Frequently asked questions (FAQs)

Undue hardship is not easily defined and is fact-specific. Things that are considered when determining undue hardship are: costs, occupation, size of organization, impact on the organization and employees, health and safety, etc.

Yes, an employer must accommodate employees based on any of the protected grounds under the Act, when an employee advises the employer of the need for accommodation and/or provides the employer with documentation supporting the need for accommodation. The employer’s duty to accommodate is up to the point of undue hardship (see Question 1), and the employee is entitled to timely, reasonable accommodation.

If the accommodation is related to a physical or mental disability, the employer is entitled to know the restrictions, limitations, and prognosis, but not the diagnosis. The accommodation process is a collaborative process.

No. If the employee is on a physician authorized medical leave of absence, whether or not an STD carrier approves the leave with payment is irrelevant to the employer’s duty to accommodate the absence. The standards used by the STD insurer are different than what the medical professional would use and may not accurately reflect the individual’s actual ability to be at work.

No. Employers are under no obligation to create a new position. They do, however, have an obligation to review accommodations options (including bundling tasks), whether an employee can work their regular position with some accommodation, etc.

When an employee requests accommodation and provides medical documentation supporting the request, an employer may request additional medical information if the employer determines that they need additional medical documentation supporting the request for accommodation, such as accommodation needs, prognosis, side effects from medications, etc.

It would be the employer’s responsibility to pay for the medical professional to assess and provide this information.

It depends on the nature of the leave, the reason for your communication, the period of the leave, and whether or not there is medical documentation indicating that such contact would be detrimental to the recovery of the employee.

If there is no medical documentation indicating that such contact would be a problem, then communication should be reasonable and necessary to facilitate the employee’s return to work. Keep in mind that you don’t want to be perceived as badgering the employee back into the workplace.

Contact the Commission. During that contact, you would need to provide specific information as to how you believe you were discriminated against during the application process. This would include information regarding the type of the questions you were asked during the interview or the application form, and their impact on your application.

You would have to establish that you have a protected characteristic under the Act (such as race, colour, physical disability, etc.) and that this characteristic was the basis for the alleged discriminatory actions.

You may want to take notes of what happened, what was asked, who was present during the interview process, and you may want to keep a copy of the application form, etc.

An employer has an obligation to provide a discrimination-free environment and must investigate and remediate the situation.

Co-workers have a duty in the accommodation process to assist an employer in accommodating another employee who requires accommodation. The employer has a duty to re-bundle job tasks to meet the accommodation needs of an employee, which is a direct result of one of the protected grounds under the Act.

Undue hardship may be met if the accommodation would cause a health and safety concern for the other employee, e.g. repetitive strain injuries, etc.

a. What do we do about conflicting accommodations? The employer’s duty to accommodate is to the point of undue hardship. Depending upon the size and the nature of the workplace, and the number of employees needing accommodation, an employer may meet the threshold of undue hardship at some point. Typically, accommodation is on a first-come-first-served basis; however, if longstanding accommodations are required and new employee requests are submitted, an employer may request updated medical information supporting the need for the continuing of the longstanding accommodation as accommodation needs may change over time.

Yes and yes.

The employee has a responsibility to participate and cooperate, and not undermine or frustrate the accommodation process, but the employer has the responsibility to accommodate to the point of undue hardship. Keep in mind that undue hardship might be the employee’s frustration of the accommodation process.

Under some circumstances, yes.

For example: An employee is an Educational Assistant (EA) with five years of full-time experience, but is unable to do the work due to disability. The only position available is a new position as an administrative support person in a different bargaining unit, and seniority and bumping rights come into play. The union wants this new position to be posted, but this is a reasonable accommodation for the employee.

Can the employer do this and what seniority will the employee have in the new position?

a. When it is determined that the employee cannot do the functions as an EA even in a modified form, the employer should look into a new position in the same bargaining unit. If no position exists, the employer would look into other bargaining units for a position. If an employer is able to show that the only way that this person can be accommodated is to put him or her in an unfilled position, then the union has a duty to assist in the accommodation process, which would include putting the person in that position regardless of seniority in the collective agreement.

b. With regard to the person’s seniority, it may be required that the person carries his or her seniority into the new bargaining unit.

c. The duty to accommodate trumps the collective agreement as long as the employer can show that there was no other possible accommodation for the employee. The law requires as little impact on a collective agreement as possible. However, when there is no alternative, the duty to accommodate supersedes the collective agreement.

d. An employer should ensure it has documented all the possible solutions/positions that the employee could do in light of their education, training and physical capabilities, and why these positions were not reasonable for the employee.

