Protecting the human rights of vulnerable Ontarians requires a radically different response to the issues of discrimination identified in the Commission’s consultation report, and the reports of numerous international bodies. We must all bring housing human rights into our homes, apartment buildings, property management offices, government offices, tribunals and commissions, and most importantly, into our collective awareness. This framework suggests concrete action to address the human rights issues identified in the consultation and in numerous reports on housing.
This is not an exhaustive list of actions. Rather, the purpose of the Commission’s recommendations is to identify areas in which key stakeholders can demonstrate a commitment to tackling the human rights issues raised and take some first steps to do so. A critical element of this framework for action is the recognition that we must all work together, through partnerships and creative solutions, to make the substantive and long-lasting changes that are warranted.
Housing is an internationally protected right. This understanding should inform our approaches, actions and ways in which we evaluate the effectiveness of any measures implemented to improve access to housing for Code-protected individuals and groups in Ontario. It is also important to recognize the link between poverty and human rights violations in housing. Concrete steps must be taken to ensure an adequate standard of living and access to housing for low-income groups and individuals protected under the Code.
Given the continued existence of human rights impacts of the provincial housing system, a key priority is for government to make a coordinated effort to review availability of, and access to, adequate and affordable housing from a human rights perspective. As the Special Rapporteur on affordable housing noted in his March 2008 statement, “As a very wealthy country, with significant surplus in the federal budget, immediate attention is required for the most vulnerable part of the population living in inadequate housing and living conditions. There is no justification for not massively engaging in the improvement of the situation of all those that face inadequate housing and living conditions throughout Canada.”
Housing in Canada is administered through a complex set of relationships, agreements and responsibilities allocated between the various layers of government – federal, provincial or territorial, and municipal. For example, municipalities run shelters and decide whether, and on what terms, to approve supportive housing projects and other forms of affordable housing such as rooming houses and second units. The provincial government, and the Ministry of Municipal Affairs and Housing (MMAH), have primary responsibility for housing in the province, for providing funding to municipalities and for taking steps to give effect to human rights in housing in the province. At the same time, the policies, programs and funding provided by the federal government, and federal agencies such as the Canada Mortgage and Housing Corporation, shape the reality of human rights in the province and across the country.
While recognizing the difficulties posed by shared jurisdiction, the Special Rapporteur has noted that the state, whether federal or provincial, municipality or other authorities, is still required to devise strategies to ensure the implementation of the right to adequate housing.
All levels of government working together
- THAT the Government of Canada adopt a national housing strategy, in consultation with provincial, territorial and municipal governments (where feasible and appropriate), that includes measurable targets and provision of sufficient funds to accelerate progress on ending homelessness and ensuring access of all Canadians, including those of limited income, to housing of an adequate standard without discrimination
- THAT the Government of Ontario, along with other provincial and territorial governments, call on the Government of Canada to adopt a national housing strategy.
- THAT the federal, provincial and territorial governments of Canada give effect to the International Covenant on Economic, Social and Cultural Rights (ICESCR) and implement the recommendations of the Committee on Economic, Social and Cultural Rights (CESCR) and other international bodies.
- THAT all levels of government work together to integrate housing rights into comprehensive and coordinated poverty reduction strategies.
- THAT governments expand on measures to help housing providers meet the requirements of inclusive design and accommodation. Options that may be considered include grants and other avenues of funding, programmes of education or changes to legislation, regulations or policies.
Government of Ontario
- THAT the Government of Ontario, in the absence of a national housing strategy, adopt a provincial housing strategy. Such a provincial strategy should include measurable targets and provision of sufficient funds to accelerate progress on ending homelessness and ensuring access of all Ontarians, including those of limited income, to housing of an adequate standard without discrimination. It should also take into consideration the needs of Aboriginal people, people with disabilities including mental illness, women experiencing domestic violence, lone parents, immigrants and newcomers and other people living in poverty or with low incomes who are identified by Code grounds.
- THAT the Ontario legislature pass a law such as Private Member’s Bill 47, An Act to establish the right to adequate housing as a universal human right, to recognize that every person has a right to adequate housing in accordance with Article 11(1) of the International Covenant on Economic, Social and Cultural Rights (ICESCR).
- THAT the Government of Ontario provide a substantive response that outlines how it will address the concerns raised by the Special Rapporteur on affordable housing, and post such a response on its website.
- THAT the Government of Ontario work with community organizations and municipalities to identify ways to apply a human rights approach to reducing and preventing homelessness in the province.
