During the inquiry, the OHRC heard concerns from tenants, landlords and other individuals about:
Some students who completed surveys mentioned comments allegedly made by attendees at a public information session hosted by the City of North Bay on March 11, 2012. One student who attended the meeting said:
I was one of the two students who were there and I believe we were verbally attacked. Every comment we had to say about the bylaw or it being against rights we were laughed at and made a mockery out of. It was rude and I was ashamed that I live in a city and am supporting their economy and they have no respect for the students. Not all students are "dogs and pigs" as they quoted. They said they are terrified of students that we are all out of control. ... The whole meeting was very negative and I was personally offended and very angry coming home from it.
In correspondence to the OHRC, the City stated that the comments “were not tolerated by City Staff … [and] staff spoke specifically with the two students present to [assure] them of the same.”[31]
In response to a preliminary OHRC recommendation that the City “set ground rules prior to holding public meetings, where people are clearly informed about the purpose of the meeting, and understand that discriminatory comments will not be tolerated,” the City indicated that “this is continually ensured at all public meetings.”[32]
As noted in Room for everyone: Human rights and rental housing licensing, the OHRC calls on municipalities – including North Bay – to lay out ground rules at the beginning of meetings stating that discriminatory language will not be tolerated. As well, they should actively interrupt and object to this type of language when it happens.[33] This should be done in public, in front of all participants, so all in attendance understand that the discriminatory language is unacceptable.
Room for everyone: Human rights and rental housing licensing recommends that municipalities avoid arbitrary bedroom caps in licensing bylaws.[34]
The City of North Bay originally proposed capping bedrooms at four, but increased the cap to five based on feedback received during consultations. In a public meeting of Council on June 29, 2011, City staff explained that the decision to move from a cap of four to a cap of five was “partially in an attempt to minimize the number of individuals that are being displaced by the by-law.” Staff “estimated that there could be approximately 250 people that are displaced, which would probably double if the number is limited to 4.”[35] In a letter to the OHRC, the City says that by increasing the bedroom cap from four to five:
[T]he City was attempting to alleviate the perceived impact of the By-law on rental accommodations while also managing the impact on landlords. The purpose of this change was not simply to address displaced tenants but rather to provide additional opportunities for safe rental accommodations.[36]
In response to a request from the OHRC to clarify the rationale for the five-bedroom cap, the City stated:
As buildings originally constructed as traditional single family dwellings are converted to what is by definition boarding, lodging and rooming houses it is imperative that the City of North Bay ensure the performance level of these buildings is adequate.[37]
On the other hand, survey responses show that a five-bedroom cap could have an adverse impact on some tenants. One tenant surveyed spoke about dealing with uncertainty:
A lot of housing near the school used to have more than 5 bedrooms, some places are still renting more than 5 bedrooms. As a precaution I refused to consider any housing with more than 5 students living there, as I do not want to end up without a home. This made it very hard to find somewhere near the school.
We heard concerns from students that they or their roommates would be displaced due to the five-bedroom cap. For example, one student tenant said:
Abiding by this by-law, we have 6 people living in our house. This by-law would force one of us to move out and possibly not allow us to even use all the bedrooms in the house. All this would force stress on full-time students and do not need the stress as we are all already very busy with trying to pursue our education.
Another renter said:
1 student/roommate will have to move out in order to meet the new bylaws. We are all really good friends, so we would not let just one move out by themself, meaning two people will end up moving out.
The OHRC attempted, but was unable to obtain, a recent update as to whether these tenants or their roommates had been displaced as anticipated.
The OHRC also heard concerns about how the five-bedroom cap might reduce the amount of available rental housing in North Bay. One student tenant said:
While I appreciate and approve of the fact that rental housing now needs to undergo an inspection and certification process before landlords are able to rent it I have concerns regarding the limitations on bedrooms per house. I have seen many rental units in North Bay that are over five bedrooms (six is fairly common) that have good-sized bedrooms, and plenty of common space. These units are now going to have to cut down the number of tenants allowed within them. Therefore there will be more students looking for units to rent and the already too large demand for student housing will increase and will probably go unmet.
