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RTA - Sublet and Assignment. Salim v. Singh
In Salim v. Singh (Div Court, 2024) the Divisional Court allowed an RTA s.210 appeal where the LTB "refused to apply the Ontario Human Rights Code, R.S.O. 1990, c. H.19 (“the Code”), to determine whether a landlord’s refusal to rent a townhome to a couple with three children was “arbitrary or unreasonable” under s. 95(5)" [Assignment, Subletting and Unauthorized Occupancy - Refusal or non-response]:[4] Here, I articulate the proper legal test for determining whether the refusal to assign a tenancy is “arbitrary or unreasonable” under s. 95(5) based on alleged family status discrimination under s. 2(1) of the Code. I would remit the matter back to the LTB for a re-hearing with the opinion of this Court: s. 201(4), RTA.
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Did the LTB commit a legal error in its interpretation of s. 95(5) of the RTA?
[30] Part VI of the RTA deals with assignment, whereby a new tenant replaces an existing tenant and takes over their lease. Practically speaking, assignment is one of the ways that an existing tenant can terminate a lease early without having to pay the landlord the rent still owing under the contract.
[31] Section 95(5) of the RTA states that: “A landlord shall not arbitrarily or unreasonably refuse consent to an assignment of a rental unit to a potential assignee under clause 3(b).” The parties agree that s. 95(5) applies on the facts before me because the Tenants asked the Landlord to consent to the assignment of the Rental Unit to the Assignees, and the Landlord refused the Assignees: s.95(3)(b).
[32] The parties all conceded in oral argument that the Code is relevant to a determination of arbitrariness or unreasonableness under s. 95(5) of the RTA: Re TET-36140-13, 2013 CanLII 51235 (ON LTB), at para 5. See also: Re TST-02623, 2009 CanLII 74508 (ON LTB), at para. 20.
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[37] The hearing transcript is opaque but manages to clarify a few issues: see Appendix B. First, it is shows that the Tenants explicitly argued that the Landlord’s refusal was arbitrary or unreasonable under s. 95(5) of the RTA because the Landlord discriminated against the Assignees on the basis of “family status” contrary to s. 2(1) of the Code.
[38] Second, it is clear that the Landlord’s counsel was alive to the Code issue because he addressed it towards the end of his own submissions. The Landlord’s counsel resisted any application of the Code because the Assignees were not themselves before the LTB claiming discrimination. He argued that the Refusal was not arbitrary or unreasonable because the Assignees proposed having “more people than there were bedrooms.”
[39] Third, it is clear that Member DiSalle thought that family size might be relevant to an assessment under s. 95(5), but that he did not know how. He said that the Landlord’s justification for refusing the Assignees was “sketchy” and repeatedly told the parties that he would consult legal counsel before making his order. That all being said, I also find that Member DiSalle ruled at the hearing itself that discrimination was irrelevant to his assessment of reasonableness under s. 95(5). In an exchange with the Landlord’s counsel at the end of the hearing, Member DiSalle was unequivocal, stating, “Well, no, I'm not worried about Human Rights Code 'cause I find that as a big red herring as far as I'm concerned,” and that, “The Human Rights Code has nothing to do with the Landlord Tenant Board.” The Landlord’s counsel agreed with Member DiSalle’s statement, and the Tenants were not given an opportunity to challenge it. This exchange strongly suggests that Member DiSalle had already decided that the Code was irrelevant to his interpretation of s. 95(5) of the RTA well before he consulted legal counsel.
[40] Therefore, while I accept that Member DiSalle may have consulted legal counsel about the circumstances of the case, I have serious doubts as to whether Member DiSalle asked legal counsel about how the Code applied to his interpretation of s. 95(5) of the RTA. This is because the DiSalle Order makes no mention of how the Code factored into his reasonableness analysis whatsoever. Member DiSalle references the Landlord’s “screening process” and occupancy limits without considering whether the screening process or occupancy limits themselves were discriminatory. In her review of the DiSalle Order, Member Wren also did not reference the Code or clarify the LTB’s findings about discrimination at all.
