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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:
Depending on the ultimate content of revised municipal measures, municipal analysis and preparation may need to include the Code and Charter. That analysis is glib, if it merely assumes that telling persons with disabilities and/or on public assistance to "just go elsewhere" is no encroachment on human rights, or that it was just a small one, or that it was for "a greater good.[32]
Bylaws that limit housing availability for Code-protected groups may also be in breach of planning principles. The Ontario Municipal Board stated in the Kitchener case:
As a matter of elementary preparation, if the City proposed to revise the rules for care facilities, it was incumbent on the City to devote at least some visible thought to what it was going to do with them. That is consistent not only with the Act and the PPS [Provincial Policy Statement], but with the very concept of "planning." One does not undertake to reorganize the aquarium, without devoting at least some thought to where to put the fish.[33]
- Barbara Hall,Ontario Human Rights Commission
[30] Kitchener (City) Official Plan Amendment No. 58, [2010] O.M.B.D. No. 666 at para. 2.
[31] Ibid. at para. 137.
[32] Ibid. at para. 149.
[33] Ibid. at paras. 107-108.
Also in the Kitchener case, the OMB commented that the Planning Act and other instruments including the Provincial Policy Statement require the council of a municipality and other parties to consider matters of provincial interest including adequately providing a full range of housing (para. 21). Based in part on these principles, the OMB found that:
…Although it is fashionable in some circles to reduce all Provincial planning policy to a single glib focus on intensification, that oversimplification overlooks the specific PPS [Provincial Policy Statement] direction (in the explanatory text at Part III) that "a decision-maker should read all the relevant policies as if they are specifically cross-referenced with each other." Where was the attention to "improving accessibility," "preventing barriers" etc.?
That is where there is an evidentiary problem. The required planning analysis need not be encyclopaedic; but where the core of an OPA or By-law involves topics specifically itemized by the Province, one would expect at least some overt attention to those specified interests. Indeed, given that care facilities, the disabled, and assisted housing are the direct and intended targets of this initiative, then as a "planning" matter, one would have expected some municipal consideration of the impacts on arrangements for this population, even in the absence of the interests itemized in the Act and PPS.
Yet in the mass of writings during the six years following the ICB in 2003 – including the lead-up and follow-up to OPA 58 and the ZBA – neither the City nor Region were able to point to a single sentence showing how the impacts on this population were considered, let alone that Subsection 2(h.1) of the Act or PPS Subsection 1.1.1(f) had been considered in even the most perfunctory way (para. 99-101).