Submission of ARCH Disability Law Centre to the Ontario Human Rights Commission In response to the Consultation on Human Rights and Rental Housing 18 September, 2007 Submitted by: Robert Lattanzio Staff Lawyer and Laurie Letheren Staff Lawyer 425 Bloor Street East, Suite 110 Toronto, Ontario M4W 3R5 (416) 482-8255 (Main) 1 (866) 482-ARCH (2724) (Toll Free) (416) 482-1254 (TTY) 1 (866) 482-ARCT (2728) (Toll Free) (416) 482-2981 (FAX) 1 (866) 881-ARCF (2723) (Toll Free) www.archdisabilitylaw.ca ARCH's Submission to the Ontario Human Rights Commission on Human Rights and Rental Housing in Ontario Table of Contents I. About ARCH Disability Law Centre II. About This Submission III. Human Rights and Housing i) Duty to Accommodate ii) Undue Hardship iii) Inclusive Design IV. Discrimination Experienced by Persons with Disabilities When Accessing Housing i) Supportive Housing for Persons with Mental Health Disabilities ii) Supportive Housing for Persons with Intellectual Disabilities iii) Supportive Housing for Persons with Physical Disabilities V. Denial of Right to Appeal or Review Decisions about Housing VI. Accommodation of Persons with Disabilities by Board and Tribunal Members VIII. AODA implications I. About ARCH Disability Law Centre ARCH Disability Law Centre is an Ontario-based not-for-profit specialty legal clinic that is dedicated to defending and advancing the equality rights of persons with disabilities from a cross-disability perspective. ARCH represents disability organizations and individuals in test case litigation at all levels of tribunals and courts, including the Supreme Court of Canada. We provide education to the public on disability rights and to the legal profession about disability law, and we make submissions to government on matters of law reform. We also offer a province-wide telephone summary advice and referral service. ARCH thanks the Ontario Human Rights Commission ("Commission") for the opportunity to make this submission on discrimination in rental housing. II. About This Submission Much of these comments are informed by the concerns and complaints regarding housing raised by persons with disabilities from across Ontario who have contacted our summary advice and referral service. As well, this submission is informed by our work with other disability organizations and by the information and insight we have gained through our work on housing issues with other community advocates. Our submission does not address each of the questions outlined in the Commission's Consultation Paper, Human Rights and Rental Housing in Ontario. Rather, it focuses on the experiences of persons with disabilities whose rights to housing are impeded by numerous physical and social barriers. The ways in which persons with disabilities experience rights violations in housing are often unique, and they arise in attempts to access housing, remain in their homes, and in the enforcement of their rights as they relate to housing. The rights violations experienced by persons with disabilities are extensive. The reality for many persons with disabilities is that once housing is denied or lost, they become homeless or institutionalized [1]. In addition, those who have stable housing are better able to address their health needs and may face fewer barriers to accessing health care [2]. Despite protections under the Ontario Human Rights Code ("Code"), persons with disabilities are often victims of discrimination in the community and in their homes.[3] As the Commission acknowledges in its Background Paper, Human Rights and Rental Housing in Ontario, Persons with disabilities face many challenges in society.... These challenges are frequently compounded by the numerous barriers faced by persons with disabilities when they attempt to access rental housing.[4] This submission will first provide a general overview of human rights principles and international commitments as they relate to housing and persons with disabilities. Second, this submission will situate and contextualize some of the unique concerns and barriers facing persons with disabilities in three particular housing arrangements: supportive housing for persons with mental health disabilities; supportive housing for persons with intellectual disabilities; and supportive housing for persons with physical disabilities. This will be followed by a brief discussion on the absence of appeal processes and the Accessibility for Ontarians with Disabilities Act. III. Human Rights and Housing Discrimination experienced by persons with disabilities results in exclusion from the community and fosters stereotyping, stigmatization and the devaluing of the lives of persons with disabilities. Continued exclusion perpetuates stereotypical beliefs that persons with disabilities cannot be independent, contributing members of a community [5]. The United Nations' Convention on the Rights of Persons with Disabilities [6] (Convention), to which Canada is a signatory, emphasizes the importance of ensuring that persons with disabilities have equal access to housing in order to be full community participants. Article 9 of the Convention states: To enable persons with disabilities to live independently and participate fully in all aspects of life, States Parties shall take appropriate measures to ensure to persons with disabilities access, on an equal basis with others, to the physical environment, to