Under the Municipal Act, 2001 and the City of Toronto Act, 2006, municipalities have broad powers to pass bylaws (subject to certain limits) on matters such as health, safety and well-being of the municipality, and to protect persons and property.^[2]

Both Acts also give municipalities the specific authority to license, regulate and govern businesses operating within the municipality. This includes the authority to pass licensing bylaws covering the business of renting residential units and operating rooming, lodging or boarding houses/group homes.

With this authority to license also comes a human rights responsibility. The Code has primacy – in other words, takes precedence – over the Municipal Act and the City of Toronto Act, and requires that municipal programs, bylaws and decisions such as licensing consider all members of their communities. The Code requires that decisions do not target or have a disproportionate adverse impact on people or groups who identify with Code grounds.^[3]

The Code prohibits actions that discriminate against people based on a protected ground in a protected social area.

Protected grounds are:

• Age
• Ancestry, colour, race
• Citizenship
• Ethnic origin
• Place of origin
• Creed
• Disability
• Family status
• Marital status (including single status)^[4]
• Gender identity, gender expression
• Receipt of public assistance (in housing only)
• Record of offences (in employment only)
• Sex (including pregnancy and breastfeeding)
• Sexual orientation.

Protected social areas are:

• Accommodation (housing)
• Contracts
• Employment
• Services
• Vocational associations (unions).

Rental housing bylaws discriminate if they cause someone to be disadvantaged in a protected social area – like housing – because of the person’s association with a protected ground.

If a bylaw is found to be discriminatory, a municipality would have to show that the absence or variation of the bylaw would cause them “undue hardship” in terms of health and safety or cost ramifications.

In some cases, the absence of the bylaw will not cause “undue hardship” because less discriminatory alternatives to the bylaw exist, that would meet the same fundamental goals. For example, if a municipality argues that its bylaw is required to meet a certain standard for preventing fires, but existing Fire Code provisions apply a lesser standard (which causes less disadvantage to Code-protected groups) then it is arguable that the absence of the bylaw does not cause the municipality undue hardship.

Licensing bylaws are a Code-protected “social area”

The OHRC looks at rental housing licensing bylaws from the perspective of two social areas under the Code: services and housing.

Services

Municipalities provide a service to their residents through residential rental licensing bylaws. For example, a rental housing licensing bylaw may provide renters (and other residents in the area) with the comfort of knowing that the landlord has established a maintenance and snow removal plan, or has met health and safety standards, for his or her house.

Housing

The Code prohibits indirect discrimination. Section 9 provides:

No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.

Although a municipality is not a landlord or housing provider, it has a responsibility to ensure that it does not indirectly discriminate with respect to the social area of housing when it licenses rental housing through a bylaw.

Licensing bylaws can disadvantage Code-protected groups

The OHRC conducted a consultation on human rights and rental housing in 2007. It reported on this consultation in Right at Home: Report on the consultation on human rights and rental housing in Ontario, and the consultation helped to form the OHRC’s Policy on human rights and rental housing.

During the consultation, the OHRC heard that certain Code-protected groups rely on rental housing, and can be disadvantaged by measures that limit it. Examples of groups that may be affected include:

• Aboriginal people (ancestry)
• Racialized groups (race, colour, ethnic origin)
• Newcomers (place of origin, citizenship, ancestry)
• Lone parents (family status and marital status)
• Seniors (age, sometimes disability or receipt of public assistance)
• Large families (family status, sometimes creed, ancestry or ethnic origin).^[5]

During the consultation and also through its recent inquiries into rental housing licensing in Waterloo and North Bay, the OHRC also heard that groups not as obviously connected to Code grounds – such as students and low-income individuals – might be disadvantaged by measures that limit affordable rental housing.

Sometimes the link to the Code is clear. For example, if a student is told that they cannot rent a unit because they are single, then they have experienced a disadvantage (denial of a rental opportunity) because of their association with a Code ground (marital status). But what if someone appears to have experienced a disadvantage because of their student status, or because of their low-income status?

If student status, or low-income status, are “one of the many identifying features” of being a member of a particular Code group, or are “inextricably bound up together” with being a member of a Code group, then student status or low-income status are a proxy for that Code group. In that case, there will be a link between any adverse impacts experienced by students or low-income groups, and a Code ground. For example, if student status is significantly or overwhelmingly associated with being young, then actions that disadvantage students will disadvantage people protected by the Code ground of age.^[6]

Students

Though students may be more likely than some other community residents to move away after a few years, they are still residents of a community. Students contribute greatly to the economic and social life in their communities. They are as entitled to housing as any other resident.

