Law Times

Law Times • June 24, 2013 Page 9 FOCUS Human Rights Commission concerned about rental licensing BY GLENN KAUTH Law Times T he Ontario Human Rights Commission is raising concerns about discrimination in the City of Waterloo's 2012 rental housing licensing bylaw. "Anything that removes available housing from the supply is concerning," says commission chief commissioner Barbara Hall following her May 2013 report into the rental licensing bylaw. Of particular concern are two areas where the commission feels Waterloo's rules may have a discriminatory impact under the Human Rights Code: per-person floor-area requirements in bedrooms set at seven square metres and minimum separation distances for certain classes of lodging houses. For example, certain lodging houses must be at least 150 metres from any properties in the same class in lower-density zones. In medium-density zones, the minimum distance is 75 metres. The human rights concerns relate to potential added difficulties in finding housing for students and larger families that may, for example, need to have some people sharing bedrooms. According to Hall, those difficulties raise possible discriminatory impacts based on categories such as family status and age. In addition, Kenn Hale, director of advocacy and legal services at the Advocacy Centre for Tenants Ontario, notes the possibility for discriminatory impacts related to the receipt of public assistance given the extra hurdles for low-income tenants. "They're strongly supported by many people on the basis that they're going to keep rental properties off their streets," says Hale in reference to the push for the bylaw restrictions by some Waterloo residents. "That's a bad thing." Waterloo, a city with a large student population, has been dealing with concerns about rental housing for years. In 2003, for example, the Ontario Superior Court found that multiple units leased to students in an older building met the residential unit exemption in Waterloo's lodging house bylaw. When determining whether the exemption applied, according to the commission report, the court considered whether the premises were a single housekeeping unit. Key to that determination was whether there was individual or collective decision-making among the residents. The city has since passed the rental housing licensing bylaw that regulates lodging houses with five or more bedrooms as well as other units with up to four bedrooms while exempting apartment buildings. To get an initial licence, landlords must pay a fee of up to $757. After that, they must renew annually. As part of the process, the city can ask for a list of tenant names; proof of insurance; a heating, ventilation, and air conditioning certificate; and confirmation that the unit complies with the Building Code Act and the Electricity Act. In addition, the city may ask for things such as police clearance certificates for the owner; Electrical Safety Authority inspection certificates; floor plans; and plans for maintaining the property, parking, and garbage disposal. Towns and cities got the authority to license residential unit rental properties through amendments to the Municipal Act in 2007. For Hale, there are obviously good reasons for many of the provisions in Waterloo's bylaw. For example, the provisions related to health and safety are certainly welcome, he notes. But the problem, he adds, is the "behind-the-scenes impetus for these bylaws" related to a desire by some residents to keep low-income tenants out of their neighbourhoods. "You want to try to develop a bylaw that provides the best health and safety protection with the least constraint on supply," he says. When it comes to the perperson floor-area requirements, the commission report notes the seven-square-metre-per-occupant minimum for each rented bedroom exceeds the provisions of the Building Code. "This requirement could render many Building Code-compliant bedrooms unrentable to couples or to other renters or family members who intend to share the bedroom," the report states. In addition, Hale questions the need for that minimum given the fact that the bylaw doesn't apply to apartment buildings. "It's difficult to see how that . . . requirement is necessary for health and safety because we don't have that requirement for apartment buildings," he says. For its part, the city denies that the bylaw targets students. "The statistical reality is that a large proportion of rental housing in Waterloo constitutes student housing," the city said in response to concerns raised by the commission. "To suggest that the city actively treats students or young people differently than other persons, however, is simply incorrect," the city added. "The bylaw specifically excludes student residences operated by a college or university. The bylaw does not apply to apartment buildings even though apartment buildings constitute, by a very wide margin, the most common type of new construction designed for student housing." The city also maintains, according to the commission report, that the rules are all about ensuring health and safety for tenants. Besides the concerns about the per-person floor-area restrictions, the commission has also raised red flags about the minimum separation distances for lodging houses. Hall notes there are already ongoing complaints before the Human Rights Tribunal of Ontario in relation to that issue, including one launched by the Dream Team that's challenging Toronto's minimum separation distances applied to group homes for people with disabilities. "The minimum separation distance is an issue we're challenging in other municipalities," says Hall. In the end, Hall says the commission prepared and released the report with a view to encouraging Waterloo to reconsider what her organization feels are unnecessary and potentially discriminatory restrictions. The goal, she adds, is to work with the city on the issue rather than taking the matter to the tribunal. "Our interest is in having bylaws that comply with the code, not in going to the tribunal. Certainly, the city seems to have similar goals that they want to comply. We worked well with them but we disagree on these issues." 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