Submission to Tay Valley Township Council October 23, 2007
Linda Tranter, Barrister and Solicitor Lanark, Leeds & Grenville Legal Clinic
We have reviewed Tay Valley Township’s Official Plan, Zoning By-Law and Accessibility Plan and researched relevant law relating to the zoning and regulation of group homes for the disabled.
The provisions we reviewed were the following:
Tay Valley Township Official Plan:
1.3.3 Objectives of the Plan . . .
11. To encourage the provision of an adequate supply and range of housing types and supporting amenities to satisfy the needs of existing and future residents, including those with special needs.
2.8 Special Residential Uses . . . 2.8.2
Group Homes
A group home is defined as a single housekeeping unit in a residential dwelling, in which three to ten residents (excluding staff or receiving family) live together under responsible supervision consistent with the requirements of its residents. The group home shall generally be licensed or approved under Provincial Statute and shall be in compliance with Municipal by-laws. The following policies shall apply to the establishment of group homes.
- Group homes shall be permitted in single-detached dwellings in any designation in which a single-detached dwelling is permitted.
- No person shall operate, or permit to operate, a group home without registering the group home with the Clerk in accordance with the Tay Valley Township Group Home Registration By-law.
- In order to prevent an undue concentration of group homes in the Township, standards requiring a minimum distance separation between group homes may be incorporated in the implementing Zoning By-law, but shall generally be limited to a minimum of 500 metres between any two group homes, such distance to be measured from the closest points of the two properties at the property line.
- Group homes existing on the date that the Zoning By-law comes into effect but which do not comply with the requirements of the By-law will be allowed to continue their operations but will not be permitted to expand unless such expansion complies with the provisions of the Zoning By-law.
Tay Valley Township Zoning By-law No. 02-121:
Definitions
GROUP HOME shall mean a single dwelling which is occupied by 3 to 10 unrelated residents who, by reason of their emotional, mental, social or physical condition or legal status, require a supervised family living arrangement for their well-being. A group home may be occupied as the residence by the staff or receiving family. A group home does not include foster homes, boarding houses or other uses defined herein.
3.5 Group Homes
Group homes shall be permitted in the General Residential, Rural and Institutional zones
in accordance with the following:
- The maximum number of group home sin the Township shall not exceed 1 per 1,000 permanent resident population.
- The minimum separation distance between two group homes shall be 500 m.
- A group home shall be located a minimum of 30 m from any dwelling on another lot.
TAY VALLEY TOWNSHIP ACCESSIBILITY PLAN FOR YEAR 2007 – December 2006
1 EXECUTIVE SUMMARY
The purpose of the Ontarians with Disabilities Act,(ODA) is to improve opportunities for people with disabilities and to provide for their involvement in the identification, removal and prevention of barriers to their full participation in the life of the Province. To this end, the ODA mandates that each Municipality prepare an annual Accessibility Plan.
The Accessibility Plan considers barriers to people with disabilities and ways to remove and prevent them. These barriers can include the municipality’s by-laws and its policies, programs, practices, and services. . .
6 CONSULTATION ACTIVITIES
Accessibility planning will help Tay Valley Township think strategically about identifying, removing and preventing many different types of barriers. Through accessibility planning Tay Valley Township will have the opportunity to take a comprehensive look at its by-laws, services, policies, procedures, practices and programs to determine which need to be addressed so they may be accessible to everyone.
7 HISTORY OF INITIATIVES
The following chart indicates the major initiatives that have been implemented in the recent past as well as those proposed for 2007.
9 OPERATIONAL / DECISION MAKING REVIEW
9.4 Community Development The Township undertakes the bulk of planning activities in the form of preparing new official plans, new comprehensive zoning by-laws and administering committee of adjustment variance and related functions, official plan amendments, zoning by-law amendments and site plan approvals. Since the legislated 5-year review process is expected to be completed in 2007, it is proposed that formal reference be added to the Official Plan, in recognition of the Township’s sensitivity to the needs of Ontarians with disabilities.
