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Proposed lodging house licensing bylaw and the associated proposed zoning bylaw amendment

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November 29, 2013

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Mayor Steve Parish and Members of Council
Town of Ajax
Town Hall
65 Harwood Avenue South
Ajax, ON  L1S 2H9


Your Worship and Councillors:

Lodging houses are an important form of affordable housing for many vulnerable groups identified by Human Rights Code grounds, including residents who receive public assistance, racialized persons, people with disabilities, newcomers, older and younger people, and single women. For this reason, the Ontario Human Rights Commission (OHRC) offers the following comments on the proposed lodging house licensing bylaw and the accompanying zoning bylaw amendment.

The OHRC is pleased to see the Town’s commitment to respecting human rights, as set out in the Lodging Houses Review Discussion Paper. The paper includes discussion of international and provincial protections of human rights relating to housing, the need to increase the amount of low-cost, affordable and subsidized rental housing in Ajax, the value of lodging houses and other affordable housing, and the fact that rental costs tend to increase when vacancy rates are low, as they are in Ajax.

The Town’s goal of protecting health and safety of lodging house tenants is clear and unassailable. We support the need to put protections in place to deal with fire and other safety risks which may be greater in rooming houses than in other housing forms.

The OHRC consistently recommends that lodging houses be allowed as of right in all residential neighbourhoods, as long as they are consistent with built form in the neighbourhood.

The Zoning bylaw amendment appears consistent with the OHRC's recommendation in that it avoids applying minimum separation distances. This is an important step to take when regulating rooming houses. The Town’s discussion paper sets out clear and strong rationales for avoiding MSDs. These requirements effectively “people zone,” and can reduce the amount of available affordable housing, and have a discriminatory impact.

At the same time, the bylaw does present other zoning limitations. In limiting lodging houses only to certain residential zones, the bylaw could have a discriminatory impact. In addition, we also know that Ajax does apply a minimum separation distance of 300 metres for group homes. There is a growing body of evidence that MSDs for group homes are discriminatory, and not based in planning rationale. While the Town considers zoning by-law changes for rooming houses, we encourage it to take this opportunity to remove the MSD requirement for group homes from the zoning bylaw.

The zoning restrictions in the bylaw appear to be linked to the parking requirements that have been established for lodging houses. In addition to excluding lodging houses from certain zones, these parking requirements may limit the location and availability of lodging houses within permitted zones, based on lot size. Considerable research, including the Town’s public consultation, shows that people living in rooming house-type accommodation are much less likely to have cars than people in other forms of housing.

The parking requirements have the potential to limit rooming house availability and housing options for vulnerable people, which could be a contravention of the Human Rights Code. The OHRC would be concerned if the requirement has a discriminatory impact by limiting the availability of this essential form of affordable housing, if the requirement subjects this housing to different standards than other housing of similar form or density, and if it cannot be justified as a bona fide requirement.

The requirements for Canadian Police Clearance letters both at time of first application and on annual renewals may also raise some concern. A number of Code groups are over-policed, and/or overrepresented in the criminal justice system, and therefore may be disproportionately negatively affected if the Town denies licenses simply because there is a criminal record.

Also, almost one in ten Canadians has a criminal record, but only a small percentage has received a pardon. A 2012 change to requirements for pardon applications, including a four-fold increase to application fees and increased wait times before a person can apply, further reduces the likelihood that persons will obtain a pardon. This means that criminal information may appear on a Clearance Letter many years after a person has met the requirements relating to the conviction, integrated into society, and put the events behind them without further incident.

The OHRC’s position is that organizations should have a reasonable or bona fide requirement in place for a position or purpose before requesting any level of police record check. We recommend that the Town consider whether this requirement is bona fide. If you decide that it is, we recommend that any information received through a clearance letter be assessed for genuine relevance to the specific situation of owning and/or operating a lodging house, rather than resulting in an automatic denial of the licence.

The bylaw also includes floor area requirements, setting out allowable ratios of gross floor area to the number of units allowed in the lodging house. While it is important to address any genuine health and safety risk relating to overcrowding, the OHRC recommends that municipalities exercise caution when setting out floor area requirements, particularly if they exceed those set out in the Building Code. In its recent guide, Room for Everyone: Human rights and rental housing licensing, the OHRC states:

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. (p. 16)

There are some other provisions of the bylaw that we suggest amending to better ensure tenant privacy and security in their housing. For example:

  • The bylaw allows for entry into the lodging house at “any reasonable time” for inspections. Providing a clear definition of a “reasonable time” and providing advance notice of inspections (except in the case of emergency), would better ensure tenants are treated equally to other residents of rental housing.
  • The bylaw does not include steps to protect vulnerable tenants if a lodging house is under threat of closure or is shut down due to a violation of the by-law. Recommended steps include:
    • Setting up a process to inform tenants of potential suspension of license or closure of the lodging house, and of housing supports available to them
    • Making sure that tenant emergency housing needs are met if their housing is closed.

Municipalities face a challenge balancing licensing requirements, meant to achieve health and safety and other goals, with the potential impact on the people who live in the housing. Bylaw requirements may have associated costs that will be passed on to tenants, and may limit the supply of affordable housing.  In addition to application fees, requirements such as inspections and police checks can have an impact on the cost and availability of housing.

One way of determining whether a requirement is genuinely necessary, or bona fide, is to assess the risk that it is meant to address, and whether the requirement is indeed necessary to address the actual degree, likelihood, frequency and scope of that risk. In some cases, a requirement can be modified so that it still addresses the actual need or risk, but has less impact on availability and affordability of housing, as well as on  municipal and other resources.  

We have heard of several ways municipalities can mitigate costs and other negative impacts of licensing requirements on rental housing. These solutions have included:

  • Having a licensing/renewal period longer than one year
  • Having graduated cost schemes based on the size of the rental unit
  • Having some initial license application requirements that:
    • do not need to be repeated for renewals
    • are repeated only every several years, and/or
    • only must be repeated if there are renovations or other significant changes to the housing.

In closing, housing is a fundamental human right. Licensing can be a valuable tool for promoting the safety and security of tenants, but must be undertaken with great care to ensure that it is not discriminatory.

I believe that the Town and the OHRC share the goal of encouraging safe and secure affordable housing, where human rights are respected. The challenge is do do so in ways that expand, and do not limit or reduce, people’s housing options. That’s when neighbourhoods become truly inclusive, and truly welcoming.

Yours truly,


Barbara Hall, B.A, LL.B, Ph.D (hon.)
Chief Commissioner