[41] On the record as a whole, the inescapable conclusion is that Member DiSalle refused to apply the Code when making his determination under s. 95(5). This was a serious error of law. In Tranchemontagne v. Ontario (Director, Disability Support Program), 2006 SCC 14, [2006] 1 SCR 513, paras. 33, 40, the Supreme Court of Canada held that Ontario tribunals must have the jurisdiction to interpret and apply the Code because that is the best way to make sure that the most people benefit from human rights coverage:The most important characteristic of the Code for the purposes of this appeal is that it is fundamental, quasi-constitutional law. Accordingly, it is to be interpreted in a liberal and purposive manner, with a view towards broadly protecting the human rights of those to whom it applies. And not only must the content of the Code be understood in the context of its purpose, but like the Canadian Charter of Rights and Freedoms, it must be recognized as being the law of the people. Accordingly, it must not only be given expansive meaning, but also offered accessible application.[citations omitted] [42] The LTB is a busy tribunal that administers justice on the frontlines of Ontario’s affordable housing crisis. It is well-positioned to make sure that equality rights in accommodation are a lived reality for people across Ontario. Within this context, I find it disappointing that the issue of discrimination in housing was not properly identified and addressed by the LTB at both the hearing and review stage.
[43] Having found that the LTB made an error of law by refusing to apply the Code when interpreting s. 95(5), I now turn to articulating the correct legal test, before remitting the matter back to the LTB for a re-hearing.
How does the Code factor into the proper interpretation of s. 95(5) of the RTA?
[44] Section 2(1) states that every person in Ontario has “a right to equal treatment with respect to the occupancy of accommodation, without discrimination based on ... family status.” Section 2(1) applies to all types of occupancy of accommodation, including but not limited to renting, being evicted, building rules and regulations, repairs, harassment, and use of services and facilities.
[45] In Moore v. British Columbia (Education), 2012 SCC 61, [2012] 3 S.C.R. 360 at para. 33, the Supreme Court of Canada articulated the test for discrimination under human rights legislation, stating:As the Tribunal properly recognized, to demonstrate prima facie discrimination, complainants are required to show that they have a characteristic protected from discrimination under the Code; that they experienced an adverse impact with respect to the service; and that the protected characteristic was a factor in the adverse impact. Once a prima facie case has been established, the burden shifts to the respondent to justify the conduct or practice, within the framework of the exemptions available under human rights statutes. If it cannot be justified, discrimination will be found to occur. [46] This approach was recently applied to the Code by the Court of Appeal for Ontario in Ontario (Health) v. Association of Midwives, 2022 ONCA 458, 161 O.R. (3d) 561, at para. 101. It was also applied to the ground of “family status” under s. 5(1) of the Code in Misetich v. Value Village Stores Inc., 2016 HRTO 1229, at paras. 35-48. While there has been some uncertainty in the case law on this point, in my view, Adjudicator Jennifer Scott took the correct approach in applying the Moore test to the ground of family status in Misetich. It is important to apply a uniform test for discrimination to all protected grounds, including family status.
[47] It is obvious that the Tenants in this case would not be able to meet the Moore test because they themselves did not experience discrimination. This would certainly pose an insurmountable obstacle if the Tenants were seeking a remedy under the Code for discrimination. However, I am not troubled by the Tenants’ lack of standing to bring a discrimination claim in the situation before me. Here, the Tenants do not ask for a remedy for discrimination, but rather that I apply the Code when making a finding about reasonableness under s. 95(5) of the RTA. Because the focus is on the landlord’s decision and the tenants’ rights, it does not matter whether or not the potential assignee themselves launched a claim for discrimination. I am supported in this interpretation by the Court in Tranchemontagne, at para. 39, which states that: “allowing many administrative actors to apply human rights legislation fosters a general culture of respect for human rights in the administrative system.” The Code is a relevant factor under s. 95(5) because the provision is clearly designed to deter landlords from arbitrarily or unreasonably refusing potential assignees. If a landlord discriminates against a potential assignee, the refusal is necessarily “arbitrary and unreasonable” under s. 95(5) and entitles the tenant to seek a remedy, whether not the assignee has made a claim for discrimination: Re TET-36140-13, at para. 5; Fu v. Gao, 2022 CanLII 137234 (ON LTB), at paras. 12, 14.
