Neighbourhood Legal Services is a non-profit and independent community legal clinic that has been serving our community since 1973. We provide free legal services and assistance to low income individuals who live within our catchment area and qualify for our services. Our service area encompasses the downtown east side of Toronto, and includes the neighbourhoods of St. James Town, the Church-Wellesley Village, Regent Park, Moss Park and Corktown. Our areas of practice include low-income housing, employment, immigration, social assistance and disability law. The purpose of this memorandum is to provide comment for your ongoing Land Use Planning and Appeal and Development Charges Review, from the perspective of a community legal aid clinic serving clients who lack affordable housing.
Our casework and law reform mandate regularly brings us into contact with many well-intentioned partners – both in municipal government, and among the local housing providers whom they supervise. However, we are convinced that the persistence of poverty, housing inadequacy and homelessness are, at least in part, a product of a significant accountability gap between those areas of social policy, and Ontario’s land use planning and appeal systems. This submission highlights the relative isolation of housing policy, in contrast with the other areas of economic and social policy that are robustly implemented in planning instruments, and rationally tested by the Municipal Board and the courts above.
Ontario's land use planning system has evolved to integrate a broad range of concerns - including municipal governance, safety, transportation, agriculture, recreation, commerce, employment, the environment, general housing supply and population density - at multiple stages of policy creation, implementation, and appeal. Formalized policy instruments are tested for consistency with a province-led hierarchy of statements and plans and, through this process, broad policy objectives are translated into particular results on the ground.
This process of horizontal policy integration can be seen in the breadth of topics addressed by the Provincial Policy Statement, 2005 (PPS) - and furthermore, in the province's ability to issue additional plans and statements (such as the Growth Plan for the Greater Golden Horseshoe, 2006 and the Growth Plan for Northern Ontario, 2011). As a result, the matters that fall within the jurisdiction of the Ontario Municipal Board (OMB) are equally wide-ranging.
Ontario has taken further steps to ensure a multidisciplinary approach to local policy creation, implementation and appeal. The Consolidated Hearings Act (CHA) permits joint hearings of appeals that would otherwise be heard by multiple tribunals - particularly those that raise issues under multiple environmental and/or land use planning statutes. Moreover, the province has "clustered" several of these and other related tribunals together as the Environmental and Land Tribunals Ontario, harmonizing their administrative and procedural practices. In our view, these are reasonable features of a modern, robust planning system.
In comparison, the province's approach to affordable housing policy is largely segregated and ineffective. While the Planning Act names "the adequate provision of a full range of housing, including affordable housing" as a matter of provincial interest, the OMB does not typically adjudicate between competing proposals to achieve adequately affordable housing in a given community. While the PPS requires municipalities to establish and implement "minimum targets for the provision of housing which is affordable to low and moderate income households", municipal zoning by-laws and official plans have not led to a meaningful reduction of homelessness or improvement of housing affordability (much less the contemplation of such a standard).
The results are simple: while often wetlands are preserved, urban sprawl curtailed, and jobs protected, a province-wide crisis in homelessness and housing adequacy continues to deepen. The OMB's effective authority to require that developers and municipalities act in a manner consistent with improved housing affordability and adequacy is typically limited to narrower questions, such as the proposed conversion of a multiresidential rental building to condominium registration, or the appropriateness of minimum distance restrictions for group homes. In the former example, expert witnesses before the OMB have observed that the appropriateness of a particular condominium conversion is entirely subsidiary to the more central question of whether a municipality ought to have the ability to tax low-income tenant households at effective rates that far exceed those of owner-occupied residential premises, or whether this practice is truly consistent with the goal of providing affordable housing (see OMB File No. S010050, witness statement of Dr. J.D. Hulchanski, 2006).
When the province enacted the Housing Services Act, 2011 (HSA) and issued the Ontario Housing Policy Statement (OHPS), it took an important first step toward bringing the mature, decisive and legally consistent approach of environmental and land use planning to the problem of housing inadequacy by conceiving of a housing and homelessness planning system. Mirroring much of the language and structure of the Planning Act, the HSA sets out matters of provincial interest, allows the province to publish a policy statement, and requires municipal service managers to create local housing and homelessness plans that are consistent with the aforementioned sources of provincial policy.
Currently, those sources of housing policy stand entirely separate and apart from rest the land use planning system, and as a result, the similarities between the two systems end here. There is no appeal from municipal adoption of a housing and homelessness plan to any tribunal. There is no lawfully required consistency between those plans and the other housing policy instruments that municipal governments create: neither Community Homelessness Prevention Initiative spending plans, nor local rules for social housing providers under the HSA, nor reviews of housing subsidy decisions under the HSA. With housing subsidy decisions (let alone local policies) also shielded from scrutiny during individual eviction hearings (by the operation of s. 203 of the Residential Tenancies Act, 2006), municipalities and their delegates are left largely unaccountable for the specific content housing policies, rules and decisions that they generate (despite the attendant use of public resources and effect on private citizens).
Rather predictably, this has led to inconsistent decisions, arbitrary rules and an emerging set of municipal housing and homelessness plans that are inherently unenforceable in their tone and content. For example, the Housing Opportunities Toronto plan (2010) claims, at the outset, to include a plan to end homelessness, but does not explain how this will be the clear outcome its "67 actions within... eight strategic themes". The Phase One draft of Hamilton's Housing and Homelessness Action Plan (2012) proclaims that housing "is a fundamental human right", explicitly admits that the elimination of homelessness is an "aspiration" but does not include outright homelessness elimination in any of the plan's five "outcome areas" composed of "54 strategies". Neither plan purports to measure or track homelessness on a local basis. Neither plan purports to quantify unmet housing need in the past, present or future. What both plans, their respective municipal governments and most other municipalities do propose to do is lobby the provincial and federal government for increased funding.
The above-described policies and statements regarding affordable housing do not represent a serious planning system, and taken together, they will not lead to meaningful results. One suspects that if the goal of environmental protection featured a similar lack of accountable legal processes, municipal and provincial governments would have every incentive to talk about their ardent hopes for clean water and diverse ecology, call on other governments to take action, and publish voluminous reports and "plans" that repeat the same calls and hopes. But none of this would lead to a reliable preservation of identifiable natural habitat, or a rational balancing of competing policy goals.
Housing and homelessness policy should be given the same degree of precision, accountability and integration as the other matters addressed by Ontario's land use planning and appeal systems. Homelessness prevention should be accomplished with every bit of force and certainty as the protection of the Greenbelt. Affordable housing targets should be estimated, imposed and met with the same seriousness as population density targets.
To ensure that the elimination of homelessness – and real, measurable improvement in housing adequacy and affordability – is achievable with the legal force currently given to other aspects planning policy, the province ought to consider a variety of legislative reforms, such that:
- the OHPS be a provincial statement or plan issued under s. 3 of the Planning Act, or equivalent, such that planning policy instruments and housing policy instruments be mutually consistent within the relevant province-led planning systems,
- municipal housing policy instruments in the HSA be clearly enumerated, reviewable for hierarchical consistency, and appealable to the OMB or an equivalent body,
- the HSA and the Human Rights Code be prescribed as bodies legislation under which matters may be heard by a joint board constituted under the CHA, and
- section 203 of the RTA be repealed, at least until a mature, province-led system of housing policy review and appeal holds local governments and their delegates sufficiently accountable for housing-related decisions