• Preface
• Who Should Read These Guidelines
• Introduction
• The Code on Housing
  • Renting Portions of Your Home
• Special Programs
• Advertising
  • Target Marketing
• The Rights of Owners/Agents
• Relevant Qualifications of Tenants
• The Rights of Prospective Tenants
• Purchase of Property
• Advisory Opinions
• Conclusion
• Commission Offices

The Guidelines, originally based on The Human Rights Act, have now been revised to reflect the provisions of The Human Rights Code, which was proclaimed on December 10, 1987. Persons in receipt of earlier versions are advised to discard them and refer to this revised edition for more accurate, up-to-date reference.

These Guidelines explain how The Human Rights Code regulates the rental and purchase of housing in Manitoba. Some information in this booklet is a simplified description of provisions of The Human Rights Code. There are also examples of discrimination and how the law applies. These examples are intended as illustrations only, and do not represent the full range of situations to which The Code applies, or which could lead to a justified complaint under The Code.

If there is any conflict between these Guidelines and The Code, The Code prevails. For more information, contact the Manitoba Human Rights Commission. The addresses and telephone numbers of Commission offices are noted at the end of this document.

These regulations are important to you if you are:

• a person in Manitoba who owns or manages a building or house which offers residential or commercial space for rent or sale;
• building or property management firm;
• a building superintendent or caretaker;
• a rental agency;
• any agency of the Provincial or Municipal governments (inquiries concerning the Federal government or within Federal jurisdiction will be referred to the Canadian Human Rights Commission.)

Vicarious responsibility.
For the purposes of this Code, where an officer, employee, director or agent of a person contravenes this Code while acting in the course of employment or the scope of actual or apparent authority, the person is also responsible for the contravention unless the person


1. did not consent to the contravention and took all reasonable steps to prevent it; and
2. subsequently took all reasonable steps to mitigate or avoid the effect of the contravention.

The Code also prohibits discrimination in the subletting of a housing accommodation. When selecting applicants to sublet a rental unit, both the owner and the primary tenant are required to refrain from discrimination.

"Human rights legislation is intended to give rise, amongst other things, to individual rights of vital importance, rights capable of enforcement, in the final analysis, in a court of law. I recognize that in the construction of such legislation the words of the Act must be given their plain meaning, but it is equally important that the rights enunciated be given their full recognition and effect. We should not search for ways and means to minimize those rights and to enfeeble their proper impact. Although it may seem commonplace, it may be wise to remind ourselves of the statutory guidance given by the federal Interpretation Act which asserts that statues are deemed to be remedial and are thus to be given such fair, large and liberal interpretation as will best ensure that their objects are attained."

--Chief Justice Dickson, in Canadian National Railway v. Canadian Human Rights Commission et al., June 25, 1987.

Our Manitoba law, which is similar to others in Canada, came into force on August 13, 1970, with the proclamation of Manitoba's first Human Rights Act. The Commission itself first began to receive and act upon complaints of discrimination in the Spring of 1971. There have been several revisions of the law since then, leading to The Code, which came into force on December 10, 1987--the thirty-ninth anniversary of the Universal Declaration of Human Rights.

The Code (as did the prior Acts) creates The Manitoba Human Rights Commission, empowering it to receive complaints of discrimination, and to investigate and work towards resolving such complaints. The Code also authorizes the Commission to create and implement educational programs designed to eliminate discrimination in Manitoba.

Here is how The Code defines discrimination:

9 (1) In this Code, "discrimination" means


1. differential treatment of an indvidual on the basis of the individual's actual or presumed membership in or association with some class or group of persons, rather than on the basis of personal merit; or
2. differential treatment of an individual or group on the basis of any characteristic referred to in subsection (2); or
3. differential treatment of an individual or group on the basis of the individual's or group's actual or presumed association with another individual or group whose identity or membership is determined by any charactertistic referred to in subsection (2); or
4. failure to make reasonable accommodation for the special needs of any individual or group, if those special needs are based upon any characteristic referred to in subsection (2).

For example, an owner who is prejudiced against immigrants, and who therefore refuses to rent to them, violates the law. A rental agent who had one bad experience with the child of a tenant, and who therefore refuses to rent again to any family with children, violates the law; a property manager who rents to families, but believes that children would disrupt the building, and who therefore restricts families to specific floors of the building, also violates the law. A caretaker who disagrees philosophically with the concept of welfare, and who therefore refuses to rent to anyone drawing welfare benefits, violates the law. These are all examples of illegal discrimination.