It depends. The case law is in flux and depends on a variety of things: whether or not it would cause undue hardship on the employer, the difference in the pay, the collective agreement, etc. Employers should be cautious of reducing an employee’s rate of pay as that employee may file a civil action for constructive dismissal.

It depends on the type of equipment and the level of personalization (for example, personalized hearing aids vs. ergonomic work station, chairs). It also depends on who paid for it and if it can be interchangeable in the workplace.

No. However, the employer still needs to grant the employee the sick leave when provided with a valid medical note, provided the employer would not experience undue hardship by granting the sick leave.

You can’t remove an accommodation from one employee to accommodate another. The employer should consider, among other things, the following:

• Is there any way to accommodate the 11^th employee within their limitations and while respecting limitations of others?
• Could the work be accomplished by a shift of 11 employees and another shift of 9 employees?
• Could you change the shift structure?
• Could you create more shift options (three eight-hour shifts)?

If you could not do any of the above, then accommodation is on a “first come, first served” basis and you may meet the undue hardship threshold.

You may also want to obtain updated documentation supporting the other employees' continued need for accommodation as that may result in confirmation that the employee no longer needs the accommodation.

It is possible that theft is a symptom of a mental disability or physical disability. You would need to meet with the employee to inquire as to the reason for the theft, and if the employee raises a disability, you have the right to obtain medical documentation from a treating professional that supports the employee’s claim that the action (theft) was directly due to the disability. Absent that, you would want to seek legal advice regarding your right to discipline the employee and what this discipline could look like.

Yes, but only in situations where the employer has conflicting medical information (e.g. the employee’s family doctor and a WorkSafeNB doctor have different views on issue) or where an employee’s medical professional refuses to provide the information to facilitate the accommodation.

It would be the employer’s responsibility to pay for the medical professional to assess and provide this information if the employer is seeking clarification or additional information provided by the employee’s physician.

Employers must accommodate pregnant employees up to the point of undue hardship. Before laying off a pregnant employee, the employer would need to consider possible accommodations, including re-bundling duties or other adjustments to the workplace or employee’s position.

If the pregnant employee cannot be accommodated without the employer experiencing undue hardship, then a layoff may be permissible.

It is not your decision. This determination would require a discussion with the employee and/or being provided with medical documentation indicating they are unable to return to work permanently.

Determine whether it is a symptom of a disability by approaching the employee and stating that certain observed behaviors are of concern. Ask the employee if there is anything that the employer should know with regard to this observed behavior.

If the employee admits of consuming alcohol on the job, then the duty to accommodate may be triggered if the employee indicates that it is due to a disability. The duty to accommodate is to the point of undue hardship, and depending upon the nature of the job, an employer may be able to argue that a bona fide occupational qualification (BFOQ) exists. Please note that an employer should seek legal advice with regard to the establishment of a BFOQ.

The employer should seek legal advice regarding the right to discipline the employee and what this discipline could look like.

The employer has the right to seek further medical information/documentation regarding the employee’s claim about needing to smoke medical marijuana on the job. An employer should provide the prescribing physician with a detailed description of the employee’s job so that the treating physician can comment about the possible impairment implications on the employee’s ability to safely complete the employment duties. If an employer is concerned about the impairment implications on the employee’s ability to safely complete the employment duties, the employer may seek legal advice regarding the possible options including a BFOQ defence. It would be treated like any other medication that may have impairment implications.

The employer can meet with the employee stating their observations (e.g. saying “I noticed you have been crying frequently at work”) and asking what the employer can do to assist that employee. If the employee’s condition relates to one or more of the protected grounds (e.g. mental or physical disability), the employer has a duty to accommodate that employee.

Yes, you can speak to them about it; make sure they know the work schedule. Ask if there is a reason for them being late. If the reason for being late is for one (or more) of the protected grounds, then you may request documentation supporting that claim. If this is provided, then the duty to accommodate is triggered.

