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Submission of the OHRC to the UN Special Rapporteur on adequate housing

Social Areas
accommodation (housing)
Resource Type
submission

Submission of the Ontario Human Rights Commission 
UN Special Rapporteur on adequate housing on the 
Survey regarding the responsibilities of sub-national governments 
with respect to the right to adequate housing

October 31, 2014

 

Domestic mechanisms in Canada

Under Canada’s federal system of government, legal jurisdiction over human rights, including housing, divides between different levels of government – federal, ten provincial and three territorial governments. Municipal governments are a creation of provincial/territorial legislation. All three levels of government have responsibility to implement human rights norms and standards, including the right to housing.

Canada has long since ratified the International Covenant on Economic, Social and Cultural Rights. Article 11 of the ICESCR sets out the right to adequate housing.[1] The ICESCR has not become part of Canadian legislation. There is no explicit protection for the right to adequate housing set out in the Charter of Rights and Freedoms under Canada’s Constitution.[2] Section 15 of the Charter does recognize the right to equality before and under the law and equal protection and benefit of the law without discrimination. The Charter applies to all levels of government.

Canada’s federal, provincial and territorial governments have enacted human rights legislation. Provincial and territorial human rights legislation applies to both public and private sectors. Similar to other provincial and territorial jurisdictions, Ontario’s Human Rights Code sets out the right to be free from discrimination in housing (among other areas) based on the enumerated grounds of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status, disability or the receipt of public assistance.[3] The Code has no explicit provision on a broader right to adequate housing.

Most jurisdictions in Canada have also legislated human rights commissions and/or human rights tribunals. In Ontario, there are three human rights institutions prescribed under the Ontario Human Rights Code: the Ontario Human Rights Commission (OHRC) that has a broad mandate to promote and enforce the Code on matters in the public interest; the Human Rights Tribunal of Ontario where individuals can bring a claim of discrimination; and the Human Rights Legal Support Centre that provides advice to claimants and in some cases may represent them at the Human Rights Tribunal of Ontario.

Most, if not all, provincial and territorial governments have ministries responsible for overseeing legislation, policies, strategies and programs dealing with housing issues.

Challenges

Because of Canada’s constitutional division of powers, governments at the national and sub-national level all have an important role to play in implementing the right to adequate housing. In a large and sparsely populated country like Canada, this has the advantage of tailoring affordable housing policies and programs to be in tune with regional and local housing needs. At the same time, it has the disadvantage of fragmented visions, plans, strategies, cooperation, outcomes and accountability.

The OHRC agrees that strategies and plans need to be developed and coordinated across all levels of government. In its 2008 consultation report, Right at Home,[4] the OHRC recommended:

  • That the federal, provincial and territorial governments of Canada give effect to the ICESCR including article 11 on the right to adequate housing
  • That the Government of Canada adopt a national housing strategy, in consultation with provincial, territorial and municipal governments, that includes measurable targets and provides sufficient funds to accelerate progress on ending homelessness and ensuring access of all Canadians, including people with limited incomes, to housing of an adequate standard without discrimination
  • That the Government of Ontario, in the absence of a national housing strategy, adopt a provincial housing strategy that also considers the needs of groups living in poverty identified by grounds under the Ontario Human Rights Code, including Aboriginal Peoples, people with disabilities, women experiencing domestic violence, lone parents and newcomers
  • That the Ontario legislature pass a law to recognize the right to adequate housing as a universal human right
  • That the Government of Ontario review and improve funding rates, programs, laws and regulations to make sure that low-income tenants are able to afford average rents, food and other basic necessities
  • That the Government of Ontario’s Cabinet Committee on Poverty Reduction be guided by the ICESCR, concerns and recommendations of international human rights committees and the dimensions of race, disability/mental illness, sex and family status that were raised in the OHRC’s consultation
  • That the Government of Ontario work with community organizations and municipalities to identify ways to apply a human rights approach to reducing and preventing homelessness in the province
  • That all organizations, institutions and individuals developing, planning, approving or giving input on affordable housing for groups protected from discrimination under the Human Rights Code take steps to monitor for discriminatory neighbourhood “not in my backyard” opposition and modify their policies, practices and actions to prevent and address it.

