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Avoiding the discriminatory impacts of rental housing licensing

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When drafting, reviewing and monitoring licensing bylaws, municipal planners should apply a human rights lens, to see if they might have an impact on Code-protected groups. Situations can change, and so municipalities should regularly monitor for these impacts.

If people experience a disadvantage due to rental housing licensing (such as being forced out of housing, or having a harder time finding housing) because of their connection to Code grounds (like age, family status, etc.) then municipalities may be violating the Code unless they can prove:

  • The municipality adopted the bylaw, or a particular element of it, to achieve a rational planning purpose
  • The municipality held a good faith belief that it needed to adopt the bylaw or the requirement to achieve that purpose
  •  The bylaw requirement was reasonably necessary to accomplish its purpose or goal, in the sense that other, less discriminatory alternatives would present undue hardship relating to health and safety or financial factors.

Bylaws that are arbitrary – that have no clear connection to their stated goal – are particularly vulnerable to being found to be discriminatory, contrary to the Code.

In embarking on rental housing licensing, the OHRC advises municipalities to:

  1. Consider the Ontario Human Rights Code before drafting the bylaw and refer to the Code in the bylaw
  2. Consult with Code-protected groups
  3. Make sure that meetings about the bylaw do not discriminate
  4. Roll out the bylaw in a consistent, non-discriminatory way
  5. Work to secure existing rental stock
  6. Avoid arbitrary bedroom caps
  7. Avoid gross floor area requirements that exceed the Building Code
  8. Eliminate per-person floor area requirements
  9.  Eliminate minimum separation distances
  10. Enforce the bylaw against the property owner, not the tenants
  11. Protect tenants in cases of rental shut down
  12. Monitor for impacts on Code groups
  13. Make sure licensing fees are fair.

1. Consider the Ontario Human Rights Code before drafting the bylaw and refer to the Code in the bylaw

In carrying out their responsibilities under the Provincial Policy Statement, the Municipal Act, 2001, the Planning Act, the City of Toronto Act, 2006 and any policies and programs, municipalities must make sure they do not violate the Code. Because of its quasi-constitutional status, the Code has primacy over all other provincial legislation, unless the legislation explicitly states it applies notwithstanding the Code. In other words, if there is a conflict between the Code and other laws, the Code will prevail. Integrating language about the Code into the bylaw signals that the municipality takes these responsibilities seriously, and has thoroughly considered its obligations under the Code when drafting the bylaw, and also when monitoring its impact.

Municipalities that specifically cite in their bylaws the need to comply with the Code show that human rights must be considered in land use planning decisions. They also show that protecting human rights is an important municipal goal that contributes to improving the regulation of residential rental properties. This is consistent with the aim of the Code, which includes recognizing the dignity and worth of every person.

This message may be reinforced when municipalities issue materials to people applying for rental housing licences. In its work on housing, the OHRC has heard that landlords sometimes exhibit discriminatory attitudes toward tenants because of their connection with Code grounds – and so this type of education would be extremely valuable.

Promising practice

The City of Waterloo refers to human rights principles, and the Ontario Human Rights Code, in its bylaw. Among other things, it notes that one of its purposes in regulating rental units is to “protect the health and safety and human rights of the persons residing in rental units.”

2. Consult with Code-protected groups

Consulting with groups who are likely to be affected by a bylaw is a best practice because it can help prevent Code violations before they occur. Sometimes regular public meetings may not be accessible to everyone who may be affected, or people may not be aware of the meeting because the usual ways of publicizing the meeting and the process are not effective in reaching them. Or, a municipality may see that certain Code-protected groups have been underrepresented in public meetings. Conducting targeted outreach to vulnerable or marginalized groups makes sure that their voices are heard, and can help to remove unanticipated barriers to housing access that bylaws can create.

3. Make sure that meetings about the bylaw do not discriminate

Municipalities can use meetings to send the message that any licensing bylaw is about the housing stock being rented, not the people who might live there.

It is important for municipalities to highlight, at meetings and other discussions of the bylaw, that the purpose cannot be discriminatory. Municipalities should lay out ground rules at the beginning of meetings stating that discriminatory language will not be tolerated, and should actively interrupt and object to this type of language when it happens.

Municipalities should provide community education about their bylaws and enforcement activities, to ensure that all residents understand the purposes of the bylaw. Community education can also build relationships between renters and other residents of the municipality.

