Many residential landlords have expressed a preference, in their marketing and in admissions policy, for rentals to persons aged 50-plus. It has long been the view of landlords’ lawyers, however, that restricting tenancies to persons aged 50-plus, and rejecting rental applications on that basis, will attract “age discrimination” liability under Ontario’s Human Rights Code (the Code). Banks have even refused to lend on chattel mortgages in land lease communities which have 50-plus age restrictions, as such restrictions are viewed as discriminatory. Despite all this, there is now a Human Rights Tribunal (Tribunal) decision which supports the proposition that restricting rentals (or land leases) in a residential complex to persons 50 years and older does not constitute discrimination under to the Code.
In order to meet the Code test that a landlord has discriminated in housing on the basis of age, the Applicant must prove, on a balance of probabilities, that there has been discrimination “in a substantive sense”. In a case called Freeman v. March of Dimes Canada, (Freeman) the Tribunal has ruled that not all distinctions based on age constitute discrimination for the purposes of the Code. The legal test to be met is whether the age distinction at issue negatively impacts an identifiable group that has experienced historic, political, or social disadvantage by perpetuating prejudice or stereotyping. The Tribunal relied on a Supreme Court of Canada case (Law) to support its articulation of this legal test.
The Tribunal in Freeman dismissed a claim by a 48 year old applicant who was seeking housing in a non-profit housing facility administered by the municipality of Chatham Kent and who was refused housing on the basis that she was not at least 50 years old. The Tribunal dismissed the applicant’s claim of discrimination based on age, applying the Lawtest, and stating:
“…it is hard for me to see how the applicant has a reasonable prospect of being successful in proving that the group of persons under 50 is an identifiable group that has experienced historic, political or social disadvantage relative to the group of persons aged 50 and over … In fact, from a substantive discrimination standpoint, it would appear to me that the opposite is more accurate.
The result is that where a prospective tenant’s application for housing is rejected because the landlord prefers to rent to people aged 50-plus, it does not constitute discrimination on the basis of age because people under age 50 are not a distinct class of persons who have experienced “historic, political or social disadvantage” when compared to the over-50 demographic.
While Freeman supports the right of landlords to reject applicants on the basis of age, and to market their buildings with an age restriction in place, we continue to be of the view that landlords should decline to provide reasons for refusing a particular rental application. We also caution that, in human rights cases, each case is determined based on its unique facts; consequently, a landlord subject to a human rights complaint based on an age restriction of 50-plus should still seek proper legal advice when responding to the claim. Finally, we remind landlords that there is a specific section of the Code which states that persons aged 16 to 18, who have withdrawn from parental control, are legally bound by leases they enter into with a residential landlord; consequently, housing discrimination against that age group will attract landlord liability under the Code.
Regardless, the Freeman decision is good news for landlords who prefer to market and rent to a 50-plus demographic, and may facilitate sales and financing of manufactured and land lease homes in land lease communities.