November 14, 2022
The Ontario Government has introduced legislation that, if passed, would support Ontario’s newest Housing Supply Action Plan, More Homes Built Faster. This plan is part of a long-term strategy to increase housing supply and provide increased housing options.
In addition to the new legislation, the government is seeking feedback on several housing regulatory changes, including:
Submissions/comments are required in two timeframes. The first round is due November 24 and 25. The second is due December 9 and 30. The OHRC has determined that it will provide comment on the following, given potential impact on Code protected groups:
For the first round (see draft submission below):
For the second round (draft submissions forthcoming):
The other proposed regulatory changes do not appear to have Human Rights Code-related implications.
November 14, 2022
The OHRC welcomes the government’s effort to address the housing crisis. As the government moves to implement More Homes Built Faster, it is vital to take a human rights-based approach to housing law, policies, programs and bylaws. This includes Ontario’s obligations under the Human Rights Code (Code) and recognition of the right to housing as affirmed in the National Housing Strategy Act.
Under s. 99.1 of the Municipal Act, 2001 (MA) and s. 111 of the City of Toronto Act, 2006 (COTA), municipalities may enact bylaws to regulate the demolition or conversion of multi-unit residential rental properties of six units or more.
Rental replacement bylaws vary among municipalities and currently include requirements around number, size, type and cost of rental units, as well as right of first refusal for existing tenants. Only a small number of municipalities have rental replacement bylaws.
The government is proposing to enact a Minister’s regulation-making authority under the Acts to enable the Minister to make regulations to standardize and clarify municipal powers regulating the demolition and conversion of residential rental properties, to provide consistency and streamline the construction and revitalization of new housing supply.
The legislative changes will not affect renter protections under the Residential Tenancies Act.
The Ministry wants to hear from people on:
Adequate housing is essential to one’s sense of dignity, safety, inclusion and ability to contribute to the fabric of our neighbourhoods and societies.[1] The importance of housing to human dignity and its status as a human right has been confirmed through both international law and in the Ontario Human Rights Code. Canada has recognized that adequate housing is a fundamental human right by ratifying the International Covenant on Economic, Social and Cultural Rights (ICESR). Article 11 of the ICESR recognizes the right of everyone to adequate housing, and subsequent United Nations reports and recognitions have confirmed the importance of housing and its link to prohibiting discrimination in all its forms. As well, Canada has recognised this right to housing in the National Housing Strategy Act, and clearly notes that, “housing is essential to the inherent dignity and well-being of the person and to building sustainable and inclusive communities as well as a strong national economy.”[2]
In Ontario, the important social role of homes is recognized through the Code’s specific protections against discrimination in accommodation. Every component of the right to housing must be exercised without discrimination[3].
Homes are not simply an asset to be managed, but the place where individuals build their lives. Landlords and real estate developers play an important role in the Canadian economy, but that role is subject to the restrictions of the Code, which should ensure that homes are treated as more than simply a commodity.
The OHRC recognizes the changing reality of housing, but changes are still subject to the Code, which has primacy over almost all other provincial legislation. In the last two decades, the nature of real estate markets has drastically transformed as new actors, including financialized landlords, have dominated the market. These changes have disproportionately harmed vulnerable people, including groups protected by the Code.[4]
The OHRC is supportive of the Ministry of Municipal Affairs and Housing’s (MMAH) efforts to standardize rental replacement bylaws and strongly encourages MMAH to take a human rights-based approach to this work. The OHRC believes this is an opportunity to strengthen or implement rental replacement bylaws to increase human rights-based tenant protections and protect affordable rental stock. As a result, the OHRC would have strong reservations about weakening or eliminating rental replacement bylaws.
While MMAH is asking for responses to four specific questions, the OHRC’s job is to look at what lies behind the proposed changes and legislation to address unforeseen and unanticipated human rights implications, and to ensure the human rights of Ontarians are properly considered in the legislative and regulatory exercise.
