VI. Housing

1. Introduction

Canada, as a signatory to a number of international human rights instruments, has recognized that adequate housing is a fundamental human right. With the ratification of the International Covenant on Economic, Social and Cultural Rights, Canada committed to take appropriate steps towards the realization of the right to adequate housing.[72] While the Code does not protect the broad range of social and economic rights set out in international instruments, it affirms the right to equal treatment in the occupancy of accommodation without discrimination on the basis of family status, or other grounds, and the values reflected in international human rights laws are an aid to interpreting human rights legislation.

It is clear that for many families with young children, these international and domestic housing rights are an unrealized promise. Families continue to struggle in the rental housing market, and may find themselves in housing that is neither affordable nor adequate. This is particularly true for lone-parent families; families in receipt of social assistance; families from racialized, Aboriginal and newcomer communities; and those who have young children.

Subsidized housing in Toronto is terribly difficult to get. Waiting lists are long, locations are sparse and often not located in downtown Toronto. The apartment that we live in now is safe and in a good location, but very difficult for me to afford.
Lone mother

While consultees from all perspectives – landlord groups, tenant advocacy groups, non-profit housing providers, and academics – agreed that vulnerable families continue to struggle in the rental housing market, there were differing opinions on the reasons why, and on the most effective remedies.

The Role of Poverty

Consultees agree that poverty is a significant part of the problem. Families with young children, lone-parent families, parents with disabilities or parents of children with disabilities, Aboriginal families, families from racialized communities and newcomer families are more likely to be low income. As well, when two parents are living separately, but sharing custody of their children, affordable adequate housing in two locations may pose significant difficulties. The connection between membership in a group identified under the Code and the likelihood of being low income was recognized by the Board of Inquiry in Kearney v. Bramalea[73], when it ruled that rent-to-income criteria have a discriminatory effect. Measures that disadvantage those who are low-income are likely to disproportionately disadvantage members of Code-identified groups.

As of December 2005, over 50% of the beneficiaries of the Ontario Works social assistance program (OW) were members of lone parent families.[74] For these, and other families in receipt of social assistance, the very low shelter allowances put beneficiaries in the untenable circumstance of having to choose between shelter and the other necessities of life.[75] The Advocacy Centre for Tenants Ontario (ACTO) pointed out that almost all (96%) of OW beneficiaries are tenants, but only 17% of these live in subsidized housing – the rest are attempting to find adequate, affordable housing in the private rental market. In many areas of the province, there is simply no adequate rental housing available to families in the private rental market within the limits of the shelter allowance. Many submissions emphasized the crucial importance of raising the social assistance shelter allowance to levels that cover actual rental rates.

The Ministry of Community and Social Services (MCSS) informed the Commission about recent steps that it has taken to ensure that persons in receipt of social assistance are able to pay the rent. For example, in March 2004, a Provincial Rent Bank was created to help tenants with short-term arrears to enable them to stay in their homes. MCSS has also developed an Emergency Energy Fund to help low-income households deal with energy-related crises. This fund provides one-time emergency assistance to deal with payment of energy utility arrears, security deposits and reconnection fees. As well, where recipients of OW or Ontario Disability Support Program benefits (ODSP) have not been meeting their financial obligations, the administrator may direct a portion of social assistance for payment of arrears required to prevent eviction.

Supply of Adequate, Affordable Housing

Most consultees, though not all, saw the dearth of adequate affordable housing as one of the root causes of the problem that families have in accessing housing. The Ontario Non-Profit Housing Association (ONPHA) stated that:

[T]he reality is that if there is no shortage of housing, landlords are much less likely to discriminate. And in the world of social housing, one of the categories the discussion paper focuses on as disadvantaged (victims of violence, who are in practice predominantly women with children), in fact receive specific and extensive priority. ONPHA’s view is that the primary (though not the only) issue is the shortage of affordable housing...The primary focus has to be on ensuring adequate affordable supply. (emphasis in the original)

The Ministry of Municipal Affairs and Housing (MMAH) told the Commission that the province’s Housing Agenda aims at increasing rental supply through initiatives that will strengthen tenancies and keep tenants in their homes, as well as new programs to create more affordable housing and support those with special housing needs. For example, a new Canada-Ontario Affordable Housing Program will create more than 15,000 units of affordable housing, including new supportive housing and housing for victims of domestic violence. The program will also provide housing allowance assistance to 5,000 low-income Ontario families.

