A discussion of protected grounds in the area of tenancy
The Alberta Human Rights Act prohibits discrimination in the area of residential and commercial tenancy. Tenants are protected from discrimination based on these grounds:
- place of origin
- religious beliefs
- gender (including pregnancy, sexual harassment, and gender identity)
- physical disability
- mental disability
- marital status
- family status
- source of income
- sexual orientation
Notably, age is not covered under the area of tenancy. You can read more about age as a protected ground.
This section of the website reviews the issues associated with all the grounds that are protected in the area of tenancy, except the ground source of income. Source of income is discussed under What information can landlords require from potential tenants?
A landlord's conduct does not have to be related solely to a protected ground for a court or human rights tribunal to find discrimination. For example, there may be valid reasons, such as rent arrears, to evict a tenant, but the existence of discrimination based on the protected grounds would make it a human rights issue.
Defences: Reasonable and justifiable / Undue hardship
A landlord may argue that discrimination based on any of the protected grounds is reasonable and justifiable under section 11 of the AHR Act. The landlord must be able to show why the discrimination was reasonable and justifiable. They may also argue that an accommodation would cause them undue hardship. For instance, if a tenant needed wheelchair access to an apartment building, the landlord would have to show that they accommodated the tenant's disability to the point of undue hardship. It's important to consider that the undue hardship standard is a very high standard, and as a result, in most situations, landlords will be required to provide some accommodation. You can read more about accommodation and undue hardship below or on the Alberta Human Rights Commission interpretive bulletin on duty to accommodate.
Race / Colour / Ancestry / Place of origin
The AHR Act prohibits discrimination based on race, colour, ancestry and place of origin. It is discriminatory to make negative comments about a person's race. Also, landlords cannot refuse to rent to a person because of their race, colour, ancestry or place of origin. Courts and human rights tribunals have found that other actions, such as keeping a building in substandard condition because it is mostly occupied by a particular race, are also discriminatory.
Landlords may be open to a human rights complaint if they do not take steps to address racist comments made by one tenant to another.
Landlords should not impose rules that discriminate against tenants based on ancestry or place of origin. For instance, one human rights complaint, which cited the area of services rather than tenancy, involved a resident who felt that the smell of curry from the downstairs tenant was affecting their enjoyment of the property. The property management, rather than fixing a faulty venting system in the apartment, blamed the tenant and demanded that she stop cooking curry altogether. The court found that this was discrimination based on ancestry. (Chauhan v. Norkam Seniors Housing Cooperative (2004), 51 C.H.R.R. D/127, British Columbia Human Rights Tribunal)
The HRCM Act prohibits discrimination based on religious beliefs. Syndicat Northcrest v. Amselem (2004), 241 D.L.R. (4th) 1, Supreme Court of Canada discussed whether co-owners of a luxury apartment complex could erect a temporary hut (a succah) on each of their balconies in celebration of the Jewish religious festival of Succot. The by-laws of the property prohibited items such as this on balconies. The Supreme Court of Canada found that the by-law violated the co-owners' freedom of religion, and therefore the co-owners should be allowed to build succahs on their balconies for the nine-day festival.
The AHR Act prohibits discrimination based on gender. The ground of gender encompasses discrimination against a person who is:
- a man
- a woman
- transgendered / transsexual
Sexual harassment is also included under the ground of gender. Examples of discrimination include sexual harassment by a landlord or a potential landlord, and sexual harassment by another tenant with the landlord refusing to attempt to stop the sexual harassment.
Note that sexual orientation is a separate protected ground.
Physical and mental disability
The AHR Act defines disability as follows:
"Mental disability" means any mental disorder, developmental disorder or learning disorder, regardless of the cause or duration of the disorder.
"Physical disability" means any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness and, without limiting the generality of the foregoing, includes epilepsy, paralysis, amputation, lack of physical co-ordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment, and physical reliance on a guide dog, wheelchair or other remedial appliance or device.
Courts and human rights tribunals give these grounds a broad and liberal interpretation to provide the widest possible protection of human rights. Therefore the law will endeavour to cover a wide range of disabilities so that the most number of people will have human rights protection.
Stereotypes contribute to some people incorrectly assuming that people with disabilities cannot:
- live on their own;
- afford their own bills; or
- take care of their own needs.
Many people with physical and mental disabilities enjoy independent lives. Others enjoy varying levels of independence with the help of family, friends and professionals.
Landlords who mistakenly believe one of the above stereotypes may feel concerned about renting to a person who has a disability. It is discriminatory to deny a person a rental accommodation, or impose a rule or condition, because of a mental or physical disability, or a perceived disability.