• Review Date: March of 2007
10 TARGETS AND ACTIONS
Summary of Actions Planned
What Barrier was identified
Type of Barrier
Strategy for Removal or Prevention
Official Plan / Zoning By-law
Policy / Practice
• Created a comprehensive plan, amalgamating requirements for all three wards • Addition of clause in Official Plan recognizing the Act and Council’s support for its intent
By-law and Policy Review
Informational
• No obvious barriers identified
Action–Program / By-law Review
Resources–Council and Senior Staff
Costs–Minimal
Target Date–Ongoing
The Law:
The Canadian Charter of Rights and Freedoms prohibits any government action or law (including municipal by-laws or OPs) from discriminating against those with disabilities as follows:
If an Official Plan, By-law, municipal policy or action conflicts with the protections of the Charter, it is unenforceable and may be ignored by a Tribunal or struck down by a court.
The Ontario Human Rights Code governs both public and private actions and decisions and will overrule any law, policy or action which violates its protections.
Services
1. Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of … disability.
Accommodation
2. Every person has a right to equal treatment with respect to the occupancy of accommodation, without discrimination because of … disability.
Disability – Duty to Accommodate
17. (1) A right of a person under this Act is not infringed for the reason that the person is incapable of performing or fulfilling the essential duties or requirements attending the exercise of the right because of disability.(2) The Commission, a Tribunal or a court shall not find a person incapable unless it is satisfied that the needs or the person cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.
This means that municipalities and other service providers must do everything possible (to the point of undue hardship) to ensure that disabled people are treated equally and that barriers to full participation and integration are removed. Such barriers can include onerous by-laws or restrictive policies.
5
Section 47 of the Ontario Human Rights Code states that the Code prevails over any other Act or law. If a by-law were to conflict with the Code, that portion cannot be enforced.
Act binds Crown
47. (1) This Act binds the Crown and every agency of the Crown.
Act has primacy over other Acts
(2) Where a provision in an Act or regulation purports to require and authorize conduct that is in contravention of Part I, this Act applies and prevails unless the Act or regulation specifically provides that it is to apply despite this Act.
Similarly, in the Ontario Human Rights Board of Inquiry case of Elliott v. Epp Centres Inc. (1993), 21 C.H.R.R. D/33, the Board found that if a person were to complain to the Human Rights Commission and the Board makes an order under the Human Rights Code that puts the person concerned in violation of a municipal by-law, section 47 would override that by-law and make it unenforceable.
The Accessibility for Ontarians with Disabilities Act, 2005 (previously called the Ontarians with Disabilities Act) requires that municipalities (and other service providers and government departments) review and change their facilities, policies, practices, by- laws, Official Plans, etc. to ensure that barriers to full integration of disabled people is achieved. The removal of barriers includes the amendment of zoning requirements that may restrict or limit the participation of disabled people in the community.
Tay Valley Township prepares and implements annual Accessibility Plans in accordance with this Act (see excerpts at page 3 above).
Section 35 of the Planning Act also provides that
35. (2) No distinction on the basis of relationship
The authority to pass a by-law under section 34, subsection 38 (1) or section 41 does not include the authority to pass a by-law that has the effect of distinguishing between persons who are related and persons who are unrelated in respect of the occupancy or use of a building or structure or a part of a building or structure, including the occupancy or use as a single housekeeping unit. 1994, c. 2, s. 43.
(3) Provision of no effect
A provision in a by-law passed under section 34, subsection 38 (1) or section 41 or in an order made under subsection 47 (1) is of no effect to the extent that it contravenes the restrictions described in subsection (2). 1994, c. 2, s. 43; 1996, c. 4, s. 21 (2).
It is also an accepted principle of planning law that by-laws must not regulate people but only uses of land.
The Municipal Act has provisions which allow for and limit a municipality’s authority to require registration of group homes.
Group Homes
Definition
166. (1) In this section, “group home” means a residence licensed or funded under a federal or provincial statute for the accommodation of three to ten persons, exclusive of staff, living under supervision in a single housekeeping unit and who, by reason of their emotional, mental, social or physical condition or legal status, require a group living arrangement for their well being.
Registration of group homes
(2) A local municipality may pass by-laws,
(a) designating a person as the registrar of group homes
(b) providing for the registration and the annual renewal of registration, with the registrar, of group homes or such classes thereof as may be set out in the by-law;
(c) prohibiting any person from owning or operating a group home that is not registered in accordance with a by-law passed under this section;
(d) fixing fees for the registration and renewal of registration of group homes; and
(e) authorizing the registrar to register and renew registrations.
Duty of registrar(3) If an application is made to the registrar in the form required by a by-law under subsection (2) for the registration or renewal of registration of a group home, the registrar shall register or renew the registration of the group home.
