Can a Landlord Ask a Tenant About Health Details?
The Laws Applicable to Rights of Privacy Along With the Laws Applicable to Duties to Provide Safe Spaces Appear to Conflict. A Landlord Should Ask a Tenant About Health Status Only As Necessary to Legitimately Evaluate and Address Potential Safety Risks.
Understanding Whether to Ask a Tenant For Health Status Relating to Concerns About Coronavirus Infection
As a very difficult risk management concern, that appears to pose a conundrum as a legal Catch-22, is the question as to whether it is a violation of the rights of a tenant if a landlord asks for details regarding the health status of the tenant; in particular, whether the tenant is infected with coronavirus.
Conflict in Laws of Concern
Generally, a landlord is forbidden from asking a tenant, or prospective tenant, for information regarding certain health related concerns. This prohibition is prescribed by the Human Rights Code, R.S.O. 1990, c. H.19; which mandates against engaging in conduct that constitutes harassment or discrimination based on, among other things, disability. Specific to freedoms and rights in relation to accommodations, including rental housing, the Human Rights Code states:
2 (1) Every person has a right to equal treatment with respect to the occupancy of accommodation, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status, disability or the receipt of public assistance.
(2) Every person who occupies accommodation has a right to freedom from harassment by the landlord or agent of the landlord or by an occupant of the same building because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sexual orientation, gender identity, gender expression, age, marital status, family status, disability or the receipt of public assistance.
Furthermore, section 10(1) of the Human Rights Code defines "disability" and "harassment" as:
(a) any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness and, without limiting the generality of the foregoing, includes diabetes mellitus, epilepsy, a brain injury, any degree of paralysis, amputation, lack of physical co-ordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment, or physical reliance on a guide dog or other animal or on a wheelchair or other remedial appliance or device,
(b) a condition of mental impairment or a developmental disability,
(c) a learning disability, or a dysfunction in one or more of the processes involved in understanding or using symbols or spoken language,
(d) a mental disorder, or
(e) an injury or disability for which benefits were claimed or received under the insurance plan established under the Workplace Safety and Insurance Act, 1997; (“handicap”)
“harassment” means engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome;
Interestingly, the Human Rights Code itself is silent on a definition of "infirmity"; however, per the Human Rights Tribunal of Ontario case of Caster v. Hearthstone Communities Services Ltd., 2013 HRTO 111 at paragraph 11, while citing the Supreme Court case of Quebec v. Montréal (City), et al,  1 SCR 665, it is stated that, "... everyday illnesses or normal ailments are not generally disabilities under human rights legislation. ...". Accordingly, it appears implied that a disease that is beyond, "... everyday illnesses or normal ailments ..." would thereby be defined as an "infirmity" per the Human Rights Code.
In addition to duties to refrain from discrimination or harassment per the Human Rights Code, a landlord is also prescribed duties to provide reasonably safe premises. In particular, yet without limitation, the landlord holds duties to ensure that shared common spaces are reasonably safe so to protect persons such as other tenants as well as third parties from injury or harm. Specifically, the Occupier's Liability Act, R.S.O. 1990, c. O.2 defines an occupier as:
1 In this Act,
(a) a person who is in physical possession of premises, or
(b) a person who has responsibility for and control over the condition of premises or the activities there carried on, or control over persons allowed to enter the premises,
despite the fact that there is more than one occupier of the same premises;
Accordingly, as is plain and obvious, a landlord, among others, is defined as an occupier and is thereby captured by the Occupier's Liability Act which thereafter imposes the duties upon occupiers as including, among other things:
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.
The third statute to come into the mix is the Residential Tenancies Act, 2006, S.O. 2006, Chapter 17 itself; and in particular, section 20 of the Residential Tenancies Act, 2006 which imposes maintenance responsibilities upon the landlord. Specifically, it is stated:
20 (1) A landlord is responsible for providing and maintaining a residential complex, including the rental units in it, in a good state of repair and fit for habitation and for complying with health, safety, housing and maintenance standards.
Accordingly, per the Residential Tenancies Act, 2006 itself, the landlord clearly appears to hold a duty to provide and maintain the residential complex, including rental units, in a state of complying with health and safety standards. What remains potentially questionable is the specifics as to what are the required standards.
Appearance of Conundrum
As above, the law provides tenants with rights including the freedom from discrimination or harassment based on infirmity such as an unusual illness per the Human Rights Code as well as the right to reasonably safe premises per the Occupier's Liability Act and the right to enjoy premises that are maintained so to comply with health and safety standards per the Residential Tenancies Act, 2006. In addressing these rights, a landlord holds the duty to refrain from discrimination or harassment based on infirmity while also under the mandate to provide and maintain reasonably safe premises.
To abide with the duties upon a landlord, it appears that a landlord ought to diligently make reasonable inquiry regarding potential biohazards posing health risks when such inquiry is purely for the genuine purpose of assessing whether there is a need for any extra-special maintenance and cleaning services such as sterlization of shared common spaces by a qualified biological hazmat service.
Of course, where the Covid19 Crisis is unprecedented, and the law is without prior judicial decisions as case precedents on these issues, it is currently unknown how the Human Rights Tribunal of Ontario, the Landlord Tenant Board, and the courts, will address these issues. This lack of precedent decisions creates a state of confusion and makes difficult the ability for landlords and tenants to obtain reasonably accurate legal advice. Of course, what is clear is that any inquiries regarding health information must always be absent of discrimination or harassment.
With the Covid19 Crisis, the world is experiencing unprecedented times with unprecedented legal issues arising therefrom. Without clear laws, and sometimes laws that impose conflicting rights and duties, it is unknown how many of these legal issues will be resolved; however, by communicating respectfully and extending reasonably compassionate accommodations for sudden unexpected needs and concerns, landlords and tenants can be manage the unfortunate circumstances in a way that helps ensure healthy and respectful relations.