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March 30, 2010
The Ontario Human Rights Commission (the "OHRC") thanks the City of Oshawa ("City") for the opportunity to comment on its student accommodation strategy.
The OHRC's comments are based on its expertise as a human rights body with a broad mandate to protect and promote human rights consistent with international prinCiples. The OHRC's mandate and powers are grounded in the Ontario Human Rights Code ("Code"). The OHRC's work on housing, including its report, Right At Home: Report on the consultation on human rights and rental housing in Ontario, the OHRC's Policy on Human Rights and Rental Housing, relevant case law, and previous conversations with the City of Oshawa provide a framework for this discussion.
All OHRC documents and some of the letters to the City of Oshawa are available on the OHRC's website at www.ohrc.on.ca.
Housing as a human right
The international community has long recognized that housing is a fundamental and universal human right that is protected in law. Canada has ratified several international human rights instruments that recognize the right to housing.[1] The challenge for Canada is to make these high-level principles a lived reality for Canadians. Municipalities, including municipal councils, policy makers, planners and program designers have unique opportunities to ensure people's human rights are respected in the design and delivery of housing and housing legislation.
The OHRC has made a commitment to educating and addressing human rights concerns regarding opposition to affordable housing, which has the potential to discriminate against groups protected by the Code. Oshawa has been attempting to address the student housing issue since it has been dealing with community tensions raised due to post-secondary off-campus student accommodation. Oshawa's strategy may have an impact on land use planning in communities across Ontario responding to similar tensions. Although the Code-protected group referenced in the plan is young people (students), these issues are also relevant to other Code-protected groups seeking to share accommodation, including people receiving social assistance, single people, families, immigrants, people from racialized and Aboriginal groups, and people with disabilities.
The OHRC and the City have had many discussions since the passage of the Residential Rental Housing By-law in February of 2008. The OHRC became involved because of concerns raised by students, homeowners, and landlords about the prospect of the by-law violating young people's rights to be free from discrimination in housing. Both zoning and licensing issues are covered under an individual's right to be free from discrimination in the area of accommodation, under section 2 of the Code. These rights could extend to the development of affordable housing projects for people and groups identified by the Code.
At the heart of the issue is: "Are young people restricted or prevented from sharing accommodation in all parts of a city, either because of stereotypes related to their ages, or because they do not resemble a family?" The question of sharing accommodation because people do not resemble a family is also relevant for people from other Code protected groups who may need to share accommodation.
The City of Oshawa's student accommodation strategy
The OHRC supports the many aspects of the student accommodation strategy that will result in varied housing opportunities for students and other people protected by the Code. The OHRC acknowledges the challenges the City faces in terms of meeting the high demand for affordable housing in the face of a changing economic base in the community. Clearly, the expansion of several different university campuses in the City over the next few years poses land use planning challenges. However, it also creates opportunities to develop affordable housing, establish other amenities, and foster an inclusive community where everyone feels able to contribute. To meet these goals, the proposal recommends varying housing types, including purpose-built student housing, townhouses, lodging houses in certain areas in the short term, apartments and more on-campus student housing. In addition, the plan proposes various zoning options and amendments, including incentives for those seeking to build, that will support a range of affordable housing. These goals are supported by the OHRC.
The OHRC also supports the City's efforts to engage with the college, universities, homeowners and students to alleviate tensions. Particularly noteworthy is the recommendation that a staff position be created for a three-year pilot project that will work on student/community relations. The OHRC would also be happy to attend a future provincial summit sponsored by the City of Oshawa dealing with issues of human rights and housing.
Human rights principles
The OHRC is pleased to see that the City of Oshawa has given weight in its plan to the human rights principles provided by the OHRC (Section 3.5). These principles, which are grounded in the OHRC's policy positions and case law, can provide a guiding framework based in human rights which could be useful to many municipalities when considering these issues.
In the next version of the plan, the OHRC recommends that minor adjustments be made to the principles, such as:
- Point 1. The statement, "students could be considered part of a Code-protected group if they are treated differently from others based on age." We would recommend removing the italics and underline from "if', and add to this line, "Differential treatment could be based directly on stereotypes or it could include neutral rules, policies or regulations that have an adverse effect on people based on age."
- Point 4. Add "single people" to the list of Code-protected groups identified.
- Adding a statement indicating, "When the municipality engages in land use planning exercises that will affect Code-protected groups, the Code should be considered."
In the next iteration of the plan, the City should refer to these principles as coming from the Ontario Human Rights Commission, as opposed to "OHRC staff'.
