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.
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