What are landlords allowed to ask? Lawyers weigh in

With the vacancy rate in London's rental market now hovering at around 1.7 per cent, many renters who spoke to CBC said they're often subjected to increased scrutiny by landlords. 

To learn which questions landlords are allowed to ask, we spoke with Ian Dantzer, a lawyer and review counsel with Community Legal Services (CLS) at Western University. 

Part of Western's law faculty, CLS acts on behalf of students and low-income tenants in disputes with landlords. 

"We act for anybody who has a tenant rights or enforcement issue," he said. 

Here's what he said about the following questions that renters told us they've been asked by landlords, based on Ontario's Residential Tenancies Act. 

1. What's your income?

Allowed or not? Allowed. Landlords can ask for income information, credit checks, credit references and rental history.

One wrinkle: It's not legal for a landlord to apply any kind of rent-to-income ratio in considering a prospective tenant. 

"You can check to see if they've got an income, and it is enough to pay the rent," said Dantzer. "Just because I choose to rent an $800-a-month apartment and earn $1,000 a month shouldn't exclude me from renting it. If I feel I can live on $200 a month, that's my business. If they have enough money to cover the rent, they shouldn't be excluded based on income alone."  

2. Have you ever been in a dispute heard by the Landlord and Tenant Board?

Allowed or not? No. Landlords aren't allowed to ask about this in assessing potential tenants. 

3. Do you have pets?

Allowed or not? This remains a somewhat muddy issue, and to understand it we have to discuss three documents: The Ontario Residential Tenancies Act (RTA), the Ontario Human Rights Code and the Ontario Human Right's Commission's policies regarding housing. 

First, the RTA lays out what landlords can ask in Section 10 'Selecting Prospective Tenants': 

"In selecting prospective tenants, landlords may use, in the manner prescribed in the regulations made under the Human Rights Code, income information, credit checks, credit references, rental history, guarantees, or other similar business practices as prescribed in those regulations."

So outside of what's specified here in the RTA, the landlords have to follow the regulations under the Human Rights Code. The section of the HCR that applies is 290/98. You can read that here but it essentially spells out what information landlords can ask of prospective tenants. Again, it's essentially about rental history, credit checks and other money issues — not pets. 

However, the Ontario Human Rights Commission has a policy document that says tenants are not allowed to be refused an apartment for reasons such as race, religious beliefs, sexual orientation, disability, etc. The document also spells out business practices in choosing tenants. Again it's mainly focused on issues regarding the tenant's income, rental history and references. But the last line of the policy states the regulation under the code "permits no other inquiries."

It's that "no other inquires line" that Dantzer believes makes it clear that landlords can't ask prospective tenants about pets. 

"The policy makes it very clear that after the enumerated financial criteria allowed to be used in selecting prospective tenants, no other inquiries are permitted. Period," said Dantzer. "This makes it clear to me that a landlord cannot ask about pets when selecting a prospective tenant."

But here's the thing. Some lawyers don't agree. 

Among them is Harry Fine. He's a paralegal and former Landlord Tenant Board adjudicator. 

Fine said Dantzer places too much weight on the policies of the HRC, rather than the applicable laws. 

"The policy guideline is not law," said Fine. "They are a guide but finders of fact aren't bound by them." Fine says if legislators explicitly wanted landlords to be barred from asking about pets, it would say so in the RTA.

"The Landlord and Tenant Board doesn't look at that guideline," said Fine. 

One thing that is clear is that any tenancy agreement "prohibiting the presence of animals in or about the residential complex is void." That's in section 14 of the RTA. So a "no pets" lease is not legal.

One note: These rules don't apply to condominiums, which are not governed by the Residential Tenancies Act. "Pets in condos are likely to be restricted by the declarations, bylaws and the rules. And that is permitted under the Condominium Act," said Dantzer.

4. Have you rented before?

Allowed or not? Allowed. "You can ask about their rental history: Have they rented before and for how long." 

5. Are you on social assistance?

Allowed or not? No. Under Section 10 of the Act "Selecting prospective tenants" a landlord must comply with the Human Rights Code which bars discrimination because of "the receipt of public assistance." Similarly, prospective tenants can not be denied accommodation for reasons related to "race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status, disability."