In October 2021, CTV News Toronto published an article (“Couple asked to leave Toronto condo because they’re not married”) featuring a story about a gay Torontonian, John Cowan, residing in a condo at Wellesley and Bay, a mere two blocks from Toronto’s Gay Village, who was asked by the condo’s management to provide proof of marriage to his partner as a prerequisite for their living together in the condo. When Cowan failed to produce that proof, the condo’s management deactivated his partner’s key fob. As justification for excluding Cowan’s partner from their home, the condo management cited a condo rule, referred to as the ‘single-family rule’, which purports to define a family as “a social unit consisting of parent(s) and their children, whether natural or adopted, and includes other relatives if living with the primary group.”
In this article, we discuss the discriminatory impact of the single-family rule on the grounds of sexual orientation, the HRTO’s unsettled jurisdiction over the issue, and the broader implications for the 2SLGBTQ+ community.
WHAT IS THE ‘SINGLE-FAMILY RULE’?
The owner of a condominium unit does not have a classic freehold. An owner is not at liberty to deal with property in the same manner as the owner of other residential dwellings might be. Sections 7(4)(b) and (c) of the Condominium Act (the “Condo Act”) permit a declaration to contain conditions or restrictions with respect to the occupation and the use of the units or common elements of units within a condominium. Additionally, section 58 of that Act empowers condo boards to make rules respecting the use of common elements and units to “promote the safety, security or welfare of the owners and of the property and assets” of the condo corporation as well as to “prevent unreasonable interference with the use and enjoyment” of the common elements and units. Owners and renters are required to abide by condo board rules that are reasonable and consistent with the Condo Act, the condo’s declaration and by-laws.
In Ballingall v CCC No. 111, 2015 ONSC 2484, a seminal case regarding the single-family rule and the definition of “private single-family residence”, the Superior Court of Justice was unequivocal in stating that condo boards had the authority to make rules defining the meaning of “private single-family residence.” In that case, the Court also said that “unless the term "private single-family residence" is defined otherwise in a condominium corporation's governing documents, it has the following definition: “a social unit consisting of parent(s) and their children, whether natural or adopted and other relatives if living with the primary group” – a narrow definition affirmed by the Ontario Court of Appeal.
THE JUSTIFICATION FOR THE SINGLE-FAMILY RULE AND ITS IMPLICATIONS
Paula Boutis, a lawyer with over 20 years experience advising on issues involving municipal governance and land development, and a complainant in a case involving the single-family rule, wrote in a recent article that “single-family rules are justified by condo corporations as a way to ensure that unrelated, transient tenants and rooming houses – where single rooms are rented out as opposed to the entire unit – are prohibited from condo communities.” Boutis also astutely pointed out that the single-family rule essentially gives condo corporations the power to “regulate residents by relationship.”
Evidently, this rule can potentially be wielded to discriminate against members of the 2SLGBTQ+ community. In Cowan’s case, a former resident of the condo told CTV News Toronto that she had lived at the condo for six years when she invited her boyfriend Samir to live with her without any resistance from the condo board or management.
Indeed, in Boutis’s application to the Human Rights Tribunal of Ontario (HRTO), she claimed that the single-family rule prevented her from renting her condo to various individuals and/or groups identified by protected grounds Ontario Human Rights Code (the “Code”), including unmarried same-sex couples not living in a conjugal relationship. Significantly, in response, the HRTO issued a notice of intent to dismiss the application effectively questioning whether it had jurisdiction to deal with the matter. The matter was ultimately settled and the questions of whether such a rule may be discriminatory on the basis of sexual orientation and whether the HRTO has jurisdiction to answer that question remain unanswered.
THE CODE AND ITS LIMITS
The Code protects against discrimination in many areas that affect our day to day lives, including housing, employment and services. Necessarily, the Code limits the power of landlords, condo boards, and others to discriminate.
Nonetheless, a recent report from the Ontario Real Estate Association highlights ongoing inequities in housing. Citing StatsCan data, the report highlights the fact that “in Ontario, 72% of those who are not a visible minority own their homes, as compared to 43% of Black respondents, 50% of Indigenous respondents, and 67% of other visible minorities who own homes. Similarly, 71% of heterosexual persons are homeowners, whereas only 47% of those who identify as homosexual or bisexual are homeowners.” Trans individuals also face discrimination in housing. One study of housing needs explained that, a significant number of LGBTQ2S individuals interviewed experienced “landlord discrimination, harassment from other tenants, and struggles with their gender identity and/or sexual orientation” that contributed to homelessness.
In other words, BIPOC and LGBTQ2S+ individuals and families are more likely to rent. As the condo market explodes in urban centres like Toronto, this means we are more likely to interact with condo boards either as renters or owners of condos. The report highlights the discrimination distorting the rental market: “93% of Black REALTORS® and 60% of all consumers surveyed disagree that renting is free from discrimination. 43% of REALTORS® say they’ve seen a rental deal fall through as a result of discrimination.” Lastly, the report finds that few are inclined to report discrimination “because they do not believe action would be taken, feel that it’s a long and tedious process, or are not sure of where to go for help, among other reasons.”
