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MMAH Provincial Policy Statement Review on land use planning - OHRC submission

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Ontario Human Rights Commission
Submission Regarding

Ministry of Municipal Affairs and Housing
Proposed amendments to the
Provincial Policy Statement on land use planning

November 23, 2012

The Ontario Ministry of Municipal Affairs and Housing (MMAH) is proposing amendments to the Provincial Policy Statement (PPS) 2005 on land use planning[1] issued under the Planning Act (Act).[2] The Act requires the PPS be reviewed every five years. The Ministry began the review in March 2010.

The Ontario Human Rights Commission (OHRC) is pleased to see proposed amendments that address some of the concerns and recommendations from its initial submission made in 2010[3] as well as other amendments that would further advance protection for human rights. The OHRC especially welcomes proposed additions that would recognize the interests of Aboriginal communities. Proposed amendments include:

  • Part IV, Vision for Ontario’s Land Use Planning, would now recognize the importance of consulting with Aboriginal communities on planning matters that may affect their rights and interests.
  • Part V, section 1.1.1(b) would now recognize “affordable housing” as part of the mix that sustains healthy, liveable and safe communities.[4]
  • Section 1.1.1(f) would continue to recognize the need to improve accessibility for persons with disabilities.
  • Section 2.6.5 would state that planning authorities should consider the interests of Aboriginal communities in conserving cultural heritage and archaeological resources.
  • A new section 4.3 proposes that the PPS shall be implemented in a manner that is consistent with the recognition and affirmation of existing Aboriginal and treaty rights in section 35 of the Constitution Act, 1982.
  • The section 6 definitions of “built heritage resources” and “cultural heritage landscape” would now recognize that such features may be valued by Aboriginal communities.

However, the PPS still lacks overall recognition for human rights; and specifically, recognition that land use planning can result in discrimination against a range of groups protected under the Ontario Human Rights Code (the “Code’) who, historically and on an ongoing basis, face discrimination as well as socio-economic disadvantage.

The PPS does not provide sufficient direction to effectively address human rights matters that currently permeate land use planning and related litigation.[5] This problem relates to the OHRC’s ongoing work involving various municipalities across Ontario, including advice and recommendations, two public interest inquiries, and litigation.  The OHRC has been addressing discriminatory land use planning involving discriminatory neighbourhood opposition (also called “NIMBYism”); bylaws regulating minimum separation distances between group homes, lodging houses or other housing; as well as other forms of “people zoning” including restrictions on methadone clinics or student housing that excludes groups because of disability, age and other enumerated grounds under the Code.

The OHRC has made written submissions and oral presentations on these issues to a number of city councils.[6] The OHRC has also intervened in a number of legal cases related to zoning and human rights.[7]

A recent case at the Ontario Municipal Board (OMB) involves the City of Hamilton’s refusal to enact a zoning by-law amendment proposed to relocate housing for eight girls with mental health issues because of a minimum separation distance requirement.[8] The City’s decision was made, despite the human rights concerns raised and a city staff report[9] acknowledging that the proposal was consistent with the PPS,[10] the Provincial Growth Plan for the Greater Golden Horseshoe[11] and the Hamilton-Wentworth Official Plan.[12] When planning decisions or requirements adversely impact Code-protected groups, discrimination can result under the Code.

Using legal forums is not the OHRC’s first choice to overcome discriminatory planning and zoning bylaws. This is because by the time a case goes to a tribunal or court, the damage to the people wanting to live in a neighbourhood or community is already done. Instead, our goal is to prevent the damage from happening in the first place.

In February 2012, after considerable consultation with MMAH staff, planners, municipalities, housing providers and advocates, the OHRC launched a guide, In the zone: Housing, human rights and municipal planning.[13] The guide offers municipalities information about their legal obligations and best practices they can apply when making zoning and planning decisions. It also shows how human rights can be furthered by using tools that municipalities already have to support and increase affordable housing, such as those set out in the Ministry’s handbook, Municipal Tools for Affordable Housing.[14] While this handbook is helpful, it does not outline municipalities’ human rights obligations.

The OHRC has been reaching out to provincial and municipal governments to find systemic solutions, with mixed success. The OHRC is encouraged to have been invited to speak to municipalities and two of the Ministry’s regional planning conferences, and to hear that some municipalities have begun amending their zoning bylaws to remove discriminatory barriers. However, as the OMB case referred to above demonstrates, sometimes litigation is necessary to ensure planning decisions do not violate the Code, which has primacy over other Ontario laws in this area.