There were many suggestions as to how the lack of adequate, affordable housing could be addressed. Many of the housing-related submissions received by the Commission raised the issue of rent control. ACTO said:

With the introduction of vacancy decontrol in 1998, there has been little incentive for landlords to mediate with tenants who have lived in their units for a long time, and every incentive to get them evicted in order to increase the rent; resulting in fewer ‘affordable’ units. Average rents in Ontario have continued to increase, despite an increase in the vacancy rates. Vacancy decontrol has put affordable housing out of the reach of many low-income families in Ontario. ACTO has urged the provincial government to reintroduce rent regulation on all units, whether vacant or occupied, in order to preserve affordable housing units.

On the other hand, the Federation of Rental Housing Providers of Ontario (FRPO) argued that rent controls create a barrier to access, because they lead to housing shortages. The result of these shortages, FRPO states, is “many tenants vying for too few apartments. In this situation it is often the most poor and vulnerable households who lose out. The overall results for society can be devastating”. According to FRPO, vacancy decontrol has led to an increase in vacancy rates, particularly at the lower end of the spectrum, which has provided more choice for poor and vulnerable families in Ontario.

MMAH told the Commission that the government is committed to developing a new system of regulating rents that would provide better protection for tenants.

There was also debate, both in the submissions received by the Commission and at the Housing Roundtable, on the effect of zoning by-laws that exclude or severely limit second suites. Concerns have been raised about the ability to effectively ensure health and safety requirements in second suites; however, others point out that such suites are a major source of affordable housing. As well, the Commission heard concerns about by-laws that limit or prohibit social service establishments, hostels or affordable housing projects. Stakeholders told the Commission that such by-laws have the effect of excluding people from housing on the basis of personal circumstances, including the Code grounds of disability, family status, and receipt of social assistance.

Submissions also raised concerns about the conversion of rental housing stock to other uses, such as condominiums, as this is having the effect of rapidly decreasing the supply of affordable housing. MMAH told the Commission that it is committed to ensuring that municipalities have the right to protect existing rental housing stock from unreasonable demolition or conversion to condominiums.

Discriminatory Attitudes and Stereotypes

Based on the above, it is clear that discrimination against families in the rental housing market must be understood in the context of these broad social and economic concerns about inadequate income, and inadequate supply of affordable housing.

Added to these systemic problems is the continuing and common practice by rental housing providers of direct discrimination against families with young children. Many consultees emphasized the major impact on families of the widespread lack of knowledge of Code rights and responsibilities, among both landlords and tenants. The Landlord’s Self Help Centre told the Commission that the secondary rental market is estimated to represent 40% of private rental housing providers in Ontario, and 15-20% of rental housing stock in Toronto. These housing providers are typically not professionals, and often possess very little or no property management skills or experience. They therefore have little exposure to information about their obligations under the Code. The Centre for Equality Rights in Accommodation (CERA) pointed out that many landlords are completely unaware that they cannot refuse individuals or families because they are in receipt of social assistance, and will acknowledge outright to CERA staff that they ‘don’t rent to people on welfare’.

The lack of awareness goes beyond lack of knowledge of the Code. There are also deep-rooted stereotypes and myths at play about persons in receipt of social assistance, lone parent families, and newcomers, among others. Perhaps the strongest message the Commission received through the Housing Roundtable was the importance of a strong public awareness and education campaign for landlords, to undertake “myth-busting” as well as education about the Code.

