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City of Waterloo Council Meeting - May 9, 2011 - Proposed rental housing licensing By-law (Speaking notes by Barbara Hall)

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Speaking notes by Barbara Hall
Chief Commissioner, Ontario Human Rights Commission
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Mayor and Members of Council, over the past few months, staff of the City of Waterloo have worked closely with us at the Ontario Human Rights Commission – the OHRC – to create a rental housing licensing by-law that respects and advances the human rights of tenants while meeting, as much as possible, the City's operational needs.

The OHRC is not an expert in licensing – but we ARE experts in reviewing legislation, including by-laws, particularly to see if they contravene the Ontario Human Rights Code, either directly or indirectly.

As we worked with City staff, there were many areas where the City and the OHRC were able to reach agreement on ways to enhance the by-law.

The most recent version of the by-law reflects this work, and includes such best practices as:

  • Considering the Human Rights Code, and integrating language about complying with the Code into the by-law
  • Focusing on types of buildings, in accordance with the Planning Act, instead of targeting particular groups of people, which is illegal
  • Applying the by-law across the City, so that no group of people living in a specific area is subjected to differential treatment

We sent a letter to Council on April 11 that provides more details on the many positive steps the City has taken.

But there are other areas where we have not been able to resolve some significant issues.

These include:

  • Our concerns about the three-bedroom cap
  • Relying on medians and averages when considering demographic data – which has the potential to penalize any family that is not “average”
  • Adding “per occupant” to minimum bedroom size requirements – which far exceeds the requirements set out in the Building Code.
  • Our April 11 letter, which is included in the correspondence with this current report, details these issues, so I will just add a couple of points here.

Three-bedroom cap

The report before you today talks about how limiting general rental housing to three bedrooms is a safety issue, and that greater scrutiny is needed to ensure the safety of people in bigger homes.

If you follow this logic, you would need to have systems in place to also regulate the many similar houses in neighbourhoods that are not being rented out. After all, the families living in these homes should have an equal right to a safe place to live.

We have repeatedly expressed concern that this bedroom cap could exclude certain Code-protected groups, such as large families with children, or extended families.

According to the 2006 census, there were nearly half a million households in Ontario with 5 people or more, and I’m sure some of them live and rent in Waterloo.

The City has said that such Code-protected groups will not be adversely affected, as they will have access to boarding houses.

But this hints at differential treatment based on family status or other Code grounds – which is one of the first things Tribunals look for when deciding if discrimination has taken place.

Adding “per occupant” to bedroom size requirements

Including “per occupant” references means that bedroom size requirements far exceed the requirements of the Building Code, and make it difficult, if not impossible, for people to share bedrooms in rental houses in Waterloo.

People should be able to share a bedroom, if they choose, without the landlord or the City peeking through the keyhole. In fact, any related questioning or investigation could lead to human rights complaints.

Minimum separation distances

There is another area that we identified as a best practice in our April 11 letter – eliminating minimum separation distance requirements.

This gives people better opportunities to live in the neighbourhood of their choice, which is a key element of building healthy, sustainable communities.

We were very happy when staff agreed to do this in the licensing by-law – but unfortunately, there is more to the story.

As we negotiated changes with the City, we believed you would adjust other by-laws as needed to reflect these changes.

In discussions with staff last week, we learned this was not the case – there were no plans to adjust the City’s zoning by-law, which includes minimum distance requirements ranging from 75 to 150 metres, depending on the type of lodging house.

Since the rental housing by-law effectively designates any housing with more than three bedrooms as a lodging house – you are basically telling anyone with a large or extended family that there are major limitations – or barriers – on where they can live.

We view this as potentially contrary to the Ontario Human Rights Code, and I hope it is not the intent of this by-law.

Looking back

Often when challenged with an issue, it is helpful to return to first principles, and look at what the goal was in the first place.

We entered into discussions with City staff, believing that they too wanted to create a by-law that would not violate the Human Rights Code or the Planning Act, and not “people zone” either directly or indirectly.

In our discussions with the City, we knew that by-laws can never over-ride legislation, and that we shared a duty to consider various pieces of legislation and apply the principles behind them.

We hope the City also intends to follow these principles, including:

  • Complying with the Ontario Human Rights Code,
  • Following the Planning Act, which makes “people zoning” illegal – and that includes students, larger families, different types of families (mixed, multi-generational, etc.)
  • Following the Building Code, Fire Code, electrical standards and all other provincial requirements for standard of living and health and safety
  • Following the Residential Tenancies Act, and not including actions like entry without a warrant that contravene this Act.

What are the real goals?

The report you are considering today speaks about the goals the by-law was intended to meet.

It talks about creating healthy and safe living spaces, and complying with fire, electrical and Building Code requirements.

These provincial standards exist to ensure safety and quality of life, yet the City cites this same quality of life as the reason it needs to move beyond them in ways that can be potentially discriminatory.

What about the quality of life of people who face barriers such as bedroom limits, size limitations, minimum separation distances and other by-law features, which in effect say to them, “You are not welcome here?”

At best, we suspect that staff have not considered the impacts on all residents of the City of Waterloo when preparing this by-law.

At worst, this by-law may be trying to determine who should live where – which is people zoning and is against the law under the Planning Act.

Is the City trying to solve an alleged “student” problem, but in trying to do so, creating new barriers, many of which may breach the Human Rights Code?

Conclusion – removing barriers

When we talk about applying the Human Rights Code, we’re talking about building a society where we all have the opportunity to live, work, study or play without barriers and discrimination.

Our goal in working with the City of Waterloo on this by-law was to get rid of any barriers and avoid building new ones.

We have succeeded in some areas, but other barriers, both old and new, are still there.

I urge members of Council to take a closer look at this by-law, at what its real goals are, and at what barriers it is building that will prevent some of Waterloo’s most vulnerable people from having a place to call home in your community.