Student status could be a proxy for age, because the two characteristics appear to be inextricably bound up together. In general, while students may range in age, an overwhelming majority of students are young people. Data from Statistics Canada shows that in 2010, 49% of university graduates were between the ages of 15 and 24, and over 76% of university graduates were under age 30.^[7] The data also shows that over 63% of college graduates were under the age of 24, and over 76% were under age 30.^[8]

Large percentages of young people are students. For example, 79% of 18-20 year-olds are students.^[9] In communities where students are commonly referred to as “young people,” “kids” or other age-related terms, the association between student status and the Code ground of age is even clearer.

Student status may be a proxy for single status. A significant proportion of single people are students. Forty-four percent of single people in Canada are between the ages of 15 and 30 – and as noted above, 76% of college and university students are under age 30.^[10] The link between student status and single status is more clear in communities where students are commonly seen as being incompatible with a “family lifestyle.”

Student status may also be a proxy for receipt of public assistance. According to a Statistics Canada study, approximately 34% of post-secondary students in Canada receive a Canada Student Loan.^[11] OSAP is essentially a combination of Canada and Ontario Student Loans, so 34% is a very rough approximation of Ontario students receiving social assistance. These numbers do not, of course, take into account students receiving other types of social assistance, such as Ontario Disability Support Program (ODSP) benefits.

If student status is a proxy for age, marital status or receipt of public assistance, elements of the bylaw that disadvantage students because of their student status will be discriminatory and contrary to the Code.^[12]

Low-income groups

Low income or socioeconomic status is not a protected ground under the Code.^[13] However, it directly connects to the ground of receipt of public assistance.

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.^[14] 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.

For example, in Kearney v. Bramalea Ltd.^[15] the Ontario Human Rights Board of Inquiry found that:

[Expert witness] Dr. Ornstein's extensive analysis of the census and other surveys is clear evidence that income criteria [requiring that individuals meet a rent-to-income ratio in order to be eligible to rent a unit] differentially affect groups protected by the Code – groups defined on the basis of sex, marital and family status, age, citizenship, race, immigration status, place of origin, and being in receipt of public assistance. The result is to significantly restrict the housing choice of protected groups whose members often end up in higher priced accommodation of poorer quality.

On average, Code-protected groups have lower incomes than other groups in society. As a result, low income can sometimes be a proxy for those Code-protected groups, and rules that affect low-income people may affect a disproportionate number of Code-protected people.

Lower-income tenants have fewer choices in the rental market because many of the housing options are out of their price range. Also, more low-income households move per year compared with higher-income households,^[16] and when people move into new private rental units they may have to pay significantly higher rent.^[17]

This means that a municipality’s actions that directly or indirectly restrict or reduce the availability of low-cost market rental and other affordable housing can have an adverse impact on Code-protected people. Some groups of people who are more likely to have lower incomes and who may also be protected by specific grounds of the Code include:

• Aboriginal Peoples (ancestry)
• Newcomers (citizenship, ethnic origin, place of origin)
• Racialized people (race, colour, ancestry, ethnic origin)
• Young or lone-parent families or growing families seeking larger accommodation (family status, marital status)
• Older people with low and fixed incomes (age, receipt of public assistance)
• Students (age, marital status, receipt of public assistance)
• People with disabilities (disability)
• People receiving funds under OSAP, Ontario Works (OW) Ontario Disability Support Program benefits (ODSP), or other types of public assistance (receipt of public assistance)
• Transgender people (gender identity, gender expression)
• Women (sex, family status, age).

Discrimination issues in rental housing often arise because of a combination of Code grounds. For example, a lone mother who is receiving social assistance might experience discrimination based on her sex, family status, marital status and receipt of social assistance. Similarly, young people who are looking for rental housing may experience discrimination based on their age and marital status.

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.

Bylaws that limit housing availability for Code-protected groups could be found to be discriminatory. The Ontario Municipal Board discussed this concept in Kitchener (City) Official Plan Amendment No. 58. In that case, the Board investigated a municipal initiative to decrease the “over-concentration” of "single person, low-income households" and "residential care facilities and social/ supportive housing" in certain areas.^[30] The City argued that there was no discrimination because, among other things, “people [could] just go elsewhere.^[31] The Board found that:

The following resources are available online:

Ontario Human Rights Commission
www.ohrc.on.ca

In the zone: Housing, human rights and municipal planning
Policy on human rights and rental housing
Human rights for tenants – brochure
Human rights in housing: an overview for landlords – brochure
Writing a fair rental housing ad

Ontario Ministry of Municipal Affairs and Housing
www.mah.gov.on.ca

Affordable housing
Planning Act Tools
Ontario Housing Policy Statement
Municipal Tools for Affordable Housing

To make a human rights complaint – called an application – contact the Human Rights Tribunal of Ontario at:

Toll Free: 1-866-598-0322
TTY Toll Free: 1-866-607-1240
Website: www.hrto.ca

To talk about your rights or if you need legal help, contact the Human Rights Legal Support Centre at:

Toll Free: 1-866-625-5179
TTY Toll Free: 1-866-612-8627
Website: www.hrlsc.on.ca