[48] In situations where the LTB is asked to consider discrimination against a potential assignee in its assessment under s. 95(5), the Moore test must be adapted as follows:(1) Has the tenant established that the landlord engaged in prima facie discrimination against the potential assignee?
a. Was the potential assignee a member of a group protected by the Code?
b. Was the potential assignee subjected to adverse impact?
c. Was the Code-protected status a factor in the adverse impact on the potential assignee?
(2) If a prima facie case has been established, can the landlord justify the conduct or practice within the framework of exemptions available under the Code?
a. If the conduct or practice can be justified, is the refusal “arbitrary or unreasonable” on other grounds?
b. If the conduct or practice cannot be justified, is the tenant entitled to a remedy under s. 98(3) of the RTA? [49] I now go on to consider how the adapted Moore test would apply to a claim of “family status” discrimination under s. 2(1) of the Code. Of course, the ultimate finding about whether an individual has been discriminated against is a question of mixed fact and law.
Was the potential assignee an individual protected under the ground of “family status”?
[50] Having articulated the correct test for assessing discrimination in the context of s. 95(5) of the RTA, I now turn to the scope of protection afforded under the ground of “family status” in the context of “occupancy of accommodation”: s. 2(1), Code.
[51] The Code defines “family status” as “the status of being in a parent and child relationship”: s. 10. The ground of “family status” has been found to cover a broad range of parent-child “type” relationships that revolve around caregiving: York Condominium Corp. No. 216 v. Dudnik (No. 2) (1990), 1990 CanLII 12506 (ON HRT), 12 C.H.R.R. D/325 at para. 165 (Ont. Bd. Inq.), aff’d (1991), 1991 CanLII 13171 (ON SCDC), 14 C.H.R.R. D/406 (Ont. Div. Ct.).
[52] The Human Rights Tribunal of Ontario has applied an intersectional approach to “family status” by identifying the compounding stereotypes facing, for example, single, Indigenous mothers: Flamand v. DGN Investments, 2005 HRTO 10, at paras. 138-140. It is important to identify how discrimination on the ground of “family status” in housing may intersect with other grounds enumerated in s. 2(1) such race, ancestry, place of origin, colour ethnic origin, creed, sex, sexual orientation, gender identity, gender expression, age, and disability. This is because family status discrimination will often be based on conscious or unconscious stereotypes and biases based on a person’s committed caregiving role, their family size and makeup, along with their age, marital status, race, ancestry, religion, sexual orientation, gender identity, and so on.
[53] The Preamble to the Code refers to the Universal Declaration of Human Rights, G.A. Res. 217 A (III), U.N. Doc. A/810 (“UDHR”), as the foundation for all human rights protections. Article 16(3) of the UDHR recognizes: “The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.” The family is also recognized and protected in human rights treaties to which Canada is a party. The Preamble to the Convention on the Rights of the Child, 1577 U.N.T.S. 3, Can. T.S. 1992 No. 3, affirms that states parties are: “Convinced that the family, as the fundamental group of society and natural environment for the growth and well-being of all its members and particularly children, should be afforded the necessary protection and assistance so that it can assume its responsibilities within the community.”
[54] Articles 23(1) of the International Covenant on Civil and Political Rights, 999 U.N.T.S. 171, Can T.S. 1976 No. 47, echoes the language in the UDHR, while Article 17 prohibits “arbitrary or unlawful interference” with one’s “family” and “home.” In General Comment No. 19: The Human Rights Committee, which monitors compliance with the ICCPR, noted that the concept of “family” will differ amongst states such that it is not possible to give the concept a “standard definition”: General Comment: The right to social security (Art. 9 of the Covenant), U.N. Doc. E/C.12/GC/19 (February 4, 2008), at para. 2. The question is “whether the group of persons is regarded as a family under the legislation and practice of the State”: para. 2. The Committee highlighted that it is possible that “diverse concepts of family” will exist within a single state, for example, capturing both “nuclear” and “extended” families. Implicit is the idea that family is both a legal and social status, and that the concept of family will necessarily evolve and change over time.