For example, the ready availability of affordable market rental housing is critical to the right to safety and security of women, children and 2SLGBTQ+ people fleeing violence. This is especially true for Indigenous, Black and other racialized women, children and 2SLGBTQ+ people. As the National Inquiry into Missing and Murdered Indigenous Women and Girls report reveals, social and economic marginalization contributes to, or is directly connected to, the experience of violence. Having access to affordable rental housing options is necessary to escape violence and to restore security for women, children and 2SLGBTQ+ people fleeing violence.
Access to affordable market rental housing is also vital in enabling families to care for, and keep their children safe. The OHRC’s Interrupted Childhoods report shows that in Ontario, children who are the subject of a child welfare investigation whose families do not have access to housing or utilities face approximately double the odds of being placed into care. The OHRC report also notes disproportionately high incidences of Indigenous and Black children being admitted into care at many agencies across the province.
We also know that Indigenous, Black and other racialized people, as well as people living with disabilities, are more often renters. A recent Ontario Real Estate Association report said that in Ontario, 72% of White people own their homes, compared to 43% of Black people, 50% of Indigenous people, and 67% of other racialized people. Any laws or bylaws that reduce the availability of market rental housing will affect Indigenous, Black and other racialized people in disproportionate ways.
In the absence of rental replacement bylaws, there is a risk that developers will target existing affordable market rental housing for redevelopment, which will only further exacerbate the concerns outlined above.
Rental replacement is not simply about bricks and mortar units. It is about making sure that the most vulnerable people in Ontario can access affordable housing and live safe and dignified lives. When used properly, rental replacement can be a tool for realizing human rights in Ontario, by guaranteeing more equitable access to housing to all. It is a systemic tool, which addresses systemic discrimination and inequities in exercising the right to adequate housing.
The OHRC recognizes that inadequate housing and homelessness are complex, structural and systemic issues that must be addressed over time, through comprehensive policies, programs and planning strategies with achievable goals and timelines. By protecting existing rental housing stock, MMAH can take meaningful action towards the goal of making sure all Ontarians have an adequate home.
Rental replacement policies must be encouraged and strengthened across Ontario to protect vulnerable tenants and to make sure that we do not lose affordable market rental housing.
The City of Toronto’s rental replacement bylaw provides a useful template of positive steps a municipality can take to preserve rental stock and protect vulnerable tenants, in that it:
As well, any process for approving the demolition or conversion of residential rental properties:
Municipalities should not be able to enact bylaws that result in a reduction of affordable market rental housing stock.
On average, Code-protected groups have lower incomes than other groups in society. Lower-income tenants have fewer choices in the rental market because many of the housing options are out of their price range. This means that a municipality’s actions that directly or indirectly restrict or reduce the availability of affordable market rental and other affordable housing can have an adverse impact on Code-protected people.
Rental replacement bylaws have the power to protect affordable market rental housing stock, and in so doing, mitigate the impact of systemic discrimination which disproportionately affects Code-protected groups. Rental replacement bylaws also set a floor for creating rental housing. Unlike other bylaws or restrictions on housing, they do not inhibit the creation of more housing. Their use should be encouraged and expanded, to increase the supply of housing to vulnerable Code-protected groups that are over-represented in market rentals.
In its work on housing, the OHRC has repeatedly heard that people who identify with certain Code grounds or combinations of grounds are more likely to be tenants, and are more likely to experience poverty or to have lower average incomes than the general population. The Code may be found to apply when low income is connected to grounds such as age, ancestry, disability, ethnic origin, family status, gender identity, place of origin, race, or being in receipt of public assistance.
Rental housing bylaws discriminate if they result in someone being disadvantaged in a protected social area – like housing – because of the person’s association with a protected Code ground. Therefore, Code-protected groups might be disadvantaged by measures that limit access to affordable rental housing.
Strengthening or implementing rental replacement bylaws will maintain or increase access to affordable market rental housing, especially for people with low incomes, who are disproportionately members of Code-protected groups. This approach will tend towards respecting the equal dignity and worth of each Ontarian. Weakening or eliminating rental replacement bylaws will have the contrary effect.