Others echoed this concern. For example, one landlord surveyed initially said:
To comply with the By-law I am required to stop renting one room – to reduce from 30 to 25 students. Under this By-Law, 5 students would be denied high-quality affordable shelter… If I reduce one student per house for a total of 5 – there will not only be fewer spaces to rent, the remaining tenants’ rent will increase to compensate for lost revenue – or if I cannot make up the revenue, I will sell the units.
However, during a recent follow-up, this landlord reported to the OHRC that they had applied for a variance with respect to the five-bedroom cap, that variance had been granted, and so no bedrooms were lost.
It appears that the following factors may mitigate the impact of the five-bedroom cap:
Information currently before the OHRC does not establish that people have been disadvantaged by the five-bedroom cap because of their association with a Code ground.
As noted in Room for everyone: Human rights and rental housing licensing, municipalities should avoid arbitrary floor area requirements that are more stringent than Building Code regulations, because they could contravene the Human Rights Code.[39]
Two student tenants surveyed said their landlords told them that one room in their house could no longer be used as a bedroom because of the gross floor area requirement of the bylaw. Both tenants moved for reasons unrelated to the bylaw, so they were not ultimately affected by the bylaw.
Another student reported:
The North Bay bylaw states that no more than 40% of the rental unit’s gross floor area on the ground floor and in the basement can be bedrooms. Due to this factor, one (1) of the five (5) tenants in our house will be required to vacate their bedroom in the basement. Unfortunately, aside from losing a friend and forcing them to search for a new rental accommodation, the four (4) remaining tenants would have split the original rental fee; an addition of 25% to each individual’s rent. This would significantly increase the price and it could create a situation where we risk losing our current housing because we can not afford to pay more rent.
The OHRC was unable to follow up with this student to confirm that displacement had in fact occurred.[40]
In response to a survey question that asked whether landlords had reduced the number of rental rooms or units in their buildings, or increased the rent for any of their rental rooms or units, as a result of the gross floor area requirement, some landlords indicated that they had done one or the other or both.
These arguments are countered by the fact that buildings which were purpose built to have more than 40% bedrooms on the ground and lower levels may be granted a variance, and the gross floor area requirement does not affect upper levels at all.
In sum, the inquiry did not produce information to establish that people have been disadvantaged by the gross floor area requirement because of their association with a Code ground.
The OHRC addresses bylaw-related costs in Room for everyone: Human rights and rental housing licensing. Specifically, it underlines how there must be a reasonable connection between the cost of the service and the amount charged, and it urges municipalities to be mindful that fees associated with licensing, if passed on to renters, might drive up the price of housing.[41]
It appears that some landlords are increasing rents because of the bylaw. For example, a landlord who rents out one property said “I expect to increase $25-$50 per roommate to cover the costs associated with the licensing fee.” A landlord of multiple properties recently reported that the average cost associated with licensing a property is $1000 –$1200, based on his personal experiences and those of other landlords that he knows in North Bay.
The City contends that, “If a landlord is trying to recoup the fees associated to the By-law, being $300 from the City and $300 from ESA, the total cost per month, per tenant, should be no more than $5 (assuming one tenant per bedroom) [$600/12 months = $25/month /5 bedrooms = $5 per bedroom].” The City notes that “there may be other reasons for increases in rent including inflation, a landlord’s desire to simply increase his or her profits, supply and demand and the cost to bring property into compliance with the Fire Code, Building Code and other provincial legislation all of which the City
of North Bay has no control.”[42]
The City states that it was cautious to ensure that the fees associated with the bylaw were reasonable and would not cause “undue hardship.” The City also indicates that the fees associated with the bylaws do not achieve 100% cost recovery.
