The Role Of The Ontario Municipal Board In Human Rights Issues

Previously published in Regulatory Boards and Administrative Law Litigation

This article examines the role and jurisdiction of the Ontario Municipal Board (the "Board") with respect to human rights issues emerging from the land use planning process in light of the reasons of the Board in Advocacy Centre for Tenants Ontario v. Waterloo.1 The Interim Decision dealt with appeals of the City of Kitchener's Official Plan Amendment No. 58 and Zoning By-law Amendment 2005-91, which sought to reduce a perceived over-concentration of residential care facilities, lodging houses, and supportive and assisted housing in a downtown neighbourhood called Cedar Hill. Non-profit organizations challenged these instruments on the basis that they had a discriminatory effect on certain disadvantaged populations.

The Board issued its Interim Decision on January 14, 2010, describing the appeals as an "'unprecedented' case at the nexus between land-use controls and human rights."2 The decision is a case study of the ways in which the Ontario Human Rights Code3 and the human rights guarantees established by the Canadian Charter of Rights and Freedoms4 can affect land use planning decisions. It also provides insight into the Board's own views on its evolving role and jurisdiction in human rights issues.

This article suggests that while the Board has jurisdiction to consider human rights issues, it plays a limited role in providing remedies for Charter and Code violations. This is because neither the Charter nor the Code provides the Board with any independent source of jurisdiction to grant remedies and the Board does not have freestanding jurisdiction to declare by-laws or official plans to be invalid solely because of conflict with the Charter or the Code.

Background

A full review of the factual background to the Interim Decision is beyond the scope of this article. A brief summary of the context is set out below.

The Cedar Hill neighbourhood is a predominantly residential neighbourhood adjacent to the Kitchener downtown. The land use policies of the 1960s to 1980s left a legacy of absentee landlord-owned multiple dwellings, assisted and supportive housing, and residential care facilities in Cedar Hill.

The vulnerable populations associated with these land uses fell prey to drug dealers and other predators, leading to a significant number of crack houses and a problem with prostitution within the neighbourhood. By 2003, a perception had developed that Cedar Hill had reached a saturation point.

In May 2003, Kitchener City Council passed an interim control by-law which prohibited the use of any lands within Cedar Hill for the purpose of a residential care facility,5 a group home,6 a lodging house,7 a multiple dwelling or a social service establishment. Council also directed that a comprehensive study of the neighbourhood be undertaken.8

The study was completed and presented to the City Council in 2005. The study reached a number of key conclusions. First, the study concluded that Cedar Hill had a lesser degree of community well-being compared to other neighbourhoods as measured by various census variables, and that Cedar Hill risked becoming "a ghetto for small, low-income households." Second, it concluded that Cedar Hill had the highest percentage of absentee landlords of any downtown community. Third, it concluded that Cedar Hill had an over-concentration of residential care facilities and supportive housing.

The Planning Instruments

In response to the study, City Council adopted Official Plan Amendment No. 58 ("OPA 58") and Zoning By-law Amendment No. 2005-91 (the "By-law"). Both instruments were area-specific and applied only to the Cedar Hill community.

OPA 58 prohibited the establishment of new lodging houses, new social service establishments and new residential care facilities. It also required new individual dwelling units to be generally at least 85 square metres in floor area and to contain no more than two bedrooms, and encouraged residential properties to be occupied by the property owner.

The By-law was intended to implement the policies set out in OPA 58. OPA 58 and the By-law had no effect on existing facilities which, by operation of section 34(9) of the Planning Act,9 became legal non-conforming uses.

The Advocacy Centre for Tenants Ontario ("ACTO"), among others, appealed the instruments to the Board. ACTO alleged that the instruments were not good planning and that they violated the Charter and the Code. The City took the position that the instruments were a legitimate planning response to the problems faced by Cedar Hill; that the Board had no jurisdiction to invalidate the instruments on the basis of the Code or the Charter; and that ACTO had not demonstrated that they had a discriminatory effect on a group protected by either the Code or the Charter.

The Board's Decision

In its Interim Decision, the Board effectively drew a distinction between the City's objectives and the means it chose to implement those objectives. The Board accepted that the City's stated goals of de-concentration and dispersal were valid planning objectives and were supported by Official Plan policies.

While the Board accepted the City's conclusion that there was an over-concentration of certain uses that should be dispersed, it declined to uphold the instruments that the City had adopted to implement the objectives embodied by those conclusions. Instead, the Board directed that a second phase of the hearing take place no later than 15 months from its decision (i.e., by April 2011) to consider OPA 58 and the By-law.

The Board was critical of the City's process in adopting the planning instruments in a number of respects. Most importantly for the purposes of this article, the Board was concerned that the City had not given sufficient consideration to whether the instruments discriminated against disadvantaged groups contrary to the Code and Charter. The Board specifically directed that the second phase of the hearing be supported by analysis of the instruments' conformity with, among other things, the Code and the Charter.

The Board's View on Its Jurisdiction and Role in Human Rights Process

The Interim Decision provides a glimpse of the Board's view of its own jurisdiction to apply the Code and the Charter. The Board elaborated on the applicability of its 2004 decision in Toronto (City) Zoning By-law No. 138-2003 (Re)10 (often cited as "Deveau") in light of the Supreme Court of Canada's decision in Tranchemontagne v. Ontario (Director, Disability Support Program).11

In Deveau, a by-law limiting the location of homeless shelters was appealed...