Here is a recent ruling from the Human Rights Tribunal of Ontario which showed that a lease clause putting responsibility for snow removal on the tenant led to constructive discrimination on the grounds of disability.
Although the landlord explained that he implemented the snow removal requirement because he was elderly (84 years old at the time of the events) and unable to shovel snow at the building, there was no evidence
that requiring tenants to be responsible for snow removal was necessary, since the landlord could hire a third party to do snow removal.
The landlord was
ordered to pay compensation for injury to dignity, feelings and
self-respect to the applicant / tenant and to remove the lease clause
from future tenancy agreements.
More information on snow removal:
Is snow shovelling / lawn mowing always the landlord's duty?
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Excerpt from Scocchia v. Sokol, 2022 HRTO 1418 (CanLII), <https://canlii.ca/t/jt96w>:
"[...]
Application to the
Facts of this Case
[49] In this
Application, it was the evidence of all parties that the applicant and the
respondent did not sign the Lease. Even if the Lease had been signed, it is not
clear that the snow removal provisions in the Lease constitute a requirement or
qualification within the meaning of section 11 of the Code. The snow removal
provisions in the Lease are vague and do not create a severable obligation or
enforceable contractual obligation on a tenant. They do not specifically and
clearly set out the work to be performed by, or the consideration to be paid to,
a tenant for snow removal. As such, the snow removal provisions in the Lease are
void and unenforceable and the obligation for snow removal remained with Mr.
Sokol as the landlord for the Apartment (See, Montgomery at paras. 9-16 and
s. 4 RTA).
[50] In such circumstances,
it is not clear that the snow removal provisions in the Lease were a
requirement or qualification within the meaning of section 11 of the Code. There was no
legal obligation on Mr. Scocchia to be responsible for snow removal at the Apartment.
[51] While it is clear
that the snow removal provisions in the Lease are unenforceable and therefore
did not create a legal obligation on the applicant to assume responsibility for
snow removal at the Apartment, the evidence given by Mr. Scocchia 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. Indeed, the Lease presented
to Mr. Scocchia 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, Mr. Sokol and Mrs. Sokol told the applicant that as their
tenant, he would have to be responsible for snow removal. Based on the evidence
at the Merits Hearing, it is clear that the respondent had a rule or requirement
that the tenant that rented the Apartment would be responsible for snow removal
(the “snow removal requirement”). It is also clear that this requirement infringes
section 11 of the Code.
(b) Did the respondent’s snow removal requirement exclude or prefer individuals
with Code-protected characteristics?
[52] I am satisfied
that the snow removal requirement excludes or prefers individuals based on Code-protected characteristics. The hallmark
of adverse effect discrimination is that a seemingly neutral rule or requirement
is adopted which has a discriminatory effect or impact on an individual or
group because it imposes obligations, penalties or restrictive conditions not
imposed on others. The thrust of human rights legislation is to eliminate
assumptions and break down the barriers that stand in the way of equality for
all (See, Grismer at para 2). The
harm experienced by a claimant must be viewed in light of the systemic or
historic disadvantage experienced by persons with disabilities. It is well established
that persons with disabilities experience both systemic and historic discrimination
which is often manifested through social exclusion or barriers to full
participation. The applicant has, in my view, made out a prima facie case of
discrimination as a result of the snow removal requirement.
[53] Although the snow
removal requirement applied to all tenants, it created an additional burden on,
and barrier for persons with disabilities, like Mr. Scocchia, who could not
shovel snow. While it is true that the snow removal requirement only required
tenants to be responsible for snow removal and did not place any obligation to
personally remove snow from the premises, this does not address the additional
personal and potential financial burden that this requirement placed on
prospective tenants on Code-protected
grounds. Although Mr. Sokol indicated that he may have been willing to allow an
abatement of rent were a third party needed to clear snow for the applicant, this
placed an onus on the applicant to seek out a method which could address this
requirement which would not be placed on other prospective tenants who do not have
a disability. As well, the respondent did not confirm that he would provide an
abatement of rent but simply indicated that he may have been willing to do so.
[54] The concept of
constructive discrimination recognizes that a requirement imposed identically
on everyone can have the effect of denying the right to equal treatment of
people with personal characteristics protected by the Code. The snow removal
requirement imposed an additional burden on a prospective tenant with a
disability by requiring the prospective tenant to make inquiries of the
respondent about how this requirement could be met in order to allow them to
rent the Apartment, or by imposing other burdens and possible financial
obligations on persons with disabilities who rented the Apartment by having to
make arrangements to meet this requirement.
[55] It is also clear
from the evidence given by all of the witnesses at the Merits Hearing that this
requirement did, in fact, have an adverse and discriminatory effect on Mr.
Scocchia as a person with a disability. Mr. Scocchia testified that after being
told that snow removal would be the responsibility of the tenant, he decided
that he did not want to rent the Apartment. It is also clear from his testimony
at the Merits Hearing that he did not want to rent the Apartment as a result of
his disability and the additional burden the snow removal requirement would
place on him. It is clear from the applicant’s testimony at the Merits Hearing
that the snow removal requirement, in fact, resulted in the exclusion of Mr.
Scocchia from this rental opportunity as it was central to his decision to not
apply to rent the Apartment.