- THAT the Government of Ontario review and improve funding rates, programs, laws and regulations in the province of Ontario to make sure that low-income tenants are able to afford average rents, food and other basic necessities. Specific attention should be given to:
- ensuring that minimum wage rates are indexed to inflation and allow a full-time earner to live above the low-income cut-off
- making the shelter allowance portion of social assistance benefits sufficient to pay average rents
- eliminating claw-backs from social assistance payments
- increasing availability of portable housing allowances
- increasing availability of rent banks to allow tenants to pay rent deposits and to cover arrears
- assessing impacts of rent control/vacancy decontrol.
- THAT the Government of Ontario’s Cabinet Committee on Poverty Reduction be guided by the ICESCR, concerns and recommendations of international human rights committees and the dimensions of race, disability/mental illness, sex and family status that have been raised in this consultation.
- THAT the Ontario Building Code be amended to reflect the legal requirements and principles set out in the Ontario Human Rights Code (Code), including the principle of accommodation to the point of undue hardship. For example, to require that when a building is designed or renovated, it be made accessible to and inclusive of all members of society. Specific areas for amendment are discussed in greater detail in the Commission’s Submission Concerning Barrier-Free Access Requirements in the Ontario Building Code (March 2002).
- THAT standards and regulations under the Accessibility for Ontarians with Disabilities Act (“AODA”) be harmonized with the Code and incorporate the principle of accommodation to the point of undue hardship. Specific concerns about the most recent proposed standard have been raised publicly by the Commission in its Submission of the Ontario Human Rights Commission to the Transportation Standards Review Committee regarding the Initial Proposed Transportation Accessibility Standard (August 2007).
- THAT irrespective of when the Ontario Building Code is amended and the AODA standards are harmonized with the Human Rights Code, the Government of Ontario comply with the requirements of the Human Rights Code and the principles in the Policy and Guidelines on Disability and the Duty to Accommodate and educate housing providers of their respective duties in this regard.
- THAT the Government of Ontario increase availability of supportive housing and appropriate support services and ensure that social housing providers have sufficient funds to meet their duty to accommodate.
- THAT the Ontario Human Rights Code be amended as follows:
- explicitly list gender identity as a prohibited ground of discrimination and harassment in sections 1, 2(1) and 2(2), 3, 5(1) and (2) and 6
- include sexual orientation as a prohibited ground of harassment in sections 2(2) and 5(2).
- THAT the Government of Ontario consult with the people of Ontario with a view to:
- amending the Code to include record of offences as a prohibited ground of discrimination in subsection 2(1) where it is not a bona fide requirement and re-define “record of offences” in subsection 10(1)
- amending O. Reg. 290/98 to clarify what tenant selection practices are discriminatory in a way that can be understood by both housing providers and tenants. Specific amendments could include:
- prohibiting housing providers from inquiring into or considering the source of a tenant’s income
- clarifying the circumstances under which it is appropriate to require a prospective tenant to obtain a guarantee for the rent
- indicating that security deposits in excess of those allowed under the RTA may not be charged
- prohibiting the usage of minimum income ratios (other than as may be required to determine a tenant’s eligibility for rent-geared-to-income under section 3), and
- prohibiting police record checks that disclose information other than that which pertains to criminal convictions.
- THAT the Ministry of Municipal Affairs and Housing (MMAH) work with social housing service managers and municipalities to collect data to evaluate barriers associated with the existing approaches to chronological allocation of subsidized housing based on waiting lists and identify ways to remove barriers for persons and groups protected under the Code.
- THAT MMAH update the information on “Discrimination and Harassment in Rental Housing” on its website to make clear that the Code has primacy over the Residential Tenancies Act (RTA) and to highlight relevant parts of this consultation report, in consultation with the Commission.
- THAT MMAH initiate a consultation with regard to amending the RTA to:
- explicitly identify common discriminatory practices as being prohibited in the RTA to increase awareness and enforcement of Code rights. Specific amendments would include:
- prohibiting ”adult only” buildings and related advertising, and
- clarifying that policies limiting pets must not exclude people with disabilities and other Code-related needs
- prohibiting requests for tenants to sign additional contracts outside of their lease.
- address any human rights impacts of:
- the definition of tenant (section 2)
- vacancy decontrol (section 113)
- the eviction process for care home tenants (section 148)
- the exclusion from review of eligibility of rent-geared-to-income assistance under the SHRA or other housing assistance (section 203)
- explicitly identify common discriminatory practices as being prohibited in the RTA to increase awareness and enforcement of Code rights. Specific amendments would include:
- THAT MMAH initiate a consultation with a view to amending the Social Housing Reform Act (SHRA), or take other action, to make sure that:
- Code needs are accommodated to the point of undue hardship in relation to reporting deadlines, guest policies and other requirements
- there is an independent, impartial review of decisions that affect a tenant’s eligibility for a subsidy.