transportation, to information and communications, including information and communications technologies and systems, and to other facilities and services open or provided to the public, both in urban and in rural areas. These measures, which shall include the identification and elimination of obstacles and barriers to accessibility, shall apply to, inter alia: (a) Buildings, roads, transportation and other indoor and outdoor facilities, including schools, housing, medical facilities and workplaces; Article 19 of the Convention states: States Parties to this Convention recognize the equal right of all persons with disabilities to live in the community, with choices equal to others, and shall take effective and appropriate measures to facilitate full enjoyment by persons with disabilities of this right and their full inclusion and participation in the community, including by ensuring that: (a) Persons with disabilities have the opportunity to choose their place of residence and where and with whom they live on an equal basis with others and are not obliged to live in a particular living arrangement; (b) Persons with disabilities have access to a range of in-home, residential and other community support services, including personal assistance necessary to support living and inclusion in the community, and to prevent isolation or segregation from the community; (c) Community services and facilities for the general population are available on an equal basis to persons with disabilities and are responsive to their needs. Article 28 of the Convention states: 1. States Parties recognize the right of persons with disabilities to an adequate standard of living for themselves and their families, including adequate food, clothing and housing, and to the continuous improvement of living conditions, and shall take appropriate steps to safeguard and promote the realization of this right without discrimination on the basis of disability. 2. States Parties recognize the right of persons with disabilities to social protection and to the enjoyment of that right without discrimination on the basis of disability, and shall take appropriate steps to safeguard and promote the realization of this right, including measures: ... (d) To ensure access by persons with disabilities to public housing programmes; ARCH was pleased that the Commission's background paper recognized and acknowledged the extreme difficulties that persons with disabilities encounter in securing and maintaining safe and appropriate housing. The Commission must not lose sight of this reality when developing a policy on the duty to accommodate in housing. In particular, these realities must be acknowledged in any educational materials prepared by the Commission with respect to the duty to accommodate the needs of persons with disabilities. When this consultation is complete, the Commission must engage in outreach and education on the rights and duties in the housing context. ARCH recommends that: the Commission's policy on human rights in housing recognize the extent of discrimination that persons with disabilities experience in their search for housing and must recognize the potentional for homelessness resulting from this discrimination. i) The Duty to Accommodate It is not the disability that causes exclusion and marginalization of persons with disabilities but the barriers created by physical environments and social norms. Accommodating the needs of persons with disabilities by taking such steps as ensuring wheelchair access into the building, installing alerting systems or changing policies on behavior expectations means removing the causes of exclusion or social disadvantage and allowing for community participation. The duty to accommodate is one of the central concepts in human rights jurisprudence. In the housing context, the duty requires that housing providers appropriately accommodate tenants who come under a protected ground of human rights legislation short of undue hardship. At the core of the duty to accommodate are principles of: dignity; individualized accommodation; and full inclusion. Respect for Dignity The accommodation process must be consistent with, and respect the human dignity of, persons with disabilities. The Supreme Court has expressed what is meant by human dignity in disability accommodation. Human dignity means that an individual or group feels self-respect and self- worth. It is concerned with physical and psychological integrity and empowerment. Human dignity is harmed by unfair treatment premised upon personal traits or circumstances which do not relate to individual needs, capacities, or merits. It is enhanced by laws which are sensitive to the needs, capacities, and merits of different individuals, taking into account the context underlying their differences. Human dignity is harmed when individuals and groups are marginalized, ignored, or devalued, and is enhanced when laws recognize the full place of all individuals and groups within Canadian society. Human dignity within the meaning of the equality guarantee does not relate to the status or position of an individual in society per se, but rather concerns the manner in which a person legitimately feels when confronted with a particular law. Does the law treat him or her unfairly, taking into account all of the circumstances regarding the individuals affected and excluded by the law?