Inspection
(4) Where the registrar has reasonable and probable grounds to believe that a person is operating a group home that is not registered in accordance with a by-law passed under this section, the registrar or a person acting on his or her instructions may, under the authority of a search warrant issued under the Provincial Offences Act, enter and inspect the property for the purpose of determining whether or not the property is being used as a group home.
Zoning by-law required (5) No municipality may pass by-laws under this section unless there is in effect in the municipality a by-law passed under section 34 of the Planning Act that permits the establishment and use of group homes in the municipality.
This section allows municipalities to require registration of licensed group homes. It does not require it. It also does not set out any specific authority to impose separation distances, maximum numbers of homes or other restrictive requirements.
Court cases: (See summary of leading cases at Appendix A)
It is a basic principle of planning law that if a zoning by-law does not specifically authorize a use it is prohibited. Some Official Plans and Zoning By-laws do not expressly allow for group homes.
In the earliest cases, group homes were considered institutions and their residents were sometimes known as inmates, and they were prohibited unless specifically authorized.
Since 1973 and particularly since the advent of the Charter, the courts have generally found that where the zoning by-laws allow only single family dwellings, a small group home (e.g. up to about 10-15 residents) housing children or the disabled which does not change the residential character of a home is a single family dwelling. This means that there is no need for special zoning requirements pertaining to small group homes. Whether the use is residential, whether the residents are there voluntarily (not in custody), and whether they participate in all aspects of the household are keys considerations in determining whether a group home is for the purposes of zoning a single family dwelling.
The Ontario Court of Appeal and Superior Court of Justice of Ontario have ruled that where an Official Plan and/or zoning by-law are silent as to whether a group home may locate in a residential zone they are permitted as a normal residential (not institutional or commercial) use without need for a variance.
Discriminatory Provisions
The Ontario Courts have also struck down provisions in zoning by-laws or Official Plans that place restrictions on group homes that are not placed on other residences.
For example, Ontario Courts have struck down a Ministry licensing requirement that a children’s group home must obtain a letter from the Township saying they were in compliance with zoning by-laws, saying that the zoning by-la win question was discriminatory.
The Ontario courts have also struck down zoning by-law requirements of a 200 m separation distance between group homes and a restriction that they must locate in detached single family dwellings.
Group Home Cases in Other Provinces
Courts in other provinces have similarly found that group homes where residents share household duties are to be treated as single family homes for the purposes of zoning. To do otherwise is to discriminate against a disadvantaged group. Many of these cases deal with situations where the by-law was silent as to whether group homes were a permitted use in residential areas. More recent cases have included a consideration of whether by-laws purporting to regulate group homes are a violation of the Charter equality protections (s.15).
The Manitoba Court of Appeal has repeatedly struck down as discriminatory zoning by- laws which defined group home with reference to the residents’ physical or mental conditions/needs and which imposed minimum separation distances between homes, registration procedures, etc.
Similarly courts in P.E.I. and New Brunswick have ruled that group homes are a normal residential use permitted without a variance in residential zones and that group home residents should be considered a family for zoning purposes. Any special supports or attendants required by disabled residents are simply accommodations needed to allow them to live a normal life in the community.
Unrelated Occupants Sharing Accommodation:
There is another line of cases in which courts have found that by-laws which discriminate on the basis of family or non-family relationships are unreasonable. These cases stand for the proposition that if a group of unrelated people (typically students) share a single dwelling unit and exercise control and responsibility over the whole of that unit as a group, they should not be distinguished from a family for the purposes of zoning. This principle has been incorporated into the Planning Act as section 35(2) which prohibits zoning which discriminates on the basis of whether residents are related or unrelated.
It is generally accepted that zoning should regulate uses of a building not the people in the building. Zoning is not meant to be a form of social control.
Ontario Municipal Board Cases:
The Ontario Municipal Board has almost always granted variances to allow group homes to locate in contravention of restrictive zoning by-laws.
For example the O.M.B. will normally grant a reduction in separation distances if group homes are too closely spaced to conform to the by-law, allow group homes in zones where other residential uses are allowed e.g. agricultural, allow additional beds in excess of the by-law definition, dispense with site plan requirements, etc.