In this consultation, the Commission heard about situations in which the decisions and processes of decision-makers, including the Landlord and Tenant Board and social housing service managers, may not be fully consistent with the Code. For example, concerns about applying the duty to accommodate were raised by many consultees. Housing providers, tribunals, government and others responsible for making housing decisions can plan to meet accommodation needs by proactively putting in place accommodation policies and procedures and informing themselves about the primacy of the Code and the duty to accommodate to the point of undue hardship.
- THAT decision-makers, including service managers and the Landlord and Tenant Board (LTB), develop accommodation policies and procedures in accordance with the Commission’s recently revised Guidelines on Developing Human Rights Policies and Procedures. Such policies should clearly provide a process for dealing with accommodation issues like language interpretation and extensions to deadlines.
- THAT the Code, the RTA and SHRA be interpreted and applied by tribunals, service managers and other decision-makers in a manner consistent with the Code and the ICESCR. For example, that the LTB consider the fundamental importance of housing and apply the Code principle of accommodation to the point of undue hardship when considering whether to evict a tenant with a mental illness for having interfered with the reasonable enjoyment of rental premises.
3.3. Partners in the development of affordable housing
The barriers created by NIMBY opposition cannot be overcome by any one stakeholder in isolation. The committed involvement of housing providers and developers, municipalities, municipal affordable housing committees and committees of adjustment, and other levels of government is necessary to eliminate these kinds of barriers to creating new and affordable housing. Neighbourhood groups, local business associations and homeowners in communities across Ontario must also be aware that it is not acceptable to oppose affordable housing developments, just because of who will live in them, when the intended residents are people protected under the Code.
- THAT all organizations, institutions and individuals developing, planning, approving or giving input with regard to affordable housing for Code-protected groups take steps to monitor for discriminatory NIMBY opposition and modify their policies, practices and actions to prevent and address it. For example, a municipality might decide not to hold a community forum to discuss a particular housing project if requests for further information about the project appear to be based on discriminatory stereotypes. Alternatively, it may use such a forum as an opportunity to address such stereotypes.
- THAT organizations across the province, including community groups, the Government of Ontario and municipalities/municipal associations, work in partnership to develop a province-wide strategy to address and prevent discriminatory NIMBY opposition to affordable housing development, in consultation with the Commission.
3.4. Social housing providers
In the consultation, the Commission heard about problems arising from chronological waiting lists for social housing, and disparities in applying the duty to accommodate by service managers when exercising discretion to extend timelines for reporting requirements. While social housing providers are constrained in some regards by government funding, legislation and other requirements, there are still opportunities for social housing providers to be part of the solution to the human rights issues identified in this consultation.
- THAT all social housing providers develop policies and procedures to address discrimination and harassment, accommodation requests and human rights concerns in accordance with the Commission’s recently revised Guidelines on Developing Human Rights Policies and Procedures. They should clearly provide a process for dealing with accommodation issues like requests for extensions to deadlines and changes to occupancy rules. In addition, they should also provide a process for tenants to raise concerns about discrimination.
- THAT social housing provider associations work with municipalities, and the Government of Ontario, to identify best practices in human rights compliance for social housing providers, and to share this information with social housing providers throughout the province to help them enhance their ability to proactively comply with the Code.
- THAT all builders, renovators, designers, developers and housing providers implement the principles of inclusive design in all stages of their work with respect to social housing. For example, to plan housing to meet the needs of all members of society when designing buildings and also when retrofitting, repairing or renovating buildings.
- THAT social housing providers review the application processes, policies and rules associated with housing programs to identify and remove discriminatory barriers. Such barriers may be identified in consultation with tenant advocates and in consideration of Commission policies. Where such barriers relate to requirements imposed by legislation, regulation or government policy, it is recommended that social housing providers advocate for changes to such requirements with responsible agencies or levels of government.
- THAT social housing service managers work with MMAH and municipalities to collect data to evaluate barriers associated with the existing approaches to chronological allocation of subsidized housing based on waiting lists, and identify ways to remove barriers for persons and groups protected under the Code.
3.5. Private-market housing providers
Consultees indicated that discriminatory practices, such as tenant screening using rent-to-income criteria and challenges in applying the duty to accommodate, exist in the private rental housing sector. Landlords, property managers and housing provider associations need to know about their obligations and have the support they need to be able to fulfill them.
- THAT housing provider associations work with MMAH to communicate clearly to housing providers that the use of rent-to-income ratios in selecting tenants is prohibited under the Code and therefore also under the RTA.
- THAT all housing providers develop policies and procedures to address discrimination and harassment, accommodation requests and human rights concerns in accordance with the Commission’s recently revised Guidelines on Developing Human Rights Policies and Procedures. Such policies should clearly provide a process for dealing with accommodation issues like modifications to units and situations in which tenants are harassing each other.
