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Administrative - Human Rights. 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].
Here the court confirms that Ontario administrative tribunals have HRC jurisdictions, and usefully sets out the test for establishing 'prima facie discrimination':[2] This was a serious error that requires correction on appeal. The Code is quasi-constitutional legislation that has paramountcy over the RTA: s. 3(4), RTA; s. 47(2), Code; Tranchemontagne v. Ontario (Director, Disability Support Program), 2006 SCC 14, at paras. 33-39. In Tranchemontagne, the Supreme Court of Canada found that Ontario’s tribunals have the jurisdiction to interpret and apply the Code because is it “the law of the people.”
[3] The Preamble to the Code recognizes that it is public policy in Ontario to recognize the dignity and worth of every person and to provide for equality and non-discrimination. The Code gives everyone a right to equal treatment in respect to “occupancy of accommodation,” without discrimination on the basis of seventeen grounds, including age, marital status, and family status. Family status attracts human rights protection because of the family’s unique and imperative role in caregiving.
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[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.
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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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