Landlords are prone to view our clients as unsuitable tenants despite the safeguards in the Code due to their disability, their family status or their income source. Potential landlords and the general public must be educated that our clients come from all walks of life and are not a homogeneous group. They are no more likely than their fellow citizens to default on housing payments ... [I]ncreasing rental housing stocks or even social assistance rates will not cure the problem of landlord discrimination.
MCSS

Similarly, the Commission heard that tenants themselves are often unaware of their rights. The most vulnerable tenants are also the individuals least likely to be aware of their rights, or to be in a position to enforce their rights, especially given the complexity and timelines associated with filing a complaint under the Code.

When contemplating the impact of family status on housing, it is important to keep in mind the additional effect of intersecting Code grounds. For example, ARCH reminded the Commission that persons with disabilities and their families experience particular difficulties in accessing housing because they must find housing that is both accessible to persons with disabilities, and ‘family friendly’; this operates as a ‘double whammy’. The Commission also heard of the housing difficulties experienced by parents who are raising children with disabilities that manifest behaviourally: often landlords and other tenants will have little patience with the difficulties experienced by such parents. OFIFC told the Commission that

Some landlords may not want to rent to Aboriginal people because of racist attitudes. Additionally, it is a fact that Aboriginal people have the highest rates of single moms as heads of households (27% of all families) and a number of these moms are teenagers. Finding accommodations for this group is very difficult, and even single Aboriginal dads find it difficult to find proper accommodations for them and their children for similar reasons.

Any consideration of the experiences of families in the rental housing market must therefore take into account the effect of multiple aspects of identity, not only in terms of stereotypes and direct discrimination, but also in terms of the impact of systemic factors.

Participants in the Housing Roundtable had many creative ideas for ensuring that tenants are better informed about their rights, such as requiring all landlords to post copies of the Code in building lobbies, or including information about human rights on rental application and lease forms, or providing accreditation for landlords who show that they have had training or education on human rights.

2. Refusal to Rent to Families with Young Children

As indicated above, despite the long-standing protections under the Code, the practice among landlords of denying rental housing to families with young children remains widespread.

It is difficult as a single parent, landlords prefer a two-income family. While looking for housing, I have been turned away many times because landlords are concerned that rent will not be paid, even with a good track record.
Lone mother in receipt of social assistance

I’ve been looking for housing for two years now. Each application has been denied. I’ve also had numerous conversations with potential landlords where they stated that their apartment was not ‘suitable for children’.
Lone mother

One of the ways in which this outright refusal to rent to families with young children operates is the continued existence of “adult only” or “adult lifestyle” buildings. Other euphemisms indicating that families need not apply include “geared to young professionals” or “would suit students”.

The Code does permit age restrictions in housing under some circumstances. For example, section 15 of the Code permits preferential treatment of persons aged 65 and over, and therefore permits housing that is limited to persons over the age of 64. Section 14 of the Code permits special programs to alleviate hardship and disadvantage, such as specially designed barrier-free housing projects aimed at older persons with disabilities. Section 18 creates a defence for religious, philanthropic, educational, fraternal or social institutions or organizations that primarily serve the interests of older persons and that provide housing as part of their services. However, there is no defence that permits “adult lifestyle” housing that results in the exclusion of children or persons under a certain age.[76] Given these Code exceptions, FRPO points out that there may be confusion among landlords as to what the law permits.

The fact that there is an age threshold at which a seniors-only building is allowed may lead to some confusion in the marketplace. The definition of a senior may vary for many people. Many people retire before age 60. Some people think of seniors as aged 55 plus, and others as aged 60 plus.

In light of this confusion, FRPO, like many other stakeholders, urged the Commission to undertake an education and awareness campaign among landlords.

MCSS told the Commission that persons with disabilities are particularly vulnerable to the effects of adults-only policies:

Many of our clients require housing stock which reflects their individual disability. The bulk of such housing is set aside for the aged or is found in buildings reserved for adults only under the exemptions found in the Code. However, there is a need to recognize that many of our clients fall under the umbrella of disability and family status – they are disabled with families. Exemptions for adults-only disability-focused housing effectively discriminate against the disabled parents of young children.