[7] In various forms of rental housing such as, public housing, co-operative housing and supportive housing, community participation is extremely important to a resident's social inclusion. The presence of barriers often harms the dignity of persons with disabilities who wish to be full participants in their community. Persons with disabilities are often barred from full community participation due to physical barriers preventing room access to those using wheelchairs; a lack of interpretation for persons who are deaf, deafened or hard of hearing; or because notices announcing a meeting cannot be read. Some of the most damaging acts resulting in loss of human dignity occurs when a community rallies against persons with mental health disabilities and intellectual disabilities who wish to live in the community: the 'Not In My Back Yard' campaigns. In addition, social exclusion of persons with disabilities is manifested by the presence of buildings that are inaccessible to all those who wish to visit with residents of a building. In addition to the discrimination experienced by the person with a disability, the resident experiences discrimination on the basis of association or membership as he or she is unable to visit with the friend or family member in the resident's own home. Individualized Accommodation Because the characteristics and needs of the person seeking an accommodation are unique to that person, the accommodation must be individualized to the person's needs; there is no single formula. In addressing the issue of individualized accommodation, the Supreme Court of Canada has stated that: it is vital to keep in mind the rationale underlying the prohibition of discrimination based on disability. As I stated above, this rationale is to allow for the recognition of the special needs and actual capacities of persons affected by a broad variety of different disabilities in many different social contexts. In accordance with this rationale, s. 15(1) requires a considerable degree of reasonable accommodation and adaptation of state action to the circumstances of particular individuals with disabilities. Of course, classification and standardization are in many cases necessary evils, but they should always be implemented in such a way as to preserve the essential human dignity of individuals.[8] In the housing context, policies, rules and expectations may need to be adjusted if a person is unable to comply because of her disability. For example, in the social housing context many forms and documents must be submitted each year. Failure to submit these forms on time will often result in a loss of subsidized rent and in time, the loss of the person's home. A person with a mental health or intellectual disability may not be able to complete the forms and compile the required documents. If the housing provider is to fulfill its duty to accommodate, the process must be modified to meet the abilities and requirements of the individual. Full Inclusion Reporting requirements and other housing rules and policies must be examined to ensure they do not impose barriers. If housing were fully inclusive, then the needs of individuals would not need to be accommodated as the housing (built environment, policies, practices etc) would all be designed to meet the needs of all who may want to access the housing. As expressed by the Supreme Court: Employers and others governed by human rights legislation are now required in all cases to accommodate the characteristics of affected groups within their standards, rather than maintaining discriminatory standards supplemented by accommodation for those who cannot meet them. Incorporating accommodation into the standard itself ensures that each person is assessed according to her or his own personal abilities, instead of being judged against presumed group characteristics. Such characteristics are frequently based on bias and historical prejudice and cannot form the basis of reasonably necessary standards [9]. ARCH recommends that: in its discussion of the duty to accommodate in housing, the Commission underscore the principles of dignity, individualized accommodation and full inclusion. ii) Undue Hardship The point of undue hardship, as affirmed by the Supreme Court, is reached when the reasonable means of accommodation have been exhausted. The Supreme Court stated that defendants have the onus of demonstrating that the regulation, standard or policy "incorporates every possible accommodation to the point of undue hardship, whether that hardship takes the form of impossibility, serious risk or excessive cost."[10] Policy and guidelines released by the Commission reiterate this high threshold[11]. The Supreme Court of Canada in its recent decision, Council of Canadians with Disabilities v. Via Rail Canada Inc., reiterated the following: The concept of reasonable accommodation recognizes the right of persons with disabilities to the same access as those without disabilities, and imposes a duty on others to do whatever is reasonably possible to accommodate this right. The discriminatory barrier must be removed unless there is a bona fide justification for its retention, which is proven by establishing that accommodation imposes undue hardship on the service provider.[12] Subsection 17 (2) of the Code sets out the three factors that should be considered in assessing undue hardship. These include cost, outside sources of funding, and health and safety requirements.