Given what we know about the pervasiveness of discrimination in the housing market and the importance of housing to an individual’s quality of life, it would be fitting to pay attention to the available remedies. Boutis experienced significant delays after bringing the human rights claim that was eventually settled. CTV reported in October 2021, that “it’s been a year since [Paula Boutis’ human rights] complaint was filed and she doesn’t even know yet whether the tribunal will accept it.” Boutis’s lawyer explained that there is “a significant backlog at the Human Rights Tribunal” and that delays of two to three years were not uncommon. While the matter has since settled, the HRTO has still “never adjudicated the matter [of the single-family rule]”. (The HRTO later decided that “‘it was neither plain nor obvious’ that the issues did not fall under the tribunal’s jurisdiction and allowed the matter to proceed.”)
RESOLVING THE CONFLICT
Paula Boutis notes that both the Planning Act and the Building Code prevent zoning by-laws and standards that “have the effect of distinguishing between persons who are related and persons who are unrelated in the respect of the occupancy or use of a property." Boutis argues that “it makes no sense to have a provincial system that prohibits zoning and property standards on the basis of relationship, only to allow condos to make the decision about who is an acceptable owner or resident, which may or may not be compliant with the Code.”
Removing the single-family rule and moving to a process that responds to the actual concerns at play would remove some of the discrimination at play in housing today.
Much has been written about the pros and cons of concurrent jurisdiction over human rights issues (see: Tranchemontagne v. Ontario (Director, Disability Support Program), 2006 SCC 14). The specialization and expertise of the HRTO is unmatched; however, the benefits are significant when remedies for discrimination are available through diverse tribunals.
Delays at the HRTO impede access to justice. Moreover, the CAT has concurrent jurisdiction with the HRTO and, as the CAT noted “The timeliness of having the issues decided for the parties is a legitimate consideration…”
Unless and until the single-family rule is removed from the toolkit of condo boards, challenges to its use can be brought before the CAT and the HRTO. In choosing which forum is the more appropriate for a particular case, individuals should work with their lawyers to assess the remedies available from each tribunal, the likely delay, and the facts of the case.
Broader societal inequities compound housing inequities. Robust human rights responses, including education and, where beneficial, concurrent jurisdiction, are needed to protect against and respond to discrimination. Our homes can be places of respite and recovery from the discrimination we face in the larger world, but only if we have meaningful protection from discrimination where we live.
ABOUT THE AUTHORS
Kirsti Mathers McHenry (she/her) is the managing partner at Mathers McHenry & Co., a firm specializing in executive employment law and advisory work as well as employment law for select employers. Kirsti also consults with select clients to build, improve, and grow their firm, program, or organization.
Tamara J. Sylvester (one/they/them) is a lawyer working in the Human Rights Services Office at Toronto Metropolitan University. In addition to conducting investigations into human rights and sexual violence complaints at the University, one provides education and training on the University’s human rights and sexual violence policies. One is also the co-liaison of public affairs and assistant section editor of the SOGIC Executive. (email@example.com)
The SOGIC Executive section editor and assistant editor would like to express our gratitude to the following individuals:
- Erfan Buyan (he/him), lawyer and senior compliance officer, Financial Services Regulatory Authority of Ontario, and member of the SOGIC Executive, for bringing this issue to the attention of the SOGIC Executive.
- Laurence Dutil-Ricard (she/her), barrister and solicitor at Junction Law, for her support in the review of this article.
A version of this article originally appeared on the OBA Sexual Orientation and Gender Identity Community’s (SOGIC) articles page.
 Muskoka Condominium Corporation No. 39 v. Kreutzweiser,  ONSC 2463, at para. 8: The nature of a condominium is that in return for the advantages gained through common ownership of certain elements some degree of control over what can be done with those common elements is given up. The details of what is given up are set out in the condominium declaration and its bylaws and rules. It is both the right and obligation of a unit owner or occupier to see that these are obeyed.
 Section 119(1) of the Condo Act
 Per Justice Aitken at para 74
 Nipissing Condominium Corp. No. 4 v. Kilfoyl, 2009 CanLII 46654 (ON SC)
 Paula Boutis v Toronto Standard Condominium Corporation No. 1922 HRTO Application - Reference # 2020-09-11-09-09-501283
 R.S.O. 1990, c. H.19
 See: https://www.orea.com/~/media/Files/Downloads/2022-09-27%20Fighting%20for%20Fair%20Housing%20Report%20FINAL and page 8
 York Condominium Corporation No. 435 v. Karnis et al., 2022 ONCAT 86 at para. 37-38.