ONPHA told the Commission that many housing providers have taken steps to open buildings that were formerly “seniors only” to accommodate younger singles, in recognition of the fact that there is limited demand for the housing from older age groups. However, these changes have brought with them some issues in terms of integrating populations with diverse expectations and needs.

3. Rental Criteria

During the consultation, the Commission heard about a number of common rental policies and practices among landlords that create systemic barriers for families attempting to access housing.

Income Information

The use by landlords of minimum income criteria or rent-to-income ratios has been found to violate the Code. The Board of Inquiry in Kearney v. Bramalea[77] held that these practices have a disparate impact on groups protected under the Code, including those identified by family status, and that these policies were not bona fide as they have no value in predicting whether a tenant will default on rent.

The Code was subsequently amended to state that landlords may, when selecting tenants, use income information, credit checks, credit references, rental history guarantees or other business practices, in accordance with the Act and regulations. Regulation 290/98 permits landlords to:

  • Request credit references and/or rental history from a prospective tenant, as well as authorization to conduct credit checks.
  • Use credit references, rental history and credit checks, alone or in combination to assess and to select or refuse tenants.
  • Request income information if the above information was also requested (credit references and checks, rental history).
  • Consider the income information and make a decision accordingly only if the other information is also considered, or if, having also requested the other information about credit and rental history, only the income information is provided. There is an exception for the use of income to assess eligibility for rent-geared-to-income housing.
  • Require tenants to obtain guarantees for the rent or to pay a security deposit in accordance with the Tenant Protection Act.

The Regulation reaffirms that nothing in it authorizes a landlord to refuse housing on the basis of Code grounds.

It is the Commission’s position that landlords must give meaningful and valid consideration to the prescribed criteria, in a bona fide effort to validly assess potential tenants. They may not apply them in an arbitrary manner for a prohibited discriminatory reason that would attempt to defeat the purposes of the Code.

The Commission heard that there are continuing issues with the use of income information by landlords, and that landlords are misinterpreting or misapplying the provisions of the Code and Reg. 290/98 and continuing to apply rent to income ratios.

The use of minimum income requirements and rent-to-income ratios continues to be a major barrier for low-income families with children attempting to secure appropriate housing. Despite a number of Board of Inquiry/Human Rights Tribunal decisions which clarify that the use of these requirements to screen out prospective tenants is not permitted under the Code, landlords regularly use these ‘affordability’ rules to deny low income families access to housing... many landlords (and others) equate the use of ‘income information’ in tenant selection with a sanctioning of the use of rent-to-income ratios.
CERA

The Ministry of Community and Social Services also identified these practices as barriers for ODSP recipients, stating, “ODSP recipients would benefit from an elimination of income criteria and questions about source of income for most rental housing applications. Landlords should instead rely on references and payment history alone.”

Credit History

As noted above, Regulation 290/98 permits landlords to request credit references and to conduct credit checks (with permission from the prospective tenant), and to consider this information in selecting or refusing a tenant. As noted above, it is the Commission’s position that when landlords consider such information, they must do so in a bona fide effort to validly assess potential tenants.

The Commission heard that poor credit history can be the result of family breakdown, and that many women have poor credit histories for this reason. However, some landlords have a blanket policy of not renting to those with poor credit history, which can have a disproportionate impact based on family status.

As well, many young people, new Canadians, and women returning to the workforce after lengthy periods of caregiving may have little or no credit history. In Ahmed v. Shelter Canadian Properties Limited[78], a human rights Board of Inquiry found that the practice of requiring credit history may have a disparate impact on newcomers, and further emphasized that the lack of a credit history is not the same thing as a negative credit history. The landlord was ordered to cease and desist from the practice of rejecting tenancy applications from newcomers with no credit history.

Requirement for Co-Signors

The Commission heard that it is the practice of many landlords to automatically require low-income applicants (particularly those in receipt of social assistance) to provide a co-signor or guarantor. Often the landlords will place restrictive rent-to-income ratios on the co-signors. This is a major barrier for these families, as few have access to a co-signor or guarantor, particularly not one that can meet the requested rent-to-income ratios.