[13] The Commission has clearly stated its position that only factors that can be brought within these three elements can be considered in an undue hardship analysis.[14] Because the strength of the equality right of persons with disabilities is contingent upon the stringency of the undue hardship standard, it is crucial that this standard not be weakened in any way. Any weakening of the undue hardship standard will have a significant impact on persons with disabilities, particularly in the three supportive housing contexts discussed below and could result in increased homelessness. Housing providers must be constrained to the same factors as any other respondent, ie. cost, outside sources of funding, and health and safety requirements, when meeting the test of accommodating to the point of undue hardship. As the Commission states in the background paper, "[o]ften, it is neither difficult nor a major imposition for a housing provider to provide needed accommodations"[15] For example, a settlement was reached at the Ontario Rental Housing Tribunal (ORHT) concerning application to evict the tenant for substantial interference. The tenant who was diagnosed with schizophrenia had frequently caused flooding from overflowing the bathtub and sink. In applying the code, the eviction was averted after it was agree that the tenant could be accommodated and further flooding prevented if the social housing provider agreed to the installation of a motion sensor on the taps. ARCH strongly recommends that: a policy on the duty to accommodate in housing contexts must not weaken the duty to accommodate standard that has been established by the Supreme Court of Canada. Housing providers must be fully educated on their duties and more importantly on what will be considered in the undue hardship test. The Commission's policy should clearly indicate that housing providers will be held to the same standard. iii) Inclusive design The principle of inclusion is central to the philosophy of inclusive or universal design and equality for persons with disabilities. Recognizing the failures of a delayed accommodation of difference, inclusive design seeks to promote participation of persons with disabilities in all aspects of community life. Inclusive design recognizes that there must be an ethic of proactive inclusion, which signals that persons with disabilities are welcome in society and will not be forced to battle barriers at every step. The Supreme Court of Canada has recognized that upfront inclusion benefits all of society, and not just persons with disabilities. On behalf of the Court in Meiorin, Justice McLachlin (as she then was) noted that at the heart of equality is the value of inclusion. The fundamental principle affirmed in Meiorin, and reinforced in Grismer, is that the concept of equality, particularly in the context of disability, requires that inclusion be considered in the first instance, and not as a belated measure. The Court highlighted that the discriminatory dilemma posed by after-the-fact accommodation is that "the formal standard itself always remains intact." Instead, the Court instructed "standards must be as inclusive as possible." Respondents now have a positive obligation to design their policies, practices and premises so that inclusion and equality are built into these systems from the outset.[16] The Supreme Court of Canada has highlighted the 'social construction' of disability as attitudes, systems, practices or circumstances outside of the individual, which serve as obstacles to their participation in society. This approach recognizes the causality of social forces, especially the physical environment, in engendering disability disadvantage. By setting the stage to enable or disable capabilities, the physical environment can accentuate or ignore the disability, as well as reflect social norms and attitudes in the spatial structure. The Supreme Court acknowledged that "exclusion and marginalization are generally not created by the individual with disabilities but are created by the economic and social environment and unfortunately, by the state itself."[17] An appreciation of this complex interface of internal and external factors that produce disability disadvantage spotlights the serious human rights implications of inaccessible architecture and systems and the significance of inclusive design.[18] The Convention recognizes "the importance of accessibility to the physical, social, economic and cultural environment." The Convention mandates that States undertake to "...promote...development of universally designed goods, services, equipment and facilities". Universal design is defined in Article 2 as "the design of products, environments, programmes and services to be usable by all people, to the greatest extent possible, without the need for adaptation or specialized design." Article 2 further provides that universal design "shall not exclude assistive devices for particular groups of persons with disabilities where this is needed."