlord may be unable to accommodate an individual tenant if the accommodation would be too costly, or if the accommodation causes a health and safety concern for other tenants.

Example: An elderly tenant within a building develops arthritis and informs her landlord that she is having difficulty opening the doors in her apartment due to the door knobs. The landlord replaces the door knobs with door handles to help accommodate the tenant’s disability.

Example: A tenant who rents an apartment on the third-floor of a townhouse downtown was recently involved in an accident resulting in mobility issues. The tenant is no longer able to climb the two flights of stairs to reach his apartment. Unfortunately, the landlord is unable to accommodate the tenant, as it would be too costly and impractical to install an elevator in the townhouse.

Below is an example of an interaction between a landlord and tenant that may occur during the accommodation process:

  • Trudy has been a tenant on the 5th floor of an apartment building for the past 3 years. Larry is both the building manager and her landlord.
  • Trudy is involved in a car accident which left her with significant mobility issues. As a result, Trudy was prescribed a service dog to help her with her everyday tasks. Trudy is nervous how this will impact her living situation, as the apartment building has a “no pet” policy.
  • Trudy calls Larry to inform him about her car accident and mentions that she will need an accommodation with the “no pets” policy for her service dog.
  • NOTE: It is the tenant’s responsibility to raise the need for an accommodation. With that being said, if a landlord learns that a tenant has disability-related needs, the landlord should inquire whether or not the tenant requires any accommodation.
  • Larry asks Trudy to provide him with a doctor’s note outlining the extent of her injuries and the types of accommodation needed within the housing setting.
  • NOTE: A landlord should not question the validity of a request for accommodation, unless there exists a legitimate reason to do so. Furthermore, a landlord should not inquire into why there is a need for the accommodation (i.e. the landlord should not ask for details about how or why the car accident occurred). However, a landlord may request medical information to determine what type of accommodation is required under the circumstances.
  • Trudy provides Larry with a doctor’s note which outlined the need for a service animal to be present with her 24 hours a day, 7 days a week.
  • Trudy and Larry meet to discuss potential options for accommodation, specifically addressing Trudy’s needs. Larry understands the need for a service animal, but is also concerned that the animal’s presence may have a negative impact on other health due to allergies or other respiratory illnesses.
  • After some time, the two agree on a plan for accommodation. Trudy and her service dog will move to a first floor apartment that has direct outside access. This way, Trudy will be able to come and go from her apartment without having to take her service animal though the apartment building itself. This helps limit potential negative side effects the service animal may have on other tenants, while still accommodating the needs of Trudy.
  • Larry and Trudy agree to review the accommodation plan periodically to ensure that Trudy’s needs are being adequately accommodated.

For further information on the duty to accommodate and undue hardship, please refer to the Human Rights Commission’s FAQ section.

Tips for Landlords

Landlords should review the Human Rights Act and the Residential Tenancies Act to ensure they are aware of their responsibilities and duties listed under each. Below are some tips or advice that landlords may find useful to prevent a human rights complaint:

  • Be proactive – Landlords should be proactive when it comes to preventing discrimination. Landlords should conduct reviews of their rental policies, implement anti-harassment and anti-discrimination policies, and train all employees (landlords, building managers, rental agencies, etc.) in the area of human rights.
  • Focus on inclusive design – The Supreme Court of Canada has made it clear that society must be designed to include all people. Facilities, policies, and systems should be designed in a way that does not create physical, attitudinal, or systematic barriers for people based on one or more of the prohibited grounds of discrimination. Landlords should use the principles of universal design when developing new facilities or rental policies, helping make the rental property more accessible to a larger pool of prospective tenants. Furthermore, this type of planning helps decrease the need to remove barriers and provide accommodations at a later date.
  • Document interactions with tenants – Landlords should keep a written record of any conversations that may take place between themselves and their tenants. In the case of a human rights complaint, a written record of events may prove beneficial in determining whether or not there was in fact discrimination.
  • Provide reasoning for your decisions – While there is no legal requirement for landlords to provide reasoning for their decisions to deny occupancy or evict, the landlord may find it beneficial to do so. If a landlord has a legitimate reason to deny a person occupancy or to evict a tenant, stating such reasons may help prevent a future human rights complaint. Otherwise, the person or tenant may assume that they had been discriminated against, contrary to the Act.