The transgender employee can use the bathroom of their choice and the employer is not required to provide unisex washrooms as of this date. Surgery is not required to trigger the duty to accommodate.

The employer first must ascertain why they think the employee needs an accommodation (such as performance issues, including not completing work, arriving to work late, excessive absenteeism, etc.). The employer should discuss with the employee their observations regarding performance and inquire of the employee if they need accommodation. If the employee states that they don’t believe they need accommodation, then the employer should document such refusal(s). The employer should also advise the employee that they may be held accountable for these identified performance issues.

However, if the employer suspects that the employee may have a mental disability but is refusing to acknowledge that they have one, the employer should approach the employee on more than one occasion to discuss the employer’s observations regarding performance and the possible impact that they could have on a continuing employment relationship. There may be a duty to accommodate if an employer knows or reasonably ought to have known that an employee requires accommodation. If the employee refuses accommodation(s), then the employer has done their due diligence. A good practice would be for the employer to document all actions taken.

The employer may want to contact the Commission for further information regarding their duty to accommodate in situations like this.

Yes, you have a duty to ensure that all employees are working in a safe and comfortable work environment and to address concerns and/or discipline with the possible offending employee.

It depends on the nature of the rumour(s). Under the Act, an employer has an obligation to provide a discrimination-free workplace. If the rumour(s) touch upon any of the protected grounds, the employer should investigate the rumour(s).

Outside of the obligations under the Act, employers also have a common-law duty to provide a safe and harassment-free workplace. Therefore, the employer may want to determine the impact of the rumour(s) on the workplace and/or individuals before deciding what actions they may or may not take regarding them.

It would be a best practice for an employer to investigate internal complaints. If the allegations include one of the protected grounds, the employer has a duty under the Act to investigate and remediate the situation. It is recommended that all steps taken for this internal investigation be documented.

An employer may want to contact the Commission if the allegations touch on any of the protected grounds.

Typically, an employer is not permitted to ask questions either directly or indirectly about one of the protected grounds. However, if an employer believes and can prove that they need this information due to the nature of the job, the employer may ask these questions. The onus is on the employer to establish that such information was/is required for a BFOQ/BFOR for the fulfillment of the employment’s duties.

Yes. It may be helpful for potential applicants to know the true nature of the job requirements.

No, unless you can establish that the essential nature of the job requires a specific physical capability. The onus is on the employer to establish that such information was/is required (BFOQ/ BFOR) for the fulfillment of the employee’s duties.

No. Pre-employment drug testing is never permitted under the Act. Regarding drug testing during employment, at this time, testing has not been developed to measure current state of intoxication. Therefore, it is not permitted.

a. What about alcohol testing? No, alcohol testing during pre-employment is not permitted. However, during the course of employment, if there is a workplace accident and it is suspected that alcohol was a factor, the employer may require the employee to undergo alcohol testing only if that employee is in a safety-sensitive position.

It depends on the need for accommodation and why the employee may or may not need a separate fridge. If it is determined that the employee is not able to use the same fridge as the other employees, then an employer must investigate whether they are able to provide an individual fridge. It could be a mini fridge for the employee. An employer would have to show that it was unduly hard for them to provide the fridge (cost of the fridge, available space in the workplace, etc.)

The employee also has a responsibility to participate in the accommodation process and has an obligation to accept reasonable accommodation. If it is determined that the employee does not require an individual fridge because of the fridge’s use by other employees, then that employee has an obligation to accept the accommodation being offered.

If the employer does not have the ability to provide separate rooms, then the employer should provide a schedule for the different groups and work with the groups to ensure they have access to the room. An employer may need regulations and have them posted so that they are known to everyone, depending on the situation.

No. However, if you have a physical or mental disability that requires additional time to study or write the exam, your employer may have a duty to accommodate this request for time off. You would need to provide documentation to your employer from a treating medical professional indicating that you have a disability (not the diagnosis) that results in you needing extra time to either prepare for or write the exam/test.

The employer’s duty to accommodate is to the point of undue hardship and you may be entitled to reasonable accommodation, but not necessarily a perfect solution.

The employer should not base their decision to dismiss an employee for absences related to a physical or mental disability, and this includes absences to attend medical appointments. However, there is a duty on the employee to attempt to arrange their medical appointments to have the least impact on the workplace, such as prior to a shift, after a shift or during the beginning or end of a shift depending upon the workplace.

