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Planning and human rights: legal cases and resources

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Provincial Policy Statement, 2014:

  • Provincial policy statement (2014)
  • S. 1.1.1 (b, f) and S. 1.4.3 (a, b, e) address affordable housing and other needs of Code-protected groups; and identifying, preventing and removing land use barriers to inclusion
  • Section 4.6 – PPS must be interpreted in a way that is consistent with the Ontario Human Rights Code and the Canadian Charter of Rights and Freedoms

The Municipal Councillor’s Guide 2014 (MMAH):

  • Municipal Councillor's Guide
  • Reminds councillors (s. 3, pp 31-2) that municipal decisions and actions must be consistent with the Human Rights Code and the Charter of Rights and Freedoms

Legal cases: decisions and settlements

Alcoholism Foundation of Manitoba v. Winnipeg (City), [1990] M.J. No. 212 (C.A.)

  • Group home zoning restrictions violate the Charter

Tranchemontagne v. Ontario (Disability Support Program), [2006] 1 S.C.R. 513

  • Boards and tribunals must apply the Code

Kitchener (City) Official Plan Amendment No. 58, [2010] O.M.B.D. No. 666

  • Struck down zoning bylaw and official plan amendments that banned new development of all forms of residential care, group homes, rooming houses and non-profit services from a neighbourhood
  • Suggested that these amendments were a form of “people-zoning,” and found that the City must consider the impact of planning decisions on Code-protected groups
  • Decision
  • ACTO media release
  • OHRC media release

Lynwood Charlton Centre v. Hamilton (City), [2012] O.M.B.D. No. 729

  • Allowed a group home to relocate despite the City’s minimum separation distance (MSD) requirement
  • Cited language from the PPS that reflects the human rights principles of inclusion and barrier removal for older persons and persons with disabilities
  • Stated that the PPS requirement to permit and facilitate housing for special needs is a “powerful direction reflecting an important provincial policy interest” (para. 62)
  • Noted that allowing the move would be consistent with municipal and regional plans
  • Decision

Dream Team settlements at the Human Rights Tribunal (HRTO) – 2011-14

  • Four cases at the Human Rights Tribunal of Ontario (HRTO) brought by a
    mental health consumer-survivor advocacy group
  • Cases were settled with Sarnia (2011), Kitchener (2012), Smiths Falls (2014), Toronto (2014), when each municipality removed MSDs and other zoning restrictions for group homes
  • Human Rights Legal Support Centre media release
  • Dream Team statement

Expert planner report: remove MSDs for group homes

“Opinion on the Provisions of Group Homes in the City-wide Zoning By-law of the City of Toronto,” Sandeep Agrawal, PhD, AICP, MCIF

  • Final Report on the City-wide Zoning By-law
  • Finds no planning rationale for minimum separation distances (MSDs) for group homes
  • See Attachment 1 of City of Toronto Staff Report, February 28, 2013 to the Planning & Growth Management Committee, starting at pg. 33

Defining and classifying housing

Factors for assessing whether housing is a single housekeeping unit or a lodging, rooming or boarding house

Good v. Waterloo (City), 2004 CanLII 23037 (ON CA):

  • The central criterion for identifying a single-housekeeping unit is the degree of occupants’ collective decision-making
  • The court considered factors such as: how rent is paid; furnishing by the occupants; payment for the utilities; room assignment; and organization of housekeeping issues

City of Ottawa v. Bentolila, 2006 ONCJ 541:

  • Fire Code and Building Code provisions may differ, depending on the category of occupation, such as single housekeeping units vs. lodging houses
  • In identifying a building as a lodging house, the court considered factors such as: the tenants each had separate leases with the landlord; there was no sharing of utilities or other expenses between occupants; and the tenants were selected by the landlord’s agent.

The rationale for the distinction between single housekeeping units and lodging houses

Lodging houses are subject to more onerous fire and life safety standards than single housekeeping units because the occupants engage in separate activities without a common interest.

Classifying housing:

  • The OHRC urges municipalities not to classify a building being used as a residence differently than other housing because of the nature of its occupants.
  • A residential building that is occupied by renters might, from the owner/landlord’s or municipality’s perspective, be seen as part of a business. However, it is where the tenants live, and can be classified as a residential rather than a business use. The OHRC’s position is that it should be classified as a residential use.
  • Similarly, a residential building might be operated as a group home for people who occupy it. It is where those occupants live, and can be classified as a residential rather than an institutional use or as a facility. The OHRC’s position is that it should be classified as a residential use.
  • Lynwood Charlton Centre v. Hamilton (City), [2012] O.M.B.D. No. 729: 

One should appreciate that a group home is a home for its residents.

Responding to discriminatory opposition

Key OHRC publications

Affordable housing policies, tools and programs

Attachments