[1] OHRC, Right at Home: Report on the consultation on human rights and rental housing in Ontario (2008) at 6. The Quebec Court of Appeal has said that housing, even more than employment, is a basic need of every individual in our society. See Desroches v Quebec (Comm des droits de la personne) (1997), 30 CHRR D/345 (Que CA).
[2] National Housing Strategy Act, Preamble, National Housing Strategy Act (justice.gc.ca).
[3] Commission des droits de la personne et des droits de la jeunesse (Pheneus et une autre) c Fornella, 2018 QCTDP 3.
[4] Manuel Aalbers, The Financialization of Housing: A Political Economy Approach (New York: Routledge,2016); Elvin Wyly et al, “American Home: Predatory Mortgage Capital and Neighbourhood Spaces of
Race and Class Exploitation in the United States” (2006) 88B:1 Georgrafiska Annal 105; Elvin Wyly et al, “Cartographies of Race and Class: Mapping the Class-Monopoly Rents of American Subprime Mortgage Capital” (2009) 33:2 Int J Urban Reg 332; Elvin Wyly et al, “Gender, Age, and Race in Subprime America” (2011) 21:4 Housing Policy Debate 529; Loretta Lees & Elvin Wyly, Gentrification (New York: Routledge, 2008); Raquel Rolnik, “Late Neoliberalism: The Financialization of Homeownership and Housing Rights” (2013) 37:3 Int J Urban Affairs 1058.
December 9, 2022
The OHRC welcomes the government’s effort to address the housing crisis. As the government moves to implement More Homes Built Faster, it is vital to take a human rights-based approach to housing law, policies, programs and bylaws. This includes Ontario’s obligations under the Human Rights Code (Code) and recognition of the right to housing as affirmed in the National Housing Strategy Act.
Inclusionary zoning is a land-use planning tool, authorized under the Planning Act, that municipalities may use to require that affordable housing units be included in residential developments of 10 or more units in identified Protected Major Transit Station Areas (PMTSAs) or in Community Planning Permit System (CPPS) areas ordered by the Minister. The Minister also has the authority to direct municipalities to adopt official plan policies authorizing the use of inclusionary zoning. Inclusionary zoning can be a useful tool to facilitate the supply of affordable housing in areas that generally have characteristics such as growth pressures, high housing demand and availability of higher-order transit.
The Planning Act and O. Reg. 232/18 set out the legislative and regulatory requirements for municipal implementation of inclusionary zoning, including the authority for municipalities to adopt inclusionary zoning official plan policies and make inclusionary zoning bylaws. Beyond the prescribed minimum requirements, municipalities have flexibility and discretion to tailor their inclusionary zoning policies to their local context. Currently under the regulation, municipalities have the discretion to establish an affordability period, to determine the percentage of total units to be set aside as affordable, and to develop an approach to determining affordable prices/rents for inclusionary zoning units.
The proposed amendments to O. Reg 232/18 would establish an upper limit on the number of units that would be required to be set aside as affordable, set at 5% of the total number of units (or 5% of the total gross floor area of the total residential units, not including common areas). It would also establish a maximum period of 25 years that the affordable housing units would be required to remain affordable. Amendments would also prescribe the approach to determining the lowest price/rent that can be required for inclusionary zoning units, set at 80% of the average resale purchase price of ownership units or 80% of the average market rent (AMR) for rental units. These proposed amendments would only apply on lands within PMTSAs.
The proposed changes would provide more development cost certainty and establish a more consistent approach to inclusionary zoning requirements across the province.
Adequate housing is essential to one’s sense of dignity, safety, inclusion and ability to contribute to the fabric of our neighbourhoods and societies.[1] The importance of housing to human dignity and its status as a human right has been confirmed through both international law and in the Ontario Human Rights Code. Canada has recognized that adequate housing is a fundamental human right by ratifying the International Covenant on Economic, Social and Cultural Rights (ICESR). Article 11 of the ICESR recognizes the right of everyone to adequate housing, and subsequent United Nations reports and recognitions have confirmed the importance of housing and its link to the prohibition of discrimination in all its forms.