In a 2011 report to City Council, City staff stated:
In terms of alleviating the impact on tenants, the City has consulted with the DNSSAB [the District of Nipissing Social Services Administration Board], we understand that in their view, there would be little or no impact on rent or number of accommodations from the By-law. Indeed, if prices do settle as a result of not having the artificial income boost from excessive rental housing within one house, then lease prices may in fact settle as well.[43]
While some tenants surveyed raised concerns about bylaw-related rent increases, others supported the City’s view. For example, one student tenant said: “I will be residing only doors away from where I was this year and at a lower cost to me.”
A survey respondent who rents her housing wrote that she was in favour of the bylaw and hoped that it would help to drive the cost of rent down in North Bay, stating:
I'm hoping this bylaw might help to make housing a little more accessible to those of us that are not single university students. I pay way too much for a small two-bedroom apartment for myself and my two daughters because landlords are renting out tiny closets for $600 a month to desperate students. If there is a limit to how many people these landlords can shove into a house, maybe other housing opportunities will be developed to help students of every type.
Municipalities are allowed to charge fees for licensing, as long as they are proportional to the expenses of the program. The City appears to have established that proportionality – and in fact appears to fall short of achieving full cost recovery. There is no information before the OHRC to show that the City’s licensing fees discriminate against people because of their association with a Code ground.
Apartment buildings and housing projects are exempt from the bylaw. The bylaw describes some other types of housing that are also exempt from licensing:
The bylaw defines a “tenant” as “a person who pays rent or provides services in lieu of paying rent, in return for the right to occupy a Rental Unit.”
Materials disclosed by the City show that at a March 9, 2011 information session for landlords, City staff stated, “Families are o.k. if they have more than 4 bedrooms. This By-law is for renters.”[44]
In response to a request to clarify this statement, the City said:
If one or two people rent a dwelling and are responsible for paying rent for the entire household (whether related or not) they are not captured by the By-law. Where the renters each pay individual rent for their rental bedroom, either to the landlord or person charged with collecting rent, they are captured by the By-law.[45]
According to this interpretation, a four-bedroom house occupied by four people – one of whom pays the rent – is not subject to the bylaw. Conversely, the same four-bedroom house occupied by four individuals – all of whom contribute to the rent – is subject to the bylaw. This appears to be arbitrary. It will also be discriminatory in some cases, against those who are more likely to live together but pay rent separately – such as single people protected by the Code ground of marital status, or students who may be proxy for Code grounds such as age, marital status or receipt of public assistance.
The OHRC is concerned that the system of exemptions is not only arbitrary and in some cases discriminatory – but is also being applied in a discriminatory way that breaches the Code. The City sent an email to a North Bay Landlord, on March 7, 2013, which stated:
…If your rental unit does not qualify for a license due to renting to traditional families, or having less than 3 bedrooms, then please just state this and I will make a note on our system. [emphasis added]
If this email reflects the City’s application of the bylaw, it would appear that a four-bedroom house occupied by a “traditional family” is not subject to the bylaw, but the same four-bedroom house occupied by a group of single people or a “non-traditional” family is subject to the bylaw.
This type of enforcement is not necessary or justifiable from a planning perspective. For example, in 1979 the Supreme Court of Canada found in R. v. Bell that buildings cannot be regulated more strictly solely because unrelated people occupy them.[46] Subsequently, the Ontario government added the following provision at section 35(2) of the Planning Act:
No distinction on the basis of relationship
The authority to pass a by-law under section 34, subsection 38 (1) or section 41 does not include the authority to pass a by-law that has the effect of distinguishing between persons who are related and persons who are unrelated in respect of the occupancy or use of a building or structure or a part of a building or structure, including the occupancy or use as a single housekeeping unit.
In the OHRC’s view, this type of enforcement would also breach the Code, in that it would discriminate against students, single people, certain religious or ethnic groups, and other Code-protected people who may not live in a “traditional family” unit.