[56] In addition to
prohibiting a neutral requirement, qualification or factor that results in the
exclusion, restriction or preference of a group of persons identified by a Code-protected ground, section 11 of the Code also provides certain
defences to a respondent. Where a requirement, qualification or factor is
reasonable or bona
fides in the circumstances or where an applicant cannot be accommodated
without undue hardship, a respondent has a valid defence to an allegation of
constructive or adverse effect discrimination (See, Meiorin and Grismer).
(c) Are there
reasonable or bona fide grounds for the respondent’s snow removal requirement
and has the respondent accommodated the applicant to the point of undue
hardship?
[57]
In Meiorin, the Supreme Court set out a three-part test to
determine whether a requirement or rule that is found to be prima facie discriminatory
can be justified by a respondent. Once an applicant establishes that a rule or
requirement or rule is prima
facie discriminatory, the onus shifts to the respondent to prove, on a
balance of probabilities, that the discriminatory requirement, rule or standard
has a bona fide and reasonable
justification. In order to establish this justification, a respondent must establish,
on a balance of probabilities, that:
a. it adopted the
requirement, rule or standard for a purpose rationally connected to the
function being performed;
b. it adopted the
requirement, rule or standard in an honest and good faith belief that it was
necessary to the fulfillment of that purpose; and
c. the requirement,
rule or standard is reasonably necessary to accomplish its purpose or goal in
the sense that the respondent cannot accommodate individuals sharing the
characteristics of the applicant without experiencing undue hardship (See, Grismer at para 20).
[58] 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 Mr. Scocchia to the point of undue
hardship.
i. Is the snow
removal requirement rationally connected to its purpose?
[59] The purpose of
the snow removal requirement is to ensure that the Building and its premises
are cleared of snow and safe for tenants and members of the public in
accordance with the RTA. This is
required for Mr. Sokol to comply with his obligations as a landlord under the RTA and it is also required for the safety and
security of tenants and members of the public at the premises. However, the
snow removal requirement is not rationally connected to this purpose. The
respondent has provided no rational basis for placing the obligation for snow
removal on tenants. While Mr. Sokol has indicated that he cannot shovel snow because
he is elderly and suffers from a medical condition, this does not provide a
rational explanation for placing the obligation on tenants. No evidence was
led, nor was it suggested that there was any impediment to the respondent
hiring a contractor for snow removal. Nor was there any evidence of efforts
made by the respondent to pursue other means of arranging for snow removal. The
snow removal requirement is therefore not rationally connected to its purpose.
ii. Was the snow removal requirement adopted in an honest and good faith
belief that it was necessary to the fulfillment of its purpose?
[60] The respondent
also has not demonstrated that the snow removal requirement was adopted in an
honest and good faith belief that it was necessary to accomplish its purpose.
As previously noted, no evidence was led to suggest that the snow removal
requirement was implemented as part of a good faith belief that it was
necessary to achieve its purpose of removing snow from in and around the
Building. Accordingly, this requirement has not been met.
iii. Is the snow removal requirement reasonably necessary to accomplish
its purpose or in the sense that the respondent cannot accommodate individuals
sharing the characteristics of the applicant without experiencing undue hardship?
[61] The respondent
also has not demonstrated that the snow removal requirement was reasonably necessary
to accomplish its purpose. As previously noted, there has been no explanation
for placing the snow removal requirement on tenants. Although the Sokols have
explained that they implemented the snow removal requirement because Mr. Sokol
is elderly and unable to shovel snow at the Building, there was no evidence
that requiring tenants to be responsible for snow removal was necessary for the
purpose of maintaining the safety of the Building and its surrounding premises.
[62] While the RTA prescribes that landlords are responsible
for snow removal, it does not prevent a landlord from hiring a third party
contractor to perform such maintenance functions. At the Merits Hearing, Mr.
Sokol indicated that he would have been prepared to allow the applicant to hire
a third party to remove the snow. Based on the evidence before me, the
respondent was not prevented from hiring a third-party contractor to fulfill
these maintenance services and no evidence was led which demonstrates that this
obligation had to be placed on tenants at the Building.
[63] Where an
allegation of adverse effect discrimination is made, a respondent may also rely
upon the further defence of “incapability” set out in section 17 of the Code (See Entrop at para. 77). In Entrop, the Court of Appeal for Ontario held that the
three-step test set out in Meiorin should also be used to determine whether a respondent
may successfully assert the defence set out in section 17 of the Code (See Entrop at para. 77). In light of my findings above, the
respondent cannot rely on section 17 of the Code.
[64] The respondent
also has not demonstrated that the applicant could not be accommodated without
undue hardship in accommodating the applicant. The respondent has the onus of
establishing a defence of undue hardship but led no evidence on whether it
would have experienced undue hardship in accommodating the applicant’s needs.
[65] I find that the
respondent’s snow removal requirement infringes section 11 of the Code by placing responsibility
for snow removal on tenants and thereby adversely affecting individuals sharing
the characteristics of the applicant as a person with a disability. I also find
that the respondent has not provided a bona fide justification for this requirement and has not
demonstrated that the applicant could not be accommodated without undue
hardship.
[...]"