The OHRC believes it is important to recognize the link between poverty and adequate housing, and groups who face discrimination in housing under the Human Rights Code.

In May 2006, the Committee on Economic, Social and Cultural Rights issued its review of Canada’s compliance with the ICESCR.[5] The Committee was critical of the fact that 11.2% of Canada’s population still lived in poverty in 2004, particularly in light of Canada’s economic wealth and resources. The Committee noted with concern that poverty rates remain very high among disadvantaged and marginalized people and groups such as Aboriginal Peoples, African Canadians, immigrants, people with disabilities, youth and women, especially lone mothers, and the effect that a person’s social and economic status has on their ability to access adequate housing.

The OHRC met with the UN Special Rapporteur on adequate housing, Mr. Miloon Kothari, during his visit to Canada in 2007 and relayed concerns it heard during its public consultation on housing. In his follow-up report to Canada, the Special Rapporteur called for, among other things, the development of a national housing strategy.[6]

In its 2010 report to the Parliament of Canada, the Standing Committee on Human Resources, Skills and Social Development and the Status of Persons with Disabilities[7] supported the recommendation of the UN Special Rapporteur for a national housing strategy. The Standing Committee’s report was commenting more broadly on Bill C-304, An Act to ensure secure, adequate, accessible and affordable housing for Canadians. The Bill was never passed and Canada currently has no national housing strategy in place.

Government and other stakeholders need to review and understand access to adequate housing from a human rights perspective. As the Special Rapporteur on adequate housing said in his 2008 statement on Canada, “immediate attention is required for the most vulnerable part of the population living in inadequate housing and living conditions.”[8] While recognizing the difficulties posed by shared jurisdiction, the Special Rapporteur noted that the state, whether federal or provincial, municipality or other authorities, is still required to devise strategies to ensure the implementation of the right to adequate housing.[9]

Ontario government strategies

Adequate housing and related issues including poverty reduction are on the agenda of the Ontario provincial government.

Ontario’s Ministry of Municipal Affairs and Housing oversees related housing and planning legislation, policies and programs with a focus on local government and service delivery. The Ministry recognizes that access to good quality affordable housing supports not only low and moderate income households, but also has positive community-wide benefits related to economic competitiveness, health, education and community well-being.[10]

Ontario’s Housing Services Act provides a basis for affordable housing programs.[11] It sets out responsibilities for municipalities and recognizes roles for other levels of government, non-profit housing co-operatives, other organizations and the private market, as well as coordination with community services and local circumstances.

Pursuant to the Housing Services Act, the Ministry has issued a Housing Policy Statement[12] that provides direction to municipalities to guide the development of locally relevant housing and homelessness plans. This statement articulates provincial priorities related to affordable housing, social housing, homelessness prevention and housing for persons with disabilities. Plans must identify current and future housing needs with objectives, measures and targets.

The Ontario government also coordinates initiatives through the Canada-Ontario Affordable Housing Program[13] with the federal Canada Mortgage and Housing Corporation. There are programs to improve the supply of affordable housing, such as forgivable loans to create new affordable housing units, as well as improve housing affordability, such as rental supplements paid to landlords and housing allowances paid to tenants. Other programs help with renovations and repair and fostering safe independent living.

The Ministry released a Long-Term Affordable Housing Strategy[14] in 2010, saying it will, among other things, consolidate housing and homeless programs, simplify rent-geared-to-income calculations, require local housing and homeless plans by 2014 and improve social housing waiting lists. The Ministry plans to update the strategy in 2015/16.

The Ontario government and other stakeholders, like the Federation of Canadian Municipalities, have also called on the federal government to establish a long-term national housing strategy including sustainable funding for affordable housing.[15]

Ontario’s Planning Act[16] also recognizes affordable housing as a matter of provincial interest. Under that Act, the Ministry issued a new Provincial Policy Statement[17] (PPS) that directs municipalities on land-use planning and development decisions. The PPS articulates the provincial interest in ensuring a full range of housing to meet current and future needs of communities, provides a definition for “affordable,” gives additional policy direction to planning authorities and other decision-makers, and requires that it be implemented in a way consistent with the Human Rights Code and the Charter. Pursuant to section 3 of the Planning Act, municipalities are required to implement the PPS through their land-use planning decisions, including the adoption of their official plan, as all decisions affecting a land-use planning matter shall be consistent with the PPS.