The Code, through Section 9 (1) (a), also prohibits discrimination based on a person's real or assumed membership in groups other than those directly noted in the legislation. Any treatment of people which differs from one person to another because of stereotyping rather than being based on individual merit, is contrary to The Code, whether or not that group of persons is actually listed in Section 9 (2). For instance, criminal record is not specifically mentioned in The Code, but if you deny an apartment simply because the person has a criminal record you may be violating the law. If the person is otherwise qualified, you may be stereotyping--judging the person based on the "group factor" rather than individual merit. Is this a good business decision? What if the criminal record stems from a minor charge many years ago? How relevant is the criminal record to whether or not the person will be a good, reliable tenant? To avoid stereotyping, look at the individual merits of the person.

The law does permit discrimination under certain circumstances. For an example of possible legal discrimination with regard to individuals who have a criminal record.

Failure to reasonably accommodate a prospective or existing tenant when it was both possible and desirable to do so is against the law. Section 9 (1) (d) of The Code states that the definition of discrimination includes the "failure to make reasonable accommodation for the special needs of any individual or group, if those special needs are based upon any characteristic referred to in subsection (2)." Reasonable accommodation may be defined as an action or actions which enable a person with a special need based on a characteristic referred to in subsection 9 (2) to access the employment, services and housing opportunities which are available to the general public.

For example, you can reasonably accommodate a person who uses a wheelchair by having a ramp beside the entrance (this is accommodation based upon a special need created by the person's physical disability--you do not have to accommodate the person's preferences which are not related to physical disability or any other group factor noted in Section 9 (2)). Use of a flashing light instead of a doorbell in apartments, to assist hearing-impaired people, is another example. Another example of reasonable accommodation is a situation where you may require all prospective tenants to have a satisfactory history of prior rentals. Yet a person recently returned to the community from a period of hospitalization for a psychiatric disability may have no such prior history--and is therefore screened out by you. In such a situation, you could instead ask for a character reference or some other alternative to a rental history. A co-signer or guarantor is another alternative.

Although this is treating people with disabilities differently, it is not discrimination because it enables them to enjoy the same housing which is available to the general public.

If you are an owner with a large number of properties, consider developing written policies on such issues. Written policies will help ensure that your agents understand your requirements and the law.

The Code recognizes that not all accommodation may be "reasonable." Some accommodation may not be reasonable, and is therefore not required. The law recognizes that each situation must be considered on its individual merits, with decisions based on such factors as expense and feasability, and whether modifications to the building would create an "undue hardship" for the owner of the property in question. For example, an older, small apartment building may have only stairs and not an elevator going up to each floor. This makes the building inaccessible to a person in a wheelchair. But it may be an unreasonable expense to require the building owner to install an elevator.

It can be possible to discriminate without intending to violate the law. Section 9 (3) of The Code states:

In this Code, 'discrimination' includes any act or omission that results in discrimination within the meaning of subsection (1), regardless of the form that the act or omission takes and regardless of whether the person responsible for the act or omission intended to discriminate.

Systemic discrimination (which is usually neither overtly nor intentionally discriminatory) occurs when a seemingly neutral policy or practice has a disproportionately adverse effect on a group of people. For example, it is not a contravention of The Code to specify in a lease that no animals are allowed in the accommodation. However, if caretakers and rental agents are not made aware of the distinction between animals and animal assistants (such as guide dogs), and therefore deny all animals, the end result may be discrimination against persons with disabilities who require an animal assistant.

Here is what The Code says on rental housing:

Section 16 (1)
No person shall discriminate with respect to

1. the leasing or other lawful occupancy of, or the opportunity to lease or otherwise lawfully occupy, any residence or commercial premises or any part thereof; or
2. any term or condition of the leasing or other lawful occupancy of any residence or commercial presmises or any part thereof;

This means that a property owner (or a tenant who sublets) can not discriminate against current or potential tenants either by refusing to lease or by creating discriminatory terms in a lease which have the effect of discouraging a person from renting. For example, it is illegal to require only Aboriginal peoples to pay an unusually high rents, or to have a lease clause requiring subletting only to born-again Christians, or to restrict certain groups to specific floors of a building.

RENTING PORTIONS OF YOUR OWN HOME

Section 16 (2)
Subsection (1) does not apply to

1. the choice of a boarder or roomer for a private residence by the occupier of the residence; or
2. the choice of a tenant for a unit in a duplex by the owner of the duplex, if the owner occupies the other unit of the duplex.

Similarly, subsection (b) means that if you own a duplex and live in one of the two apartments, you are allowed by law to discriminate when you rent out the other apartment.

But: for any part of Section 16 to apply, you must live on the premises. People who rent out part of a home, but do not live in it, or who own a duplex but do not live in one of the apartments, have no special right to discriminate.

Naturally, the Commission requests owners in these situations to consider the spirit of human rights law in making their decisions. Remember: stereotyping tells you nothing about the person--it usually only tells you something about yourself.