It all depends on whether medical documentation has been provided indicating that the person needs accommodation to take “smoke breaks”. However, an employee is entitled to reasonable accommodation and not the perfect solution. Therefore, the employer may not be required to pay the employee during their “smoke breaks”. The employee has a duty to mitigate the effects of the disability on the workplace, which may include seeking treatment.

It all depends on the reason causing the excessive body odour. To fall under the Commission’s jurisdiction, the reason must be due to one (or more) of the protected grounds.

Typically, the employer should approach the employee who has excessive body odour delicately and advise the employee of the concern and/or impact of the employee’s body odour in the workplace. The employer may want to ask the employee if they have a medical condition that is causing the issue and whether or not the employee is attempting to take steps to address the odour.

The courts have indicated that a BFOQ exists on the basis of sex in relation to providing personal care and that it would be the decision of the person receiving the care. As an employer, you are not able to make this decision on behalf of your client unless the client is incapacitated. When hiring staff to complete the personal care services, you would first have to ascertain from your clients their position with regard to the sex (gender) of the employee who will be providing the personal care services. The employer should document it and from this, an employer would be entitled to make its employment hiring decision.

The employer/service provider must take into consideration, among other things: the interests and needs on each side; if there is a way to accommodate everyone; if there is a situation where one person is just mildly inconvenienced versus another’s dignity suffering; if there is an undue hardship; reasonable accommodations; etc.

This is a case of competing human rights. As an employer, you have a duty to accommodate your employee up to the point of undue hardship. Phobias have been found to constitute a disability under the Act. Further, as a service provider, you have a duty to accommodate your patron so that they can access your services with the assistance of their service animal.

Depending upon the size of your organization, you may easily be able to ensure that these two individuals (employee and patron) do not interact with one another. However, if you have very few employees, you may want to discuss with the employee who has the phobia whether they are comfortable if you disclose this information to the patron, so that you can facilitate accommodation of both individuals. You may want to advise the patron that you intend to provide a barrier-free service to the patron but that you may need advance notice of when the patron intends to use the service in order to accommodate the employee.

Services available to the public can include:

1. Public services, such as provincial/municipal government departments, schools, libraries, city hall, and hospitals etc.
2. Private sector service providers, such as restaurants, shopping malls, universities/colleges, and non-profit organizations.

Conduct may be found to be non-discriminatory if the service provider or housing provider can show that the limitation, specification or preference is based upon a bona fide (“in good faith”) qualification (BFQ).

To be a BFQ, the standard adopted by the organization must pass the “Meiorin Test”. This three-part test requires that the employer, service provider or housing provider establish that the standard:

1. Was adopted for a purpose or goal that is rationally connected to the function being performed;
2. Was adopted in good faith, in the belief that it is necessary for the fulfillment of the purpose or goal; and
3. Is reasonably necessary to accomplish its purpose or goal, in the sense that the employer, service provider or housing provider cannot accommodate persons with the characteristics of the person without incurring undue hardship.

The third part of the test requires that the employer, service provider or housing provider individually assess the needs of the person with a service animal to determine whether it is possible to accommodate the person without incurring undue hardship.

Yes. An individual can request personal care based on their sex. The service provider has a duty to provide reasonable accommodation to the patient or client. The duty to accommodate the client outweighs the rights employees.

No. A service provider could not ask only high school students to remove their back packs, but a service provider could set a general rule applicable to all customers or clients.

No. A service provider could only set a limit on number of clients allowed in a store if it is applied equally to everyone. 

Yes. They still have a duty to accommodate the student up to the point of undue hardship.

The school has a duty to accommodate the student up to the point of undue hardship. Should the accommodation not reduce or eliminate the violent/disruptive behaviour then the school may reach a point of undue hardship.

Yes. A trans person may seek accommodation with respect to a washroom or change facility if they are not comfortable using one of the available men’s or women’s washrooms. Possible accommodations could include providing access to a single-stall washroom that may not normally be available. However, a trans person cannot be required to use a separate washroom or change facility from everyone else if they wish to use the one that corresponds to their gender identity.

See our "Guideline on Gender Identity or Expression”.