In Ontario, the important social role of homes is recognized through the Code’s specific protections against discrimination in accommodation. Every component of the right to housing must be exercised without discrimination[2].
Homes are not simply an asset to be managed, but the place where individuals build their lives. Landlords and real estate developers play an important role in Ontario’s economy, but that role is subject to the restrictions of the Code, which ensure that homes are treated as more than simply a commodity.
The OHRC recognizes the changing reality of housing, but changes are still subject to the Ontario Human Rights Code (the Code), which has primacy over all other provincial legislation. In the last two decades, the nature of real estate markets has been drastically transformed as new actors, including financialized landlords, have dominated the market. These changes have disproportionately harmed vulnerable people, including groups protected by the Code.[3]
The OHRC is supportive of the Ministry of Municipal Affairs and Housing’s (MMAH) efforts to standardize rules for inclusionary zoning, and strongly encourages MMAH to take a human rights-based approach to this work. The OHRC believes this is an opportunity to strengthen inclusionary zoning to increase access to permanent affordable housing, especially for vulnerable tenants who generally are protected by the Code. As a result, the OHRC recommends there would not be any change that weakens the rules that govern inclusionary zoning.
The current approach requires municipalities to develop inclusionary zoning policies/bylaws based on the distinct needs in their communities. These needs are determined by consultations with stakeholders and the public and feasibility studies. For example, the City of Toronto has adopted an inclusionary zoning policy that includes targeted set-aside rates based on building type and geography, which are set to progressively increase. For condo units, the set-aside rates almost always exceed 5% regardless of geography, and progressively increase to higher rates. Toronto’s definition of affordability is based on household income, ensuring households do not spend more than 30% of their income on housing. Last, the period of affordability in Toronto is set at 99 years, making Toronto’s inclusionary zoning policy a permanent arrangement.
The OHRC is concerned that the proposed amendments to O. Reg 232/18 significantly limit municipalities’ ability to develop frameworks based on local needs. Of more concern, the proposed amendments appear to threaten and weaken the effectiveness of inclusionary zoning as a key tool for creating, and maintaining, long-term affordable housing for the many Ontarians who are struggling to find a home.
Therefore, the OHRC strongly urges MMAH to include the following in its proposed amendments and standardized rules:
Strengthening inclusionary zoning policies has the potential to increase access to affordable housing, especially for people with low incomes, who are disproportionately members of Code-protected groups. This approach will tend towards respecting the equal dignity and worth of each Ontarian. Weakening or eliminating inclusionary zoning policies will have the contrary effect.
[1] OHRC, Right at Home: Report on the consultation on human rights and rental housing in Ontario (2008) at 6. The Quebec Court of Appeal has said that housing, even more than employment, is a basic need of every individual in our society. See Desroches v Quebec (Comm des droits de la personne) (1997), 30 CHRR D/345 (Que CA).
[2] Commission des droits de la personne et des droits de la jeunesse (Pheneus et une autre) c Fornella, 2018 QCTDP 3.
[3] Manuel Aalbers, The Financialization of Housing: A Political Economy Approach (New York: Routledge, 2016); Elvin Wyly et al, “American Home: Predatory Mortgage Capital and Neighbourhood Spaces of Race and Class Exploitation in the United States” (2006) 88B:1 Georgrafiska Annal 105; Elvin Wyly et al, “Cartographies of Race and Class: Mapping the Class-Monopoly Rents of American Subprime Mortgage Capital” (2009) 33:2 Int J Urban Reg 332; Elvin Wyly et al, “Gender, Age, and Race in Subprime America” (2011) 21:4 Housing Policy Debate 529; Loretta Lees & Elvin Wyly, Gentrification (New York: Routledge, 2008); Raquel Rolnik, “Late Neoliberalism: The Financialization of Homeownership and Housing Rights” (2013) 37:3 Int J Urban Affairs 1058.
[4] According to a 2021 study by Grounded Solutions Network, the vast majority of inclusionary zoning programs have a minimum set-aside of at least 10% of units.