In addition, the OHRC recommends the City consider utilizing the Human Rights Code in its planning framework (Section 3.2) for future planning exercises.
Rental housing licensing
While it supports the wide array of planning initiatives outlined in the document, the OHRC still has concerns that part of the goal of the plan is to move students from the single detached homes in the areas around the university. In accordance with the human rights and housing principles outlined above, regardless of their personal characteristics, neighbourhoods should be inclusive of all groups; planning exercises should not result in restrictions that may violate the Code.
An appropriate residential income mix across the City may be desirable but the human rights of everyone in the community must be respected. The City has done this in part by proposing a plan that offers incentives to build and support affordable housing. However, potential limitations and restrictions on young people still remain, which are problematic from a human rights perspective. This can make the City vulnerable to human rights challenges.
The Residential Rental Housing By-Law applies only in areas around the university, and places a cap of four bedrooms on most houses, even where houses are legally renovated or have more than four original bedrooms. The OHRC has said previously that setting this cap may result in the exclusion or restriction of young people from the neighbourhood. Where houses have been built with more than four bedrooms, there remains the question of why these bedrooms cannot be used. If it is because students are likely to live there, this can have the effect of stereotyping young people as less responsible and less likely to look after their property than others. This could be seen as discriminatory.
The Ontario Municipal Board ("OMB") recently released an interim decision with respect to the City of Kitchener[2] that provides guidance to municipalities on respecting human rights when adopting by-laws or planning instruments. It affirms that municipalities are bound by the Code, and indicates that if the City of Kitchener wished to impose restrictive measures targeting the accommodation of people protected by the Code (which in that case were people with disabilities and people receiving social assistance), it would require analysis of how these measures complied with the Code and the Charter of Rights and Freedoms. The City of Oshawa may benefit from engaging in this same analysis with respect to the concerns raised about licensing and zoning.
In addition, the OMB referred to the Supreme Court of Canada's discrimination analysis in British Columbia (Public Service Employee Relations Commission) v. BCGSEU ("Meiorin”)[3], when it indicated that:
The Code would appear to prohibit a by-law or planning instrument that had a discriminatory effect, subject to the statutory defence of "reasonableness and bona fide under the Circumstances", notably undue hardship. A municipality which sought to justify the impOSition of a discriminatory standard/requirement/policy might be expected to establish that it made real and meaningful efforts to accommodate the needs of persons adversely affected by the standard/requirement/policy, or sought less discriminatory approaches to achieving this objective. It might also be expected to establish, on a substantive level, that it is not possible to accommodate, short of undue hardship.
To this end, the OHRC recommends removing the bedroom cap, and basing any bedroom restrictions on existing health and safety and occupancy standards, with regard to any legal renovation of housing in the area. This would alleviate the potentially discriminatory effect of excluding young people from the neighbourhood. Although different types of housing are proposed in the long term throughout the City, in the short term, the OHRC has concerns that the four bedroom cap may make affordable housing
more difficult to find, if students have to move out and find housing elsewhere and if rents increase. This would add to the exclusionary impact of the bedroom cap.
Definition of single housekeeping establishments
The OHRC understands that the City is currently issuing licenses to landlords to rent single detached houses to students. It has also set up an appeals procedure for individuals who dispute the denial of their rental housing license. It appears that many appeals and licenses are being denied because students do not meet the definition of "single housekeeping establishment." If unrelated persons are prevented from sharing accommodation in certain areas of the City because they do not conform to traditional family models, this will continue to raise human rights concerns.
It is important to note that although many believed that the Supreme Court of Canada's declining leave to appeal in Death v. Neighbourhoods of Windfields Limited Partnership[4] put to rest any human rights concerns regarding the definition of lodging houses, this is not the OHRC's interpretation. None of the lower court cases examined any of the human rights issues. The Supreme Court of Canada dismissed the application for leave to appeal without examining the merits of the case, leaving these issues open, and questions remain about the intersection between human rights and the occupancy and zoning of lodging houses.