The Planning Act also requires municipalities to authorize “second units,” such as basement apartments, recognized as an inexpensive way to increase the stock of affordable housing. The Act also permits municipal zoning for “garden suites” and incentives that relax height, density, parkland and parking requirements, fees or multi-residential property tax rates in exchange for more affordable housing units. These and other provisions and strategies are described in the Ministry’s publication, Municipal Tools for Affordable Housing.[18]

In 2009, the Ontario Government enacted the Poverty Reduction Act,[19] which also recognizes the importance of affordable housing. The Act requires that every five years the government set a poverty reduction target and have in place a new Poverty Reduction Strategy. The strategy must have success indicators, including measures for housing and standard of living.

The Act acknowledges the connection between poverty and human rights. It recognizes that not all groups of people share the same level of risk of poverty and that groups who face discrimination need supports. It requires that the Poverty Reduction Strategy recognize the heightened risk among groups such as immigrants, women, single mothers, people with disabilities, Aboriginal Peoples and racialized groups.

The Act also recognizes that people living in poverty are to be involved in designing and implementing the strategy, and that the success of the strategy will require the involvement of non-profit, charitable and voluntary organizations as well as the sustained commitment of all levels of government, all sectors of Ontario society and a growing economy.

The government issued its first Poverty Reduction Strategy in 2008 with a focus on breaking the intergenerational cycle of poverty for children and their families. Its second five-year Poverty Reduction Strategy released in 2014 has an additional focus on homelessness.[20] Under this strategy, for example, the government intends to transform the 2015 Pan/Parapan American Games Athletes’ Village into mixed-use affordable rental and ownership housing.

In 2011, the Ontario government released a Mental Health and Addictions Strategy.[21] It recognizes that people with mental health and addiction disabilities face housing challenges, and one of its objectives is to have more people living in safe, stable homes and fewer living in shelters or hospitals.

The Ontario government funds related programs such the At Home/Chez Soi project that provides “Housing First” and support services to formerly homeless people with complex mental health and addictions issues.[22] Recognizing the link between chronic illness and homelessness, the government funds 9,600 mental health and addiction housing units throughout the province.

The Ontario government also provides social assistance to people with low incomes along with a similar program for persons with disabilities. Both income support programs include housing shelter allowances.[23] During the government’s review of social assistance in 2011-12, many individuals and groups said that social assistance rates are too low to afford housing.

Role of the Ontario Human Rights Commission

The OHRC has a broad legislated mandate to promote and enforce Ontario’s Human Rights Code, including the right to be free from discrimination in housing accommodation.

Pursuant to section 30 of the Code, the OHRC develops policies for interpreting and applying the Code. Its policies rely on international norms and standards to inform understanding of human rights law in Ontario. The OHRC first conducts research, public consultation and case law review before drafting policies. It then undertakes public education, partnership, public inquiry initiatives and legal interventions to promote and enforce its policies and the Code.

Since the release of its Right at Home report in 2008, the OHRC has followed up on the recommendations noted above along with its commitments to address the right to adequate housing without discrimination. It has done this by leveraging a range of its mandate functions and powers to address issues at both the provincial and municipal levels.

One of the OHRC’s commitments was to develop a Policy on human rights and rental housing, which it released in 2009.[24] The policy cites Article 11 of the ICESCR on the right to adequate housing, and states that the ICESCR is binding on the federal government and each of the provinces and territories, and rights that are within provincial competence are the obligation of the provincial and territorial governments. The policy also says the explicit reference in the Code’s Preamble to the Universal Declaration of Human Rights reinforces the notion that the Code should be interpreted in a way that is consistent with international human rights principles. This means that the Code’s protections against discrimination in housing should be interpreted in light of Canada’s commitment under the ICESCR to protect and promote social and economic rights, including the right to adequate housing.