While the use of co-signors or guarantors may be appropriate where a tenant has poor references or a history of default, requiring co-signors or guarantors merely because an applicant is in receipt of social assistance may be a violation of the Code. Although section 2(1) of Regulation 290/98 permits landlords to require a prospective tenant to provide a guarantor, section 4 of that Regulation emphasizes the prohibition on discrimination on the basis of the Code grounds, including receipt of social assistance.

Rental History

Some groups protected by the Code may have little or no rental history: for example, women re-establishing themselves after a marital breakdown, or newcomers to Canada. The Commission heard that a landlords’ treatment of prospective tenants without a rental history may have an adverse impact on groups identified under the Code.

[R]ecent immigrants and refugees experience systemic discrimination when they are unable to provide references (usually require references in Canada) in order to secure rental housing. Consequently, some landlords have asked these applicants to provide a large security deposit, in some cases as much as 12 months of rent.
OCASI

The Code and Regulation 290/98 permit landlords to request information about a prospective tenant’s rental history. However, the decision in Ahmed[79] makes it clear that the lack of a rental history should not be treated in the same way as a negative rental history.

Employment History

The Commission heard that some landlords require that applicants have ‘stable’ long-term employment, and that this may create barriers based upon Code grounds, including age, gender, family and marital status, and disability.

These requirements have clear adverse impacts on young people who are new to the workforce. They also can be very problematic for women with children leaving relationships after long periods as stay-at-home caregivers. Following the end of a relationship, these women will have to re-enter the workforce to support their children and themselves, and will often have irregular and seemingly unstable work histories as they try to find a place of employment that will best provide for their families.
CERA

In Sinclair v. Morris A. Hunter Investments[80], a Board of Inquiry found that rental policies requiring applicants to be employed on a permanent basis or to satisfy a criterion of minimum tenure with an employer discriminated against rental applicants on the basis of age, as the expert evidence indicated that there is a very strong relationship between age and job tenure, and between age and the likelihood of having permanent employment.

4. Policies Related to Occupancy of Accommodation

Occupancy Policies

Consultees expressed concerns regarding occupancy policies. For example, a lone mother told us that she had often been told that she needed a larger residence because she had three people; however, a couple with a child could rent a two bedroom with no problem. CERA told us that:

[T]here is significant resistance from housing providers to rent to families where a parent has to share a bedroom with a child or children, where children have to share rooms (particularly if they are of the opposite sex), where a family member has to sleep in the living room, etc. ..[T]hese policies effectively deny families access to the units they can afford.

The OFIFC told the Commission that some families may need to take responsibility for an extended family member or friend’s child or children, and the landlord may then complain that these children are not identified on the lease and the number of permissible occupants has been exceeded.

The Commission heard that the lack of available and affordable accommodations for larger families may result in overcrowding, simply because families have no other choices.

A number of consultees stated that while demonstrated health and safety concerns can be used to justify occupancy standards, this provides no basis for forbidding children of different sexes from sharing bedrooms, or parents from sharing with their children. CERA argued that municipal occupancy standards, or overcrowding by-laws provide sufficient and acceptable occupancy standards.
FRPO disagreed.

Almost all businesses in Ontario have policies which charge users based on the amount they consume... There is no reason that the rental housing industry should be treated differently than any other industry. Many of our costs vary with household size. For example, utility costs such as electricity, hot water and water and sewer services are paid for most often by the landlord in Ontario, as these costs are bulk metered. The owner has to recoup these costs through rents that are charged to occupants. These costs rise with the number of occupants... By having policies that ensure overcrowding does not take place in any given unit, the industry has a way of ensuring there is a closer relationship between rents charged and the costs being incurred.

ONPHA told the Commission that at some point, crowding becomes unacceptable, and even contrary to property standards. “A building with very crowded units becomes impossible to manage with negative consequences for all tenants”. ONPHA went on to say that:

ONPHA’s position is not that landlords should be permitted to be rigid and refuse to allow access to smaller units if this, in fact, would otherwise make waiting time less or improve affordability. However, there is a bigger picture to consider. Legislation can often be overly narrow in its perspective in dealing with issues where the consequences of a single decision to allow crowding may not be major, but the consequences of many decisions would be very damaging to the health of the overall community, and therefore of all those living in that community.