The Planning Act requires that decisions on land use planning matters made by municipalities, the Province, the OMB and other decision-makers “shall be consistent with” the PPS. For this reason, and in keeping with the Ministry’s proposed amendments to the PPS recognizing the rights of Aboriginal communities, and with similar recognition of groups under the Ontario Housing Policy Statement,[15] the OHRC makes the following recommendations (some re-stated in part from its 2010 submission) for amending sections of the PPS to address the broader human rights implications of land use planning:

  1. Amend Section 2 of the Planning Act to add “protection of human rights” and “protection of Aboriginal rights” to the listed “matters of provincial interest”; or, exercise Ministerial discretion under Section 3 of the Act and issue a policy statement, or amend the PPS, declaring protection of human rights and Aboriginal rights as additional matters of provincial interest for the purposes of the Act.
  2. Append to the PPS the full list of “matters of provincial interest”.
  3. Amend the Preamble and the Vision statement of the PPS to confirm a commitment to human rights. For example:
  • Part I Preamble:

Add reference to human rights and Aboriginal rights at para.2: “The Provincial Policy Statement provides for appropriate development while protecting resources matters of provincial interest, including human rights, Aboriginal rights, public health and safety, and the quality of the natural environment.”

  • Part IV Vision statement:

At para.2, insert “and other groups” following the two references to “Aboriginal communities”

At para.4, insert “human rights into “Strong, liveable and healthy communities promote and enhance human rights, Aboriginal rights, human health and social well-being, are economically and environmentally sound, and are resilient to climate change.”

  1. In accordance with paragraph 3 of the Preamble, develop “provincial plans” on respecting human rights and Aboriginal rights that would complement the policies of the PPS. Municipalities should then develop their plans accordingly.
  2. Part IV, Vision for Ontario’s Land Use Planning, should, in addition to Aboriginal rights, recognize the importance of respecting human rights and consulting with other groups on planning matters that may affect their rights and interests under the Code.
  3. Add a new provision to Part V Policies, Section 1, that would require municipalities to review and remove land use barriers in planning, such as minimum separation distances and other matters that could lead to discrimination against groups protected by the Code.[16]
  4. Section 1.1.1(f) should re-instate “older persons” as one of the groups that benefit from improving accessibility; add “families with young children” as well.
  5. In keeping with section 2(j) of the Planning Act,[17] replace “minimum targets” with “adequate targets” for affordable housing under section 1.4.3 of the PPS: “Planning authorities shall provide for an appropriate range of housing types and densities to meet projected requirements of current and future residents of the regional market area by:

a)     establishing and implementing minimum adequate targets for the provision of housing which is affordable to low and moderate income households… “

  1. Section 2.6.5 should be strengthened to state that “planning authorities should shall consider the interests of Aboriginal communities, as well as other groups identified under the Ontario Human Rights Code, in conserving cultural heritage and archaeological resources.”
  2. Add a provision to section 4 of the PPS, similar to the provision proposed for Aboriginal communities under section 4.3, that states, “the PPS shall be implemented in a manner consistent with the Ontario Human Rights Code and the Charter of Rights and Freedoms.”[18]
  3. Section 4.13 of the PPS states that the Province shall identify performance indicators for measuring the effectiveness of some or all of the policies. Section 4.14 encourages municipalities to establish performance indicators to monitor the implementation of the policies in their official plans. Performance indicators should include having regard for human rights and Aboriginal rights as matters of provincial interest.
  4. Add a new provision to the PPS that would require municipalities to report publicly on steps taken and progress made on:
  • the review and removal of land use barriers in planning that affect human rights and Aboriginal rights as proposed under recommendation 6 above
  • the establishment and implementation of targets for the provision of affordable housing, and permitting and facilitating all forms of housing including housing related to special needs requirements under section 1.4.3
  • the establishment of any performance indicators referred to under sections 4.13 and 4.14.
  1. The section 6 definitions of “built heritage resources” and “cultural heritage landscape” should, in addition to Aboriginal communities, recognize that such features may be valued by communities and groups identified by a range of grounds under the Code.
  2. The terms “the sick, the elderly, the physically challenged or the young” used in the definition of “institutional use” may be perceived as pejorative and should be amended to read “older persons, persons with disabilities as well as those who are sick or young”, or use similarly inclusive terms.[19]
  3. Amend the definition of “special needs” to include people with “addiction” disabilities.

Adding an interpretive provision on human rights under Section 4 of the PPS, as the OHRC proposes under recommendation 10 above, is especially important to strengthen implementation of all provisions of the PPS. Provisions involving land use planning related to housing, employment areas, public spaces, recreation, parks, trails, open space and transportation systems can have special implications for groups protected under the Code, including persons with disabilities.

Strong communities, a clean and healthy environment and a strong economy are increasingly recognized as inextricably linked to human rights promotion and protection.[20] Implementing the OHRC’s recommendations will help provincial and municipal governments and other planning authorities carry out their obligations to ensure the province’s resources are managed in a sustainable way that minimizes negative social impacts and upholds human rights.