The policy makes the connection between poverty, inadequate housing and inequality. It acknowledges that high market rents, insufficient social housing supply, low minimum wage and social assistance rates, and income-related rental requirements all make it very hard for a person who has low socio-economic status to find and keep adequate housing. It also recognizes tenants with low socio-economic status are also more vulnerable to discrimination by housing providers. They might screen out prospective tenants based on stereotypes about poverty and poor people; they might impose illegal rental criteria (such as security deposits); they might provide substandard housing-related services; they might engage in harassing behaviour; and/or they may be quick to try to evict.

The OHRC’s Right at Home report and its 2012 publication, Minds that Matter: Report on the consultation on human rights, mental health and addictions,[25] both raised concerns about municipal zoning and by-laws that adversely affect people’s access to housing. As a result, the OHRC did extensive research and legal work involving municipal requirements for minimum separation distances between group homes for vulnerable persons (see section below on “The judiciary”). It also conducted public inquiries into rental housing licensing requirements, including limiting the number of people and bedrooms allowed in rental units near post-secondary institutions. In 2013, the OHRC released reports on the rental housing licensing systems in the cities of North Bay and Waterloo, highlighting positive steps taken, ongoing concerns and recommendations.[26]

Building on what it learned during its inquiries and interventions with various municipalities, the OHRC published a guide, Room for everyone: Human rights and rental housing licensing.[27] This guide looks at how licensing provisions in municipal bylaws may disadvantage Code-protected groups. It gives an overview of related human rights responsibilities and features promising practices from municipalities. Room for Everyone is a companion to another OHRC guide, In the zone: Housing, human rights and municipal planning, which offers municipalities information about legal obligations, tools and best practices to respect human rights when making zoning and planning decisions affecting housing.[28]

As per its consultation report commitment, in spring 2014, the OHRC released a new Policy on preventing discrimination because of mental health disabilities and addictions.[29] The policy recognizes that because people with mental health disabilities and addictions face extreme stigma, they are vulnerable to losing their housing and experiencing other forms of unequal treatment and harassment in housing. The policy cites articles 19 and 28 of the International Convention on the Rights of Persons with Disabilities, dealing with independent living and an adequate standard of living, including housing.

The policy also makes the connection between mental health and addiction, access to work, poverty, homelessness and lack of affordable housing. People with psychosocial disabilities may find themselves “marked” as having both low income and a disability if they receive social assistance benefits under the Ontario Disability Support Program. In rental housing, they may face intrusive questions about their source of income or their disability, or may be stereotyped as unreliable tenants, because they receive social assistance and have a mental health disability or addiction.

The OHRC has made several submissions to government dealing with the right to adequate housing without discrimination at both the provincial and municipal levels.

In 2012, the OHRC made a submission on the Ministry’s proposed amendments to the Provincial Policy Statement on land use planning[30] recommending the addition of an interpretative provision stating that the PPS shall be implemented in a way that is consistent with the Ontario Human Rights Code and the Charter of Rights and Freedoms. The government accepted the recommendation and amended the 2014 version of the PPS accordingly.

In 2013, the OHRC made a submission to the government’s review of its Poverty Reduction Strategy[31] recommending it break down its success indicators, including the housing measure, to show the impact of the strategy on immigrants, women, lone mothers, people with disabilities, Aboriginal Peoples and racialized groups who disproportionally experience poverty. The government’s 2014 Poverty Reduction Strategy reflects in part the OHRC’s recommendation by committing to measure the poverty rate of these vulnerable groups. Public concern has been raised through the media that the government could not meet its target for reducing poverty of children and their families by 25% during the five years of its first strategy. There is also concern that the government has not yet set a target for its new focus on homelessness.

Other OHRC submissions on the link between poverty, housing and inequality include:

Recognizing that municipalities are well placed to address human rights at the local level, the OHRC helped develop and launch the Canadian Coalition of Municipalities against Racism and Discrimination (CCMARD),[39] which includes housing among 10 common commitments. This was done under the auspices of the Canadian Commission for UNESCO and other partners. Sixty-two municipalities in nine provinces and one territory have joined CCMARD. In Ontario, 19 municipalities have signed on by passing resolutions committing to develop a plan and taking steps to address human rights. The OHRC also developed a guide, Anti-racism and anti-discrimination for municipalities: Introductory manual,[40] to further support the initiative. It also holds “Taking it Local,” an annual one-day human rights conference with a host municipality and local stakeholder groups including educational institutions, police services, community groups and other non-government organizations. This year’s event was held in York Region.[41]

The judiciary

The OHRC’s unique mandate is complementary to the necessary roles of government, non-government organizations and the judiciary in addressing the right to adequate housing without discrimination.