In Desroches v. Quebec (Commission des droits de la personne),[81] the Quebec Court of Appeal found that policies regarding the number of occupants per number of rooms or bedrooms may have an adverse impact on families with children. Where a policy has an adverse impact on a group protected under the Code, the housing provider must show that the policy is a bona fide requirement, in that it is related to a valid objective, was adopted in good faith, and could not be designed in a way that would accommodate without incurring undue hardship.

Definition of ‘Tenant’

Under the Tenant Protection Act (TPA)[82], a tenant is defined to include “a person who pays rent in return for the right to occupy a rental unit and includes the tenant’s heirs, assigns and personal representatives”. This does not include spouses and family members who ordinarily reside in the rental unit. Therefore, when the ‘tenant’ dies or vacates the unit, spouses or family members may have no rights. This may leave families at a serious disadvantage. ACTO brought to the Commission’s attention one case where a landlord brought eviction proceedings against a woman and her three children after the husband, who signed the rent cheques, left. Prior to the husband’s departure, he signed a Notice of Termination at the request of the landlord. The woman had been living there for 17 years. This case was eventually settled, with the landlord agreeing to allow the family to stay at the same low rent.

No Transfer Policies

Some landlords have policies prohibiting tenants from transferring between rental units in the same building. Such policies may have a negative impact on families with children, because their rental housing needs change as their families grow, but they must leave their building in order to accommodate their need for additional space.

FRPO argued that no-transfer policies are not in fact discriminatory, unless applied only to families, and that these policies are based on sound business practices:

Companies that have such a policy do so for good business reasons. For example, transfers come with transaction costs. They increase administration costs. But, more important, turnover costs on each suite can be substantial, particularly in current market conditions in Ontario... A transfer within a building results in the creation of two turnovers where there would have otherwise been one, significantly increasing costs for the owner.

In Ward v. Godina[83], a Board of Inquiry found that no transfer policies have an adverse impact on families with children, and violate the Code.

Health and Safety Concerns

The Commission heard that some landlords have a practice of refusing to rent apartments on the upper floors of buildings to families with young children, on the basis of health and safety concerns. MMAH told the Commission that there should be no reason why landlords can use the issue of children’s safety as a reason for barring families from renting in high-rise apartments, as the TPA requires landlords to keep their buildings and rental units in a good state of repair, and to ensure that all health, safety and maintenance standards are met. Other stakeholders pointed out that landlords should be taking positive steps to accommodate the needs of families with young children.

[T]he lack of ground floor apartments should not be cause to refuse to rent to a family with young children. ..It is the landlord’s responsibility to accommodate differences between people in their living situations, and this includes the needs of families, concerning safety and reasonable enjoyment.
Federation of Metro Tenants Associations (FMTA)

Access to Recreational Facilities and Common Areas

Over the years, the Commission has regularly heard about situations in which landlords or condominium corporations place restrictions on access to recreational facilities or common areas by children or youth.

MCSS told the Commission that rules restricting access to facilities on the basis of family status have a disproportionate impact on families that include persons with disabilities:

Our clients and their families are most in need of housing that includes access to swimming pools, fitness equipment and laundry facilities. Recreation and services benefit their endeavours to participate in society and is encouraged. Many of these recreational facilities bar use by children – and hence by their parents – and where our disabled clients rely on caregivers to assist them, laundry facilities sometimes restrict access to residents only, eliminating non-resident caregivers.
MCSS

FMTA noted that landlords will sometimes make rules about loitering or noise, in reaction to negative attitudes about youth, particularly racialized youth.

Families with older children – that is, teenagers, may find negative attitudes or stereotypes directed toward their children, especially children of colour, who are often seen as criminal, trouble-makers, etc. Landlords often make rules about loitering, or noise, to keep youth out of the common areas of buildings.

