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RE: Proposed Rental Housing Licencing By-law

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April 11, 2011

The Honourable Brenda Halloran, Mayor
and Members of Council, City of Waterloo
Councillor’s Office
Waterloo City Centre, 3rd Floor
100 Regina St. S.
Waterloo, ON N2J 4A8

Dear Mayor Halloran and Councillors,

Over the past few months, staff of the City of Waterloo (the City) have worked extensively with staff of the Ontario Human Rights Commission (OHRC) to create a rental housing licensing by-law that meets the City’s operational needs while respecting and advancing the human rights of tenants. Throughout this process, the City is to be commended for its commitment to reflecting the vision of the Ontario Human Rights Code (the Code) in the critical area of housing. This commitment is reflected in many of the elements of the by-law that the OHRC is pleased to promote as best practices.

This submission outlines some of these best practices, as well as some outstanding issues that would help the City to further advance the human rights of tenants who call Waterloo home. The OHRC takes no position on the issue of requiring licences.

Steps the City has taken

The City has taken a number of steps to address concerns raised by the Commission, including:

  • Referring to Code obligations
  • Stating that before revoking or suspending a licence, they will consider the impact on tenants and impose conditions to minimize impact
  • Agreeing to maintain the existing stock of lodging houses and to look at ways to make sure housing stock can meet the demands of changing demographics going forward
  • Removing minimum separation distance requirements
  • Allowing applications for exemptions under Class A and B licences to permit up to five bedrooms, based on written leases at the time the by-law comes into effect, until December 31, 2012.
  • Removing age restrictions related to locks on doors in boarding houses, which would have affected tenants with children.

Best practices

The City has incorporated several decisions in the by-law which we are pleased to share with other municipalities as best practices. These include:

  • Considering the Human Rights Code, and integrating language about complying with the Code into the by-law
  • Focusing on types of buildings, in accordance with the Planning Act, instead of targeting particular groups of people, which is illegal
  • Applying the by-law across the City, so that no group of people living in a specific area is subjected to differential treatment
  • Eliminating minimum separation distance requirements. This gives people better opportunities to live in the neighbourhood of their choice, which is a key element of building healthy, sustainable communities
  • Committing to mitigate the impact on tenants before suspending or revoking lodging house licences
  • Committing to a five-year review of the by-law, to make sure that rental stock keeps pace with community needs.

Remaining issues

While the steps taken and best practices above reflect the City’s commitment to incorporate Human Rights Code principles and protections, some issues of concern remain. Examples are the cap on bedrooms, the use of demographic data in an inaccurate way, and the inclusion of floor space area requirements relating to bedroom size and overall bedroom space in relation to a unit’s total floor area (which go beyond the requirements of the Building Code).

Bedroom cap
The OHRC continues to have concerns about the City retaining the bedroom cap of three (with stated, time-limited exceptions) for Class A and B licences, defining homes with four or more bedrooms as Class C “boarding houses.”

As discussed in earlier correspondence, the OHRC has concerns that this cap on bedrooms 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 four or more bedrooms.

The City has offered assurances that such Code-protected groups will not be adversely affected, as they will have access to boarding houses. However, it is unclear what impact the bylaw will have on availability of rental houses with four or more rooms. For example:

  • Will landlords make the required changes to qualify for boarding house licences, or take other steps to retain Class A or B licences?
  • Will costs associated with qualifying for boarding house licences, and the greater cost of these licences compared to any other, be passed on to tenants, resulting in a loss of affordable housing?

The current wording and limits in the by-law imply the potential for differential treatment based on family status or other Code grounds, and could be interpreted to mean that larger families or households do not have the choice of living in certain types of housing. This could leave the City vulnerable to human rights complaints.

Use of demographic data
The City’s rationale for keeping the three-bedroom cap is that demographic data shows that the average “family” size is three and the median number of bedrooms per residential unit is three. However, by relying on averages and medians, the City is overlooking the real demographic and social distinctions that should be considered.

To truly accommodate the diversity of families and households, and make communities inclusive, we have to acknowledge and plan for families and households that may not fall within the “average.” Family or household size can be strongly influenced by ethnic origin, ancestry, religion and place of origin – which are all grounds of the Code. As well, recent studies suggest there is a rise in multi-generational households across cultural backgrounds.

Using demographic data to assess housing availability and housing needs, and drafting the by-law based on long-term assessment of this demographic data, has the potential to be a best practice. But it can only meet this goal if the data is used effectively, and the City looks at the story beyond the averages and medians.

Floor space area requirements
A remaining area of concern is that the bylaw includes requirements relating to floor space that may have discriminatory impacts.

First, for all classes of licences the proposed by-law states: “Each bedroom shall be a minimum of seven (7) square metres per occupant” (emphasis added). This is not consistent with regulations made under the Ontario Building Code, which require 7 square metres per bedroom (or smaller if there are built-in cabinets), but which do not specify any minimum area “per occupant” in a bedroom in a dwelling unit.

O. Reg. 350/06, made under the Building Code Act, 1992 requires 7 square metres per bedroom, or as little as 6 if there are built-in cabinets (Article; and 9.8 square metres per master bedroom, or 8.8 if built-in cabinets are provided (Article It also allows for bedroom spaces in combination with other spaces in dwelling units, with a minimum area of 4.2 square metres (Article

People should be able to share a bedroom without the scrutiny of the landlord or the City, and in fact, such questioning or investigation could lead to human rights complaints. Many boarding or rental houses or units have bedrooms sized to comply with Building Code regulations, which could accommodate two or more people using a seven square metre requirement. However, these would be excluded from use as double-occupancy bedrooms under this bylaw.

Unless you have a bona fide requirement to exceed the Building Code regulations, we recommend that you remove the “per occupant” references, as they could severely limit the housing options for couples, families with children, and many other people who identify under Code grounds.

The City has removed limits on the number of people per bedroom – which has the potential to be a best practice. However, this is not yet a best practice because the room size per occupant requirements effectively continue to impose this limit. Even though some wording has changed, the potential to adversely affect large families and other people who identify under Code grounds remains.

The second issue is that licensing requirements relating to the ratio of bedroom space to overall floor space may limit the availability of three-bedroom rental spaces, and may in effect serve as a bedroom cap. Clauses requiring that bedrooms constitute no more than 40% of overall dwelling unit floor space in Class A licences, and 50% in Class B licences could be more stringent than required by the Building Code regulation. While the bylaw allows applications for an exception, with an additional fee, it is not clear how the requirement itself is justified as rational and bona fide (for example, based on health and safety concerns).

Concluding comments

The OHRC’s policies on housing emphasize the principles of dignity, individualization and opportunity to fully take part in the community. From a human rights perspective, an effective and responsive Rental Housing Licensing By-law will also promote these concepts – and will result in housing that responds to individual needs, promotes inclusion in the community, and allows for a high degree of dignity.

The City of Waterloo has taken important steps to meet these principles, and to protect the human rights of tenants. The result is a by-law that has incorporated a number of best practices. The OHRC would be pleased to work further with the City to overcome the remaining concerns, to achieve a final by-law that can guide the work of municipalities across Ontario.

Yours truly,

Nancy Austin
Executive Director

Cc Jim Barry, Director of Bylaw Enforcement, City of Waterloo
Scott Nevin, Director of Policy Development, City of Waterloo
Rosemary Bennett, Senior Communications Officer, OHRC
Jacquelin Pegg, Inquiry Analyst, OHRC
Tony Griffin, Counsel, OHRC