Analysis of Tay Valley Township’s Official Plan and Zoning By-law:
Tay Valley Township should be commended for recognizing the importance of reviewing its by-laws and official plan to ensure accessibility for the disabled, and for its intention to add a clause to its Official Plan explicitly recognizing the Ontarians with Disabilities Act and Council’s support for its intent. We also are encouraged by the Township’s recognition of the importance of special needs housing in its Official Plan.
We also encourage Council to review the provisions restricting group homes, particularly those for the disabled.
In light of the above laws and court cases, the following provisions, as they are applied to disabled people, are potentially discriminatory and vulnerable to challenge:
- The minimum separation distance of 500 m
- The cap on group homes of 1 per 1000 population
- The minimum 30 m from any dwelling on another lot
- More restrictive standards for group homes compared to non-licensed shared living arrangements
Suggested Action:
Accordingly, we are asking that Tay Valley Township review and amend its zoning by- law and Official Plan to remove any provisions which might act as a barrier to disabled people in need of supportive housing in Tay Valley.
Appendix A – Summary of Legal Cases
Court cases:
It is a basic principle of planning law that if a zoning by-law does not specifically authorize a use it is prohibited. Some Official Plans and Zoning By-laws do not expressly allow for group homes.
In the earliest cases, group homes were considered institutions and their residents were sometimes known as inmates, and they were prohibited unless specifically authorized.
Since 1973 and particularly since the advent of the Charter, the courts have generally found that where the zoning by-laws allow only single family dwellings, a small group home (e.g. up to about 10-15 residents) housing children or the disabled which does not change the residential character of a home is a single family dwelling. This means that there is no need for special zoning requirements pertaining to small group homes. Whether the use is residential, whether the residents are there voluntarily (not in custody), and whether they participate in all aspects of the household are keys considerations in determining whether a group home is for the purposes of zoning a single family dwelling.
City of Barrie v. Brown Camps Residential and Day Schools, 1973, Ontario Court of Appeal, (1974) 2 O.R. (2d) 337
The city applied for an injunction to restrain Brown Camps from operating homes for up to five emotionally disturbed children supervised by child care workers. Brown Camps was non-profit and licensed to provide residential and out-patient treatment. The city argued that the homes were commercial mental health centres like a nursing home or clinic. The court found that the children and not the corporation Brown Camps were the occupants. The children lived there voluntarily and stay on average two years. The homes have all the characteristics of a residential family home and the children have a normal family routine. All of the children go to school outside of the home, 2/3 to regular public schools. No psychiatric treatment is given on the property although resource professionals do assist the children and staff. The court held that the use is residential and each house is a “one-family detached dwelling” i.e. the children live together as a family with special care necessary for their needs. The court found there was no violation of the by-law and did not grant an injunction.
Aurora v. Anglican Houses, Ontario High Court of Justice (now Superior Court of Justice) (1990), 72 O.R. (2d) 732
Anglican Houses purchased a property to operate a home for eight adults with mental health disabilities. Anglican Houses was told by the town to apply for a variance to allow the home because group homes which require constant supervision are not a permitted use under the by-laws. A.H. applied for the variance and then withdrew its application on legal advice that they would not violate the by-law. The Town applied to the court for an order interpreting the by-law and an injunction to prevent the group home from operating.
The injunction was refused. The court found that the group home is a single detached dwelling unit and does not require a variance. The residents live there voluntarily and all participate in housekeeping, meal preparation, chores and decision-making. Every resident has a key and there are no curfews. They can take vacations, stay out overnight or leave permanently. It is residential not institutional or commercial. The home is not used for treatment. Residents will stay there for 1 1⁄2 – 2 years. It isn’t necessary that they be permanent as this is not just a causal sojourn. The staff people enhance the use of the property as a residence by assisting the residence to integrate into home life and the neighbourhood. It also does not detract from the residential quality of the neighbour hood. The issues of a possible Charter or Human Rights Code violation were not argued on the injunction motion.
Discriminatory Provisions
The Ontario Courts have also struck down provisions in zoning by-laws or Official Plans that place restrictions on group homes that are not placed on other residences.