Tips for Tenants

It is important for tenants to know their rights, both prior to viewing rental properties and once living in the unit. It recommended to be familiar with both the Human Rights Act and the Residential Tenancies Act, with each providing certain protections to tenants. Since landlords rarely provide reasons for the denial of a rental unit or an eviction, it can sometimes be difficult to prove the decision was based on a prohibited ground of discrimination. Below are some tips that tenants may find useful:

  • Bring someone with you – When viewing rental properties, bring a friend or family member along with you. In the event you feel you have been discriminated against or harassed, your friend or family member may act as a witness.
  • Document interactions with landlord – Keep a written record of any interaction with your landlord, including the date of the event, an account of what was said, and if any witnesses were present at the time. Furthermore, tenants should also keep copies of any written communication.
  • Arrive with a plan – If you know in advance that you may require an accommodation, either for a disability or any other prohibited grounds of discrimination, come prepared with potential options that you would find suitable as an accommodation.
  • Ask for reasons – A tenant may request that the landlord provide an explanation for their decision. While the landlord is under no obligation to provide one, there is no harm in asking.

Rental Applications: What information can a landlord ask of a potential tenant?

When interviewing and selecting prospective tenants, a landlord may ask for income information, credit checks, credit references, rental history or guarantors to help make a decision.[12] However, the landlord cannot use the above information to screen out potential tenants based on one or more of the prohibited grounds of discrimination.

Income information may be collected by landlords, but should only be used to verify that the potential tenant has the ability to pay the rent. A landlord should not judge or discriminate against a potential tenant because they do not approve of the source of their income (e.g. Government Income Support, social assistance, etc.). When assessing whether a potential tenant has the ability to pay the rent, a landlord should not consider whether the tenant’s remaining income can cover their non-housing related expenses. The sole consideration for landlords at this stage is whether or not the potential tenant has enough income to cover their rent.

Rental history may be requested and used by landlords when assessing a potential tenant. However, a landlord should not confuse the lack of a rental history with a negative rental history.[13] There are situations where potential tenants may lack a rental history for reasons related to a prohibited ground of discrimination.

Example: A woman who recently immigrated to the province is searching for an apartment to rent. A landlord asked about her rental history and requested contact information for her past landlords. The woman explained to the landlord that she lived with her parents prior to immigrating and has not previously rented any unit in Canada. The landlord then examined the woman’s income information, performed a credit check, and reviewed her credit references to help him make his assessment.

Credit history may be used by the landlord to help in their assessment of a potential tenant. However, a person may have little or no credit history due to reasons that are connected to prohibited grounds of discrimination. Thus, landlords should not reject a potential tenant solely due to the lack of a credit history.[14] Instead, a landlord should look at the entirety of the available information provided by the potential tenant when making their assessment.

Example: A young mother is looking for an apartment for her and her 6 year old child. A potential landlord requested information from the young mother, including a request to perform a credit check. The young mother explains to the landlord that she has just recently returned to work after caring for her child for the past 6 years and therefore may have little or no credit history to review. The landlord states that he understands her situation and will take into account all of the information (income information, references, etc.) she provided to him when making his assessment.

A landlord may ask for a co-signer or guarantor if a potential tenant has poor references, a bad credit rating, or a history of default. However, a landlord cannot require a tenant to find a co-signer because they can be identified by one of the prohibited grounds for discrimination.

Example: A landlord cannot require a co-signer simply because the potential tenant is a single parent, a recent immigrant to the country, a person with a disability, a person who receives social assistance, is of a different race or sexual orientation, etc.

