The Complainant submitted a complaint to the Yukon Human Rights Commission (“the Commission”) alleging that the Respondent Company had discriminated against her on the basis of mental disability. The Complainant has Fetal Alcohol Spectrum Disorder (FASD). With the help of the Fetal Alcohol Syndrome Society of the Yukon (FASSY) and its support workers, she was able to secure a lease to live in a townhouse owned by the Respondent Company. The manager of the Respondent Company agreed to cooperate with the FASSY workers throughout the Complainant’s tenancy.
The Complainant ran into several issues while living in the apartment. On a number of occasions, the manager of the Respondent Company asked them to provide signed lease documents and payment for a broken window. The manager insisted on speaking directly with the Complainant, rather than speaking with her FASSY social worker. Subsequently, the Respondent Company ended her lease. The Complainant alleged that in doing so, the Respondent Company did not accommodate for her disability. Therefore, the Complainant alleged that the Respondent was in contravention of the following Yukon Human Rights Act (“the Act”) sections:
1) Section 7(h), which prohibits discrimination on the basis of physical or mental disability
2) Section 8(1), which requires people to make reasonable provisions in connection with employment, accommodations and services for the special needs of other, if those special needs arise from physical disability
3) Section 9 (d), which prohibits discrimination that is connected to any aspect of the occupancy or lease of property offered to the public.
In making this decision, the Yukon Human Rights Board of Adjudication (“the Board”) made several general comments on constructive discrimination, disability and the duty to accommodate. Generally, discrimination refers to differential treatment based on a prohibited ground. Disability is a prohibited ground, as per section 7 of the Act. Constructive discrimination refers to rules, policies and practices which may not be intentionally discriminatory, but may nevertheless have a discriminatory effect on a group protected under the Act. Further, the Board explained that there is a social component to disability. The Supreme Court of Canada has recognized that society’s response to disability may, in fact, cause the limitations. In other words, limitations can be caused by the absence of accommodation, rather than by the disability itself. The duty to accommodate means that structures and policies must make sure that every person is able to fully enjoy and use their housing. It should be noted that though section 7 of the Act refers to physical disabilities, the Board stated that accommodation is required for all disabilities.
The Board identified two issues to be decided on this case:
1) Were the actions of the Respondent Company discriminatory?
2) Did the Respondent Company take reasonable steps to accommodate the Complainant at all times?
First, the Board determined that disability was a factor in the termination of the tenancy of the Complainant. Therefore, the Respondent Company’s decision to evict the Complainant was a discriminatory act. Next, the Board determined if the Respondent Company took reasonable steps to accommodate the Complainant at all times. Generally, persons are not required to accommodate if it would cause undue hardship. However, in this case, the requested accommodation was simple. The manager of the Respondent Company was simply asked to contact FASSY when dealing issues pertaining the landlord-tenant relationship. Therefore, the duty to accommodate was not met. The Board concluded that the Respondent Company did discriminate against the Complainant by failing to accommodate for her mental disability.
The Board ordered an apology and repayment of the balance of the damage deposit.