The Buyer Love Letter: What an Ontario Seller Can and Can’t Do With It

A seller asks, before the listing goes live, whether buyers can be invited to send a letter about themselves. Here is which rules bind the seller, which bind the listing agent, and where the line sits.

I’m Arthur Zhao, a real estate broker in Toronto. Picture the kitchen table on the day the listing agreement is signed. The pricing is settled, the photo date is booked, and the seller has one more question before initialling the last page: “When offers come in, can we ask buyers to include a letter telling us a bit about themselves?”

It sounds like a small request about paperwork. A careful listing agent will slow down on it anyway, and the reason is that two sets of rules are in play at once: the ones that bind the seller as a party to a contract, and the ones that bind the agent personally as a registrant. I’ll start with the agent’s side, because that is where any hesitation you hear at the table comes from, then turn to the seller’s own obligations, the indirect routes the law also covers, what happens if a buyer complains, and what sections 13 and 21(1) do and don’t add.

The agent’s layer: why the request gives a listing agent pause

According to O. Reg. 365/22, the Code of Ethics made under the Trust in Real Estate Services Act, 2002, a registrant is bound by four provisions that bear directly on this request.

Section 6: “In carrying on business, a registrant shall not treat any person in a manner that would contravene the Human Rights Code.” The words are any person. The buyers sending offers are not the listing agent’s clients, and the duty still runs to them.

Section 3: a registrant shall not “counsel, advise or knowingly assist a person to contravene” the Act, the regulations or any other law applicable to a trade in real estate. If a seller’s choice of buyer were to cross a Human Rights Code line, the question for the agent would be whether they helped.

Section 5(b): a registrant shall not “engage in or be a party to misrepresentation or any unethical practice.”

Section 8(1): a registrant that represents a client “shall promote and protect the best interests” of that client. The regulation does not say how best interests apply to buyer letters. My inference is that an agent may see keeping the seller’s selection process clear of protected grounds as part of protecting the seller, which is why the conversation about letters can happen before the listing is live rather than on offer night.

The seller’s layer: section 3 and contracting on equal terms

The seller is not a registrant, so the Code of Ethics does not bind the seller. The Human Rights Code does. Section 3 reads: “Every person having legal capacity has a right to contract on equal terms without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability.”

An agreement of purchase and sale is a contract, and the right belongs to the buyer. Two definitions in s.10(1) sharpen it:

• “Equal” means “subject to all requirements, qualifications and considerations that are not a prohibited ground of discrimination.” Read with that definition, the commercial terms of an offer are not prohibited grounds; the listed grounds are.
• “Family status” means “the status of being in a parent and child relationship,” and “age” means an age of 18 years or more.

A letter can carry these grounds without anyone asking for them: a family photo, a mention of children, a place of worship nearby, the language spoken at home. The letter itself is not the regulated act. The seller’s decision about whom to contract with, and on what terms, is.

Seller and listing agent: who answers to which rule

Indirect and connected: sections 9, 11 and 12

Section 3 is not the only route. Three more provisions widen what counts.

Section 9 says no person shall infringe, or do “directly or indirectly,” anything that infringes a right under Part I. A decision does not have to name a protected ground to fall within it.

Section 11(1) covers constructive discrimination: a right is infringed where “a requirement, qualification or factor exists that is not discrimination on a prohibited ground but that results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground.” The exceptions are where the factor is “reasonable and bona fide in the circumstances,” or where the Code itself declares that discrimination on that ground is not an infringement. Under s.11(2), the Tribunal or a court cannot find a factor reasonable and bona fide unless the group’s needs cannot be accommodated without undue hardship.

Section 12 covers association: a right is infringed where the discrimination is “because of relationship, association or dealings with” a person identified by a prohibited ground. A buyer who is not personally in a protected group can still be covered if the reason relates to a spouse, a child or anyone else they are connected to.

If a buyer files a complaint: sections 34 and 45.2

A buyer who believes a right under Part I was infringed may apply to the Human Rights Tribunal of Ontario under s.34(1). The time limit is within one year after the incident, or, where there was a series of incidents, within one year after the last one. Under s.34(5), a person or organization other than the Commission may also apply on the buyer’s behalf if the buyer would have been entitled to apply and consents.

According to the Human Rights Code, s.45.2(1), if the Tribunal finds that a party infringed a right, it may make one or more of three kinds of order:

• monetary compensation for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect;
• restitution other than money, for the same kinds of loss;
• an order directing any party to do anything the Tribunal thinks it ought to do to promote compliance with the Code.

Section 45.2(2) adds that the third kind of order may direct a person to do something “with respect to future practices” and may be made even if nobody asked for it. The statute sets no dollar range for any of these orders.

What sections 13 and 21(1) add, and what they don’t

Section 13 adds a route; it is not a precondition. Section 13(1) makes it an infringement to publish or display before the public a notice, sign, symbol, emblem or similar representation that indicates an intention to infringe a Part I right, and s.13(2) preserves freedom of expression of opinion. A public listing remark that signalled a preference by a protected ground could engage s.13(1). But s.13 is an additional route, not a precondition: s.3 and s.9 apply to the decision itself whether or not anything was ever published.

Section 21(1) is about occupancy, not sales. Section 21(1) says the right under s.2 to equal treatment with respect to the occupancy of residential accommodation is not infringed where the accommodation is in a dwelling where the owner or the owner’s family lives and the occupants must share a bathroom or kitchen with them. It is written for someone moving into a home the owner still lives in. Its text refers to s.2 and occupancy; it does not mention s.3 or the sale of a property.

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