With respect to determining whether or not tenants will constitute a "single housekeeping unit," landlords should not be expected to ask questions that may violate the Code. Specifically, landlords may not ask people about their family status (whether or not someone is in a care-giving relationship with someone else, such as a parent/child relationship or caring for older adults) marital status (single, common-law, divorced, or in a same-or opposite-sex marriage), the age of prospective tenants, or elicit information about whether or not they are a family, and use these as a condition of tenancy in private market rental housing. A number of cases have determined that denying someone housing because they are unmarried or do not conform to traditional family models is a violation of their human rights. For example, in Swaenepoel v. Henry (1985), a human rights tribunal found that the claimants, a group of three single women, were discriminated against because of assumptions about the characteristics of single people of the same sex, residing together as tenants. who did not conform to the nuclear family model.[5]
The R. v. Bell Supreme Court of Canada case, in which the Court struck down a by-law limiting dwelling occupants to family members, continues to be the flagship case in this regard.[6] As a result, section 35(2) of the Planning Act stipulates that municipalities may not pass zoning by-laws that have the effect of distinguishing between persons who are related and persons who are unrelated in respect of the occupancy or use of a building.[7] A zoning by-law cannot stipulate that a family, not roommates, must occupy a house.
If however, the test for a "single housekeeping establishment" is whether or not individuals live as a group, this is preferable to imposing notions of "family". Where licences are denied because tenants are not seen as operating as a "family," the OHRC is concerned about the impact on renters and their ability to find affordable housing. The OHRC recommends that the City ensure that it is not discriminating by examining its use of strict definitions of family to inform licence approval. The OHRC also recommends that the City work to educate landlords and decision-makers about the questions they can and cannot ask of prospective tenants. In addition, the OHRC recommends that the City collect data on the housing options for students when landlord licences are denied, to prevent an adverse impact on them and to ensure they are still able to get housing.
Zoning of lodging houses
Consistent with the interpretations of R. v. Bell, and section 35(2) of the Planning Act, zoning by-laws are deemed invalid if their purpose is to regulate the user, as opposed to the use of the land.
If individuals are judged on whether or not they operate as a group (as opposed to a family) to determine whether or not they constitute a "single housekeeping establishment", this may mitigate the effects on students and others with low income who wish to share accommodation in neighbourhoods around the university. However, questions still remain about the legitimacy of "zoning out" individuals who do not live in single housekeeping establishments, and thus live in lodging houses.
In its previous communications with the City of Oshawa, the OHRC has taken the position that restricting lodging houses from residential zones where there are dwellings of a similar scale and density raises human rights concerns. Excluding this type of housing from neighbourhoods will have a restrictive impact on individuals likely to benefit from this form of housing, including people who are from Code-protected groups. However, the OHRC does recognize that the City is making efforts to introduce more lodging houses as part of its student accommodation strategy, at least in the short term as a bridging effort while it attempts to build higher density affordable housing.
The importance of lodging houses must be underscored. Many people in the OHRC's housing consultation indicated that this type of housing, if adequately maintained, can fill a critical gap in the housing shortage for people with low incomes. The OHRC heard that lodging houses play an important and viable role in meeting affordable housing needs of people protected under the Code who are unable to afford conventional housing.
The OHRC will continue to examine the outstanding questions about the residential use of lodging houses and the impact of municipal by-laws on people's right to housing. We invite the City to be part of this ongoing dialogue.
[1] Universal Declaration of Human Rights. Signed Dec. 10, 1948, G.A. Res. 217 A (III), U.N. Doc. Al810 at 71 (1948); International Covenant on Economic, Social and Cultural Rights, (1976) 993 U.N.T.S. 3, Can.
T.S. 1976 No. 46. The United Nations General Assembly adopted and proclaimed the Universal Declaration of Human Rights in 1948. The ICESCR was adopted by the United Nations in 1966 and entered into force in 1976. Canada ratified the ICESCR in 1976. Other international treaties that Canada has signed that uphold the right to housing include the International Convention on the Elimination of All Forms of Racial Discrimination, the Convention on the Elimination of All Forms of Discrimination Against Women and the Convention on the Rights of the Child.
[2] Advocacy Centre for Tenants Ontario v. Kitchener (City). [2010] O.M.B.D. Case No. PL050611.
[3] British Columbia (PubliC Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3.
[4] Death v. Neighbourhoods of Windfields Limited Partnership. [2009] S.C.C.A. No. 253.
[5] Swaenepoel v. Henry (1985),6 C.H.R.R. 0/3045 (Man.Bd.Adj.).
[6] R.v.Bell (S.C.C.), (1979), 98 D.L.R. (3rt!) 255
[7] Planning Act, R.S.O. 1990, c.P.13. s.35 (2). The authority to pass a by-law under section 34, subsection 38(1) or section 41 does not include the authority to pass a by-law that has the effect of distinguishing between persons who are related and persons who are unrelated in respect of the occupancy or use of a building or structure or a part of a building or structure, including the occupancy or use as a single housekeeping unit.