Students have an obligation to inform their post-secondary institution of the need for accommodation. As students are entitled to privacy, there is no requirement to disclose the specific disability to the education provider. The provider may require students to provide a letter from a medical professional outlining the student’s functional impairment or capabilities and the type of accommodation required, but it is unnecessary for the letter to include a diagnosis of the disability.

Service providers cannot prohibit breastfeeding or limit someone’s ability to breastfeed.

Service providers should provide changing stations in both male and female washrooms or have reasonable alternative.

Yes, they do, although there could be health and safety exceptions, for example, in the restaurant’s kitchen.

Generally, they cannot refuse entry, but they may argue that it is a preference based on a bona fide requirement or qualification. Issues could arise such as health and safety concerns.

In addition, hotels would have to establish a bona fide qualification to refuse entry.

a. Can they require that the service animal be on a leash?

A service animal must be under the care and control of their handler at all times (e.g. harnessed, leashed or tethered) unless doing so interferes with the work or task that it performs. If a person’s disability prevents maintaining physical control of the animal, the person must still maintain control of the animal through voice, signal, or other means.

A person could conceivably file a complaint based on this situation, but an establishment could argue that it is a preference based on a bona fide qualification.

Generally, no, but it may depend on various factors including liquor licensing and type of establishment.

Generally, no, but they may argue that it is a preference based on a bona fide requirement or qualification. They would have to establish a bona fide qualification for denying access to minors.

No. They could be cats, horses, monkeys, birds, etc. Please refer to the Commission’s “Accommodating People with Service Animals” guideline for additional information.

Possibly. The school can make an argument that the accommodations are reasonable. Students have access to reasonable and not perfect accommodation.

Generally, no, but it may depend on various factors including liquor licensing and type of event.

Generally, no, but this is subject to the age of majority exception under Section 6.3 of the New Brunswick Human Rights Act, or if there is a bona fide requirement or qualification.

It is also possible if it is a required or authorized by an Act of the Legislature or if the Commission, pursuant to section 14 of the Act, has determined it is a special program or has approved a special program.

Under the Act, level of income is not specifically a ground that is covered. The ground of social condition only covers the source of income, occupation, or level of education. However, the grounds of marital status and family status are protected, and such a program could have an adverse affect on these individuals based on their level of income.

Prior to May 5, 2017, there was no age exemption for age discrimination in services. However, on May 5, 2017, the Act was amended to include a BFQ for age discrimination with respect to services. Consequently, an insurance provider can raise the age exemption for excluding certain individuals based on their age or pre-existing condition(s).

Both the service provider and the landlord. The obligations are to the point of undue hardship. The service provider should consider the location of its business to ensure it is accessible to the clients. The landlord should consider making those changes that are necessary and possible to the building to make it accessible.  

Your obligations are to the point of undue hardship. You may experience difficulty modifying the building to make it accessible due to your obligations with regard to contracts, covenants, or bylaws, etc.  However, the Act supersedes other obligations and New Brunswick legislation. Therefore, your obligations under the Act must be met.

No, they are women.

Yes, if the behaviour is discriminatory based on one of the protected grounds, intent does not matter. The law looks at the effect of discrimination, not its intent.

It will depend on the service provider and/or the service being provided. A service provider must never deny a service based on ancestry or national origin unless they can establish a BFQ or a special program.

Example A: A food bank is unable to deny service to a First Nation person by maintaining that their band is providing that service unless the food bank only serves a specific disadvantaged group and they can establish that the service is a special program.

Example B: A food bank that provides services to everyone must not refuse service based on ancestry or national origin.

You have a duty to accommodate the employee as well as the customer. You can request medical documentation from the employee regarding their disability and work with the employee to see what accommodation is required. You many need to work out a schedule with the employee and the customer where they are not in the facility at the same time.

It is encouraged, but it may not be a requirement unless an employee or customer requires it. If an employee or customer requires it, then you would have a duty to accommodate.

For example, a car rental company should provide a scent free car when requested, up to the point of undue hardship.

Not necessarily. Depending upon the institution (pre-school, school, postsecondary, etc.), you may have a duty to inquire if they require accommodation.

In a postsecondary institution, the student has an obligation to advise the institution that they are encountering difficulty based on a disability or require accommodation. If a disability is causing the struggle, accommodation may be required.

