The fact that the population in general is more and more informed of its rights brings new problems to light for the owners. Indeed, this new dynamic makes so that since a few years, the reasons for refusal of a candidate have been tightened and the complaints submitted for discrimination at the Human Rights Commission increase, thus leaving very little room for manoeuvre to the owner for making a decision. For this reason, how about the clause prohibiting the presence of animals? Is it abusive and discriminatory?
Recent jurisprudence which is based on a trend going back several years tends to show that it is ‘much ado about nothing’ (1). Indeed, this kind of clause falls under the context of the maintenance of the quality of the residences and of the good neighborly terms in the building, it applies generally and aims at the common interest and not only one individual, it does not present according to jurisprudence, an abusive nature nor is it discriminatory.
Moreover, generally, the tenant freely signs this clause with his full agreement and in all knowledge and agrees to submit himself to it. It is not the reflection of a discrimination from the owner but a general rule of a building resulting from the right of management of the owner in order to give a particular quality to his building i.e.: that the tenants of the building do not have animals.
Also, considering the simplicity of the terms used in a housing lease: “Animals: Yes ? No ?”. It is difficult to claim bad understanding of the clause.
Obviously certain exceptions could make such a clause abusive, in particular for a dog guiding a blind person for example.
If it is clearly indicated in the advertisement that animals are not allowed in the building, it is thus justified not to sign a lease with a candidate who denounces the fact that he has an animal.
Finally, according to jurisprudence (2), “this clause impinges on no provision of the Canadian Charter of Rights and Freedoms or on any of the Charter of the rights and freedoms of the person. Indeed, to prohibit animals is not an infringement of the basic rights of a tenant and does not constitute an obstacle to the exercise of his freedom,” says Me Danielle Laflamme, Director at the Régie du logement. She describes “Freedom” as the physical freedom of the person and the word freedom is not synonymous with total absence of constraint. Neither is it an infringement of the basic rights of the Quebec Charter in the sense that the tenant exerted his free will to sign or not this clause required by the owner for the well-being of all the occupants.
Taking into account what follows, we think that this clause has its raison d'être and should be maintained as such according to the choice of the owner.
1. Germain vs. Wolthausen 31 110713 112G, Me Chantal Bouchard, administrative judge.
2. Office municipal d’habitation vs. Dorothea Coulombe 1994 J. L. 79