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Defining discrimination in housing

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Every person has the right to be treated equally in the area of housing without discrimination because of any of the grounds set out in the Code. The purpose of anti-discrimination laws is to prevent the violation of human dignity and freedom by imposing disadvantage, stereotyping, or political or social prejudice.

There are several ways of defining and identifying discrimination. The OHRC’s Policy on Human Rights and Rental Housing states that discrimination includes any distinction, including any exclusion, restriction or preference based on a prohibited Code ground, that impairs the recognition of human rights and fundamental freedoms.

The most important issue to determine is whether a prohibited Code ground was a factor in the discrimination. Even if a Code ground is only one of the factors in a decision to restrict a person’s equal access to housing, this may be a violation of the Code.

Discrimination in housing may often take on systemic or institutional forms. Systemic or institutional discrimination includes municipal bylaws, policies or practices that create or perpetuate a position of relative disadvantage for people identified by Code grounds. These may appear neutral on the surface, and may have been well-meaning, but nevertheless have an exclusionary impact based on Code-protected grounds. The key here is not to just consider intent – it is equally important to think about the impact municipal decisions have.

It’s not just about adding housing – think about potential losses

Municipalities have human rights responsibilities in their roles as facilitators of affordable housing. But they must also take steps to apply a human rights lens to decisions that could result in the loss of affordable housing. Examples include:

  • Revitalization projects that raise property values
  • Lodging house zoning or regulations that act to reduce availability
  • Rental housing licensing
  • Heritage planning
  • Zoning bylaw amendments that place new restrictions on the location of accessory apartments, yet do not grandfather existing accessory apartments.

In each of these examples, the discrimination may not be intentional, but again, look beyond the intent to the impact. Unless municipalities take steps to mitigate the effect of these decisions on people who identify with Code grounds, they may be at risk of human rights complaints.

Did you know?
Because the Human Rights Code is “quasi-constitutional,” it has primacy over provincial and municipal legislation, unless the legislation specifically says that it operates despite the Code. This means that when municipal bylaws and the Code conflict, the Code takes precedence.

It’s not our choice
“We don’t get to approve who buys the house across the street from us, and we don’t get to choose our neighbours. We don’t have the right to discriminate.” – Barbara Hall Chief Commissioner, Ontario Human Rights Commission

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