Living in the Unit: What rules can a landlord impose on their tenants?

Rules and policies implemented by a landlord may be necessary to ensure the comfort and enjoyment of all tenants. However, such rules or polices may unintentionally single out particular people living on the premises, thus resulting in unequal treatment. A tenant has the right to be free from discrimination and harassment throughout their tenancy. Therefore, a landlord has a responsibility to ensure that the policies and practices that they are implementing do not result in the discrimination or harassment of its tenants.

A landlord may set a restriction on the number of occupants per room or bedroom to prevent overcrowding of any given unit. Such a restriction must be made in good faith and must relate to a legitimate health and safety requirement. There are situations where such a policy may result in a tenant being discriminated against, such as families with multiple children and/or large, extended families.

Example: A landlord had an informal policy of renting one-bedroom units to single people or couples, two-bedroom units to a couple with one child, and three-bedroom units to couples with two children. A single mother of three children submitted a rental application for an apartment, but was denied. The policy was found to have a discriminatory effect based on the tenant’s family status. As a result, the landlord was found to have violated the Act.[15]

Another common policy implemented by landlords is a “no pets” policy. While landlords are permitted to include such a rule in a rental agreement, it may also raise potential human rights concerns. Such a policy would have a discriminatory effect on a tenant who requires a service animal due to a disability, such as seeing-eye dog for a blind person. Thus, a landlord may be required to accommodate a tenant with a disability who needs the use of a service animal.[16] With that being said, any landlord must balance the needs of a tenant requesting accommodation with the needs of the other tenants in the building. Please refer to our Guideline Regarding the Use of Service Animals for more information on how to accommodate a tenant’s need for a service animal.

Example: A tenant with a physical disability requires the use of a service dog. Despite a “no pet” policy, the landlord understands the needs for such a service animal and accommodates the tenant by allowing her to live with her service dog. Other tenants complain that the service dog was uncontrollable, with the dog continuously barking and lunging at other tenants. The landlord raised these concerns with the tenant and provided her with ample opportunity to improve the situation. There was no improvement. In the end, the landlord decided to evict the tenant because the dog was large, strong and excitable, which could not be controlled by the tenant. The landlord made clear that the reason for the eviction was because of the service animal’s unruly behavior, not the tenant’s disability.[17]

A landlord may also impose a “no smoking” policy within their building, as smoking has the potential to negatively affect the health of other tenants and may require extensive cleaning after the tenant moves out. However, a landlord should be careful to accommodate the needs of any tenant who may need to smoke, particularly medicinal marijuana, for medical reasons. Any landlord has a duty to explore legitimate accommodation requests from tenants. With that being said, a landlord may have little or no obligation to accommodate the tenants need to smoke if doing so would amount to undue hardship. For example, the accommodation may result in undue hardship due to second hand smoke negatively affecting the health and safety of other tenants.

As mentioned before, every process for accommodation is unique and involves a lot of different factors. What is important is to focus on the individual needs of the person requesting the accommodation, while at the same time ensuring that the needs of the other tenants are being met. A landlord should do everything in their power to accommodate the individual needs of their tenants, unless doing so would result in undue hardship.

What can landlords do to help prevent discrimination and harassment?

There are three main things landlords can do to help prevent discrimination within their rental properties:

  1. Continually review policies and rules that have been put in place,
  2. Implement anti-harassment and anti-discrimination policies, and
  3. Education and training for landlords and employees (building managers, janitors, etc.).

The first thing landlords can do to help prevent discrimination is to perform a review of its current practice and remove barriers that may negatively affect tenants based on the prohibited grounds of discrimination. Landlords should take proactive steps to identify where improvement can be made in their rental policies, resulting in a more inclusive environment.