This approach to enforcement could also lead to other Code violations. It could, for example, cause landlords to ask discriminatory questions. One landlord survey respondent expressed concerns about having to ask personal information about a prospective tenant’s family and personal life due to the confusion around family status and licensing:
… it [the bylaw] would imply that we need to ask tenants personal questions about their family life/relationships with the people they will be moving in with, which I refuse to do since this would seem inappropriate and illegal.
Another landlord recently told the OHRC that his tenants started receiving calls from City officials in December, and had received two calls in the previous week from City staff who asked about whether they had a partner, where their families lived, if they had any addresses outside of North Bay, among other things. He went on to say that his tenants reported feeling harassed by the City because of the questions about their relationships.[47] The same landlord reported that during an inspection, an inspector for the City said, “if you're not a traditional family, mom dad, kids grandparents, then you need to license the property.”[48]
A few landlord respondents made the direct link between renting to students and requiring a licence. These landlords either said they did not need a licence because they were renting to a family or complained that the bylaw applies to their property because they rent to students, and not to other landlords who rent to families. Some landlords reported that they will not rent to students, because they do not want to apply for a licence.
Questioning people about household composition – and in particular about who is sleeping where – can have a negative impact relating to Code grounds such as marital status, family status and sexual orientation, and indicate an intent to deny housing based on these grounds. It is the OHRC’s position that people should be able to make personal household decisions – such as who will share a bedroom – without the scrutiny of the landlord or the City.
Information obtained through the inquiry shows that aspects of the licensing bylaw and its application will in some cases be discriminatory. The City should remove any distinctions based on the number of people contributing to the rent, and should not favour “traditional families” in its exemption process.
It is essential that the City continue to educate people about the bylaw and related human rights principles, given that:
It is also important that the City monitor the housing market, to make sure that the rental housing licensing bylaw does not limit access to low-cost rental housing, and that there continues to be a mix of housing types and densities required to meet projected requirements of current and future residents.
[31] Letter from the City’s counsel to the OHRC, September 28, 2012.
[32] Letter from the City’s counsel to the OHRC, September 28, 2012.
[33] Room for everyone: Human rights and rental housing licensing, OHRC, p. 14.
[34] Room for everyone: Human rights and rental housing licensing, OHRC, recommendation 6.
[35] Public Council meeting notes, June 29, 2011, page 1.
[36] Letter from the City’s counsel to the OHRC, September 28, 2012.
[37] Letter from the City’s counsel to the OHRC, September 28, 2012.
[38] North Bay “Residential Rental Housing By-law” brochure, available online at: www.cityofnorthbay.ca/common/pdf/RRHL%20-%20Information%20Borchure.pdf.
[39] Room for everyone: Human rights and rental housing licensing, OHRC, recommendation 7.
[40] Some survey respondents, like this one, did not consent to follow-up from the OHRC.
[41] Room for everyone: Human rights and rental housing licensing, OHRC, recommendation 13.
[42] Letter from the City’s counsel to the OHRC, September 28, 2012.
[43] Report CSBU 2011-74 to City Council, July 26, 2011, page 4.
[44] Notes from March 9, 2011 “Information Session for Landlords.”
[45] Letter from the City’s counsel to the OHRC, September 28, 2012.
[46] The Court in R. v. Bell, [1979] 2 S.C.R. 212 at 223 found that “…the device of zoning by reference to the relationship of occupants rather than the use of the building is one which is ultra vires of the municipality under the provisions of The Planning Act.” See also the decision of the Ontario Supreme Court (affirmed by the Ontario Court of Appeal with leave to appeal to the Supreme Court of Canada refused) in Smith et al. v. Township of Tiny (1980), 27 O.R. (2d) 690 (Div. Ct.); affd. 29 O.R. (2d) 661 (ON C.A.).
[47] Conversation with landlord March 27, 2013.
[48] Email to OHRC staff dated March 27, 2013.