Treating disadvantaged groups of people differently is not always discrimination, nor is it always negative. Special programs (such as affirmative action) help disadvantaged groups. Although these programs involve treating such groups differently than the rest of the population, they are necessary if these groups are to achieve equality.

Here is what The Code says on special programs, including affirmative action:

Section 11
Notwithstanding any other provision of this Code, it is not discrimination, a contravention of this Code, or an offence under this Code

1. to make reasonable accommodation for the special needs of an individual or group, if those special needs are based upon any characteristic referred to in subsection 9 (21); or
2. to plan, advertise, adopt or implement an affirmative action program or other special program that
   1. has as its object the amelioration of conditions of disadvantaged individuals or groups, including those who are disadvantaged because of any characteristic referred to in subsection 9 (2), and
   2. achieves or is reasonably likely to achieve that objective.

Section 11 (a) states that it is not discrimination to use reasonable accommodation in a special program. This is because extra steps can be required when assisting discriminated-against groups to achieve equality. This is why reasonable accommodation is not only legal, but can be required in day-to-day business practices. For more information on reasonable accommodation

Section 11 (b) (1) states that the objective of a special program is to assist discriminated-against groups of people in overcoming the disadvantages which discrimination creates. The main purpose of human rights legislation is to end discrimination. But simply treating everyone equally may not be by itself enough to end historical disadvantages. A more active approach may be called for. This is why special programs are required.
What are some examples of special programs in housing accommodation? A building designed for elderly people, for example, might have entrance ramps, elevators, and physical and recreational facilities...be located close to medical facilities and shopping...have subsidized rental rates...and other features which could assist elderly people in particular. A building primarily for people with physical disabilities might include, in the apartments, lowered counters, special washroom fixtures and other ways of accommodating people with physical disabilities.

Location of the building, its design features and rental fee structure are all key considerations when creating a special program in housing to assist any disadvantaged groups.

Please contact the Commission if you are interested in arranging a special program in housing accommodation.

The Code addresses advertising in Section 18:

Section 18 Discriminatory signs and statements No person shall publish, broadcast, circulate or publicly display, or cause to be published, broadcast, circulated or publicly displayed, any sign, symbol, notice or statement that

1. discriminates or indicates intention to discriminate in respect of an activity or undertaking to which this Code applies; or
2. incites, advocates or counsels discrimination in respect of an activity or undertaking to which this Code applies; unless bona fide and reasonable cause exists for the discrimination.

      --House for rent
	...born again Christians only.
	...Sikhs preferred.
	...Natives need not apply.
	...single women do not apply.
	...no families.
	...no single parents.
	...no unmarried couples.
	...welfare recipients not accepted.
	...steady workers only.
	...seniors only.

Does this advertisement have an unfair effect in screening out or discouraging certain classes of people from applying?
If it does, the ad is probably discriminatory.

Is the preference or limitation expressed in your ad a fair indicator of a person's qualifications as a tenant or purchaser?
If not, the ad is probably discriminatory.

But let's take a closer look.

When you put in your ad, "Apartment for rent...no children," what are you really concerned about? Is it noise from children? It is discriminatory (and incorrect) to assume that all children are noisy. Instead, why not state what is really on your mind: "Apartment for rent...quiet tenants preferred."

Perhaps you once had a bad experience renting to people of X ethnic background. But there is no reason to assume that other people of X background would create a similar bad experience. So, instead of advertising "House for rent, X need not apply," why not advertise "House for rent. Applicants must demonstrate responsibility as tenants."

In short, if you have a particular concern, state that concern clearly. Do not specify instead any particular group of people you believe may be a problem. It is simply good business sense to concentrate on the real problem and not on irrelevant factors!

Groups of people who have been historically disadvantaged because of discrimination should be assisted to gain equality with other groups in our society. Therefore, advertisements which specify "X minority group welcome" are not necessarily discriminatory--but only where the advertisement encourages a minority group to apply which is disadvantaged or might otherwise be discouraged from applying. In such situations we suggest adding the phrase "all applicants considered," as in:

--Welfare recipients welcome. All applicants considered.

Your local newspaper, which is usually well versed in The Code, may refuse to print your ad if it is in violation of the law. If a newspaper or other media organization publishes a discriminatory ad, it has broken the law. If you follow The Code and write your advertisement properly, you will both be within the law and at the same time will state clearly what type of situation you wish to maintain for your property. This will help you get the tenants you desire far more effectively than if you discriminate against groups of people.

TARGET MARKETING

If you have an accommodation project which you wish to market to one particular target group of tenants, contact the Commission for advice as to what is within the law. Such advice is important for developers, owners and rental agents, tenants, condominium purchasers and any other interested parties.

