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RE: Proposed North Bay Rental Housing Licensing By-law

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June 28, 2011

Mayor Al McDonald and
Members of Council, City of North Bay
200 McIntyre St. E.
PO Box 360
North Bay, ON
P1B 8H8

Dear Mayor McDonald and Councillors,

Over the past two years, the Ontario Human Rights Commission (OHRC) has monitored and reviewed rental housing licensing bylaws in various municipalities. Rental housing licensing is a relatively new option for municipalities, and our goal has been to make sure that these bylaws, even unintentionally, do not create barriers and discrimination in housing for vulnerable people who are protected under the grounds of the Ontario Human Rights Code (the Code).

The OHRC takes no position on the issue of requiring licenses, but encourages municipalities to make sure the steps they take to protect health and safety also respect human rights. This submission makes comments on some of the issues raised in the City’s May staff report, and also outlines some aspects of the draft bylaw that we recommend the City review further, to make sure that you are protecting tenants, instead of preventing them from getting the housing they need in North Bay.

Human rights plays a role in housing decisions

The City’s report questioned the role of the OHRC in matters related to municipal bylaws and the Planning Act, stating “The Commission’s position appears to be contrary to the fundamental principles of zoning based on progressive levels of density, wherein the Commission would prefer lodging houses to be permitted in all zones.” We are concerned that neither the report nor the bylaw outlines or refers to human rights protections in housing. Under the Code, people are protected from discrimination in housing based on a wide variety of “grounds,” including age, disability, family status, marital status, race, ancestry, creed (or religion), sexual orientation and other grounds.

The Ontario Human Rights Code must be considered when administering the Planning Act, and under both the Code and the Act it is illegal to make planning decisions based on people, instead of on land use and other legitimate planning principles. The issues we are raising here are all about people – people whose human rights may be harmed by the proposed bylaw.

In fact, the Code has primacy, or takes precedence over other Ontario laws, including the Planning Act, unless the other law specifically states that it operates notwithstanding the Code. Under section 29 of the Code, the OHRC’s functions include examining and reviewing any statute or regulation and any program or policy and making recommendations on any provision that may be inconsistent with the Code. We are also empowered to initiate reviews and inquiries into incidents of tension and conflict in a community, and to make recommendations, and to encourage and co-ordinate plans and activities to reduce or prevent sources of tension and conflict. All of these functions are in line with our work on housing issues, particularly rental housing licensing.

We are confident that municipalities want to help to protect the human rights of their residents. We have found that many Ontarians are unaware of how these rights apply to rental housing. Including information about these rights in the City’s bylaw and in the licensing process will help landlords to better understand their obligations and avoid complaints, and help tenants live in rental housing that is free from discrimination.

Legal issues

In November 2009, the Supreme Court of Canada dismissed an application for leave to appeal by several landlords in the case Death v. Neighbourhoods of Windfields Limited Partnership. This case is referred to in your report accompanying the proposed bylaw. The OHRC applied to intervene in this application because of the potential human rights impact on students and other groups protected by the Code. However, the Supreme Court dismissed the application for leave to appeal and therefore did not examine the merits of the case or the human rights issues involved.

While some people may suggest that the Death case laid to rest any human rights concerns about lodging houses, we interpret it differently. 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.

The January 2010 decision of the Ontario Municipal Board (OMB), Advocacy Centre for Tenants Ontario v. Kitchener (City), makes it clear that municipalities are bound by the Code, and have to consider the needs of everyone 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 planning analysis should have included consideration of the Code and whether or not the City had engaged in “people zoning,” which is prohibited. These are broad general principles that may affect any Code-protected group, including newcomers, young people, older persons, people from racialized and Aboriginal communities, single people, people with children, and women.

The OMB decision also stated that a municipality that wanted to justify a discriminatory bylaw must be able to show that the bylaw was established in good faith, was reasonable, and that real and substantial efforts were made to accommodate the needs or persons who were adversely affected. It is not apparent from the bylaw or the accompanying report that North Bay has done such assessments or analysis.