[4] This amendment would address in part the OHRC’s 2010 submission recommendation 4: The PPS should outline clearer expectations that municipalities will increase affordable housing in their communities.

[5] A January 2010 decision of the Ontario Municipal Board (OMB) [Advocacy Centre for Tenants Ontario v. Kitchener (City) (2010) O.M.B.D. Case No. PL050611] made it clear that municipalities are bound by the Code, and have to consider the needs of everyone – including people with disabilities or people in receipt of social assistance – when enacting by-laws. In that case, the OMB stated that when restricting prospects for housing for persons with disabilities or receiving social assistance, a sufficient planning analysis was required. This analysis should have included consideration of the Code and whether the City of Kitchener had engaged in “people zoning”, which is prohibited. The OMB drew its analysis of “people zoning” from the Supreme Court of Canada decision in R. v. Bell (1979), (S.C.C.), 98 D.L.R. (3rd) 255, in which the Court struck down a by-law limiting dwelling occupants to family members.

[6] Submissions include to: the City of Toronto Planning and Growth Management Committee raising concerns about Toronto’s Draft Zoning Bylaw; the City of Waterloo Council on its proposed rental housing licensing bylaw, which resulted in some positive amendments, but other provisions may have a discriminatory effect; the City of North Bay, raising concerns about its draft bylaw and the potential adverse effect on students (age discrimination), persons with disabilities and others living in group homes; the City of Hamilton, raising concerns about the human rights implications of denying a group home zoning application being considered by City Council; the City of London, commenting on proposed amendments to their Official Plan and Zoning By-Law that would treat methadone clinics differently from other health clinics and the impact this may have on people with addiction disabilities

[7] Interventions include: in an application against the City of Toronto at the Human Rights Tribunal of Ontario. Other parties in this case are the Dream Team (an organization led by psychiatric consumer survivors) the Advocacy Centre for Tenants Ontario (ACTO) and the Human Rights Legal Support Centre. The complaints are about minimum separation distances and other zoning issues. In Tribunal cases (with the same partners and issues) against the cities of Smiths Falls and Kitchener. A fourth city, Sarnia, was also originally named, but has since made a commitment to change its bylaws to reflect its human rights responsibilities. The cases with Smiths Falls and Kitchener are currently at the mediation stage, while the Toronto case is pending as a party in an OMB appeal of the City of Guelph’s rental housing licensing bylaw.

[8] Lynwood Charlton Centre et al. v. City of Hamilton (unreported, File No. PL120529, October 31, 2012, O.M.B.)

[9] City of Hamilton. Planning and Economic Development Department Planning Division, Application for Amendment to Hamilton Zoning By-law No. 6593 for Lands Known as 121 Augusta Street (Hamilton) (PED12002) (Ward 2), submitted by Tim McCabe. Hamilton: January 17, 2012, 5-7.

[10] The city staff report refers to Section 1.4.3(b)1 of the PPS which encourages the facilitation “of all forms of housing required to meet the social, health and well-being requirements of current and future residents, including special needs requirements.” See note 9.

[11] The city staff report states that the proposal “supports the concept of a complete community. Complete communities meet people’s needs for daily living throughout an entire lifetime by providing convenient access to an appropriate mix of jobs, local services, a full range of housing, and community infrastructure including affordable housing, schools, recreation, and open space for their residents….” See Note 9.

[12] See Note 9.

[15] The Ontario Housing Policy Statement recognizes broad range of community needs including accessibility for persons with disabilities, including those with mental health needs or illness and/or substance use issues as well as families, victims of domestic violence (typically women), Aboriginal peoples living off reserve, and other local groups that might include seniors, youth, women, immigrants, persons released from custody or under community supervision, Crown Wards, etc.

[16] This would better address the OHRC’s 2010 submission recommendation 2: The PPS should lay out expectations for municipalities to review and remove barriers to affordable housing development that could lead to discrimination against groups protected by the Code.

[17] Section 2 of the Planning Act outlines “matters of provincial interest” including having regard for (j) “the adequate provision of a full range of housing, including affordable housing”. Also see the OHRC’s 2010 submission recommendation 4.

[18] Recommendation 10 along with recommendation 11 would help to address the OHRC’s 2010 submission recommendation 3: The PPS should lay out mechanisms of accountability for removing discriminatory barriers to affordable housing development.

[19] This recommendation would address the OHRC’s 2010 submission recommendation 5: Language in the Provincial Policy Statement should be updated to be more inclusive

[20] See for example: The Environmental Rights Revolution: A Global Study of Constitutions, Human Rights and the Environment. David Boyd, UBC Press, 2011.