Courts, tribunals and administrative bodies can play an important role in helping to fulfill Canada’s international commitment to the right to adequate housing. The Supreme Court of Canada has stated that international law helps give meaning and context to Canadian law. The Court said that domestic law (which includes the Code and the Charter) should be interpreted to be consistent with Canada’s international commitments.[42] The OHRC believes that decision-makers who interpret housing-related legislation should do so in accordance with the right to adequate housing set out in the ICESCR.

Legal decision makers have recognized that people who are homeless are among the most vulnerable in society and often have mental health issues or addictions,[43] and have considered evidence that shows the impact of homelessness on physical and mental health.[44]

The OHRC becomes involved in litigation where it sees important human rights issues are in the public interest.

In Kearney v. Bramalea Ltd., the court recognized the intersection between socio-economic status and grounds of discrimination that are protected in the Code.[45] The case involved the discriminatory use by several landlords of minimum income criteria or rent-to-income ratios when assessing applications for tenancy.[46]

The OHRC was also involved in two cases where the Ontario Municipal Board struck down attempts by the cities of Hamilton[47] and Kitchener[48] to restrict the location of group homes for people with disabilities by using minimum separation distances.

Recently, the OHRC intervened in an appeal of an ongoing case against the governments of Canada and Ontario. A number of parties are challenging the governments’ failure to implement a housing strategy as a violation of sections 7 and 15 of the Canadian Charter of Rights and Freedoms.[49]

Civil society

Non-government organizations also play an important role in promoting and protecting housing rights.

The Dream Team,[50] for example, a group of advocates living with mental health disabilities, has been instrumental in challenging discriminatory zoning practices by Ontario municipalities. In 2010, the group filed human rights applications at the Human Rights Tribunal of Ontario against Toronto, Sarnia, Smiths Falls and Kitchener to challenge mandatory separation distances for group homes for Ontarians with disabilities. The Dream Team was represented by the Human Rights Legal Support Centre, and the OHRC intervened in the cases. The cases were settled successfully by 2014 and the municipalities amended their bylaws, removing the discriminatory restrictions.[51]

The Canadian Observatory on Homelessness at York University and the Canadian Alliance to End Homelessness just published their annual State of Homelessness in Canada study.[52] The report shows that 235,000 Canadians a year experience homelessness and the numbers are not moving down.[53] Another report by the Canadian Alliance to End Homelessness measures the socio-economic costs and identifies 10 essentials for a community-level plan to end homelessness.[54]

Other organizations like the Centre for Equality Rights in Accommodation[55] and the Wellesley Institute[56] continue to do significant work on the right to housing.

Making progress on the right to adequate housing without discrimination takes the committed involvement of many individuals and organizations. This includes housing providers and developers, municipalities, municipal affordable housing committees and committees of adjustment, other levels of government, advocacy groups and legal clinics as well as the judiciary. Neighbourhood groups, local business associations and homeowners in communities across Ontario must also be aware that it is not acceptable to oppose affordable housing developments, just because of who will live in them, when the intended residents are people protected under Ontario’s Human Rights Code.

[3] See section 2 of the Ontario Human Rights Code online at www.e-laws.gov.on.ca/html/statutes/english/elaws_statutes_90h19_e.htm#BK3.

[4] See section 3, Framework for Action, of the OHRC’s report Right at Home online at: www.ohrc.on.ca/en/right-home-summary-report-consultation-human-rights-and-rental-housing-ontario/3-framework-action

[5] Concluding observations of the Committee on Economic, Social and Cultural Rights: Canada, 22 May 2006, E/C.12/CAN/CO/4, E/C.12/CAN/CO/5.

