Rent Control Bulletin (September 2015)

Do you have a Policy and Complaint Mechanism for Addressing Tenant Allegations of Harassment and Discrimination?

The Human Rights Tribunal has recently reaffirmed the 3-part test for assessing whether or not an employer has met its obligation to take reasonable steps to respond to and address complaints of harassment or discrimination.  The decision in Zambito v. LIUNA Local 183, [see decision here at 2015 HRTO 605 (CanLII)] emphasizes in Step 1 of the test the need for employers to have a policy and complaint mechanism to address alleged violations of the Human Rights Code (the “Code”):

(1) Awareness of issues of discrimination/harassment, Policy, Complaint Mechanism and Training:  Was there an awareness of issues of discrimination and harassment in the workplace at the time of the incident?  Was there a suitable anti-discrimination/harassment policy?  Was there a proper complaint mechanism in place?  Was adequate training given to management and employee?

(2) Post-Complaint:  Seriousness, Promptness, Taking Care of its Employee [tenant or prospective tenant], Investigation and Action:  Once an internal complaint was made, did the employer [landlord] treat it seriously?  Did it deal with the matter promptly and sensitively?  Did it reasonably investigate and act?

(3)   Resolution of the Complaint (including providing the Complainant with a Healthy Work [living] Environment) and Communication:  Did the employer [landlord] provide a reasonable resolution in the circumstances?  If the complainant chose to return to work [stay in the rental unit], could the employer [landlord] provide him/her with a healthy, discrimination-free work [living] environment?  Did it communicate its findings and actions to the complainant?

Many professional corporate landlords and property managers will have such policies and processes for their employees since other provincial legislation, like the Occupational Health and Safety Act (the “OHSA”), mandates a written policy for addressing workplace harassment and bullying. What most landlords and property managers don’t have, however, are policies and processes for prospective tenants and tenants to raise concerns about the alleged infringement of their Code rights.

While the test above arises from an employment context, the Code imposes the same obligations on landlords (including property management companies who act as landlords) with respect to ensuring a housing environment that is free from harassment and discrimination.

When a landlord or property management company is the subject of a complaint to the Human Rights Tribunal, the “Response to an Application” form (see Form 2- Page 8 of 13 here) that must be completed contains the following questions:

(a)  Do you have a policy related to the type of discrimination alleged in the Application?

(b)  Do you have a complaint process to deal with discrimination and harassment?

(c)  Did the applicant make a complaint under the internal complaint process about the facts in this Application?

(d)  Describe how the organization responded and what was the outcome of the complaint process?

Usually, landlord Respondents will have to answer “no” to the first two questions and “not applicable” to the last two.  On this basis alone, the risk of liability of the landlord to the complainant increases dramatically.

Landlords are vulnerable to human rights complaints and there are legal obligations imposed on them under the Code to take reasonable steps to respond to and address complaints of harassment and/or discrimination. In view of the Tribunal’s continued application of the 3-part test identified above in assessing an organization’s response to complaints, it is prudent for a landlord or property management company to ensure that there are formal policies in place in their operations by which tenants and prospective tenants can raise concerns of Code violations.

At a minimum, the policy should contain the following:

–  Identify the policy objectives (i.e. commitment to providing an environment free of harassment and discrimination)

–  Identify who the policy applies to

–  Set out a complaint resolution process (i.e. the requirement for a written complaint to be delivered to an identified person); and

–  Set out the investigation process

If a tenant alleges discrimination or harassment, onsite staff should be trained to recognize the types of complaints that trigger the application of the Code and the policy. Staff should know to provide a copy of the policy to the tenant or prospective tenant and request a written complaint containing details of his/her allegations.  As can be seen from the criteria set out by the Tribunal, it is important that the entire process, from the receipt of the complaint to the outcome of same, be thorough and complete.

Not only will taking these steps ensure that onsite staff are equipped to address complaints in a prompt and efficient manner, it may also enable a landlord to resolve complaints before they become the subject of applications to the Landlord and Tenant Board or the Human Rights Tribunal. Where landlords are named in a complaint, the existence of the policy (and compliance with it) will reduce liability exposure.

If you have questions about your policies or would like assistance in preparing a policy that will apply to tenant complaints of harassment or discrimination, please contact Kristin Ley at Cohen Highley LLP.