Screening Tenants Legally in Ontario

The Residential Tenancies Act, 2006 points landlords to a Human Rights Code regulation, O. Reg. 290/98, for what screening is allowed. Under it you may:

• request credit references and rental history;
• ask the applicant to authorize a credit check;
• ask for income information, but only if you also ask for the items above, and only if you weigh the income together with everything else you collected;
• require a guarantor for the rent.

The Ontario Human Rights Commission (OHRC) reads this list as complete. In its words, the regulation permits no other inquiries. A lack of credit history or rental history should not count against an applicant. Income information should be limited to confirming the person has enough income to cover the rent. A guarantor requirement is fair only when you apply it to everyone, not just to people tied to a protected ground such as recent newcomers or people on social assistance.

1. Decide your questions before you advertise, and use the same ones for every applicant.
2. Collect only what the regulation allows: credit references, rental history, credit check consent and, together with those, income information.
3. Get the applicant's written or clear consent before you run a credit check or contact references. A credit check needs at least the applicant's name, address and date of birth.
4. Contact the references and compare what they say with the application.
5. Look at income alongside credit and rental history. Do not use income alone as the deciding factor when other information is available.
6. Base your decision on the information you gathered, never on a protected ground.
7. Tell applicants clearly what you are asking for, and keep notes of why you chose the tenant you did.

Credit and reference checks carry their own privacy duties, covered below. The Ask pages can a landlord do a credit check and what can landlords legally ask for give short answers for applicants.

The Ontario Human Rights Code protects equal treatment in housing. You cannot refuse, or set different terms for, an applicant 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. Sex includes pregnancy.

Points that trip up landlords:

• Children. Refusing families with children, running an adult-only building or preferring married couples to single parents is family status discrimination.
• Income cut-offs. The OHRC says a fixed rent-to-income ratio, such as 30%, is illegal.
• Public assistance. Receipt of public assistance is a protected ground. Ontario does not list source of income as a ground in general, but rules like a minimum income can still have a discriminatory effect.
• Disability. You must accommodate to the point of undue hardship, and you carry the burden of proving hardship.
• Age. In the Code, age means 18 or older. A 16 or 17 year old who has withdrawn from parental control is protected in housing, and a lease they sign is enforceable against them.
• Ads. Wording like "suits a working person" can signal discrimination.

There are narrow exceptions, for example when the tenant shares a bathroom or kitchen with the owner or the owner's family, and the Code allows preferential treatment for people 65 and over.

Criminal record. "Record of offences" is a protected ground only in employment, not in housing. But the OHRC also says the regulation permits no inquiries beyond those listed in the section above. Because those two points pull in different directions, ask the OHRC or a licensed legal professional before you add a criminal record check to your process.

Bank statements. None of the sources reviewed gives a specific rule on landlords asking for bank statements. The income rules above still apply, and the OPC lists banking information as personal information.

Pets. A no-pets clause in a tenancy agreement is void in Ontario. The sources reviewed do not say whether you can decline an applicant at the application stage because of a pet. Guide dogs and other service animals are protected by the Human Rights Code and the Blind Persons' Rights Act, and a condo's own rules can bind tenants.

Ontario landlords cannot charge a fee to a prospective tenant. The Act bans collecting or requiring a fee or similar amount of money from a tenant, prospective tenant or former tenant, whether or not it is refundable. The exceptions are narrow, and none covers an application, screening or credit check fee. Charging one is an offence, with fines of up to $100,000 for an individual and $500,000 for a corporation.

The only deposits you may take are a rent deposit and a refundable key deposit. The sibling guide Ontario rent deposit rules for landlords explains both.

Ontario has no private-sector privacy law of its own, so the federal Personal Information Protection and Electronic Documents Act (PIPEDA) applies to private landlords. The Office of the Privacy Commissioner of Canada (OPC) sets out what that means in its guidance for landlords and tenants:

• Get consent to collect, use or share personal information, including to share it with a credit reporting agency.
• You cannot require a Social Insurance Number. It is not needed for a basic credit check.
• You may ask to see a driver's licence or pay stubs, but you likely do not need to keep copies of those documents.
• Get consent before reference and background checks, and avoid using social networks for background checks.
• Do not post an applicant's poor payment history to an informal "bad tenants list".

The sources do not set a retention period for application files. Keep only what you need.

Most Ontario private tenancies must use the standard lease form 2229E, signed by both sides on or before the day the tenant may move in. You must give the tenant a signed copy within 21 days after they sign and return it. Setup rules are in how to become a landlord in Ontario.

This guide explains the rules in general terms; for a specific case, ask the tribunal or a licensed legal professional.