[19] Inclusive Design ensures that all those who wish to live in, visit or be employed at a building will have equal opportunity to do so. ARCH recommends that: The Commisison take a strong position on the need for all builders, renovators, designers, developers, governments and housing providers to implement the principles of inclusive design into the intial stages of all their work with respect to housing. The Commission include in its mandate under the new human rights system a role in ensuring that all possible steps are taken to advance a barrier free built environment in Ontario. This would include the continued involvement in the development of standards under the Accessibility for Ontarians with Disabilities Act. Once the new human rights system in Ontario is brought into effect, the Commission consider bringing its own application to challenge the inadequacies of the Building Code in meeting the requirements of the Human Rights Code. IV. Discrimination Experienced by Persons with Disabilities When Accessing Housing As the Commission has acknowledged in its Background Paper, inaccessible housing is one of the greatest barriers to the inclusion of persons with disabilities in a community. The following will provide some insight into the barriers that persons with disabilities face when accessing, or attempting to access, specialized or supportive housing. i) Supportive Housing for Persons with Mental Health Disabilities There is a link between the importance of stable housing and mental health. According to the Canadian Psychiatric Association, approximately 30% of homeless people in Canada have a mental helath disability and two-thirds of homeless people using urban shelters have some form of mental health disability.[20] As emphasized by Toronto Report on Homelessness, "homelessness is not a major cause of mental illness, but being homeless will likely increase the duration and seriousness of a mental illness."[21] A number of court and tribunal cases illustrate the fact that suitable arrangments can be reached between housing providers and tenants with a mental health disability and so the accommodation process is most often not particularly onerous or complicated.[22] Not only is it difficult for persons with mental health disabilities and addictions to find housing, they also regularly experience discrimination during the application process, while living in the supportive housing and in attempting to enforce their right to maintain their homes. Very often, the application process for supportive housing has an adverse discriminatory impact on those who may have difficulties attending appointments, completing paper work and attending interviews. One advocate for persons who are homeless, who was also qualified as an expert witness on homelessness at the 1996 Freezing Death's Inquest, required assistance in securing safe housing. His own advocate described the process as involving numerous interviews and an abundance of paperwork, having to travel to interviews to be told that he needed to provide something more and stated: Finding housing was a long and tedious process and the bureaucracy seemed to work against helping those it was set up to help. I remember thinking, 'no wonder people give up trying.[23] This observation is consistent with that of the applicants and housing advocates that ARCH staff routinely hears from. One application form for supportive housing for persons with mental health disabilities is illustrative. Applicants must give very detailed information about their health, disability-related behaviour, and their involvement with the criminal justice system. The policy established to require this information collection must be reviewed for the outset to identify the barriers it creates. One agency that assists persons with mental health disabilities to find housing monitored by a support service agency has a particularly offensive practice which requires the applicant to sign a consent to the collection of "all relevant information" from government social services, referring sources and support services that the applicant uses. The applicant signs one form that lists all of the agencies so that when the form is used to obtain information, the applicant's privacy is again breached when the recipient agency learns about all the government and support agencies the applicant has listed. In ARCH's discussions with those who assist persons with mental health disabilities and addictions to secure housing, we were told of instances in which the supportive housing providers discriminate against those who are often most in need of supportive housing and who, according to the housing provider's mandate, are the persons who were intended to be residents of the supportive housing. One peer initiative organization informed ARCH that they are often told that the persons with disabilities they are referring to supportive housing providers cannot be housed by them because their "needs are too great". As a result, people who need the greatest supports are forced to live without adequate supports and often end up institutionalized or homeless. Thus, even in the supportive housing that was set up to meet the needs of persons with mental health disabilities and addictions, the individual accommodation needs are not met. The refusal is often the result of risk assumptions based on stereotypes as opposed to demonstrated behaviour. These pervasive stereotypes also foster the continued existance of municipal by- laws outlining distance requirement between supportive housing buildings or banning supportive housing in certain neighbourhoods. Most `Not In My Backyard' campaigns are also grounded in unsupported risk