Discrimination in housing includes disadvantage or differential treatment of individuals protected under the Act in the renting, sale or purchase of property; evicting them from a house or property because they identify with a protected ground like race, national origin, family status, age, social condition, gender identity or expression, etc.; and harassing or otherwise disadvantaging them in the enjoyment of property, because they belong to a group protected by the New Brunswick Human Rights Act.

Owners and sellers of property are also prohibited from including terms or conditions in a lease or sale agreement that restrict or inconvenience persons in the use or enjoyment of property based on or due to a protected ground under the Act. Terms or conditions of tenancy include, among other factors, rental rates, building maintenance, harassment or demeaning conduct, and access to facilities in housing units.

No, a landlord cannot charge higher rent from a tenant because they have a disability, or because they have a protected characteristic related to one of the 16 prohibited grounds of discrimination under the Act.

No, unless there is a real and documented safety issue. Family status and age are  protected grounds/characteristics under the Act, and a landlord cannot restrict a tenant’s access to facilities that are normally available to other tenants (laundry, parking, recreation, etc.) based on their family status, or any of the 16 prohibited grounds under the Act. However, they may have an age limit for safety reasons for children to be unattended in laundry rooms, pools, exercise rooms, etc.

A landlord cannot treat individuals differentially, including in terms of maintenance, due to a prohibited ground. Landlords are obligated to provide necessary repairs and maintenance to rental units and buildings irrespective of a tenant’s personal characteristics.

If tenants are denied repairs or maintenance to their units, buildings, or facilities or if these repairs are provided unequally compared to other tenants due to one of the prohibited grounds under the Act, landlords may be liable for prima facie discriminatory treatment.

It depends on the reasoning for the “adults only” classification. Displaying or publishing ads or signs on their property or in the media, including social media, that are potentially discriminatory to an individual or group based on one of the 16 protected characteristics/prohibited grounds under the Act could be a violation of the Act unless the landlord can establish a bona fide requirement for the age restriction for its tenants.

For example, a housing owner who advertises a preference for tenants without children could be found to have violated the Act, because the advertisement would infringe the rights of parents with children under the ground of family status. Such ads could also be considered discriminatory based on age, as they have the effect of excluding youth and children. However, if this landlord is able to establish a bona fide requirement (as determined by the Commission) that all tenants must be of a certain age, for example all over the age of 60, then the advertisement may not be considered a violation of the Act.

It depends. A landlord cannot refuse to rent to someone with a service animal just because they have a service animal, as reliance on a service animal for a mental or physical disability is protected in the Act. Under human rights law, service animals are not the same as pets, and rules related to pets in rental units cannot generally be applied to service animals. Please consult the Commission’s Accommodating people with service animals guideline or its plain language version. However, if the landlord is unable to accommodate the service animal due to undue hardship and/or if the tenant does not maintain control of the service animal and/or the service animal causes damage to the rental property, the landlord’s duty to accommodate may be impacted.

No, landlords cannot apply a “pet fee” for service animals or emotional support animals, as these animals are not classified as “pets” under human rights law. Service animals and/or emotional support animals provide support to people with physical or mental disability, which is protected by the Act. However, a tenant is responsible for the costs associated with any damage or mess caused by their service animal to the landlord’s property.

Please consult the Commission’s Accommodating people with service animals guideline or its plain language version for more information.

It depends. A landlord cannot deny rental units based on a source of income (for example, social assistance). Individuals on social assistance may be protected under the ground of social condition in the Act, which prohibits discrimination based on a person’s source of income, level of education or occupation.

However, landlords may use other reasonable criteria to review applications of potential tenants, like rental history or credit scores, or requiring guarantors or co-signers for a lease. If one’s rental history or credit score is poor,  then a landlord could deny to rent to the applicant, regardless of their source of income, including social assistance.

Under human rights law, individuals are entitled to reasonable accommodations rather than perfect ones. This means that you must accept an accommodation that reasonably meets your needs, even if it is not your preferred option.

If a landlord cancels or makes excuses to delay a rental unit viewing after learning of an applicant’s protected characteristic (like gender identity or expression; sexual orientation, race, national origin, or any other grounds protected by the Act), this behaviour could potentially be considered discriminatory under the Act.