4. Roll out the bylaw in a consistent, non-discriminatory way

If a bylaw is meant to serve legitimate planning or safety purposes, it should be needed by – and applied to – every part of the municipality. A bylaw that is applied first or only to a particular area of the municipality is more likely to be arbitrary, and could be seen to be targeting the people within that particular area. If the people in that area identify with certain Code grounds – for example, they belong to a racialized community, or they are mostly students – then the municipality may be targeting that group of people and could be susceptible to being found to be discriminatory, contrary to the Code.

Promising practice

Waterloo applied its bylaw to the entire city, right away.

5. Work to secure existing rental stock

Grandparenting of existing homes, or variances for purpose-built homes, can help to make sure existing rental housing stock is retained so that Code-protected groups are not sharply affected when a licensing bylaw is introduced.

In accordance with the 2005 Provincial Policy Statement,[18] municipalities should provide for an appropriate range of housing types and densities required to meet projected requirements of current and future residents by, among other things, establishing and implementing minimum targets for providing housing that is affordable to low and moderate income households. 

6. Avoid arbitrary bedroom caps

If setting limits on the number of allowed bedrooms in rental units, municipalities should allow the number of bedrooms based on the original floor plan of the house, or the existing floor plan if alterations were done with municipal approval, in compliance with the Building Code, and/or are consistent with other housing in the area. Arbitrary bedroom caps can reduce the availability of housing for Code-protected groups. They can exclude large families with children, or extended families.

Municipalities that set bedroom caps based on medians and averages of demographic data may penalize any family or household that is not “average.” The negative impact could be substantial: according to the 2006 census, nearly half a million households in Ontario had five people or more. Family or household size can be strongly influenced by ethnic origin, ancestry, creed and place of origin – each a Code ground. Recent studies suggest there is also a rise in multi-generational households across cultural backgrounds.

Municipalities need to carefully examine whether the caps they are considering are arbitrary. If they are meant to address parking or other planning concerns, then have they allowed for variances for houses that were originally constructed to have more bedrooms than the cap allows? If they have established caps for rental homes, what is their explanation for not applying those same caps to owned homes that have the same built form? If municipalities cite safety reasons – why do those same safety reasons not apply to owned homes?

Promising practice

The City of North Bay has a cap of five bedrooms, but allows landlords with more than five bedrooms to apply for an exception if their houses were originally constructed to contain more than five bedrooms. While a municipality is best protected against a Code complaint if it has no arbitrary bedroom caps at all, allowing for variances may limit negative impact

Some municipalities do not have caps, but rather have a system where properties that rent more than a certain number of units are regulated by a separate lodging house regime. If that separate regime is arbitrarily onerous, then this type of system can create the same issues, and can contravene the Code just like a cap might.

7. Avoid gross floor area requirements that exceed the Building Code

The Building Code sets out requirements for floor areas of different rooms and spaces in all housing. Bylaw floor area requirements that are more stringent than Building Code regulations could be found to be arbitrary – and could contravene the Human Rights Code.

For example, if gross floor area requirements that limit the percentage of a home that can be devoted to bedrooms are not placed on people in owned homes, this could have an adverse effect on Code-protected groups.

8. Eliminate per-person floor area requirements

People should be able to share a bedroom, if they choose, without the landlord or the municipality peeking through the keyhole. In fact, any related questioning or investigation could lead to human rights complaints.

Requirements that dictate how much space a rental unit, or a room in a rental unit, must have per person may violate the Code.

O. Reg. 350/06, made under the Building Code Act, 1992 requires 7 square metres per bedroom, or as little as 6 if there are built-in cabinets;[19] and 9.8 square metres per master bedroom, or 8.8 if built-in cabinets are provided.[20] It also allows for bedroom spaces in combination with other spaces in dwelling units, with a minimum area of 4.2 square metres.[21]

Many rental houses or units have bedrooms sized to comply with Building Code regulations, which could accommodate two or more people.

“Per occupant” references can severely limit housing options for people who commonly share rooms, such as couples, families with children, and many other people who identify under Code grounds. Unless there is a bona fide or necessary reason why rented units should be required to meet requirements that exceed those in the Building Code (when owned homes do not face such a requirement), the OHRC finds “per occupant” references to be discriminatory.

Promising practice

The City of North Bay does not include per-person floor area requirements in its rental housing licensing bylaw.

9. Eliminate minimum separation distances

People zoning – where planning is used to control people based on their relationships, characteristics or perceived characteristics, rather than the use of a building – has been illegal for many years.[22]

In the OHRC’s view, minimum separation distances for housing are a form of “people zoning.”