Lesperance v. Corporation of the Township of Peel, 1992, Ontario Court (General Division) (now called Superior Court of Justice), 10 O.R. (3d) 317
A married couple wanted a licence from the Ministry to run a “model parent group home” which is a specialized foster home for up to 10 children. They needed a letter from the Township saying they were complying with zoning by-laws. They applied to the court for a declaration saying that the proposed use complied with zoning by-laws because the existing by-law definition of family was discriminatory and therefore outside of the powers of the Township to enact. The by-law permitted only one-family dwellings but said that the number of people living together shall not exceed five unless they are related by blood, marriage or adoption. The court found that the Planning Act (now s. 35) provides that the authority to pass by-laws does not include the authority to pass a by-law that distinguishes between persons who are related and persons who are unrelated in respect of occupancy of a building. Any such by-law is of no effect. The by-law in question was discriminatory contrary to the Planning Act and “might well have been in violation of section 15(1) of the Charter as was held in Alcoholism Foundation of Manitoba v. Winnipeg” (see below). The court ordered that the model family group home was a permitted use as a single family dwelling.
Children’s Aid Society of the Region of Peel v. Brampton, 2002, Ontario Superior Court of Justice, [2002] O.J. No. 4502; affirmed by the Ontario Court of Appeal, [2003] O.J. No. 2004
CAS applied to the courts for a declaration that a by-law requiring a separation distance (200 m) between homes with four foster children and restricting them to detached single family dwellings was illegal. The court found that the by-law discriminated between related and unrelated persons in contravention of s. 35 of the Planning Act and declared the by-law to be invalid. It held that the foster homes in question are “an ordinary household” and therefore can locate in any residential dwelling in the City. A family does not even need a licence to care for four foster children. The City argued that it has a responsibility to integrate these children into the community and assure distribution of benefits and housing appropriate to their needs. The children are treated differently on the basis of legal status not relationship in order to ensure equal treatment and access to community resources. The court dismissed these arguments and found that children in care do not necessarily have special needs requiring extra community services.
Group Home Cases in Other Provinces
Courts in other provinces have similarly found that group homes where residents share household duties are to be treated as single family homes for the purposes of zoning. To do otherwise is to discriminate against a disadvantaged group. Many of these cases deal with situations where the by-law was silent as to whether group homes were a permitted use in residential areas. More recent cases have included a consideration of whether by- laws purporting to regulate group homes are a violation of the Charter equality protections (s.15).
The most important case on discriminatory by-laws is the following:
Re Alcoholism Foundation of Manitoba v. Winnipeg, 1990, Manitoba Court of Appeal, 69 D.L. R. (4th) 697
Alcoholism Foundation and other organizations brought an application to strike out five zoning by-laws on the grounds that they were illegal and violated the Charter. The sections of the by-laws challenged were those that defined: “care home” (accommodation with care or treatment for not more than six aged, convalescent or disabled persons), “neighbourhood care home” (accommodation with care or treatment for six to twelve aged, convalescent or disabled persons), “neighbourhood rehabilitation home” (accommodation with supervision or treatment of up to twelve people discharged from a penal institution or recovering from alcohol or drug addiction) and “family” (persons voluntarily associated living together but excluding care homes, group foster homes, neighbourhood care homes, neighbourhood rehabilitation homes, etc.). The by-law also set out minimum separation distances, registration procedures, etc. The court found that the by-law discriminated against disadvantaged groups protected by the Charter i.e. the aged, convalescent, disabled, former convicts, and addicted, and that it violated section 15 of the Charter. The by-law was inoperative as a result. The Court of Appeal ruled that:
“The individuals living in the approximately 140 group homes which have been organized and maintained in the city are 140 disadvantaged groups under s. 15(1) and they are discriminated against since they, and they alone, must apply to the various community and city committees for permission to form and live together as a group or “family”…The disputed by-law’s wording amounts to people zoning and that under the Charter and its current interpretations, is objectionable and discriminatory.”
“I have no hesitation in saying that the definitions of care and rehabilitation homes contained in the impugned by-law are discriminatory…It is simply not acceptable since the advent of the Charter to prohibit a use of land with reference to the attributes of those who may use it, at least where the attributes are those which distinguish members of a disadvantaged group…”
“Another point which I propose to deal with immediately is the challenge to the status of the various bodies or organizations which initiated these proceedings (Cdn Mental Health Assn, John Howard Society, Elizabeth Fry, Manitoba League of the Physically Handicapped, Age and Opportunity Centre, Alcoholism Foundation). Some of these organizations operate group homes, some never have and probably never will…Here again, given that some 10 or 12 years ago the Supreme Court granted status to various interveners, the door was opened wide. I am certainly unable to close it.”