If you believe you experienced discrimination in housing due to a protected ground, you can file a complaint with the Commission. Please consult the Commission’s “Filing a Complaint” page to learn more about the complaint process.

Invasive questions about the nature of a tenant’s relationships, or who they associate with, or their gender identity or expression, sexual orientation, or other personal characteristics protected under the Act, may be indicative of potential discriminatory conduct. Such inquiries may violate the privacy and dignity of persons and could be used as evidence of discrimination if the matter becomes the subject of a human rights complaint.

Questions in rental application forms related to a ground of discrimination recognized in the Act (race, age, marital status, or sexual orientation, for example) could be prima facie discriminatory under the Act, if they are used to exclude protected persons from availing rental opportunities equally with others. A landlord would need to provide an explanation as to why an applicant’s race was relevant to the application for tenancy.

To justify denying an accommodation request, you must reach the point of undue hardship. Examples of undue hardship include extremely high cost of accommodation, or serious health and safety risks to other tenants or the public. In the present scenario, you have the legal duty to explore all possible options and take all necessary steps to accommodate the request, while balancing and safeguarding the conflicting accommodation needs of both tenants.

For example, you could consider moving the two tenants to opposite ends of the hallway or to different floors. You could also install customized air purifiers to reduce the transmission of allergens in the building. 

To deny an accommodation request, you must reach the point of undue hardship. Examples of undue hardship include, among others, extremely high cost of accommodation and serious health and safety risks to other tenants or the public. As a housing provider, you have a legal duty to accommodate all reasonable requests, unless providing the accommodation would cause undue hardship.

For this request, you could explore the option of moving the tenant to a ground floor unit so they can access their unit without any barriers.

It depends. Expressing preference for certain types of tenants by using phrases like “suitable for” or “geared toward” may violate the Act if they exclude certain groups or discourage them from applying to rent the advertised property.

Some examples of discriminatory advertising notices or rental signage include:

• “Suitable for working professionals” or “Geared to young professionals”: This wording would exclude or discourage the following kind of tenants:
  • Persons who may be unable to work due to a disability;
  • Persons who are unemployed or receiving social assistance;
  • New Canadians who may not yet have jobs;
  • Students who are under-employed or work part-time;
  • Older persons who are retired, under-employed, or employed part-time; and
  • Persons who identify with the ground of social condition i.e. those disadvantaged because of their income, education, or job type (e.g. minimum wage earners, domestic workers, etc.)
    
    
•  “Suitable for a single person or married couple”: This wording would exclude or discourage the following kind of tenants:
  • Families with children based on the ground of family status;
  • Common law couples if they are not treated by the landlord as “married”;
  • Seniors based on the ground of age.
    
    
• “Adults only building” or “Adult lifestyle premises”: This wording would exclude or discourage the following kind of tenants:
  • Families with children;
  • Other marginalized groups like persons with disabilities, sexual minorities, and those with social condition status.
    
    
• “Quiet building” or “Not soundproof”: This wording would exclude or discourage families with children under the ground of family status.

Potentially. If a housing provider excludes students from a rental property, this may be considered discrimination based on social condition. The ground of social condition protects against discrimination related to your occupation, source of income, or level of education. This protection could potentially apply to students, depending on the circumstances.

Please consult the Commission’s Guideline on Social Condition to learn more.

Under the Act and according to human rights jurisprudence, minimum income requirements are discriminatory because they disadvantage groups like newcomers to Canada, young adults, and those who identify with the ground of social condition.

Similarly, rent-to-income ratios (ex: requiring that the rent amount should not be more than 30-35% of the tenant’s monthly income) may discriminate against young persons, low-income individuals and families, and other vulnerable groups protected under the Act.

Landlord may use other reasonable criteria to review applications of potential tenants, like rental history or credit scores, or requiring guarantors or co-signers for a lease.

It is not a defense that you did not intend to discriminate against a tenant. A rule, practice, or behaviour that seems neutral and is equally applied to all tenants can have discriminatory effects. Human rights law focuses on the effects of discriminatory conduct on a complainant, and it does not consider whether parties had an intention to discriminate. It is also not a defense that you were unaware of your duty to accommodate the reasonable requests of your tenants as a housing provider.

Property owners are liable for acts of discrimination committed by their agents, representatives, or employees in the course of their work duties. Landlords and property owners cannot evade liability by pleading that they were unaware of the discriminatory practices of their employees, agents, building managers or supervisors.