Minimum separation distances were originally used to separate land uses such as industry and housing.[23] Their application has broadened over time.

Some municipalities apply minimum separation distances to “lodging houses” – i.e., rental units that are not apartment buildings, but which have a large number of rooms. This means that if one lodging house is established in a certain neighbourhood, others cannot be established within a certain distance or radius.

These minimum separation distances aren’t about regulating buildings. A similar, owned house does not have this restriction. Minimum separation distances are about regulating people, and often flow from stereotypes associated with renters.

Instead of planning for inclusive neighbourhoods, minimum separation distances can limit the sites available for development and restrict the number of sites that are close to services, hurting people who are in need of housing.

In its submission to the OHRC’s Housing Consultation in 2007, the Ministry of Municipal Affairs and Housing indicated that separation distance requirements should be justified on a rational planning basis, passed in good faith, and in the public interest.

Arbitrary separation distances can contravene the Human Rights Code. Some municipalities may try to use minimum separation distances to manage “overconcentration” of some types of housing within one neighbourhood. Minimum separation distances are basically restrictions – and can adversely affect renters by restricting the options available to them. Municipalities should consider incentives and ways to encourage affordable housing throughout the municipality. This is a positive approach, rather than the punitive one that minimum separation distances often cause.

The OHRC has intervened in two cases where bylaws establishing minimum separation distances were alleged to be discriminatory. The first case, at the Ontario Municipal Board, concerned a City of Guelph bylaw and is described below.

The second case, at the Human Rights Tribunal of Ontario, was launched by the Dream Team, an organization that advocates supportive housing for people with disabilities. In this case, the Dream Team challenged the City of Toronto’s minimum separation distance requirements for group homes for people with disabilities. An expert hired by the City of Toronto to examine issues arising from the City’s imposition of minimum separation distances to group homes said in his report that he could not find a “sound, accepted planning rationale” for those minimum separation distances and recommended that they be removed.[24]

The OHRC also became a party to a proceeding at the Ontario Municipal Board that was launched by Lynwood Charlton against the City of Hamilton, after the City had refused to grant a site-specific amendment to a zoning bylaw requiring minimum radial separation distances for group homes for persons with mental disabilities.

Promising practices

A City of Guelph bylaw used minimum separation distances to limit rental houses with accessory apartments and also reduced the number of units that could be rented in lodging houses. It appeared that these provisions might keep young people out of neighbourhoods, and would also result in a loss of affordable rental housing that would affect other people who identified with Code grounds (such as seniors, newcomers, people with disabilities, single-parent families and people in receipt of public assistance). The OHRC intervened in a challenge of that bylaw before the Ontario Municipal Board. In February 2012, before the matter proceeded to a hearing, the City of Guelph repealed the bylaw, and has committed to working with the OHRC to effectively deal with rental housing issues while at the same time promoting the human rights of tenants.

In 2010, the City of Sarnia changed its bylaws to make sure that people with disabilities do not face additional barriers in finding supportive housing. A group of psychiatric survivors had filed a human rights complaint against the City, alleging that its zoning bylaws violated the human rights of people with disabilities living in group homes. The City changed the bylaw so that:

  • distancing requirements for all group homes were removed
  • the requirement that group homes with more than five residents be located on an arterial or collector road was removed
  • group homes may now be included in all zones allowing residential use
  • residential care facilities are a permitted use in any residential zone.[25]

10. Enforce the bylaw against the property owner, not the tenants

If rental housing licensing really is to regulate rental housing (rather than the people in it – which is not an appropriate goal in licensing) then property owners rather than renters should be held responsible for any licensing violations. This should be established clearly in the bylaw, and communicated to tenants and property owners alike.

11. Protect tenants in cases of rental shut down

Sometimes, a licensing bylaw will justifiably cause a rental unit to be shut down. For example, certain safety standards may not be met.

Municipalities should consider the impacts on tenants of any decisions to shut down their rental housing, and work to make sure that tenants are not displaced without recourse or assistance. Tenants should also be informed of health and safety issues when they are first raised, rather than simply facing eviction on short notice.