December 9, 2022
The OHRC welcomes the government’s effort to address the housing crisis. As the government moves to implement More Homes Built Faster, it is vital to take a human rights-based approach to housing law, policies, programs and bylaws. This includes Ontario’s obligations under the Human Rights Code (Code) and recognition of the right to housing as affirmed in the National Housing Strategy Act.
Adequate housing is essential to one’s sense of dignity, safety, inclusion and ability to contribute to the fabric of our neighbourhoods and societies.[1] The importance of housing to human dignity and its status as a human right has been confirmed through both international law and in the Ontario Human Rights Code. Canada has recognized that adequate housing is a fundamental human right by ratifying the International Covenant on Economic, Social and Cultural Rights (ICESR). Article 11 of the ICESR recognizes the right of everyone to adequate housing, and subsequent United Nations reports and recognitions have confirmed the importance of housing and its link to the prohibition of discrimination in all its forms.
In Ontario, the important social role of homes is recognized through the Code’s specific protections against discrimination in accommodation. Every component of the right to housing must be exercised without discrimination[2].
Homes are not simply an asset to be managed, but the place where individuals build their lives. Landlords and real estate developers play an important role in Ontario’s economy, but that role is subject to the restrictions of the Code, which ensure that homes are treated as more than simply a commodity.
The OHRC recognizes the changing reality of housing, but changes are still subject to the Ontario Human Rights Code (the Code), which has primacy over all other provincial legislation. In the last two decades, the nature of real estate markets has been drastically transformed as new actors, including financialized landlords, have dominated the market. These changes have disproportionately harmed vulnerable people, including groups protected by the Code.[3]
Rent-to-own arrangements generally involve a client entering into an agreement with a housing provider (e.g., homeowner/landlord, rent-to-own company, etc.) with the intention that the client will rent the home for a period of time and eventually purchase it at the end of the rental term.
Although rent-to-own arrangements can vary based on a range of factors, they typically require clients to pay a monthly rental fee, plus an additional amount to be applied towards a down payment for the property. At the end of the rental term, if the client wishes to buy the property, they can leverage the accumulated down payment to try to secure mortgage approval.
Clients and housing providers engaged in a rent-to-own arrangement generally sign two separate contracts. The first is a rental agreement that is the same as a standard lease agreement. The second is a rent-to-own agreement. This agreement allows the parties to determine the details of the purchase of the property at the end of the lease term.
The government of Ontario is exploring the role that the rent-to-own home financing model may have in supporting housing attainability in the province. The government has posed four questions for the proposal (see OHRC responses below).
In developing rent-to-own arrangement programs, it will be crucial to focus on the important social role of homes as recognized through the Code’s specific protections against discrimination in accommodation. Every effort made to create innovative pathways to homeownership must be exercised without discrimination.3
Rent-to-own arrangements present a powerful tool to address decades of discrimination in accommodation that have prevented Code-protected groups from building generational wealth.
1. Do you think that rent-to-own arrangements are a viable way to support housing attainability in Ontario?
Groups protected by the Code have lower rates of homeownership. Decades of discrimination in accommodation as it has been experienced in lending institutions, real estate companies/landlords and NIMBYism have posed barriers to building generational wealth for many people and groups protected by the Code.
Economic barriers to housing build on this history of discrimination to disproportionately affect members of Code-protected groups. The government’s recent Report of the Ontario Housing Affordability Task Force shows that the escalation of housing prices over the last decade has put the dream of homeownership out of reach for many Ontarians. While 73% of Canadians are homeowners, that drops to 48% for Black people, 47% for LGBTQ people (StatsCan is studying rates for other populations, including Indigenous people who are severely underhoused). For younger adults, a 2021 study showed only 24% of Torontonians aged 30 to 39 are homeowners.
