THUNDER BAY — A property owner in the city of Thunder Bay who rents apartment units can no longer require tenants to be responsible for snow removal after a disabled renter filed a complaint with the Human Rights Tribunal of Ontario for discrimination.
The Human Rights Tribunal released its decision on Nov. 29, ruling in favour of the complainant on the grounds of discrimination contrary to the Human Rights Code.
The complaint was first filed in June 2019 and a merits hearing was held in Thunder Bay in June 2022.
The Tribunal heard that the complainant moved to Thunder Bay in June 2019 and was looking for a one-bedroom apartment. He found a four-unit apartment complex owned by the respondent and made an appointment to see the unit in person.
When reviewing the lease agreement during the meeting, the complainant noticed that it stated tenants were required to remove snow from around the building in the winter.
Having suffered a back injury in 2005, the complainant had limited mobility and limits on heavy lifting or activities such as snow shoveling.
When the complainant advised the respondent that he was not able to shovel snow, he alleged the respondent became aggressive and snatched the lease agreement from him and said he could not rent the apartment.
The complainant asked if it was because he had a disability and he claimed the respondent said it was.
The evidence at the merits hearing provided by the respondent, who was 84 years old at the time, differed from that of the complainant.
According to the respondent, he had been a landlord since 1997 and the lease has always included a provision that tenants be responsible for clearing snow from their parking spots, landing, and walkway to the street.
The respondent said he has never had an issue with any tenants regarding snow removal, which he said he is unable to do because of his age and medical conditions, but he does cut the grass in the summer.
The respondent also denied that the conversation became aggressive in any way and he testified he would have liked to rent the apartment to the complainant and was open to arrangements for the complainant hiring a third party to remove the snow, including a reduction in rent to cover the cost, but that was not discussed.
The Tribunal found the evidence provided by the respondent during the merits hearing to be more credible that the complainant. The complainant admitted his memory of the interaction while viewing the apartment was foggy.
The two issues in the application before the Tribunal included whether or not the respondent discriminated against the complainant in housing on the grounds of disability and if the respondent engaged in constructive discrimination contrary to the Human Rights Code.
The Human Rights Code states every individual has the right to equal treatment with respect to occupancy of accommodation without any kind of discrimination, including disability.
Counsel for the complainant argued he was discriminated against by not being allowed to rent the apartment because of his disability and the snow removal provision in the lease agreement violated the Residential Tenancies Act by serving as a deterrent to people with disabilities from renting the unit.
Because there was not enough evidence to prove that the respondent refused to rent the apartment to the complainant because of his disability, the Tribunal ruled there was no grounds the respondent discriminated against the complainant in housing on the grounds of disability.
However, the Tribunal ruled the snow removal provision in the lease agreement amounted to constructive discrimination because it excludes individuals based on Human Rights Code protected characteristics.
“While it is clear that the snow removal provisions in the Lease are unenforceable and therefore did not create a legal obligation on the (complainant) to assume responsibility for snow removal at the Apartment, the evidence given by (the complainant) at the Merits Hearing was that when he reviewed the Lease, he understood that he would have to be responsible for snow removal if he rented the Apartment,” the Tribunal ruling reads.
“Indeed, the Lease presented to (the complainant) by the respondent states that the tenant would be responsible for snow removal, and it is undisputed that as part of the discussions about renting the Unit, (the respondent) told (the complainant) that as their tenant, he would have to be responsible for snow removal.”
The snow removal requirement created a burden and barrier to individuals living with a disability, the Tribunal ruling went on to say, adding that the “harm experienced by a claimant must be viewed in light of the systemic or historic disadvantage experienced by persons with disabilities.”
The complainant decided not to rent the apartment because of the snow removal requirement, which the Tribunal said: “resulted in the exclusion of (the complainant) from this rental opportunity as it was central to his decision to not apply to rent the Apartment.”
“I am satisfied that the respondent has not provided a bona fide and reasonable justification for the snow removal requirement and has failed to accommodate (the complainant) to the point of undue hardship.”
While the respondent provided evidence that he is unable to perform snow removal because of his age, it was noted by the Tribunal that there is nothing preventing the respondent from hiring a third party to provide these services in order to maintain a safe property.
“(The complainant) testified about the impact of these events upon him. He indicated that he found these events to be devastating and found that it slowed down his motivation and efforts to look for an apartment,” the Tribunal ruling reads.
“He testified that it was difficult to find an apartment in Thunder Bay, Ontario, and that the apartments he saw were not as nice as the one available from the respondent. He also testified that he was not able to rent another apartment until August or September 2019 when he was able to find a one-bedroom apartment which did not have a second bedroom or laundry facilities.”
The Tribunal ordered the respondent to change the lease agreement for all rental properties he owns to remove any reference to tenants being responsible for snow removal on the property.
The order does not apply to changing lease agreements entered into prior to the date of the Tribunal’s decision.
The respondent is also required to pay the complainant $1,500 in compensation for injury to dignity, feelings, and self-respect within 30 days of the ruling.