"Adults only" buildings (ones which deliberately exclude tenants with children, or adults under a certain age) are illegal, unless it can be shown that they meet the requirements for a special program. As an example, "55 and over" developments are illegal unless they meet such criteria. If the purpose of marketing such housing only to older people is to ensure a quiet environment, then a more effective method would be to include lease clauses which address noise from tenants. This would accomplish your goal and be within the law.

Deciding on whether to offer a vacant accommodation to a prospective tenant is never an easy decision. Will this person be a good tenant? pay the rent on time? maintain the property? respect other tenants? These are all vital questions directly affecting your business.

• You have the right to protect your property by selecting suitable tenants for your rental units, and by refusing undesirable tenants.
• You have the right to obtain all the information about an applicant which is relevant to her/his qualifications as a tenant, as long as the information is not used for discriminatory purposes. For example, you may inquire about an applicant's source of income, but can not refuse occupancy because the tenant's income is derived in whole or part from welfare. The prospective tenant's ability to pay should be what is important--not the source of that income.
• You have the right to screen applicants on the basis of relevant qualifications through the use of application forms, interviews and reference checks. The Commission urges owners and their agents to use such assessment tools to minimize their risks. To assist you, we have included a sample application form for tenants
• You have the right to make preferences or restrictions in situations where exceptions apply (where you are renting a room in a your own residence, or in a duplex which you own and occupy.

To avoid apparent or actual discrimination, the rental unit should be offered to the first person who applies and is qualified according to reasonable criteria. This does not mean the first person to apply--but the first person who meets the criteria. Never assume a person is not qualified until you have all the facts.

When establishing qualifications or requirements for tenancy, owners should take care to ensure that such requirements are necessary to ensure the selection of a qualified tenant. A qualified tenant is a person who can provide an accommodation owner or rental agent with:

1. Reasonable evidence of ability to pay the rent. This evidence includes providing information about the potential tenant's income and other factors which help determine the adequacy and stability of income.
2. Reasonable indication the person will honor a tenant's responsibilities. Owners and their agents can ask for the prospective tenant's past rental history. Such a history should include indications that the person will: pay the rent on time...avoid damaging the premises...not create a disturbance for other tenants...abide by the terms of the tenancy agreement...give proper notice to the owner of any intention to move.

• ensure that you have asked the questions and tried in a reasonable way to obtain the information; and,
• not ask for information in such detail (or ask for information going so far back into the past) that the prospective tenant can not be reasonably expected to provide the information. Asking a prospective tenant such questions may lead to the tenant assuming there was a discriminatory reason for asking such questions.

In the past, Aboriginal peoples arriving from a reserve...new immigrants just settling in Canada for the first time...or young people seeking their first apartment...have at times suffered the denial of an apartment simply because they had not rented previously. One solution--noted in the section on reasonable accommodation--is for the owner/agent to request character references, which would include information about the applicant's likelihood to honor the tenancy agreement. This would provide the owner/agent with the information necessary for making a proper decision on offering rental accommodation.

If the applicant can not supply any references, an alternative option is the use of a guarantor to co-sign the lease with the prospective tenant. But note: it is against the law for all persons who belong to a particular group to be required to have guarantors. For example, any policy or procedure which required all welfare recipients to provide a guarantor is prohibited under the law.

Under The Code, tenants have the following rights:

• You have the right to have your application considered without discrimination.
• Once in accommodation, you have the right to be treated as all other tenants are treated, without discrimination.

To this point, these Guidelines have only addressed rental accommodation situations. However, The Code also has provisions on the sale and purchase of property. Here is the relevant section:

Section 17 Discrimination in purchase of real property.
No person shall discriminate with respect to


1. the purchase or other lawful acquisition of, or the opportunity to purchase or otherwise lawfully acquire, any residence, commercial premises, or other real property or interest therein that has been advertised or otherwise publicly represented as being available for purchase or acquisition; or
2. any term or condition of the purchase or other lawful acquisition of any such property or interest; unless bona fide and reasonable cause exists for discrimination.

In general, the law on the sale of housing is otherwise similar to the law covering rental arrangements. Discrimination based on a group factor--stereotyping--is illegal.

To assist the person who feels obliged to consider certain group characteristics when making business decisions, but who also wishes to ensure that the distinction is not discriminatory, The Code has provided for binding advisory opinions to be issued by the Commission. This provision permits property owners to avoid time consuming problems in the future by ensuring, in advance, that their business practices comply with The Code. The Commission has available special information about Advisory Opinions. Please contact the Commission if you require further information.

We have produced these Guidelines within the spirit of The Code, which requires the Commission to "develop, promote and conduct educational programs designed to eliminate all forms of discrimination prohibited by this Code; and (to) promote understanding of, and compliance with, this Code and the regulations."

A society without discrimination is a fairer, richer, more productive society for all who live within. And such a society is the ultimate goal of human rights law and of The Manitoba Human Rights Commission.

Suggested Sample Application for Tenancy