The OHRC is supportive of Ontario’s efforts to support tenants’ ability to build generational wealth by implementing rent-to-own arrangements. Building wealth through property ownership can help to break the cycle of poverty and also supports dignity and wellbeing. The OHRC notes that recommendation #41 from the Report of the Ontario Housing Affordability Task Force encourages “funding for pilot projects that create innovative pathways to homeownership, for Black, Indigenous, and marginalized people and first-generation homeowners.” Similarly, recommendation #42 calls for providing “provincial and federal loan guarantees for purpose-built rental, affordable rental and affordable ownership projects.”
2. Are there any barriers with rent-to-own arrangements that you think may be discouraging providers from offering this type of housing?
The OHRC encourages MMAH to incentivize rent-to-own arrangements targeted to Code-protected groups for housing providers. Due to discrimination in accommodation, including its effect on the ability of Code-protected groups to purchase homes, governments, service providers and housing providers have an obligation under the Code to take positive action towards substantive equality.[4] This means that organizations must work to proactively identify and remedy the disproportionate impact that laws, policies or systems have on vulnerable groups.[5]
Therefore, to address decades of discrimination in accommodation, the OHRC strongly recommends that MMAH incentivize and support housing providers to provide rent-to-own arrangements to address gaps in homeownership specifically experienced by groups protect by the Code. Efforts such as these go further than just providing access to housing. Homeownership can have a positive impact on mental health and provide a sense of security and dignity. Rent-to-own policies and programs should have clearly stated intentions and be unequivocal in their aim to support groups protected by the Code.
3. Are there any issues with existing rent-to-own arrangements that make it difficult or unfavourable for clients, such as renters, to engage in them?
The lack of affordable, accessible and suitable housing is a systemic social barrier across Ontario. For instance, many people with disabilities and families supporting children with disabilities struggle to find, and keep, accessible and affordable housing.
Because every person has the right to be treated equally in housing without discrimination, it is vitally important to clearly and consistently make the connection between human rights and bylaws, policies and procedures that govern housing, including rent-to-own arrangements. Service managers and housing providers have obligations under the Code to provide housing that is free from discrimination.
The OHRC recommends that MMAH support and provide incentives for service managers to work with affected communities to provide rent-to-own arrangements tailored and targeted for Code-protected groups, such as people living with disabilities. The arrangements must therefore support housing providers with accommodation and adaptation support to make sure the housing meets the distinct needs of the targeted group. This could mean ensuring that a unit is fully accessible and will meet the needs of a family as they age.
4. Are there measures the government could consider to facilitate these agreements, such as making them more viable for housing providers, increasing client protections, raising awareness and public education on this alternate form of homeownership, etc.?
Rent-to-own arrangements present a powerful tool to support vulnerable and Code-protected groups to build generational wealth and break the cycle of poverty. The OHRC recommends the government specifically design these arrangements to target Code-protected groups.
Rent-to-own arrangements that are designed with the unique needs of Code-protected groups in mind could include specific arrangements for lone-parent families, women, Indigenous people and newcomers, among others. The OHRC recommends working with Code-protected groups and their organizations to design specific rent-to-own arrangement programs. Leveraging community partners in this way will help to promote these programs as well.
[1] OHRC, Right at Home: Report on the consultation on human rights and rental housing in Ontario (2008) at 6. The Quebec Court of Appeal has said that housing, even more than employment, is a basic need of every individual in our society. See Desroches v Quebec (Comm des droits de la personne) (1997), 30 CHRR D/345 (Que CA).
[2] Commission des droits de la personne et des droits de la jeunesse (Pheneus et une autre) c Fornella, 2018 QCTDP 3.
[3] Manuel Aalbers, The Financialization of Housing: A Political Economy Approach (New York: Routledge, 2016); Elvin Wyly et al, “American Home: Predatory Mortgage Capital and Neighbourhood Spaces of Race and Class Exploitation in the United States” (2006) 88B:1 Georgrafiska Annal 105; Elvin Wyly et al, “Cartographies of Race and Class: Mapping the Class-Monopoly Rents of American Subprime Mortgage Capital” (2009) 33:2 Int J Urban Reg 332; Elvin Wyly et al, “Gender, Age, and Race in Subprime America” (2011) 21:4 Housing Policy Debate 529; Loretta Lees & Elvin Wyly, Gentrification (New York: Routledge, 2008); Raquel Rolnik, “Late Neoliberalism: The Financialization of Homeownership and Housing Rights” (2013) 37:3 Int J Urban Affairs 1058.