To pre-empt incidents of discrimination, housing providers should adopt the following best practices, corresponding with basic human rights principles of equality, dignity, respect, and inclusion:

• Landlords and housing providers should devise anti-discrimination and anti-harassment policies. These policies should be made available to all concerned parties and displayed in prominent places on housing premises.
•  Landlords must take all complaints of mistreatment, discrimination, or lack of accommodation very seriously and take swift action to address them.
• Housing providers have a duty to accommodate the needs of tenants with disabilities or other protected characteristics to the point of undue hardship. Developing and adopting an accommodation policy can help ensure housing providers follow an appropriate process for implementing reasonable accommodations.

Tenants also have responsibilities under the Act which include the following:

• Paying the rent on time and abiding by rental rules and regulations;
• Not causing damage to the unit or property and keeping the rental unit in reasonably clean condition;
• Respecting the health and safety (e.g. fire) regulations of the building and ensuring that no health and safety risks are posed to other tenants or the environment;
• Refraining from noisy or disruptive behaviour and respecting the dignity and rights of other tenants, building staff, etc.;
• Communicating any needs for specific accommodation and cooperating fully in the accommodation process.

If tenants breach their responsibilities, especially if their actions pose health and safety risks to other tenants, to the environment or the public, the landlord’s duty to accommodate may reach the point of undue hardship, especially if the landlord has already made proactive attempts at accommodating the needs of the tenants.

There are some situations in which a landlord or housing provider would be justified if they are unable to fulfill certain accommodation requests of their tenants. These include:

• A BFR claim: If the action or decision of a landlord or housing provider is made for a legitimate or bona fide requirement (BFR), it would not be discriminatory if it has differential consequences for a tenant.
  • What constitutes a BFR is context-bound and is assessed on a case-by-case basis.
  • Typically, a refusal to accommodate would be justified as a BFR if the cost of accommodation would be too high, or if the accommodation would pose serious health and safety risks to tenants, housing staff, or members of the public.
  • Concrete evidence should be presented to support or justify a BFR. Subjective or unquantifiable assessments of potential expenses or health and safety risks are not enough to prove that a measure qualifies as a BFR.
    
    
• Special programs: It is not discriminatory if certain persons or groups are excluded from availing rental housing, if the exclusion is the result of a special program.
  • Special programs are specific measures designed to give preference in housing, employment or services to one or more protected groups.
  • For example, a housing provider may design a special program that reserves a housing unit in an apartment complex for single mothers, based on research that single mothers face difficulty in the rental market where the building is located.
    • Although this special program would exclude other groups from renting this unit, it would not be discriminatory against these groups in the given context.
  • Non-discriminatory special programs in housing may likewise be designed for persons with disabilities, seniors, university students with families, and so on.
  • It is imperative that special programs comply with all human rights principles and not discriminate internally against the groups they are designed to protect.
    • For example, if the above-mentioned special program for single mothers begins to give undue preference to white women over racialized women, it would potentially violate the Act.
      
      
• Exception in sublets: If property owners rent a portion of their home – either a room or a self-contained unit – they must still abide by all human rights obligations. However, in such situations of sublet, depending on each specific case, a slight exception may be permitted.
  • If an owner or tenant sublets a room or portion in a unit with shared bathroom or kitchen, the owner or tenant would have the right to prefer certain types of occupants because of the intimate nature of the shared living space.
    • For example, a single woman (a widow or single mother) who lives alone and rents a room in her home, with a shared bathroom or kitchen, would not discriminate against other groups if she prefers to rent only to women tenants.
    • Such a preference, however, should not be internally discriminatory based on any of the protected grounds. For example, it would still be discriminatory if the landlady denies a racialized woman applicant because of her race.
    • In such shared rental accommodation, parties must still adhere to all human rights obligations, and they will be liable for any discriminatory treatment during tenancy.
      
      
• Legitimate rental inquiries: Equal treatment in rental occupancy is not infringed if a landlord requires income information, rental history, credit checks, or other guarantees from prospective tenants.
  • However, such inquiries should not violate the dignity and privacy of tenants or be used to prefer certain tenants and exclude protected groups, when all groups meet the required preconditions.