FMTA pointed out that “While, on the one hand, noise and certain behaviour of youth may interfere with reasonable enjoyment of tenants in the building, on the other hand, young people are also tenants in the building, and have the right to the use of common areas for common purposes.”

In Leonis v. Metropolitan Toronto Condominium Corporation,[84] a Board of Inquiry held that a policy restricting access to recreational facilities for children under the age of 16 discriminated on the basis of family status.

Other Issues

ACTO raised the issue of the lack of external appeal procedures under the Social Housing Reform Act[85] from decisions of social housing providers to deny or revoke housing subsidies. Revocation of subsidies may lead to evictions, as rent falls into arrears. ACTO stated that:

Social housing tenants, many of whom are sole support mothers, disabled people and immigrants, risk homelessness because the only appeal is an ‘internal review’. These internal reviews are conducted by the same housing provider that made the decision under review. Social housing providers rarely overturn decisions on internal review. When the review is unfair, the only process potentially available is judicial review.

As well, concerns were raised about the administration of the requirement, under the Social Housing Reform Act, for occupants to report a change in income or household size. Managers have the discretion to extend this timeline; however, not all do, so that families that fail to quickly report the addition of a child to the household may lose their subsidy.

5. Children’s Noise

One of the most frequently raised issues with respect to housing was children’s noise. Persons living in rental housing are living in close quarters. Children, by their nature, can be noisy. Babies cry, toddlers have loud voices, and children run and jump and play. Some conflict is perhaps inevitable. However, the end result of such conflict is too frequently the harassment or eviction of families because of the kind of noise normally associated with children. During the Housing Roundtable, the Commission heard that, even where families are not threatened with eviction, harassment because of the normal noise associated with children can create a poisoned environment for these tenants. For example, families may feel obliged to be out of their apartments evenings and weekends, so as not to create friction with other tenants.

FRPO pointed out that there may be situations where the level of noise created by a family is exceptional:

It is not to overstate the case that noise can ruin the lives of neighbours. It is not reasonable to simply assume that in all situations ‘all parties can work cooperatively to resolve the issue’. There will be circumstances where it is best for a household that is creating an exceptional level of noise or disturbances to find an environment better suited to them.

Many consultees emphasized that it is important to keep in mind that children’s noise is not the same as other noise, and cannot be held to the same standard as, for example, a stereo being played too loud. There is a natural amount of noise associated with small children, and this is noise not subject to control, to the same degree. There must be reasonable parenting; however, there must also be a recognition that children “have a right to run”.

[I]n complying with the Code, housing providers must be mindful that a certain amount of noise is to be expected from families with young children. With this, they should not necessarily hold families with young children to the same standard they would hold other households, such as a couple without children – in many cases, families with children will make more noise. As long as the parents are making reasonable attempts to minimize disturbances, the housing provider should not target or threaten to evict the family over noise.
CERA

There was also discussion at the Housing Roundtable about the connection between the treatment of families in the rental housing market and the general intolerance in society for families and children, with the perception that the general intolerance for children feeds into the noise-related complaints from tenants.

The Rental Housing Tribunal often deals with issues related to noise. MMAH told the Commission that the ORHT can refuse an application for eviction where the reason given is that children occupy the rental unit, provided that the occupation of children does not constitute overcrowding. However, the Commission heard that adjudicators on the OHRT have limited knowledge or experience with applying the Code, so that decisions by that Tribunal are not necessarily in harmony with the Code.

Many suggested that, where children’s noise becomes an issue, landlords should take active steps to resolve the issue, whether through mediating between tenants, moving the complaining tenant to another available unit, or providing soundproofing, where it is possible to do so without undue hardship. Landlords, CERA emphasized, should take action where other tenants are harassing families over reasonable children’s noise, just as they would if tenants were being harassed in relation to other Code grounds. On the other hand, the Commission heard from landlord organizations that landlords may find themselves in a difficult situation in these circumstances, and don’t necessarily have the mediation skills to solve it. For example, a tenant complaining about noise may threaten to seek a rent abatement as a result. FMTA said:

We encourage families with children to try to find solutions to the situation with their landlords and neighbours to find certain noise reduction solutions such as soundproofing, carpeting, or relocation in the building. While the FMTA recognizes that noise can interfere with the reasonable enjoyment of tenants in a multi-residential situation ... It is our position that evictions should absolutely not be a method of controlling noise.