assumptions based on stereotypes. In securing appropriate supportive housing for persons with mental health disabilities, the need for an individualized accommodation is nowhere more evident. Kevin Clark, a homeless advocate, describes the appropriate test of accommodation of the needs of persons with disabilities as being all "about working with people as individuals, keeping a focus on meeting their needs, not on their problems"[24]. While we have focussed this submission on supportive housing, we note a further example of discriminatory practices which has a disproportionate impact on persons with mental health disabilities. At least one major public housing provider has required applicants to sign a "crime free addendum" to the lease. This addendum, which is to be signed by all tenants and the landlord, states in part: Should incidents occur resulting in police involvement, I agree to allow the investigating police service to release information to the Landlord. This is in accordance with the MFIPPA. I /we agree that the Landlord may share with the OPP, and/or local police service information, including private information, that comes to our attention, which indicates that I/we or any guest or occupant of the rental unit is engaging or may have engaged in any criminal, activity including but not limited to offences under the Criminal Code of Canada, the Controlled Drug or Substance Act, or any other law or Statute or regulation which could affect the character of the residential complex. There is an evident greater impact on persons with mental health disabilities, as likely, persons detained pursuant to the Mental Health Act will be identified. ARCH recommends that: * The Commission's policy on human rights in housing should recommend that the application processes, policies and rules developed by those who provide housing to persons with mental health disabilities be reviewed. * The Commission's publication on the duty to accommodate include a statement that "crime free addendums" to lease agreements may have a discriminatory impact on persons with mental health disabilites. * The Commission recommend the all municipalities review their by-laws and remove any requirements contained in the by-laws that housing providers provide the municipality with personal information about intended occupants of the housing. ii) Supportive Housing for persons with intellectual disabilities under the Developmental Services Act Some of the most egregious human rights abuses brought to ARCH's attention are towards persons with intellectual disabilities who live in group homes covered under the Developmental Services Act[25]. These homes are exempt from the Residential Tenancies Act (RTA)[26]. The development of these homes is based on the "charity model" and on stereotypical assumptions that residents are not capable of making decisions for themselves. Persons with intellectual disabilities living in group homes may not have the communication skills, capacity, ability or freedom to seek assistance in asserting their rights. There is also a fear of reprisal which is heightened due to the vulnerability of the resident and the nature of the power relationship with staff, inaction of the employer (actual or perceived) regarding abusive staff members, little or no knowledge of their rights, and the lack of other options for supported housing. More importantly however, is that the Developmental Services Act makes no recognition that the residents of these homes are individuals with rights to be free from abuse. Unlike the Long-term Care Act, the Developmental Services Act contains no Bill of Rights. In addition, residents of group homes have no access to an independent review or access to an appeal when decisions are made about the most fundamental aspects of their lives. The following are some examples of recent calls received by ARCH. There are countless examples of reported abuse; the following is a sampling that directly attacks basic human dignity: * Residents of group homes are transferred from their home to another group home without the resident's consent. This is a recurring complaint. * Residents are denied the right to make individual choices, some as simple and basic as which clothes to wear and what food to eat. Residents are made to feel worthless and told that their opinions do not matter. * A young woman was denied the right to leave her home for more that 45 minutes at a time to visit with family and friends. Calls from outside the home were often not allowed through. She was not allowed to leave the home to vacation or to attend an event that she has attended for many years in the past. * A staff member of a group home telephoned to report financial abuse occurring within the group home by other staff and no action had been taken by the employer. ARCH recommends that: * The Commission's policy on human rights in housing specifically mention that the Code provides for protections from abuse and harassment and that these protections extend to residents of group homes. * The Commission's policy include a recommendation that the Development Services Act be revised to include a Bill of Rights. * The Commisions policy include a recommendation that the Ministry of Community and Social Services evaluate its governing legislation, policies, programs and services in the context of their impact on the autonomy of persons who