[6] Office of the United Nations High Commissioner for Human Rights, Promotion and Protection of All Human Rights, Civil, Political, Economic, Social and Cultural Rights Including the Right to Development, Mission to Canada, Report of the Special Rapporteur on adequate housing, 2009, p. 24. Online at www2.ohchr.org/english/bodies/hrcouncil/docs/10session/A.HRC.10.7.Add.3.pdf

[8] Kothari, Miloon, “Statement of the Special Rapporteur on adequate housing as a component of the right to an adequate standard of living, and on the right to non-discrimination in this context,” Report presented at the 7th session of the Human Rights Council (12 March 2008) at p. 6.

[9] Ibid. at p. 2.

[15] See Ontario’s Long-Term Affordable Housing Strategy online at www.mah.gov.on.ca/AssetFactory.aspx?did=8590

[18] Supra, note 10.

[25] www.ohrc.on.ca/en/minds-matter-report-consultation-human-rights-mental-health-and-addictions. The report also reiterated its recommendation that the Government of Canada adopt a national housing strategy

[38] Also see OHRC 2013 Submission to the City of Toronto Statutory Public Meeting for the draft city-wide Zoning By-law online at www.ohrc.on.ca/en/submission-ontario-human-rights-commission-statutory-public-meeting-draft-city-wide-zoning-law

[42] Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at para. 70.

[43] See Victoria (City) v. Adams, 2009 BCCA 563 (CanLII) at para. 75; Victoria (City) v. Adams, 2008 BCSC 1363 (CanLII); Pivot Legal Society v. Downtown Vancouver Business Improvement Assn. (No. 6) (2012), CHRR Doc. 12-0023, 2012 BCHRT 23 (CanLII).

[44] Victoria (City) v. Adams, 2009, ibid. at para. 26; Victoria (City) v. Adams, 2008, ibid. at para. 44.

[45] Kearney v. Bramalea Ltd. (No. 2), (1998), 34 C.H.R.R. D/1 (Ont. Bd. Inq.); aff’d Shelter Corp. v. Ontario (Human Rights Comm.) (2001), 39 C.H.R.R. D/111 (Ont. Sup. Ct.).

[46] Statistical evidence showed that the landlords’ use of such criteria had a disparate impact on individuals based on their sex, race, marital status, family status, citizenship, place of origin, age and the receipt of public assistance. The landlords could not establish a defence as they could not show that the use of the criteria was bona fide and reasonable. The case sets a very important precedent for adjudicating social and economic rights before the Human Rights Tribunal of Ontario.

[47] When the City of Hamilton refused the Lynwood Charlton Centre’s request to move its home for eight teenage girls with mental health issues, the OHRC intervened in a successful appeal of the decision at the Ontario Municipal Board (OMB). The OMB agreed with the OHRC’s arguments that the Centre’s proposal aims to remove land use barriers and improve accessibility to appropriate housing for persons with disabilities, which is consistent with the Ontario government’s Provincial Policy Statement and other planning legislation. The OMB also agreed that the PPS requirement that planning authorities permit and facilitate housing for special needs is a “powerful direction reflecting an important provincial policy interest.” The City of Hamilton decided not to appeal the decision, and has committed to conducting “a comprehensive review of residential care facilities in the context of the PPS, as it relates to special needs, separation distances and the Human Rights Code.” Hamilton (City) Zoning By-law 6593 (Re), (2013) 78 O.M.B.R. 253.

[48] In 2010, the Ontario Municipal Board (OMB) ruled that municipalities have to consider the needs of everyone - including people with disabilities or on social assistance - when making bylaws. Two bylaws stopped new non-profit and supportive housing from being built in the Cedar Hill neighbourhood in downtown Kitchener. The Advocacy Centre for Tenants Ontario (ACTO) and other groups objected, and the OHRC intervened and made the argument that the OMB had to apply the Code when considering the case. Kitchener (City) Official Plan Amendment No. 58 (Re), (2010) 64 O.M.B.R. 283.

[49] In 2013, the Ontario Superior Court upheld the governments’ motion to strike. Parties to the appeal, which was heard in May 2014, also include the Centre for Equality Rights in Accommodation, the Advocacy Centre for Tenants Ontario, Amnesty International Canada and a coalition of legal clinics. A decision is pending (Tanudjaja et al v. Attorney General of Canada and Attorney General of Ontario; Ontario Court of Appeal No. C57714).