[4] Association of Ontario Midwives v Ontario, 2018 HRTO 1335 at para 309, aff’d 2020 ONSC 2839, appeal to Ontario Court of Appeal.
[5] Association of Ontario Midwives, supra at para 309, Fraser v Canada, 2020 SCC 28, (63)
December 30, 2022
The OHRC welcomes the government’s effort to address the housing crisis. As the government moves to implement More Homes Built Faster, it is vital to take a human rights-based approach to housing law, policies, programs and bylaws. This includes Ontario’s obligations under the Human Rights Code (Code) and recognition of the right to housing as affirmed in the National Housing Strategy Act.
The Human Rights Code (Code) prohibits discrimination in five social areas, including housing and services, based on 17 grounds, such as age, race, colour, disability, receipt of social assistance, sex, gender identity, creed and others.
Adequate housing is essential to one’s sense of dignity, safety, inclusion and ability to contribute to the fabric of our neighbourhoods and societies.[1] The importance of housing to human dignity and its status as a human right has been confirmed through both international law and in the Ontario Human Rights Code. Canada has recognized that adequate housing is a fundamental human right by ratifying the International Covenant on Economic, Social and Cultural Rights (ICESR). Article 11 of the ICESR recognizes the right of everyone to adequate housing, and subsequent United Nations reports and recognitions have confirmed the importance of housing and its link to the prohibition of discrimination in all its forms.
Many groups identified by Code grounds are more likely to require affordable or supportive housing, including group homes, lodging houses, social housing or other low-cost rental housing. These forms of housing are particularly important for newcomers, people with disabilities, people who receive social assistance, racialized people, Indigenous people, students, older adults, transgender people, women and larger, young or lone-parent families. When diverse forms of housing are restricted through planning, such as by limits to their number or location, Code-identified groups are disproportionately affected.
With respect to housing, municipalities fall under the Code both as housing providers and as bodies that provide services and make decisions that affect housing in their communities. Planning decisions can be discriminatory if they target or have a disproportionate effect on some people based on Code grounds, such as by limiting or excluding affordable housing in a community or in particular neighbourhoods.
The Provincial Policy Statement, 2020 (PPS) and A Place to Grow: Growth Plan for the Greater Golden Horseshoe (A Place to Grow) provide frameworks for municipalities to make land use decisions to fit local needs and circumstances. The Planning Act and the PPS recognize human rights as part of the planning process. Therefore, in making these decisions, municipalities must make sure they do not violate the Code[2].
For instance, planning restrictions that result in a concentration of low-income housing in certain areas because they are effectively prohibited elsewhere in the municipality can lead to neighbourhoods that are stigmatized, resulting in social exclusion and instability. For example, grocery stores and banks often view “poor” neighbourhoods as unprofitable places to do business. The result is that people in these neighbourhoods face added barriers to their food security and financial well-being.
Sound land use planning creates opportunities for inclusiveness and supports the evolution of welcoming neighbourhoods that support the right to adequate housing and are free from discrimination.
The PPS and A Place to Grow both provide comprehensive, integrated, whole-of-government policy direction on land use planning matters.
The government is proposing to integrate the PPS and A Place to Grow into a new provincewide planning policy instrument that it claims:
1. What are your thoughts on the proposed core elements to be included in a streamlined province-wide land use planning policy instrument?
As stated in previous OHRC submissions for the PPS, the OHRC calls on MMAH to recognize that planning policy instruments have the potential to affect the housing rights of people who require affordable housing like group homes, seniors' residences, shelters, lodging houses and social housing.