Leave to Appeal this decision to the Supreme Court of Canada was dismissed and the decision was upheld, [1990] S.C.C.A. No. 267.
Riverpark South Residents Assn. v. Winnipeg, (1992) Manitoba Court of Queen’s Bench, [1992] M.J. No. 154
The residents’ association applied for an order prohibiting the city from issuing an occupancy permit to a care home for nine people. The city felt a care home is a permitted use in an area zoned one family residential. The city did not redraft its zoning by-laws following the Alcoholism Foundation case but just stopped applying the discriminatory sections. The court found that a care home is a permitted use and reiterated that the sections of the by-law defining and regulating care homes are discriminatory and of no force and effect. The requirement for separation distances was also found to be discriminatory. The residents’ application was denied.
Charlottetown v. Charlottetown Association for Residential Services, PEI Supreme Court 1979, 100 D.L.R. (3d) 614
The city applied for an injunction to stop non-profit group from using a house as a group home for up to eight developmentally disabled adults and one staff in contravention of the by-law which only allows one or two family dwellings.
Court found that there was no violation of the by-law because the term “family” refers to a “collective body of persons who reside in one house under one head or management”. The group home residents are a “family”. The organization was not- for-profit so it was not in any way a business. The use of the property was exclusively residential, no professional training or rehabilitation was conducted there. The purpose of the group home was to provide “as normal a home as possible”. “Familial intimacy” is essential to the residents’ well-being. Location in a community facilitates “normalization” and “is the dominant reason why we create a group home”. “What we want is for the residents to have as close a normal experience as is possible in terms of relationship to the community”. The purpose of the by-law is to protect the residential character of the neighbourhood. Residents have not inconvenienced neighbours or caused any nuisance. The home does not detract from the appearance of the neighbourhood. It is therefore a single family home and no injunction was granted.
Town of Woodstock v. Community Residential Living Board – Woodstock, 1988, New Brunswick Queen’s Bench, [1988] N.B.J. No. 45
This was an application by the town for an order determining if a home for 3 mentally (i.e. severely developmentally delayed, 2 of them could not talk) handicapped young adults is a violation of the zoning by-law. Group homes were not expressively permitted by the by-law. The town argued that they should have applied for a variance. The court found that the 3 handicapped adults were the occupants of the home and that they used it exclusively for residential purposes. The residents were assisted by a supervisor and five other support workers. The by-law defined family as “one or more persons, not necessarily related, occupying premises and living as a single housekeeping unit, as distinguished from a group occupying a hotel or rooming house”. “The fact that the dwelling is used exclusively for residential purposes is not, in my view, detracted from by the circumstance that the occupants, because of their handicaps, are reliant on outside support in their care and even to a large extent in their supervision and in the decision- making process. Their status in this connection must be viewed within the concept of that principle set forth in s.15(1) of the Canadian Charter of rights and Freedoms, which reads: Every individual is equal before the law and has the right to equal protection and equal benefit of the law without discrimination…based on…mental or physical disability.” The use does not change the character of the zone in any way. The home is a family residence permitted under the by-law.
Walls v. Village of Blackville, 1996, New Brunswick Queen’s Bench, [1996] N.B.J. No. 497
Walls required a letter from the village to obtain a license and so applied to the courts for an interpretation of a zoning by-law to determine if a “special care home” to house seniors and persons with special needs was a permitted use in an area zoned for one family, two family and multi-family dwellings. The court found that the care home was permitted. The court follows the Woodstock decision as the definition of family is the same.
Unrelated Occupants Sharing Accommodation:
There is another line of cases in which courts have found that by-laws which discriminate on the basis of family or non-family relationships are unreasonable. The leading case is R. v. Bell. These cases stand for the proposition that if a group of unrelated people (typically students) share a single dwelling unit and exercise control and responsibility over the whole of that unit as a group, they should not be distinguished from a family for the purposes of zoning. This principle has been incorporated into the Planning Act as section 35(2) which prohibits zoning which discriminates on the basis of whether residents are related or unrelated.
It is generally accepted that zoning should regulate uses of a building not the people in the building. Zoning is not meant to be a form of social control.
