Health Privacy Rights

Involves Human Rights, Privacy Rights, and Duties to Maintain Safe Premises

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Is It Allowed for a Landlord to Inquire About a Tenant's Coronavirus Infection?

Is It Allowed for a Landlord to Inquire About a Tenant's Coronavirus Infection?Under some circumstances, such as when determining any special needs related to cleaning and maintenance of shared spaces within the residential complex, it may be reasonable for a landlord to inquire about a tenant's health.

A Useful Guide for Deciding Whether It's Time to Enquire About a Tenant's Status of Coronavirus Infection

As a risk management issue that creates challenges and seems to represent conflicting laws, so presenting as a dilemma or legal Catch-22, is the issue of whether

it is legal for a landlord to inquire about a tenant’s health, including whether the tenant has a coronavirus infection, and whether doing so violates the tenant’s rights.

Inconsistency in Concerning Laws

Human Rights

As a general rule, landlords should avoid requesting information from tenants or potential tenants about specific health-related issues in order to minimize the possibility of violating the Human Rights Code, R.S.O. 1990, c. H.19, which forbids actions that could be construed as harassment or discrimination based on a variety of factors, including disability. The Human Rights Code specifies the following freedoms and rights with regard to lodging, including rental housing:

Human Rights Code R.S.O. 1990, c. H.19 at section 2

2 (1) Every individual is entitled to equal treatment when it comes to housing occupancy, free from discrimination based on factors such as race, ancestry, place of origin, color, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status, disability, or receiving public assistance.

(2) Every tenant has the right to be free from harassment regarding their race, ancestry, place of origin, color, ethnic origin, citizenship, creed, sexual orientation, gender identity, gender expression, age, marital status, family status, disability, or receipt of public assistance by the landlord, their agent, or other tenants in the same building.

In addition, the Human Rights Code’s section 10(1) defines “disability” and “harassment” as:

Human Rights Code R.S.O. 1990, c. H.19 at section 1 (Definitions)

“Disability” encompasses:

(a) Any form of physical disability, infirmity, malformation, or disfigurement resulting from bodily injury, birth defect, or illness. This includes but isn’t limited to conditions such as diabetes mellitus, epilepsy, brain injury, paralysis, amputation, lack of physical coordination, blindness, visual impediments, deafness, hearing impediments, speech impediments, or dependence on a guide dog, animal, wheelchair, or other assistive device.

(b) Mental impairment or developmental disability.

(d) Mental disorders.

(e) Injuries or disabilities for which benefits were claimed or received under the insurance plan established by the Workplace Safety and Insurance Act, 1997; (“handicap”).

“Harassment” refers to engaging in a series of vexatious comments or behaviors that are known or should reasonably be known to be unwelcome.

Interestingly, the Human Rights Code doesn’t explicitly define “infirmity.” However, according to the Human Rights Tribunal of Ontario’s decision in the case of Caster v. Hearthstone Communities Services Ltd., 2013 HRTO 111, paragraph 11, referencing the Supreme Court case Quebec v. Montréal (City), et al, [2000] 1 SCR 665, it’s mentioned that, “… everyday illnesses or normal ailments are not generally disabilities under human rights legislation.” Hence, it is implied that a condition or illness beyond the scope of “everyday illnesses or normal ailments” would fall under the definition of “infirmity” as per the Human Rights Code.

Occupier Liability

In addition to obligations concerning discrimination or harassment outlined in the Human Rights Code, a landlord is mandated to maintain reasonably safe premises. Specifically, the landlord is responsible for ensuring shared common areas are reasonably safe to safeguard individuals, including tenants and third parties, from potential injury or harm. The Occupier’s Liability Act, R.S.O. 1990, c. O.2, defines an occupier as:

Occupier's Liability Act R.S.O. 1990, c. O.2 at section 1 (Definitions)

In this Act,

“occupier” encompasses:

(a) an individual physically present on premises, or

(b) an individual responsible for and in control of the state of the premises or the activities conducted there, or controlling access to the premises,

even if multiple individuals share occupation of the same premises.

Henceforth, it’s evident that a landlord, among others, falls under the definition of an occupier and is thereby subject to the obligations outlined in the Occupier’s Liability Act. These obligations include, among other things:

Occupier's Liability Act R.S.O. 1990, c. O.2 at section 3(1)

3 (1) An occupier of premises owes a duty to take such care as in all the circumstances of the case is reasonable to see that persons entering on the premises, and the property brought on the premises by those persons are reasonably safe while on the premises.

Accordingly, a landlord holds a general public duty to act in a manner so to reasonably ensure that the premises, such as shared spaces and amenities accessible by various tenants and other persons, are reasonably safe from the risk of harm. Furthermore, whereas the duty refers to, “… in all the circumstances of the case …” it would seem that such duty includes the duty to act reasonably to ensure safety from contagions such as coronavirus.

Residential Tenancies

The third statute involved is the Residential Tenancies Act, 2006, S.O. 2006, Chapter 17 itself. Particularly, section 20 of the Residential Tenancies Act, 2006, places maintenance responsibilities on the landlord. It explicitly states:

Residential Tenancies Act, 2006 S.O. 2006, Chapter 17 at section 20

Section 20(1) of the Residential Tenancies Act, 2006 stipulates that a landlord is accountable for ensuring a residential complex, encompassing its rental units, remains in good repair, suitable for habitation, and adheres to health, safety, housing, and maintenance standards.

As outlined in the Residential Tenancies Act, 2006, the landlord undeniably bears the responsibility to ensure that the residential complex and its rental units meet health and safety standards. However, the precise details regarding these mandated standards remain potentially unclear.

As previously mentioned, tenants are granted rights under various laws, including protection from discrimination or harassment due to unusual illnesses as outlined in the Human Rights Code. Additionally, they have the entitlement to safe premises, as per the Occupier’s Liability Act, and the right to dwell in accommodations that meet health and safety standards, as per the Residential Tenancies Act, 2006. To fulfill these rights, a landlord is obligated to avoid discrimination or harassment based on unusual illnesses and maintain premises that are reasonably safe.

To fulfill their responsibilities, it seems reasonable for a landlord to conduct thorough investigations into potential health hazards, solely aimed at evaluating the necessity for additional maintenance and cleaning services. This could include sterilization of shared common areas by qualified biological hazard services, ensuring the premises meet required standards of cleanliness and safety.

Given the unprecedented nature of the Covid19 Crisis, coupled with the absence of prior judicial precedents, the approach of the Human Rights Tribunal of Ontario, the Landlord Tenant Board, and the courts towards these matters remains uncertain. This lack of precedent brings about confusion, making it challenging for landlords and tenants to secure precise legal guidance. However, it remains evident that any inquiries regarding health information must consistently avoid discrimination or harassment.

Summary Comment

The Covid19 Crisis has brought about unparalleled challenges and legal complexities that lack clear-cut solutions. Amid conflicting rights and duties, the resolution of many of these legal issues remains uncertain. Nevertheless, fostering respectful communication and offering compassionate accommodations for sudden and unexpected needs can aid landlords and tenants in navigating these unfortunate circumstances, fostering healthier and more respectful relationships.