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Can landlords demand tenants be vaccinated, unvaccinated? | Caryma Sa'd

Tuesday, August 24, 2021 @ 8:33 AM | By Caryma Sa’d

Caryma Sa’d %>
Caryma Sa’d
The vaccine “debate” has become heavily politicized and can be seen creeping into virtually every public and private sphere — personal relationships, at work, and even in the rental housing sector.

The Toronto Star has reported on landlords attempting to dictate the vaccination status of people in a renter’s household or even within their social circle. In Barrie, Ont., a landlord allegedly filed an eviction notice over the tenant’s vaccinated guests, claiming the parties agreed to “house rules” banning vaccinated people from the property. In Vaughan, Ont., a rental advertisement stipulated that any prospective tenants must be “fully vaccinated.” It is a fraught landscape, to say the least.

But what is the legality of tying vaccination status to housing? Seeing as the province is amid an ever-worsening affordable housing crisis, what ethical considerations must be canvassed?

To begin, tenancy agreements are not ordinary contracts. Their interpretation in Ontario is subject to the Residential Tenancies Act, 2006 (RTA), which applies “despite any other Act and despite any agreement or waiver to the contrary,” apart from inconsistencies with the Human Rights Code (Code). In other words, a contractual provision in a lease that conflicts with either the RTA or the Code cannot be enforced.

When it comes to existing rental agreements, landlords cannot simply make unilateral changes to the terms of the agreement, which would include imposing proof of vaccination as a condition of the tenancy. This would prevent a landlord from attempting to evict a tenant based on vaccination status, unless it can be established that the tenant is substantially interfering with the reasonable enjoyment of others within the unit or otherwise causing serious problems at the residential complex because of their vaccination status. Furthermore, a landlord has no control over a tenant’s guests, including their vaccination status. The landlord can only intervene if those guests are contributing to overcrowding of the rental unit or engage in belligerent or disruptive behaviour that affects other tenants and the reasonable enjoyment of their own units.

Where things become murky is when renting a condo. Condominium complexes have their own set of rules and bylaws which vary from building to building and are often incorporated separately on top of standard lease agreements. If a condominium were to introduce rules about vaccination for residents and guests, tenants might find themselves facing eviction for non-compliance. The outcome of such a case would be dependent on the specific facts and context.

Turning to new rental agreements, a landlord cannot discriminate on prohibited grounds such as age, race, gender and disability under the Code when choosing between prospective tenants. For instance, there are disabled people who have been refused the vaccine due to potential health complications. Excluding these individuals would directly contravene the Code on its face unless a reasonable accommodation — such as waiving the vaccine requirement — is provided.  

The purpose of the RTA includes protecting residential tenants from unlawful evictions and balancing the rights and responsibilities of residential landlords and tenants. Through that lens, it seems unlikely that evictions will be granted based on vaccination status. Similarly, considering vaccination status when selecting prospective tenants is discriminatory on its face.

Caryma Sa’d is a sole practitioner focusing on criminal, landlord/tenant and cannabis law. She is frequently called upon by journalists as a trusted source for their news stories.

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