Promising practice

The City of Waterloo rental housing licensing bylaw contains the following provision:

5.3 The Director of By-Law Enforcement, before revoking or suspending a licence pursuant to section 5.2 of this by-law, shall consider:

a)     the impact of any such licence revocation or suspension on any Tenants; and,

b)     imposing terms or conditions on any such licence revocation or suspension that would minimize the adverse impact on any Tenants, including the possibility of providing a reasonable time period before the licence revocation or suspension takes place to permit Tenants to find new housing or to seek relief in a Court or before the Ontario Landlord and Tenant Board

12. Monitor for impacts on Code groups

Municipalities should commit to monitor and evaluate the impact of their licensing bylaws on tenants at least every five years, to assess whether the bylaws have a discriminatory effect relating to Code grounds.

One way to minimize liability under the Code is to establish a program that regularly monitors impacts of the bylaw. More information about data collection that could help municipalities can be found in the OHRC handbook Count Me In! Data gathered for monitoring purposes should be broken down by Code ground, and collected in a manner consistent with the Code. For example, a municipality could gather information from a representative sample of tenants and landlords through phone interviews, door-to-door visits, surveys or focus groups. The municipality could then follow up with participants over a period of time.

The municipality should report its findings on a regular basis. A monitoring program will be strengthened if it is conducted in consultation with an expert in data collection.

Promising practices

Both the Cities of North Bay and Waterloo have committed to ongoing monitoring and evaluation of their licensing bylaws.

13. Make sure licensing fees are fair

Certain constitutional rules apply to fees imposed by public bodies such as municipalities. While municipalities are entitled to charge licensing fees, “a nexus must exist between the quantum charged and the cost of the service provided.” In other words, there must be a reasonable connection between the cost of the service and the amount charged.[26]

Fees associated with licensing, if passed on to renters, might drive up the price of housing.[27] The OHRC has heard that increased costs associated with housing can have a particularly adverse impact on Code-protected groups.  For example, in its Right at Home consultation, the OHRC heard from the Children’s Aid Society of Toronto that a mandatory $30 apartment insurance fee has an adverse impact on lower-income people, households on social assistance, poor single parents, youth and newcomer families. The OHRC also heard from the Centre for Equality Rights in Accommodation and the Social Rights Advocacy Centre that the same fee could pose a financial barrier for Aboriginal people and members of racialized communities.[28] As the OHRC noted in In the Zone, municipalities can encourage development of affordable housing by reducing or waiving fees.[29]

Promising practice

The City of North Bay reports that it was cautious with the fees it imposed – and instituted a licensing fee that is not 100% cost recovery – to limit any hardship for people affected by the bylaw.


[18] Provincial Policy Statement, Government of Ontario, 2005, section 1.4 (Housing).

[19] Building Code, 1992, Article

[20] Ibid., Article

[21] Ibid., Article

[22] In R v. Bell, [1979] 2 SCR 212, the Supreme Court of Canada heard a challenge to a North York bylaw that limited the use of certain residential zones to dwellings designed or intended for use by an individual or one family. Family was defined as a group of two or more persons living together and related by bonds of consanguinity, marriage or legal adoption.

   Justice Spence, speaking for the majority of the Court, found that the bylaw, in adopting “family” as the only permitted occupants of a self-contained dwelling unit, amounted to oppressive and gratuitous interference with the rights of people subject to the bylaw, and that:

the legislature never intended to give authority to make such rules and the device of zoning by reference to the relationship of occupants rather than the use of the building is one which is ultra vires of the municipality under the provisions of The Planning Act.

[23] See, for example, Finkler, L. & Grant, J., “Minimum separation distance bylaws for group homes: The negative side of planning regulation” (2011) 20:1 Canadian Journal of Urban Research 33-56 at 36, for a discussion of the typical use of minimum separation distances (to limit the impact of noise, odour or dust on others), and the movement by municipalities over time to other uses.

[24] Sandeep K. Agrawal , Opinion on the Provisions of Group Homes in the City-wide Zoning By-Law of the City of Toronto, at pages 3 and 28, released February 28, 2013 by the City of Toronto, as a supplementary report to the Planning and Growth Management Committee, in Final Report on the City-wide Zoning By-law: Supplementary Report on Human Rights Challenge to Group Home Zoning Regulations, PG13020.

[25] OHRC, In the zone: Housing, human rights and municipal planning, 2012, p. 26.

[26] Eurig Estate (Re), [1998] 2 S.C.R. 565 at para. 21.

[27] Other costs associated with licensing, such as fees for certain inspections, will probably not raise Code concerns if the inspections serve a legitimate health and safety purpose, are uniformly enforced among housing of the same type, and the fees are reasonably connected to the cost of the inspection.

[28] Right at Home, OHRC, page 33.

[29] In the Zone, OHRC, page 28-29.


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