Human Rights in Residential Tenancies and the RTDRS

This blog post clarifies the current law in terms of the human rights of residential tenants in Alberta, identifies concerns about a lack of effective protection of tenants’ human rights at the Residential Tenancy Dispute Resolution Service, and suggests that lawyers and advocates working in this area should ask questions to determine if discrimination is occurring and, if so, make their clients aware of their rights and how they can protect them.

          I.   The Current Law

The Alberta Human Rights Act, RSA 2000 c A-25.5, protects residential tenants against discrimination as follows:

Discrimination re tenancy

s 5     No person shall

(a)     deny to any person or class of persons the right to occupy as a tenant any commercial unit or self-contained dwelling unit that is advertised or otherwise in any way represented as being available for occupancy by a tenant, or

(b)     discriminate against any person or class of persons with respect to any term or condition of the tenancy of any commercial unit or self-contained dwelling unit, because of the race, religious beliefs, colour, gender, physical disability, mental disability, ancestry, place of origin, marital status, source of income, family status or sexual orientation of that person or class of persons or of any other person or class of persons.

Although I haven’t conducted any polls, I believe most people are aware that human rights legislation proscribes landlords from discriminating against tenants, or prospective tenants, on the basis of an enumerated ground—for example, by refusing to rent to a person from a particular country of origin.

The law, though, requires more from landlords than a simple abstention from direct discrimination. The law prohibits discrimination in all its forms, which is a broad prohibition indeed. As the lawyers among us will recall, our Supreme Court has defined discrimination as “a distinction, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations, or disadvantages on such individual or group not imposed upon others, or which withholds or limits access to opportunities, benefits, and advantages available to other members of society” (Andrews v Law Society of BC, [1989] 1 SCR 143, 1989 CarswellBC 16 at para 19). This broad prohibition on discrimination is strengthened by the fact that human rights legislation is paramount to all other provincial legislation including the Residential Tenancies Act, SA 2004, c R-17.1 (Alberta Human Rights Act, supra, s 1).

Human rights legislation requires landlords to take positive steps to ensure that their rules, standards, policies or the physical environment of their rental units do not impose a disadvantage on an enumerated individual or group not imposed on others. In terms of tenants with (physical or mental) disabilities, the case law speaks to a landlord’s obligation to accommodate disability right up to (but not including) the point of undue hardship. The jurisprudence establishing the duty to accommodate was initially developed in employment law cases, but was adopted for tenancy cases in Alberta in Miller v 209205 Alberta Ltd, 2001 AHRC 8 at 22 [“Miller”], aff’d at 2002 ABQB 681.

As the Panel explained in Miller, “[t]he nature and extent of a landlord’s duty to accommodate a tenant is a legal question that has not yet been squarely addressed by our courts . . . In the absence of such decisions the judge uses established principles in employment discrimination law and derives appropriately analogous principles for the realm of landlord/tenant disputes” (at 22). Regarding the process that accommodation should take, the Panel concludes that there are three principles to be followed: “first, the party which discriminates must take the first step towards accommodation; second, the offer of accommodation must be ‘reasonable’, that is it must accommodate up to the point of undue hardship; and, third, if this duty is so fulfilled the party suffering discrimination must similarly demonstrate a willingness to accommodate” (at 22-23).

In practical terms, the requirement to accommodate has meant that Canadian landlords have been required to do the following:

• assign a parking spot for a blind tenant’s caregivers (Ganser v Rosewood Estates Condominium Corporation, 2002 AHRC 2 (CanLII));
• allow concessions in relation to pets (both the number of and the rules regarding; see, for example, Miller, ibid, and Lakeshore Gardens Co-operative Homes Inc v Bhikram, 2006 CarswellOnt 3230 (WL Can)(Sup Ct J));
• contact a tenant’s family members when a tenant exhibits behaviour which is disturbing to other tenants (Walmer Developments v Wolch, 67 OR (3d) 246, 230 DLR (4^th) 372 (Sup Ct J) and Girard v Soluri, 2006 CarswellOnt 2145 (WL Can)(Ont Rental Housing Trib));
• and even investigate the cost of soundproofing a unit for a tenant with a disability that causes him to yell loudly at all hours of the day and night (Girard v Soluri, ibid, at 7-9).

Here at the Edmonton Community Legal Centre, we have seen quite a number of tenant clients who exhibit hoarding behaviour. In an unreported case from our Provincial Court, Judge Skitsko found after hearing expert psychological evidence on the subject that hoarding constitutes a disability requiring accommodation under the Alberta Human Rights Act. Hoarding, of course, affects a tenant’s ability to maintain a home in “a reasonably clean condition” (which is one of the tenant’s covenants under s 21(f) of the Residential Tenancies Act, supra), and most landlords don’t want tenants who are hoarders.

In my opinion, the law prohibits landlords from discriminating against tenants who hoard where the hoarding is a symptom of, or constitutes, a disability—landlords are required to accommodate hoarding tenants. I would suggest that reasonable accommodations include allowing tenants with hoarding disabilities to accumulate more clutter than tenants without such disabilities notwithstanding the terms of any written tenancy agreement, working with hoarding tenants over time to help them ameliorate any legitimate health and safety implications of a large accumulation of property, and providing extra storage space for tenants unable to divest themselves of possessions which continue to pose safety concerns after other efforts at accommodation have failed.

