How to Screen Tenants Legally in Newfoundland and Labrador

The tenancy law itself has no rules on what a landlord may collect from applicants. Two other laws set the limits: privacy law decides what you may collect and how, and the Human Rights Act, 2010 decides what you may base your choice on.

The Human Rights Act says its housing rule does not stop you from using income information, credit checks, credit references, rental history and guarantees to choose among applicants. So these are all lawful tools, if you collect the information properly and apply the same tests to every applicant.

Newfoundland and Labrador has no provincial private sector privacy law that covers landlords. The Office of the Privacy Commissioner of Canada says landlords here must follow the federal Personal Information Protection and Electronic Documents Act (PIPEDA), and tenants who complain go to that federal office.

The Privacy Commissioner's guidance for landlords, on its landlord and tenant page, covers the usual screening items.

Collect only what you need to judge the application, tell the applicant why you want it, and keep it secure. For the common questions landlords raise, see can a landlord do a credit check and can a landlord ask for bank statements.

Section 12 of the Human Rights Act bars refusing occupancy of a self-contained dwelling unit, or setting different terms, on a prohibited ground. Section 9 lists them: race, colour, nationality, ethnic origin, social origin, religious creed, religion, age, disability, disfigurement, sex, sexual orientation, gender identity, gender expression, marital status, family status, source of income and political opinion. Sex includes pregnancy. No intent to discriminate is needed, so an innocent rule with a discriminatory effect can still be a problem.

Points that catch landlords out:

• Children. An "adults only" rule can discriminate on family status.
• Source of income. The Act defines this ground as receiving income or employment support under the Income and Employment Support Act. The Human Rights Commission's guidance goes further and says not to judge someone because you do not approve of where their income comes from, such as income support. Using income only to check whether the applicant can pay the rent is the safe approach.
• Ads. Wording like "looking for working people" can exclude people who cannot work because of a disability or retirement. Notices and ads that discriminate are also prohibited.
• Disability. A landlord must accommodate a tenant up to undue hardship.

Criminal record is not on the housing list in section 9. The Privacy Commissioner says you should still get consent for background checks.

The housing rule covers a self-contained dwelling unit, meaning separate accommodation for sleeping and eating. The Human Rights Commission says the Act does not apply when you rent a bedroom in your own home and share eating and common areas. It does apply to a separate unit inside your home, such as a basement apartment.

Seniors' buildings have one exception. Age and family status do not apply where every unit in the premises is reserved for people 55 or older, or for households with at least one person 55 or older. The Commission adds that even there, you cannot refuse a person 55 or older because they also have a child.

A limitation based on disability is allowed only where it rests on a good faith qualification as determined by the Commission. Shared-space and other exceptions do not remove your privacy duties. PIPEDA still governs the information you collect.

You may prohibit pets or limit the type of pets in the rental agreement. The Residential Tenancies Office treats that as generally reasonable. Two rules limit it:

• The Service Animal Act bars refusing housing, or setting different terms, only because a person with a disability keeps a service animal. A lease ban on dogs or animals does not apply to a service animal, and no fee may be charged for it.
• Under the Human Rights Act a no-pet rule can be discriminatory, and the landlord must accommodate up to undue hardship. The Commission says you may ask for a medical note or evidence of the animal's training, but not for the diagnosis.

On co-signers, you may ask for a guarantor if an applicant has poor references, a poor credit rating or a history of default. You cannot require one because the applicant is identified by a prohibited ground. A lack of credit history alone should not be a reason to refuse. The Act sets no rule on application fees, and no government page says whether a fee paid before any agreement exists falls under the deposit cap, so ask the Residential Tenancies Office before you charge one.

1. Write your criteria before you advertise, such as income compared to rent, rental history and references. Use the same criteria for every applicant.
2. Check the ad wording for any prohibited ground.
3. Ask for the application on a form that marks the SIN optional and states why each item is collected.
4. Get written consent before a credit, reference or background check.
5. Look at ID and pay stubs, and avoid keeping copies you do not need.
6. Record why you chose or declined each applicant, using your criteria only.
7. Before the tenant signs, plan the paperwork. See how to become a landlord in Newfoundland and Labrador and the national guide how to screen tenants.

Keep the cap in mind when you set up the first payment: the landlord deposit rules for Newfoundland and Labrador limit the deposit to 3/4 of one month's rent. For questions about what is allowed, see what landlords can legally ask for.

Problems start when the reason for a refusal looks like a prohibited ground, even if you did not mean it. A person who believes they were refused unfairly can complain to the Human Rights Commission, and a rule that harms a protected group can be a breach without any intent. Privacy complaints about how you collected or kept information go to the federal Privacy Commissioner.

To reduce the risk, keep your written criteria, your notes and the consent forms. If an applicant asks why they were declined, answer with the criterion they did not meet, such as income or references, not with a personal remark. Once you have chosen a tenant, tenants are protected from retaliation and from eviction for making a human rights complaint. For your own protection, learn when a landlord can decline a tenant before you reply. This guide explains the rules in general terms; for a specific case, ask the tribunal or a licensed legal professional.