Protection of gender identity in rental housing is primarily found in the Ontario Human Rights Code (“Code”), where it is expressly listed as a prohibited ground of discrimination in accommodation. The Code in this context is also a corollary to the Residential Tenancies Act (“Act”), which provides general rights and protections to tenants but does not discuss gender identity or broader matters of discrimination. However, the two are treated as complementary where they intersect and can be read together even though each has its own process for any case of discrimination.
A) Legal Rights Under the Ontario Human Rights Code
As a person in Ontario, everyone in terms of accommodation is entitled to equal treatment and to be free from discrimination based on sex, sexual orientation, gender identity, or gender expression, among other grounds. That includes freedom from harassment by the landlord or an agent of theirs, or another tenant of the building, based on sex, sexual orientation, gender identity, or gender expression. There can also be no discrimination based on someone’s association with a person identified by those prohibited grounds of discrimination. For example, someone cannot be discriminated against simply because their transgender partner moves in with them.
The two exceptions to these rights to be free from discrimination is either when the entire residential accommodation is restricted to persons of the same gender and the prospective tenant is of the opposite gender, or when the tenant is required to share either a kitchen or washroom with the owner or the owner’s family.
Sources: Human Rights Code, RSO 1990, c H.19, s 2(1); McMahon v. Wilkinson, 2015 HRTO 1019.
B) Defining Discrimination and Harassment
Discrimination has been defined by the Ontario Human Rights Commission as “negative treatment or impact” based on gender identity, regardless of intention. In these cases the courts have further explained, and the Human Rights Tribunal of Ontario has accepted, that discrimination involves a “distinction based on a prohibited ground that creates a disadvantage (in the sense of withholding a benefit available to others or imposing a burden not imposed on others)”. An example of this is when a landlord is prepared to rent out a unit to a couple until he discovers that one of the partners is transgender, after which he refuses to rent out the intended unit. Discrimination also does not have to be direct, in the sense that the publicly displayed intention (or indication of intention) to discriminate would be discrimination under the Code. For example, a sign posted outside the rental unit proclaiming “No Transgender Tenants” or something to that effect would be discrimination.
Another form of discrimination is harassment, defined as a “course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome”. Indeed, a single comment can amount to harassment or discrimination based on such factors as its “egregiousness or virulence”. This description covers a fairly broad range of activities, such as comments by the landlord indicating that other tenants would be discomforted by the applicant’s relationship with a transgender person. The key factor then is whether the applicant was negatively affected, not whether there was malignant intention by the landlord or other tenants. For more information on filing a human rights complaint, please see the Human Rights section.
Sources: Ontario Human Rights Commission, Policy on preventing discrimination because of gender identity and gender expression (Toronto: OHRC, 2014) at 3; Ontario (Disability Support Program) v. Tranchemontagne, 2010 ONCA 593 at para 90, 102 OR (3d) 97; McMahon v. Wilkinson, 2015 HRTO 1019; Ontario Human Rights Code; Gubrenko v. T.O.J. Empire Auto, 2014 HRTO 1232.
C) Legal Rights Under the Residential Tenancies Act
Every tenant in Ontario, that is to say someone who pays rent for the legal right to occupy a residential unit, is entitled to protection from such acts as unlawful rent increases, unlawful evictions, and other unjustified conduct by their landlord. For example, the termination of tenancy is limited to specific causes such as failure to pay rent, while rent increases are limited to the annual percentage change in the Consumer Price Index for Ontario.
In terms of protecting gender identity, a landlord must follow the Code. Furthermore, the Ontario Human Rights Code prevails over the Act and thus the Act’s provisions are governed according to the Code’s anti-discrimination standards. A transgender tenant, or a tenant associated with a transgender person, is therefore protected by the rights enshrined in both pieces of law with no conflict between them, and is entitled to the measures provided for in either.
D) Remedies Under the Ontario Human Rights Code and Residential Tenancies Act
The remedies available under the Code and Act overlap to a certain degree. Under the Act, the Landlord and Tenant Board (“Board”) has several options ranging from ordering the landlord to cease a prohibited activity, to termination of tenancy, to any other order it considers “appropriate”. Under the Code, the Human Rights Tribunal of Ontario (“Tribunal”) may make an order for the infringing party to pay monetary compensation to the infringed party, to make non-monetary restitution, or to do some other remedial act including some future courses of conduct. Both the Board and Tribunal thus have relatively broad discretion, although it should be noted that monetary compensation awarded by the Tribunal for injured dignity is relatively limited.
E) Jurisdiction of the Ontario Human Rights Code and Residential Tenancies Act
In terms of how and when they apply, the Code and Act are divided by jurisdiction. If, for example, an applicant alleges that the landlord refused them a rental unit based on their gender identity, the Tribunal would have proper jurisdiction. In such a scenario, the Board would only have jurisdiction if the applicant had also paid a rent deposit and was being refused possession or return of their deposit. However, if the applicant was a bona fide tenant and the landlord is allegedly responsible for harassment or unlawful eviction, then the issue of Code-related discrimination can be raised in favour of relief under the Act.
Sources: Ontario, Landlord and Tenant Board, “Guideline 17: Human Rights” (Toronto: LTB, 2009).
F) Exercising Your Rights
Once it is believed that discrimination occurred, an application for remedy under the Code must be made within one year of the (latest) incident. Under extraordinary circumstances, the limitation period may be waived, where the Tribunal is satisfied that the lateness was made in good faith and would not substantially prejudice anyone. As further protection, the Code also expressly protects everyone’s right to exercise their rights under it without reprisal. However, the applicant is ultimately responsible for proving that they experienced discrimination on a balance of probabilities, which is to say more likely than not. Under the Act on the other hand, an application to determine whether the landlord violated tenancy rights, and what would be the proper remedy, must be made strictly within one year after the incident.