- THAT irrespective of when the Ontario Building Code is amended and the AODA standards are harmonized with the Human Rights Code, housing providers, builders, renovators, designers and developers comply with the requirements of the Human Rights Code and the principles in the Policy and Guidelines on Disability and the Duty to Accommodate when constructing buildings, making renovations and designing programs and services. For example, that buildings be designed or retrofitted to include visual alerting systems for people with hearing impairments.
- THAT housing providers take steps to ensure that their policies, rental criteria and tenant screening practices are not having an adverse impact on Code-protected people, and that the rental housing provided is inclusively designed to accommodate a range of Code-protected people including families with young children, Aboriginal people, people who are racialized or newcomers, and persons with disabilities.
- THAT housing provider associations work with the Commission to help their members, and other housing providers, proactively comply with the Code (for example, through education and training, voluntary certification programs or other measures).
3.6. Service Providers
As the Commission heard in this consultation, there are circumstances in which the withdrawal of support services by a support service provider can result in the loss of housing for a person protected under the Code. In such situations, service providers may also have their own duties under section 2 of the Code.
- THAT service providers review current programs, policies and practices, and take steps to assist, where possible, tenants with disabilities to receive appropriate services to enable them to live independently, taking into account the duty to accommodate and the fact that, in some cases, withdrawal of services or decreased services may result in the loss of housing. For example, an organization that provides support services to help a person with a disability perform the essential duties of day-to-day living in a rent-geared-to-income social housing unit has an important role to play in helping this person maintain his or her housing.
3.7. Tenant organizations and human rights advocates
Throughout the consultation, there was broad consensus that there was a lack of awareness of the Code and its application in rental housing. Tenant organizations and human rights advocates also play an important role in addressing this.
- THAT human rights advocates and tenant organizations engage with the Commission to identify and implement measures to increase awareness of human rights issues in rental housing throughout the province, including in local communities.
3.8. The Ontario Human Rights Commission
During this consultation, the Commission was repeatedly reminded of its important function in advancing human rights policy, engaging in strategic initiatives (such as inquiries or litigation) to address systemic discrimination, and in raising public awareness of human rights and rental housing. The Commission takes these responsibilities seriously given the international protections of the right to housing and the fact that housing is essential to ensuring dignity, inclusion and full participation for all.
- The Commission will consider the strategic use of its mandate, which includes public inquiries, interventions and applications, to address situations of discrimination related to rental housing in light of the broad systemic context identified in this consultation and the ICESCR.
- The Commission will consider initiating applications, public inquiries or taking other action with regard to laws, such as the Building Code, or standards such as those under the AODA to the extent that they are inconsistent with the requirements of the Code.
- The Commission will meet with the Government of Ontario, including the Secretary of Cabinet, MMAH, Ministry of Community and Social Services, and the Anti-Poverty Cabinet Committee, to review the content of this report and to work towards complying with international treaties and covenants that guarantee the right to an adequate standard of living, including housing.
- The Commission will develop a policy on rental housing and human rights that will include:
- a broad and purposive interpretation of the housing rights in section 2 of the Code
- clear guidance on the requirement to design inclusively and accommodate to the point of undue hardship in the context of housing
- clarification of forms of discrimination in housing including harassment, discriminatory tenant screening and systemic discrimination, and
- a clear statement on organizational responsibility and preventing and responding to discrimination in rental housing.
- The Commission will further examine the implications of including “social condition”as a prohibited ground of discrimination and harassment in sections 1, 2(1) and 2(2), 3, 5(1) and (2) and 6 of the Code.
- The Commission will be available to consult with community organizations, municipalities/municipal associations and the Government of Ontario to assist in the development and implementation of a province-wide strategy to address and prevent discriminatory NIMBY opposition.
- If the Commission identifies municipal by-laws or other practices that contribute to NIMBYism relating to prohibited grounds of discrimination, it will consider the strategic use of its powers to have these addressed. This may include public inquiries, education, and supporting or initiating a human rights application or Charter case to challenge those by-laws or practices.
- The Commission will encourage partnerships with housing provider associations, including Federation of Rental-housing Providers of Ontario, Co-operative Housing Federation of Canada, Ontario Non-Profit Housing Association and the Landlord’s Self Help Centre, to identify ways in which the Commission can support them in helping their members, and other housing providers, proactively comply with the Code.
- The Commission will develop partnerships with, and materials for, community organizations across the province, including those representing or providing services to tenants and housing providers to assist them in delivering public education in local communities.
- The Commission will partner with community organizations to develop a public awareness campaign, including plain language brochures, to address stereotypes, harassment and discrimination in rental housing.