Ontario Human Rights Code – Housing as a Human Right

March 27, 2024

Adequate housing is essential to one’s sense of dignity, safety, inclusion and ability to contribute to the fabric of our neighbourhoods and societies[3]. As the Commission heard in this consultation, without appropriate housing it is often not possible to get and keep employment, to recover from mental illness or other disabilities, to integrate into the community, to escape physical or emotional violence or to keep custody of children.

The right to shelter, to have one’s own bed to sleep in, a roof over one’s head, a place where one’s person and possessions are safe is a human right. It is essential to the preservation of one’s dignity and health – their own space in the world (Toronto Christian Resource Centre).

Many of us can take for granted the security that an adequate and affordable roof over our heads provides. But, this is not the reality in Canada and in Ontario for many tenants. The Commission heard widespread views that it is Ontario’s most vulnerable families and individuals who bear the human toll of inadequacies in the province’s rental housing sector. The connections between housing and human rights protected under the Code were brought out in submissions by housing providers, tenant organizations and others and have been recognized in other reports.[4] The racialization of poverty and the overlaps between mental illness and homelessness were raised repeatedly throughout the consultation.

The workings of the current provincial rental housing system must be considered and evaluated in light of current statistics. For example:

  • In 2006, almost 20% of the total population in Canada was born outside of Canada[5] of whom 70.2% had a mother tongue other than English or French, an increase from 67.5% in 2001.[6]
  • Ontario is the province of choice for recent immigrants with more than 55% of all new arrivals settling here over the past five years.[7] (Metro Toronto Chinese & Southeast Asian Legal Clinic – MTCSALC).
  • In general, around 10% of the total population had an after-tax income below Statistics Canada’s low income cut off between 2001 – 2005, but 33 – 43% of female headed lone-parent families, 30% of single people and 34% of single people over age 65 were considered to be low income.[8]
  • One in five Ontarians will experience a mental illness in their lifetime. For 2 – 3% of Ontarians, the mental illness will be severe and persistent, affecting their ability to live and work in the community (Canadian Mental Health Association, Ontario – CMHA, Ontario).
  • Among renter households, core housing need[9] is 42% for lone parents, 38% for Aboriginal people and 36% for seniors over 65 or living alone[10] (Advocacy Centre for Tenants Ontario – ACTO).

International concerns

International conventions are not just part of the background context for consideration of rental housing and the Code. They are intrinsic to our understanding of the rights of Ontario’s most vulnerable tenants. For this reason, relevant international obligations and recommendations of United Nations committees are referred to throughout this report and briefly in this section.

A wide range of consultees expressed significant concern that people protected under the Code are disproportionately excluded from suitable rental housing despite international protections. These views are not surprising given that the housing situation in Canada has been labelled “a national emergency” by the United Nations in its most recent periodic review of Canada’s compliance with the International Covenant on Economic, Social and Cultural Rights (ICESCR) and a “national crisis” by the United Nations’ Special Rapporteur on adequate housing.[11]

Canada has recognized that adequate housing is a fundamental human right by ratifying the ICESCR and has agreed to take appropriate steps towards realizing the rights set out in it.[12] However, a number of consultees expressed the view that much more is required. For example, the Ontario Association of Social Workers (OASW) said that the ICESCR requires progressive steps towards solving the existing housing problems such as a housing strategy, reasonable targets, allocating sufficient funds, improving rental housing options and measures to address discrimination.

Other consultees expressed disappointment that concerns raised by the Committee on Economic, Social and Cultural Rights (CESCR) about disparities between Aboriginal people and the rest of the population in terms of housing and the barriers to the enjoyment of rights under the ICESCR by African-Canadians[13] have not been addressed. Many submissions referred to the continued apprehension or voluntary relinquishment of children to children’s aid societies for reasons relating to housing as being inconsistent with international obligations and recommendations.[14] This is discussed further in section 5.2 “Adequate and affordable housing.”

It was pointed out that other UN human rights bodies have raised similar concerns. For example, the Committee on the Rights of the Child shared the CESCR’s concern about homelessness as a national disaster,[15] and the Committee on the Elimination of Discrimination against Women noted that efforts to provide social housing for women with low incomes and female lone parents might be inadequate.[16] The UN Human Rights Committee has also expressed concern about people with mental illnesses being detained in institutions because of the lack of supportive housing.[17]

The Centre for Equality Rights in Accommodation and Social Rights Advocacy Centre (CERA/SRAC) suggested that international concern about violations of the right to housing in Canada are growing because the violations have been the result of deliberate actions by Canadian governments, such as cut-backs to social assistance and social housing, refusals to take any appropriate measures to address the problem, and failures by many institutions, including human rights commissions, to address homelessness as a violation of human rights. Many consultees expressed fear that the internationally recognized crisis in housing will worsen due to the lack of a national housing program, cuts to social programs that address inequality and the growth of poverty.[18]

Housing rights and the Code

In Ontario, section 2 of the Code recognizes the right to equal treatment with respect to the occupancy of accommodation – a right that is to be interpreted in light of international covenants that Canada has signed or ratified. CERA said that, applying a substantive equality approach, section 2 can be interpreted as providing protection against discriminatory treatment in applying for and living in housing, and a right to adequate housing without discrimination on the listed grounds. This interpretation would, according to CERA, ensure effective domestic remedies to violations of the right to adequate housing, in fulfillment of obligations under international law in housing.

It is the Commission’s position that many of the problems in rental housing and access to housing identified in this report are symptoms of systemic human rights violations and a prevalent lack of awareness that can, and must be, addressed without further delay. The Code provides a range of tools to address violations of housing rights and situations affecting access to housing because of Code grounds, even if section 2 does not explicitly create a freestanding right to housing.

Section 9 of the Code prohibits both direct and indirect infringements of the rights in Part I of Code, which includes section 2. This means that applications may be filed, and violations of the Code may be found, where actions indirectly violate section 2. An example is when a political leader makes a statement based on discriminatory stereotypes that results in denial of access to housing for groups or individuals because of Code grounds.

In addition, section 11 provides that a right under Part I of the Code is infringed where persons identified by a Code ground are excluded because of neutral rules or requirements that are not reasonable and bona fide in the circumstances. This determination requires a consideration of whether the needs of the group can be accommodated without undue hardship.[19] This means that applications may be filed against a wide range of responding parties, including government and housing providers, based on the combination of sections 2, 9 and 11. For example, applications may be filed against government where shelter allowances are so low that people in receipt of social assistance are unable to afford housing. It could also be argued that this is a violation of section 1 of the Code, which prohibits discrimination in services. Similarly, arguments may be made that section 2 is violated when the denial of services by a support-service provider results in a person’s loss of housing because they are viewed as being unable to live independently.

These kinds of situations give rise to serious human rights issues that the Commission will consider as it works towards developing its policy on human rights and rental housing and fulfilling its new mandate.

To learn more about housing as it relates to the Ontario Human Rights Code, please click this link