Protecting housing and human rights without limiting options

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Exterior of house. Photo: Sarah Miller/flickr

Canada has been facing a housing crisis for a number of years now, with rising costs affecting both homeowners and tenants. According to the Canadian Rental Housing Index, renters in Canada are spending an average of 22 per cent of their before-tax income on rent and utilities. Further, this index reported that 40 per cent of renter households were spending more than 30 per cent of their before-tax income on rent and utilities, and a staggering 19 per cent were spending over 50 per cent of their before-tax income on rent and utilities. Keep in mind that the Canada Mortgage and Housing Corporation (CMHC) defines affordable housing as housing that costs less than 30 per cent of before-tax household income. This means that almost half of renter households in Canada are not in affordable housing, and one in five homes are spending over half of their before-tax income just to have a roof over their heads.

Imagine then, the relief that a family in Vancouver must have felt on being told that they had reached the top of a waiting list for a two-bedroom apartment that would have resulted in a significant reduction in their housing costs if they had been offered the unit. Unfortunately for them, the housing provider did not offer them the unit. At the time that the family was told that they were first on the waiting list, the family consisted of two parents and a two-year-old son, but the mother was seven months pregnant (and has since given birth to a baby girl). According to a voicemail left by a representative of the housing provider, they could not offer the family the unit because they did not know the sex of their then unborn child. For its part, the housing provider has said that the family was not being considered for the unit in any event, but the family feels they were passed over for this apartment because they have two young children of different sexes and the housing provider was unwilling to offer them a unit where those two children would share a bedroom.

If the housing provider refused to consider the family for the unit because of the possibility that they might have two young children of different sexes, that definitely creates a problem. The Human Rights Code of British Columbia provides that:

 A person must not, without a bona fide and reasonable justification,

(a) deny to a person or class of persons any accommodation, service or facility customarily available to the public, or

(b) discriminate against a person or class of persons regarding any accommodation, service or facility customarily available to the public

because of the race, colour, ancestry, place of origin, religion, marital status, family status, physical or mental disability, sex, sexual orientation, gender identity or expression, or age of that person or class of persons.

Each province and territory has legislation that prohibits a landlord or other housing provider from refusing to offer rental accommodation to a person because of that person's marital status, family status, and sex or gender. However, rights are rarely absolute, which can be seen, for example, in the first line of the excerpt from the Human Rights Code of British Columbia cited above: "A person must not, without a bona fide and reasonable justification" discriminate against another. The questions are: what amounts to a "bona fide and reasonable justification" (or whatever other language might be used in other legislation to place a limit on the rights otherwise protected by the legislation) and who gets to decide which limits are acceptable and which are not?

For example, the same CMHC resource that provides guidance on what is affordable housing also provides a definition of suitable housing that suggests that no more than two children under the age of 18 should share a bedroom, and then only if they are the same sex. For children who are opposite sex, this definition indicates that it is only appropriate for them to share the room if they are under five years of age. This sort of characterization may be fine if it is meant to ensure that a family is not forced to have a son and daughter share a room past the age of five, or to have three children share a room, but that a family can choose to do so if they wish. However, it becomes paternalistic if it is used as a rule that a family is not allowed to have a son and daughter share a room past the age of five, or to have three children share a room. Further, it would also appear to violate the human rights legislation of most, if not all, of the provinces and territories in Canada.

A good takeaway from this incident, which can be applied beyond the housing or human rights contexts, is that there is an important distinction between providing individuals with tools and resources to help and protect them (and to prevent others from forcing them into undesirable situations), and imposing arbitrary requirements that might be interpreted in a manner that actually impedes their access to opportunities that could otherwise be available to them (whether or not that is the intention). When we are putting pen to paper and setting out the rules, regulations, policies, laws, etc. that we hope are going to give effect to some goal or measure that we have worked hard to achieve, we must always be mindful of how others might use those rules and policies. And we must be ready to fix outdated and discriminatory rules when the time is right. The time, CMHC, is right.

Pro Bono provides legal information designed to educate and entertain readers. But legal information is not the same as legal advice -- the application of law to an individual's specific circumstances. While efforts are made to ensure the legal information provided through these columns is useful, we strongly recommend you consult a lawyer for assistance with your particular situation to obtain accurate advice.

Submit requests for future Pro Bono topics to [email protected]. Read past Pro Bono columns here.

Photo: Sarah Miller/flickr

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