On the issue of soundproofing, ONPHA said:

In principle, this is a potential, probably partial solution. However, in many cases, it is physically impossible to retrofit housing to achieve effective soundproofing. Even where it is physically possible, the cost of soundproofing would be beyond the means of most social housing providers if applied on a widespread scale... There is a tension here between legal approaches which might tend to address the concerns of one individual, on the one hand, and concerns of housing providers to use their limited funds in the way that’s best for tenants in general.

Under the Code, landlords have a duty to ensure that the housing they provide is designed to be inclusive of persons identified by Code grounds (including family status), and to take steps to remove any barriers that may exist, unless to do so would cause undue hardship. Costs will amount to undue hardship if they are quantifiable, shown to be related to the accommodation, and so substantial that they would alter the essential nature of the enterprise or so significant that they would substantially affect its viability.

Key conclusions

Families with children continue to face serious, systemic disadvantage in accessing adequate affordable housing. This is particularly true for the most vulnerable families, such as lone parent, racialized, newcomer, and Aboriginal families, and those including persons with disabilities. Factors include an inadequate supply of affordable housing, discriminatory attitudes among landlords, and low income, especially for those in receipt of social assistance.


[72] 16 December 1966, 993 U.N.T.S. 3, Can. T.S. 1976 No. 46 (entered into force 03 January 1976, accession by Canada 19 August 1976). The General Comment on the Right to Adequate Housing by the Committee on Economic, Social and Cultural Rights (CESCR General Comment 4 on Article 11(1), 13/12/91) clarifies that the right is to adequate housing, including considerations of security of tenure, accessibility, habitability, and affordability, among others. Financial costs associated with housing should not be at a level where the attainment and satisfaction of other basic needs are compromised or threatened. The right to adequate housing has also been affirmed in the Convention on the Elimination of All Forms of Discrimination Against Women (18 December 1979, GA Res. 34/180 (entered into force 03 September 1981) accession by Canada 09 January 1982), and the Convention on the Rights of the Child (20 November 1989, GA Res. 44/25 (entered into force 02 September 1990) accession by Canada 12 January 1992, Article 18), which Canada has also ratified.
[73] (1998) 34 C.H.R.R. D/1; upheld (2001), 39 C.H.R.R. D/111 (Ont. Sup.Ct.)
[74] Ministry of Community and Social Services, Ontario Works Quarterly Statistical Report, www.gov.on.ca
[75] Social assistance rates were raised by 3% for both OW and ODSP recipients in early 2005. The maximum shelter allowance under Ontario Works ranges from $335 per month for a single person, to $694 per month for a family of six or more. A lone parent of two children would receive a shelter allowance of $571 per month, plus a basic needs allowance of up to $627 per month (depending on the ages of the children), for a maximum total monthly income of $1198 per month (submission of MCSS).
[76] For a detailed discussion of the Commission’s position on housing and older persons, refer to the Commission’s Policy on Discrimination Against Older Persons Because of Age (Ontario Human Rights Commission, March 2002), online: Ontario Human Rights Commission <www.ohrc.on.ca>.
[77]Supra, note 73.
[78] Ont. Bd. Inq., May 2, 2002, unreported.
[79]Ibid.
[80] Ont. Bd. Inq., November 5, 2001, unreported.
[81] (1997), 30 C.H.R.R. D/345 (C.A. Que.)
[82] S.O. 1997, c. 24, s. 1
[83] (1994) C.H.R.R. Doc. 94-130 (Ont. Bd. Inq.)
[84] (1998), 33 C.H.R.R. D/479 (Ont. Bd. Inq.)
[85] S.O. 2000, c. 27

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