Applying licensing city-wide

The May staff report recommends that the bylaw eventually apply licensing requirements city-wide, but the only areas targeted right now are those nearest to Nipissing University and Canadore College. This strongly suggests that the licensing is directed towards certain groups of people who may identify under Code grounds, such as students. The OHRC recommends that licensing and other bylaws be applied consistently across municipalities – targeting bylaws to certain neighbourhoods may put the City of North Bay at risk of human rights complaints.

We recommend that any licensing bylaw apply on a city-wide basis.

Bedroom cap

While we were pleased to see the bedroom cap raised to five bedrooms in the latest draft, we continue to have concerns about the bedroom cap in general, which may have the unintended effect of excluding certain Code-protected groups (for example, large families with young children who are protected based on family status) who need rental housing with more than five bedrooms.

The proposed bylaw implies that any house being rented with more than five bedrooms will be considered a rooming or lodging house. A general review of your zoning maps shows that these housing types are only allowed in very few developed areas first targeted by the bylaw. This in effect means that larger houses that already exist in the affected area, despite being built legally, would suddenly not be eligible for a license. This could lead to discrimination under the Code, particularly for larger or multigenerational households – which often include people identified by Code grounds.

Alleviating the impact on tenants

The proposed bylaw includes a variety of penalties the City of North Bay can impose on landlords, including revoking licences and removing a landlord’s ability to rent a housing unit. It also includes requirements that neighbouring property owners be informed about challenges to penalties. However, there is no reference to any requirement to inform tenants about potential risk to their housing. Nor does the report or bylaw list steps the City will take to support and protect the housing needs of vulnerable tenants who may find themselves suddenly “unhoused” if licences are cancelled or revoked. In fact, the report even states that staff have no reliable data on whether tenants may be displaced.

At the same time, we are hearing from the community that there is a severe shortage of affordable rental housing in North Bay – which suggests that the impact might be severe on some of North Bay’s most vulnerable residents.

This scenario may lead to complaints under the Code, and could also contravene the protections included in the Residential Tenancies Act.

The OHRC recommends that such considerations be added to the bylaw.

Regulating housing or tenants?

We were pleased to see that the most recent version of the bylaw removed many references to the number of tenants that can be accommodated in a rental housing unit. However, some references to tenant numbers still appear in s.3.2.3, which says in part: “a Rental Unit that is occupied by one (1) Tenant, in which no more than one (1) other Bedroom is occupied by a Tenant.”

This reference suggests an assumption that there will only be one person per bedroom – which could lead to intrusive questioning and screening that could contravene the Code based on such grounds as marital status or family status.

The OHRC recommends removing all references to individual tenants from the bylaw.

Gross floor area requirements

Sections 7.1.2 and 7.1.4 of the proposed bylaw says that no more than 40% of gross floor area can be bedrooms on the ground floor or in a basement. These requirements appear to be more stringent than those in the Building Code, and the bylaw and report includes no analysis of this number. Without a clear justification that this requirement is rational and bona fide (for example, based on health and safety concerns), it could be seen to be arbitrary, and to be another way to effectively limit the number of bedrooms in a rental dwelling.

The OHRC recommends that the City remove the gross floor area requirements and replace them with the requirement that the unit must be consistent with the Building Code.

Concluding comments

We request that the City of North Bay consider these issues before implementing a bylaw or program to license landlords. The OHRC’s goal is to work with municipalities to make sure the rules they set in motion meet their stated needs of protecting the health and safety of tenants in a way that makes people welcome, instead of excluding them from housing opportunities. Our goal is also to make sure that North Bay, and all municipalities across Ontario, build bridges, not barriers, to housing some of our most vulnerable residents.

We would be happy to provide advice on any of these issues – If you would like more information, please contact Jacquelin Pegg, Inquiry Analyst at 416-326-9501.

Yours truly,
Barbara Hall
Chief Commissioner