In summary, human rights legislation protects tenants from discrimination by their landlords, on any enumerated ground, to a high standard. In practice, however, the law is not well enforced.

          II.   Practice at the RTDRS

Over the last few years, there has been a sea change in the way the justice system resolves serious disputes between landlords and tenants. Prior to 2006, landlords wishing to evict tenants brought court applications before either Judges of the Provincial Court (on Affidavit evidence with the possibility of calling viva voce evidence), or Masters in Chambers (on Affidavit evidence alone).

This all changed with the introduction of the Residential Tenancy Dispute Resolution Service (“the RTDRS”), an administrative tribunal with the stated purpose of providing “an alternative means of resolving serious disputes outside of court” which “is designed to be faster, more informal and less expensive than the courts” (online: <http://www.servicealberta.ca/rtdrs/index.cfm>, accessed on April 11, 2012). Hearings before the RTDRS rely on both viva voce and documentary evidence (the rules of evidence do not apply), are generally very brief (some contested applications are scheduled for only 15 minutes), and are heard by tenancy dispute officers who have received training in the Residential Tenancies Act but are not necessarily trained as lawyers.

In my experience, applications before the Provincial Court and before Masters in Chambers—which still occasionally happen—are generally fairly well-considered. The Judges and Masters hearing the applications and making the decisions are all trained as lawyers and, of course, as judicial decision makers; they are knowledgeable about the Alberta Human Rights Act and, where applicable, the Canadian Charter of Rights and Freedoms. Tenancy dispute officers at the RTDRS are not all as knowledgeable about human and Charter rights, which explains the section in the enabling regulation requiring tenancy dispute officers to transfer such matters to another forum:

Referral to Court

17(1)     A tenancy dispute officer shall make an order that a matter cannot be heard by the Dispute Resolution Service where the tenancy dispute officer believes

(a)     The matter to be heard involves

(i)     The determination of a question of constitutional law or of human rights . . .

(Residential Tenancy Dispute Resolution Service Regulation, Alta Reg 98/2006)

The problem, of course, is that most tenants facing eviction at the RTDRS attend the hearings without counsel, and are unfortunately unaware of the extent of their rights under the Alberta Human Rights Act. Because tenancy dispute officers are not specialists in interpreting human rights legislation, they seldom raise human rights issues of their own volition and, without anyone present at the majority of hearings to identify and argue relevant human rights issues, most such issues are never considered.

Even when counsel is present to identify and argue relevant human rights issues, it can be difficult to convince tenancy dispute officers to transfer matters to a more appropriate forum because they simply may not understand the strength and breadth of the legislative protection. I represented tenants in a case before the RTDRS in which, despite what I considered obvious human rights and Charter issues and my argument that the matter should be transferred, the tenancy dispute officer held that no such issues existed and so refused to transfer the matter. The case was ultimately the subject of an appeal reported at Beaverbone v Sacco, 2009 ABQB 529, 480 A.R. 198, in which Justice Veit held that “the Tenancy Dispute Officer committed an error of law when he failed to ask the appropriate questions in relation to the potential involvement of human rights legislation and constitutional rights under the Charter. Had he asked the right questions, I have no doubt that he would have come to the correct answer since the evidence on the relevant issues was essentially uncontested” (at 43).

While the appeal was ultimately successful, such appeals require a relatively large investment of resources: a stay application had to be brought (in Masters’ Chambers, on Affidavit evidence); a transcript had to be ordered and paid for (for two half days’ evidence); and written argument was filed. Most low income tenants cannot afford counsel to represent them in the appeal process, and most tenants acting on their own would not be able to successfully navigate the lengthy and complicated appeal process.

          III.   Conclusion

While human rights legislation protecting tenants is strong, it is not well-enforced because most of the participants in the most common forum for resolving landlord/tenant disputes do not have a full understanding of the protections it should afford.

Lawyers or other advocates assisting tenants who are facing RTDRS or court applications brought by a landlord should ask questions to determine whether the landlord is discriminating against the tenant on a prohibited ground. Where potential human rights violations are identified, a tenant should be advised of her right to raise those concerns during RTDRS or court proceedings, and her right to request that the matter be transferred out of the RTDRS for fuller consideration of the issues. If a tenancy dispute officer failed to recognize legitimate human rights concerns and refused to transfer a matter, the tenant would then have a strong ground of appeal.

Additionally, a tenant with a disability which causes or contributes to friction between himself and his landlords should be advised that landlords are required to accommodate disabilities, and should strongly consider, if he has not already done so, making his landlord aware of the nature of his disability and the type of accommodation he requires. Tenants should be prepared to argue that it would be a human rights violation for a landlord to seek (and obtain) an order against a tenant where 1) the landlord alleges a tenant’s failure to abide by one of the tenant’s covenants, 2) that failure is caused by, at least in part, the tenant’s disability, and 3) the landlord has not appropriately accommodated the disability.

Finally, tenants should be advised of their right to make complaints—within one year of an allegedly discriminatory act—to the Alberta Human Rights Commission. While the complaint process is generally long, I understand that the Commission does have the ability to act quickly in urgent cases.

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