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Over the past two years, the OHRC has had many discussions with the City of Oshawa and other municipalities to express concerns about licensing and zoning by-laws that could have an adverse effect on student housing. The OHRC believes, and the Planning Act clearly states, that zoning should focus on planning and land-use issues, and should not be used to choose the people who will live in the housing.
When by-laws are used this way, they limit the options for people to live in the community of their choice, because they are young, or have a disability, or are on social assistance, or any of the grounds included in the Code. This means that university students may be denied safe, affordable housing, a prerequisite to getting the education they need to succeed.
In November 2009, the Supreme Court of Canada dismissed an application for leave to appeal by several landlords providing housing for students. In Death v. Neighbourhoods of Windfields Limited Partnership, the landlords challenged a Court of Appeal decision affirming that they were operating lodging houses in breach of the City of Oshawa’s zoning by-law, which prohibits this type of housing in certain neighbourhoods. The Court of Appeal said that a relevant factor was how the renters related amongst themselves when deciding whether they constituted a “single housekeeping establishment.” However, neither the Superior Court nor the Court of Appeal examined this issue from a human rights perspective.
The OHRC applied to intervene in the Supreme Court application because of the potential human rights impact on students and other groups protected by the Code. However, the Supreme Court refused to hear the appeal and did not examine the merits of the case or the human rights issues involved.
Some people have suggested that the Death case has laid to rest any human rights concerns about lodging houses. That is not the OHRC’s interpretation. There are still unresolved questions around zoning related to lodging houses, and restricting the ability of people to share accommodation based on their relationship to one another. Municipalities should consider this when enacting or enforcing by-laws that rely on a narrow understanding of “family” to define the use, occupancy or zoning of a structure, as this could raise concerns of discrimination and lead to human rights challenges.
The OHRC continues to monitor the situation in Oshawa as the city completes a Student Housing Strategy, and will also work with other “town and gown” communities that are closely following events in Oshawa.