R. v. Bell, Supreme Court of Canada, [1979] 2 S.C.R. 212 (on appeal from the Ontario Court of Appeal) – leading case on unrelated occupants
The appellant was a tenant who lived with two other unrelated people in one unit. He was convicted of a by-law violation because the by-law only allowed occupancy by one person or one family. A “family” was defined as a group of two or more persons living together and inter-related by bonds of consanguinity, marriage or legal adoption, a property owner and up to two unrelated people, and up to three foster children. A court may strike down by-laws that are unreasonable in usual cases if they are “partial and unequal in operation as between different classes; if they were manifestly unjust; if they disclosed bad faith; if they involved such oppressive or gratuitous interference with the rights of those subject to them as could find no justification in the minds of reasonable men…”. This definition of family has “many possible inequitable applications” and is oppressive and therefore the court concluded that “the legislature never intended to give authority to make rules and the device of zoning by reference to the relationship of the occupants rather than the use of the building”. The conviction was set aside and an acquittal entered.
Good v. City of Waterloo, 2003, Ontario Superior Court of Justice, 67 O.R. (3d) 89
A landlord applied for a declaration exempting the property rented out to a group of students from a requirement to be licensed as a lodging house under the by-law. The court found that where the tenants had one lease, assumed financial responsibility for rent and utilities, find their own replacements if they leave, share housekeeping provide the furniture, allocate bedrooms, entertain guests in common, control any bedroom locks within the unit, and collectively make decisions about control of the unit, this is a single housekeeping unit and not a lodging house. Whether the tenants give individual cheques was not determinative, just a matter of convenience. Control of the premises is the key factor. Declaration granted.
Ontario Municipal Board Cases:
The Ontario Municipal Board has almost always granted variances to allow group homes to locate in contravention of restrictive zoning by-laws.
Mallozzi v. Alzheimer Society of Peel [2004] O.M.B.D. No. 1623 This is an appeal by neighbours to reverse the approval of a variance to allow an adult day and night care centre for six residents. The variance allowed a reduction in separation distances from 800 m to 450 m because the two neighbourhoods were separated by a 6 lane road and commercial district. The OMB found that the group home did not create undue concentration problems, is very much needed, fit with the community, would work to involve the community, and had no adverse impact. The variance was approved for the specific use with only 6 residents, 3 staff, no signage and to be maintained in a well-kept residential manner.
Cadman v. Burford Township [1995] O.M.B.D. No. 1555
Neighbours appealed a variance permitting a group home for 6 developmentally disabled adults run by the Brantford and District Assn for the Developmentally Disabled in an area zoned agricultural. The by-law does not specifically permit group homes so a variance was granted. The neighbour was concerned about traffic, safety of the residents who might wander into ponds, unpleasant fencing, that group homes are an institution and would change the neighbour hood, etc. The O.M.B. found no substance to these concerns and upheld the variance finding that the group home will be safe and properly supervised, will fit in with the neighbourhood, will have no adverse impacts, and is not institutional but clearly a residential home.
Geeves v. Ottawa [2006] O.M.B.D. No. 121
A group home operator appealed the refusal of a variance to expand from 10 to 17 beds in a group home for the mentally disabled. The by-law allows a group home with up to 10 residents and the owner’s family. The City approved the house for 17 residents under its domiciliary hostel program. The City said they would approve 14 beds plus the owner’s family of four, but the owner lives elsewhere. The OMB granted the variance as it met the four tests set out in section 45(1) of the Planning Act: 1. the variance is minor (no visible change to the building or neighbourhood 2. it is desirable for the appropriate use of the property (approved by the City’s program) 3. it is consistent with the intent of the zoning by-law 4. it is consistent with the intent of the O.P. (the O.P. encourages group homes and
recognizes increasing population densities) Concerns over parking, traffic, demands on the neighbourhood services were insignificant. Section 35(2) prohibits discrimination on the basis of whether occupants are related, but despite the City has not objected to 13 plus 4 family members. Variance granted – 17 beds approved.
Eboh and Elabor v. Markham [2002] O.M.B.D. No. 0151
A couple wished to house 6 girls with social and emotional problems in their home. They appealed to the O.M.B. for approval of a site plan refused by Markham. Markham’s counsel admitted there were no site plan issues or evidence to call. The by-law which had not yet been approved requires site plan approval for all group homes. The OMB found that the by-law was not in force, that site plan approval was not required or appropriate to a single detached dwelling, and that the group home was always a permitted use. The Town had abused its authority and acted without any legal basis because of unsubstantiated “community concerns” and ordered to pay costs to the couple.