Landlords should also consider implementing anti-harassment and anti-discrimination policies. These policies should explicitly address the types of discrimination listed under the Act. Not only would such policies indicate to tenants that landlords take the protection of human rights seriously, but would also provide tenants with an avenue to address potential discrimination. Furthermore, a landlord may be able to rely on such policies to help reduce liability in the event of a human rights complaint.

Finally, landlords should introduce education and training to ensure that any landlord, property manager, or other employee has a solid understanding of the requirements under the Act. Education should be an ongoing event, helping to ensure that all employees are aware of any developments within the area of human rights law. It should be noted that education and training works best when paired with proactive human rights focused policies.

Overview of the Complaint Process

If a person feels as though they have been discriminated against or harassed, they have one year after the last incident of discrimination or harassment to file an official complaint.[18]

The first step in the complaint process is to fill out an Application Form. The Application Form is your chance to tell us some general information about your allegations. The information contained in the Application Form will help us determine if there exists some “reasonable grounds” for the complaint. It is very important that you answer all of the questions to the best of your ability. You will be notified if your complaint is accepted.

If the Commission has accepted a complaint, it does not mean that we have determined that any discrimination or harassment took place. It means that the Commission has determined that the complaint falls within its jurisdiction and that the Complainant has supplied enough information for the Commission to believe that there may have been a violation of the Act.

The parties may choose to enter mediation, also known as the Voluntary Resolution Path (VRP). VRP works well because the parties have greater control over the outcome and is faster, easier, and cheaper. VRP is not about arguing who is wrong or right, but instead is an opportunity for the parties to try to work together to come up with a solution to resolve the complaint.

If VRP proves to be unsuccessful, the file will be given to a Human Rights Specialist to investigate the complaint. The Human Rights Specialist will collect all relevant information necessary to determine if there was an infringement of someone’s human rights, as well as give each party ample opportunity to present their case. Once the investigation is complete, the Human Rights Specialist will write up a Report detailing their findings. All parties will have an opportunity to review the Investigation Report and provide any further comments.

The Investigation Report will then be reviewed by the Human Rights Commissions to determine whether or not the evidence supports the allegations raised in the complaint. The Commissioners may dismiss the complaint, they may decide to refer the matter back to mediation, or they may decide that the complaint should be heard before a Board of Inquiry. A Board of Inquiry can make a finding of discrimination and harassment and make certain orders. The Board of Inquiry will also provide a written decision which sets out their reasons for the decision.

Please refer to our website for further information related to the complaint process.

Contact Us

If you have any questions relating to the Human Rights Act and rental housing, please feel free to contact us at the Human Rights Commission:

Tel: 709-729-2709
Toll Free: 1-800-563-5808
Fax: 709-729-0790
humanrights@gov.nl.ca
www.thinkhumanrights.ca

 

[1] Human Rights Act, s.9.
[2] Human Rights Act, s.10.
[3] Human Rights Act, s.2(o).
[4] Human Rights Act, s.12(1)(a).
[5] Human Rights Act, s.12(1)(b).
[6] Human Rights Act, s.13.
[7] Human Rights Act, s.19.
[8] Human Rights Act, s.20.
[9] Human Rights Act, s.11(3)(a).
[10] Human Rights Act, s.12(2).
[11] Human Rights Act, s.12(4).
[12] Human Rights Act, s.12(3).
[13] Kearney v. Bramalea Ltd (No. 2) [(1998), 34 C.H.R.R. D/1], upheld in Ontario (Human Rights Commission) v. Shelter Corp., 2001 CanLII 28414 (ON SCDC).
[14] Ahmed v. 177061 Canada Ltd (Shelter Canadian Properties Ltd.), 2002 CanLII 46504 (ON HRT).
[15] Cunanan v. Boolean Development Ltd, 2003 HRTO 17 (CanLII).
[16] Niagara North Condominium Corp. No. 46 v. Chassie, 1999 CanLII 15035 (ON SC) at para 108-115.
[17] Devine v David Burr Ltd (No 2), 2010 BCHT 37.
[18] Human Rights Act, s.25(2).