Courts and human rights tribunals have found discrimination in the application to rent, where a landlord treats a person differently because of a disability or perceived disability. Some examples are:
- A tenant felt like the landlord was standing far away from him so as not to "catch" AIDS. The landlord said he did not want to rent to people who have AIDS. He also called the tenant "unkempt." (McDonald v. Schuster , B.C.H.R.T.D. No. 177, British Columbia Human Rights Tribunal)
- A landlord told a tenant who suffered from depression that she would have to leave the house when other tenants visited. The landlord would not allow the woman's children to visit. He also threatened to disclose her disability to other tenants in the house. (Weiher v. Polhill (2003), 47 C.H.R.R. D/104, Human Rights Tribunal of Ontario)
- A landlord refused to rent an apartment to a potential tenant because he was on disability pension. The landlord assumed the tenant had a disability that would exclude him from helping out with odd chores in exchange for lower rent. (Tanner v. Vlake , B.C.H.R.T.D No. 45, British Columbia Human Rights Tribunal)
At least one case out of Ontario has found that the questions asked on an application to rent could indicate an intention to discriminate. In St. Hill v. VRM Investments Ltd. (2004), H.R.T.O. 1, Human Rights Tribunal of Ontario, the Ontario Human Rights Commission found that asking the age of family members or roommates on an application to rent was an indication that the landlord intended to discriminate based on family status.
Duty to accommodate
Rules and regulations in a tenancy do not always treat all tenants fairly. In the case where a rule discriminates against a tenant who has a disability, the landlord has a duty to accommodate that tenant to the point of undue hardship. This is discussed further in the next section and also in the Commission interpretive bulletin Duty to accommodate.
An example of the duty to accommodate is found in the Alberta case Ganser v. Rosewood Estates Condominium Corp. (2002), 42 C.H.R.R. D/264, Alberta Human Rights Panel, which is discussed below.
Facts: An 87-year-old woman, who suffered from various health issues, moved into a condominium unit and was assigned an indoor parking spot. The woman did not drive, but had many caregivers and family members who did her shopping and taxied her to appointments. After many years, the condominium corporation developed new rules regarding indoor parking spots. The fact that the woman did not drive or own a car resulted in the corporation giving her parking spot to another tenant. The woman made a claim under the area of services that she needed the parking spot to accommodate her disability.
Finding: The Alberta human rights panel* found there was discrimination. The corporation had imposed a rule that had a detrimental effect on a woman with a disability. It found that giving the woman an indoor parking spot would not have caused the corporation undue hardship. The 87-year-old woman was the only person in the condominium that needed this kind of accommodation. While this case was heard under the area of services, it assists landlords and tenants in understanding the principle of accommodating a tenant. As noted above, tenants should make complaints against condominium corporations under both the areas of tenancy and services.
Source of Income
The AHR Act prohibits discrimination based on a person's lawful source of income. It does not stop a landlord from refusing to rent to a person who has an illegal source of income.
Marital status / Family status
The AHR Act prohibits discrimination in tenancy based on marital status and family status. This means that rules that affect families must be reasonable and take into consideration families who have children. Examples of rules that could be discriminatory are:
- A refusal to rent a smaller apartment to a larger family. For instance, if a single parent with three teenagers wanted to rent a three bedroom unit, the landlord must have a good reason, such as an overcrowding by-law, to refuse rental.
- A preference for tenants who are a married couple rather than two single women. This could amount to discrimination based on sexual orientation if the two women are unmarried lesbians, but also if they are heterosexual. For example, if the landlord refuses to add up the household income of both women to calculate their level of income, this could prevent the women from proving they can afford the apartment, while a married couple's income would be calculated together.
Judgments out of British Columbia (Day v. Cruickshank, 1999; Segin v. Chung, 2002), Ontario (St. Hill v. VRM Investments Ltd., 2004; York Condominium Corporation No. 216 v. Dudnik) and Nova Scotia (Leadley v. Oakland, 2004) have found discrimination based on family status when families with children are excluded from an adult-only building.
Landlords who restrict tenancy to adults only may argue that it is reasonable and justifiable under section 11 of the AHR Act. In addition, if the alleged discrimination is based on age and not family status, it is important to remember age is not covered under the tenancy section. For instance, an individual who is denied accommodation because they fail to meet age criteria will not be covered under the tenancy section of the AHR Act because the alleged discrimination is based on age. Whereas, a tenant who is denied accommodation because she has children, will be covered under the tenancy section because the alleged discrimination is based on family status.
A landlord cannot refuse to rent to an individual based on their sexual orientation. Discrimination or harassment because a person is gay, lesbian, bisexual or heterosexual, or perceived as such, is not permitted under the AHR Act.
For more information on sexual orientation as a protected ground, see the Commission information sheet Sexual orientation.
For more information, see these pages:
What information can landlords require from tenants?
Duty to accommodate
*Effective October 1, 2009 human rights panels are called human rights tribunals
Revised: March 10, 2010
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