The significant and disproportionate impact that restrictions on the development of affordable housing can have on Code-protected groups means that these planning decisions will engage the protections of the Code. The OHRC urges MMAH to expressly identify protecting human rights, including the right to adequate, accessible and affordable housing, as a core element of the new planning policy instrument. Integrating this language in the instrument’s Preamble would signal from the outset that the province recognizes that regulating land use and development can affect human rights. Also, it could signify that protecting human rights is an important provincial goal that contributes to enhancing Ontarians’ quality of life. Making this position explicit would be consistent with the aim of the Code, which, among other things, is to recognize the dignity and worth of every person.
2. What land use planning policies should the government use to increase the supply of housing and support a diversity of housing types?
The OHRC recognizes the changing reality of the housing landscape, but changes are still subject to the Code, which has primacy over all other provincial legislation. In the last two decades, the nature of real estate markets has been drastically transformed as new actors, including financialized landlords, have dominated the market. These changes have disproportionately harmed vulnerable people, including groups protected by the Code. New tools are required to ensure that affordable housing is made available in this new reality.[3]
Section 1.4.3 of the current PPS states:
The OHRC recommends not only maintaining the commitments made in section 1.4.3, but also strengthening them to include provincially set targets on affordable housing and inclusionary zoning requirements that include:
3. How should the government further streamline land use planning policy to increase the supply of housing?
To achieve the appropriate mix of housing, the OHRC calls on MMAH to set and implement provincial targets for affordable housing, and identify, prevent and remove barriers to accessible housing.
The OHRC has identified several human rights principles related to housing supply in its guide, In the Zone: Housing, human rights and municipal planning. The OHRC calls on the government to apply these principles to streamline approval processes and increase the supply and mix of stable, secure and affordable housing in Ontario.
In particular, the OHRC calls on the government to make sure that while designing and implementing a revised planning policy instrument:
4. What policy concepts from the Provincial Policy Statement and A Place to Grow are helpful for ensuring there is a sufficient supply and mix of housing and should be included in the new policy document?
The Code has primacy over all other laws in Ontario, including the Planning Act and the Places to Grow Act. As such, section 4.4 of the current PPS provides for the following:
The OHRC urges MMAH to maintain section 4.4 in any revised planning policy instrument.
In A Place to Grow, the government commits to:
The OHRC urges MMAH to strengthen this commitment by:
In A Place to Grow, the government also commits to:
The OHRC calls on MMAH to strengthen this statement by including specific commitments around accessibility. All levels of government, community planners and housing developers must promote disability rights by committing to universal design for any new housing construction. “Universal design” makes housing accessible and adaptable not just for people with disabilities, but for everyone. Universal design allows people to age with dignity – in their own homes and communities – without costly retrofits, searching for new housing or being forced into residential care.
[1] OHRC, Right at Home: Report on the consultation on human rights and rental housing in Ontario (2008) at 6. The Quebec Court of Appeal has said that housing, even more than employment, is a basic need of every individual in our society. See Desroches v Quebec (Comm des droits de la personne) (1997), 30 CHRR D/345 (Que CA).
[2] See the OHRC’s report, In the zone: housing, human rights and municipal planning report.
[3] Manuel Aalbers, The Financialization of Housing: A Political Economy Approach (New York: Routledge, 2016); Elvin Wyly et al, “American Home: Predatory Mortgage Capital and Neighbourhood Spaces of Race and Class Exploitation in the United States” (2006) 88B:1 Georgrafiska Annal 105; Elvin Wyly et al, “Cartographies of Race and Class: Mapping the Class-Monopoly Rents of American Subprime Mortgage Capital” (2009) 33:2 Int J Urban Reg 332; Elvin Wyly et al, “Gender, Age, and Race in Subprime America” (2011) 21:4 Housing Policy Debate 529; Loretta Lees & Elvin Wyly, Gentrification (New York: Routledge, 2008); Raquel Rolnik, “Late Neoliberalism: The Financialization of Homeownership and Housing Rights” (2013) 37:3 Int J Urban Affairs 1058.
[4] See Canada Housing and Mortgage Corporation (CMHC) definition of affordable housing here.
[5] According to a 2021 study by Grounded Solutions Network, the vast majority of inclusionary zoning programs have a minimum set-aside of at least 10% of units.