OHRC submission on Municipal Rental Replacement By-Laws

November 14, 2022

 

OHRC submission on Municipal Rental Replacement By-Laws

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.

 

Background

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:

1. What types of requirements should municipalities be able to set around residential demolition and conversion?
2. What types of requirements should municipalities not be able to set (e.g., are there requirements that pose a barrier to creating new or renewed housing supply or limit access to housing)?
3. What impact do you think municipal rental replacement bylaws might have on the supply and construction of new housing?
4. What impact do you think municipal rental replacement bylaws might have on renter protections and access to housing?

 

OHRC recommendations

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.

 

1. What types of requirements should municipalities be able to set around residential demolition and conversion?

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:

• Requires that any demolition of residential rental properties only be approved if the applicant replaces the lost rental units with rental units at similar rents
• Requires that any demolition of residential rental properties only be approved if the applicant provides current residents of the subject property with (a) a right of return to the replacement housing at similar rents, (b) adequate alternative housing for any necessary relocation, and (c) compensation for additional costs relating to relocation
• Requires that any conversion of residential rental properties only be approved if the applicant provides current residents of the subject property with (a) adequate alternative housing at similar rents, and (b) compensation for additional costs relating to relocation.

As well, any process for approving the demolition or conversion of residential rental properties:

• Takes into account the social impact that the demolition or conversion would have on the community and current residents of the subject properties, with a specific review of the potential disproportionate impacts on Code-protected groups
• Meaningfully involves affected community members in all decisions and takes into account community preservation and informal supports. Such consultations must be designed to meet the linguistic and cultural needs of affected communities.

 

2. What types of requirements should municipalities not be able to set (e.g., are there requirements that pose a barrier to creating new or renewed housing supply or limit access to housing)?

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.

 

3. What impact do you think municipal rental replacement bylaws might have on the supply and construction of new housing?

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.

 

4. What impact do you think municipal rental replacement bylaws might have on renter protections and access to housing?

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.