[55] Article 10(1) of the International Covenant on Economic, Social, and Cultural Rights, 1966, 993 U.N.T.S. 3, Can T.S. 1976 No. 46 (“ICESCR”), states that “the widest possible protection and assistance should be accorded to the family…particularly…while it is responsible for the care and education of dependent children.” Notably, Article 11(1) which recognizes the right to adequate housing extends this right not only to the individual but to “himself and his family.” In my view, there is a clear link between protecting families from discrimination in housing, and progressive realization of the right to housing for all members of our community: see National Housing Strategy Act, S.C. 2019, c. 29, s. 313.
[56] The UN Committee on Economic, Social and Cultural Rights (“UN CESCR”), which monitors compliance with the ICESCR, has noted that family forms have changed and will change, for example, expanding to include married and unmarried parents, stepparents, adoptive parents, and foster-parents: UN CESCR’s Concluding Observations at the Fourth Periodic Report of Germany, E/C.12/4/Add.3, 10 August 2000, para. 122. The UN CESCR states that, “One feature which all these long-term relationships have in common is the reliable relationship between children and their parents”: para. 122.
[57] The Ontario Human Rights Commission’s (“OHRC”) policies are authoritative when interpretating the Code: 45.5(2). The OHRC Policy and Guidelines on Discrimination because of Family Status speaks to the extreme diversity of Ontario families (Ontario Human Rights Commission, Policy and Guidelines on Discrimination because of Family Status (March, 2007), p. 8). According to the OHRC, the Code ground of “family status” coupled with the protection against discrimination based on “age” and “marital status,” extends provincial human rights protection to a wide range of family forms including nuclear families, lone-parent families, blended families, adoptive families, and families headed by individuals with different sexual orientations or gender identities. The OHRC also notes that “family status” discrimination is often intersectional and affects women disproportionately because they still provide much of the caregiving in our society (p. 11).
[58] The Court in Tranchemontagne, at para. 33, noted that the Code must be interpreted in a “liberal and purposive manner, with a view towards broadly protecting the human rights of those to whom it applies”. The Court applied similar reasoning in B. v. Ontario (Human Rights Commission), 2002 SCC 66, [2002] 3 S.C.R. 403, at paras. 4, 39 when interpreting the ground of “family status.” Therefore, I agree with the position taken by the OHRC in its Policy that “family status” must be interpreted to include committed caregiving relationships between adult children and their parents, such that an adult child who is providing elder care to a parent is protected against discrimination in housing (p. 10). Just like childcare, adults who provided care to their parents play an important social role in our society, especially as our population ages. A purposive reading of the Code also protects multi-generational families that include children, parents, and grandparents from discrimination in housing. These families are structured to ease the burden of childcare and eldercare responsibilities amongst all members of the unit and fall into the category of a “parent and child” type relationships protected against discrimination under s. 2(1) of the Code.
[59] In short, whether an individual is protected under the ground of “family status” under s. 2(1) of the Code requires an inquiry into the person’s legal and social relationships, bearing in mind that “family status” requires equal treatment for people who are involved in caregiving roles that are characterized by responsibility and commitment.
Was the potential assignee subjected to adverse impact on the basis of “family status”?
[60] The human rights tribunal cases about “family status” discrimination in housing generally revolve around landlords refusing to rent to families with minor children, especially lone parents: Fakhoury v. Las Brisas Ltd., 1987 CanLII 8549 (ON HRT); Cunanan v. Boolean Developments Ltd., 2003 HRTO 17; St. Hill v. VRM Investments Ltd., 2004 HRTO 1; Ceccanese v. Taylor, 2020 HRTO 904.
