Law Times

Law Times • June 13, 2011 FOCUS PAGE 13 Housing bill shuffles 'deck chairs on the Titanic' Advocates worry Ontario legislation still leaves tenants unprotected BY JUDY VAN RHIJN For Law Times balance the relationship between municipalities and the provincial government with respect to social housing, tenants' advocates and lawyers were hoping it would go some way to address the signifi - cant problems in the area. While last-minute changes averted fears of privatization of public assets, there has been little movement on huge waiting lists, massive re- pair problems, and systemic jus- tice concerns. In a followup earlier this year W to the passing of responsibility for aff ordable housing projects to municipalities under former premier Mike Harris, the cur- rent government downloaded more decision-making power in an attempt to streamline re- quirements and improve fl exibil- ity. Municipal service managers must now consult and develop comprehensive multi-year plans to address housing and home- lessness and report annually on their progress. Th is idea is to allow community-based gov- ernance for non-profi t and co- operative housing providers with provincial oversight. Other measures aimed at sim- plifying the system consolidated more than 20 programs that op- erated independently; improved waiting-list administration; and reduced the long list of criteria for the current process of calculating rent geared to income. None of these administrative measures addresses the condi- tions that exist in many aff ord- able housing projects. "I'm not going to mince words," says Sarah Shartal, a lawyer at Roach Schwartz & Associates who in- stituted a class action against the Toronto Community Housing Corp. and the City of Toronto last year alleging negligence for failing to meet and enforce repair obligations amounting to $300 million. "Social housing is a di- saster. A signifi cant number of buildings are dangerous in terms of repairs and security. Th ere has never been a dispute that what I say is true. Th e argument is about who pays." Th e class action wasn't suc- cessful at fi rst instance as the court accepted submissions that it was a backdoor attempt to force action on maintenance. Th e ad- vent of the new legislation makes an appeal diffi cult as the cause of action was clearly rooted in s. 18 of the now-repealed Social Hous- ing Reform Act. Shartal was heartened to hear that an extra $100 million be- came available for repairs after her application forced the issue. Still, she says the essence of the problem remains. "Nothing I see in Bill 140 deals with this. It's all about how to organize the deck chairs on the Titanic. No one is dealing with the fact that the Ti- tanic is sinking." hile much of the new Housing Ser- vices Act aims to re- Th e future remains unclear for those on the enormous waiting list for public housing and those whose homes are crumbling into dereliction. "Where's our new af- fordable housing going to come from?" asks Kenn Hale, director of legal services at the Advocacy Centre for Tenants Ontario. According to the legislation, the answer is basement apart- ments. Municipalities can't pass bylaws that prevent renting out private, self-contained residential units within a dwelling, garden or accessory structures. "It is prog- ress, but we don't think that sec- ond suites are the optimal form of rental housing," says Hale. Th e advocacy centre's sub- mission on Bill 140 promoted the use of inclusive housing policies that require that a cer- tain percentage of units in new developments be aff ordable to households with low and mod- erate incomes. Each municipal- ity would have a choice as to whether to adopt such policies or meet the objectives of their housing and homelessness plans in other ways. "One of the provincial objec- tives is that a larger range of in- come earners should benefi t from new developments, but there are not the teeth or the tools for mu- nicipalities to do it," says Hale. "A more robust response was war- ranted to this situation than ad- dressing it just by second suites." A proposed clause would have TitlePlus_LT_Jan19_09 1/12/09 3:11 PM Page 1 allowed municipal service man- agers to take control of or sell off co-operative housing upon the occurrence of a triggering event, but the government re- moved it after intensive lobby- ing and instead left the power with the minister of municipal aff airs and housing. "Th ey are maintaining provincial permis- sion," Hale says. "We would have liked a clear statement that it is not the province's policy to allow the sale of social housing, but at least the responsibility lies where it should be." Tenant advocates were less successful in their submission that there should be an indepen- dent review process for unfair or unreasonable decisions by mu- nicipal providers. "Th ere is a re- quirement now for a local review process but not much detail on how it is to be done," says Hale. Tenant advocates have always objected to the inability of the Landlord and Tenant Board to review decisions in relation to waiting lists and evictions based on rent arrears and the diffi cul- ties tenants face in enforcing any orders they get. "Tenants have no eff ective remedy even if they get an order to repair," Shartal says. "Th e board does not have the authority to order repairs to be done. If a landlord gets an evic- tion notice, it can go to the sheriff , but who do the tenants go to? At best, they can deduct the amount of the repair from their rent, but that still leaves them with a hole in the roof and a fi ght with the landlord." Th e fi nal version of Bill 140 contained another surprise that Hale believes will further erode the system of justice in this area. "Out of the blue, in the fi nal portion of the act, they packed on changes to the Residential Tenancies Act that will allow the [board] to appoint an unspeci- fi ed employee to hold hearings and issue orders." Hale is bewildered by this inclusion given that the govern- ment has been moving to im- prove justice at administrative tribunals by passing the Adju- dicative Tribunals Accountabil- ity, Governance, and Appoint- ments Act. Hale believes it rep- resents a "dumbing down" of the adjudicative process. "Th ey are treating it as bureaucratic red tape for landlords, but these decisions can be life or death for the tenants." 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