[61] The Board of Inquiry in Fakhoury discussed the historical underpinnings for adding “family status” to the Code in 1982, noting that the OHRC had recommended its inclusion because of the “increasing problem” or “availability of living accommodation for families, particularly within large urban centres”: paras. 18-21. The Hansard debates from the Ontario Legislature’s 1981 session confirm that the inclusion of family status was meant to put an end to “adult only” buildings and ensure that families with children had equal access to housing: Ontario, Legislative Assembly, Official Report of Debates (Hansard), 32rd Parl., 1st Sess. (December 1, 1981).
[62] In Fakhoury, the Board found that a landlord discriminated against a potential tenant when the landlord refused to rent her a two-bedroom apartment for herself and her three children, even though the landlord admitted that they would have allowed a family of two adults and two children to rent the unit. The Board of Inquiry wrote as follows:That is a distinction the legislation will not countenance. In the eyes of the Ontario Human Rights Code a family of four is a family of four and, subject to a reasonable requirement of parental presence and the tenancy being undertaken by a person with the legal capacity to contract, no further distinction can be made. The Legislature has deemed it appropriate, indeed urgent, to protect families and their children in their access to reasonable living accommodation. The Code does not permit landlords to impose their vision of the "normal" family to deny equal access to accommodation to single parents solely because of their family status. [63] In its Policy and Guidelines on Discrimination because of Family Status, the OHRC noted that “There is a lengthy history of families with children being turned away from housing because of negative perceptions associated with family status” and “that this is a persistent, endemic problem in the rental housing market” (p. 44). The OHRC Policy outlines how the refusal to rent to families with children will generally be considered discriminatory on the basis of “family status” (p. 45).
[64] Referencing Cunanan, the OHRC Policy deals specifically with “occupancy limits” stating that “arbitrary rules regarding occupants per room or per bedroom may have an adverse impact on families with children” (p. 49). The OHRC notes that larger families “may have extreme difficulty locating adequate housing” (p. 15). The OHRC Policy notes that discrimination based on “family status” may be subtle in terms of referring to a “quiet building”, “adult lifestyle”, or units being “geared to young professionals” (p. 45).
Can the landlord justify the conduct or practice?
[65] If prima facie discrimination is established, the burden shifts to the landlord to justify the conduct or practice. Subsection 21(1) of the Code outlines specific exemptions to the guarantee of equality set out in s. 2(1). For example, where the landlord shares a bathroom or kitchen with the assignees (“shared accommodation”), or offers accommodation restricted to persons who are of the same sex (“single sex accommodation”).
[66] A landlord could also argue that its refusal was based on occupancy limits or standards that are reasonable requirements and bona fide in the circumstances: Code, s. 11. The LTB should be careful, however, to consider whether such occupancy limits, standards, or other rules are truly reasonable or whether they reflect stereotypes based on typical, Western, middle-class families. Some families may not be able to afford a single room for each child, while co-sleeping is common and preferred in many cultures. The LTB must carefully consider whether the landlord’s standards and rules result in adverse impact for no justifiable reason. Justifiable reasons will generally relate to health and safety concerns, building code standards, or the like. Occupancy limits and standards should not reinforce existing stereotypes about committed caregivers being undesirable tenants.
What is the proper remedy for discrimination under s. 98(3) of the RTA?
[67] If discrimination is found, the LTB has the discretion to determine the appropriate remedy under s. 98(3). While the remedies must relate to the relationship between the landlord and tenant, the LTB must remain mindful of the primacy of the Code over the RTA, the Code’s quasi-constitutional status, and the importance of protecting families from discrimination in housing. It would seem perverse to allow a landlord to claim a remedy before the RTA after engaging in discrimination, whether or not the person who was discriminated against is before the LTB. There is an important role for the LTB to play in holding landlords who discriminate accountable. This was the takeaway message from the Supreme Court of Canada’s ruling in Tranchemontagne back in 2006.
What is the proper remedy on appeal?
[68] The appeal is allowed, and the matter shall be remitted back to the LTB with the opinion of the Court.
[69] I would also order that the LTB serve a copy of this decision on the Executive Chair of Tribunals Ontario, the Executive Chair of the Human Rights Tribunal of Ontario, and the Chief Commissioner of the Ontario Human Rights Commission. Proof of service shall be filed with the court within 7 days of the release of the decision to the parties.
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