have a intellectual disability. The Ministry should initiate reforms to ensure that persons who have a intellectual disability are able to make choices for themselves. There should be an appropriate legal process for appointing a substitute decision maker for situations where the individual does not have the requisite capacity. The role of support, through family members and other support people and support circles, should be respected and be part of decision making framework. * The Commission's policy include a recommendation that an independent body be established to review decisions and assist in resolutions when a resident disagrees with a decision about care, place of residence, and other issues that arise with residency. The community should be consulted on the role of such a reviewing body. iii) Supportive housing for persons with physical disabilities Supportive housing for persons with physical disabilities is designed to provide persons with physical disabilities with the attendant support needed to facilitate inclusion within the community. The rules and practices of supportive housing providers often have a discriminatory effect on persons with disabilities. Persons with disabilities often require supportive housing in order to live independently and are often forced to agree to rules and practices that are not applied in other types of housing. A review of several care service agreements and tenancy agreements used by supportive housing providers reveals a number of rules that ARCH considers to be unnecessary. Examples of such onerous rules are: * Requiring residents, who live in fully self-contained units, to advise administrators when they will be having a guest stay longer than one night in any week. The provision also indicates that the housing provider has the right to object to allowing a particular individual to visit the building. * Requiring residents in self-contained units to agree to be fully responsible for all damage caused by pets. One agreement states, "if there is a dispute between you and us as to whether your pet is responsible for any damage, harm or injury, you agree that you will be bound by our opinion and that we shall be considered to be correct". We have also received reports through our telephone summary advice and referral service, such as: * A landlord refusing to allow the caller to use her scooter inside the building as the landlord did not allow "motorized vehicles" inside the building. This meant that the caller was unable to leave her home unless she had someone to help her to use a manual wheelchair. These rules infringe the residents' right to inclusion, independence, individual choice and offend the dignity of the person[27]. Although this submission focusses on supportive housing for persons with physical disabilities, we also wish to highlight the discrimination that persons with phsical disabilities experience in accessing other forms of rental housing. Many persons with disabilities remain on long waiting lists for accessible and supportive housing units [28]. At present, there are a number of factors that contribute to the long waiting lists. For example, it is our understanding from talking to housing advocates that large public housing providers may not have developed a method of tracking the types of modifications that have been made to units or a means of co-ordinating the modifications with the accommodation that a person with a disability may be requesting. ARCH recommends that: * The Commission's policy on human rights in housing address the need for a review of the application processes, policies and rules developed by those who provide housing to persons with physical disabilities to identify and remove barriers. * The Commission's policy on human rights and housing address the need for public housing providers to develop clear standards for accessible units in their buildings. * The Commission's policy on human rights in housing address the need for public housing providers to develop a comprehensive and co-ordinated list of accessible and modified units in their housing stock. V. Denial of Right to Appeal or Review Decisions About Housing In all three contexts discussed above, people live in situations where there are insurmountable barriers due to the overly complex administrative frameworks. There also exists a systemic barrier since, unlike persons who live in rental housing covered by the Residential Tenancies Act, people who live in supportive housing may not have any right of appeal or review of decisions concerning their right to remain in their homes. In the case of homes that are governed by the Development Services Act, the exemption from the RTA means that persons living in a group home cannot have an independent decision maker review a decision equivalent to an eviction. Persons who receive attendant care and support services in their home may be victims of systemic discrimination when attempting to assert their right to remain in their home. For example, in situations where a landlord has made an agreement with a particular service provider that the service provider would provide services to the residents in certain units and the attendant service and the service provider later determines that they will no longer provide services, the Landlord and Tenant Board (LTB) would most likely find that they do not have jurisdiction to review the decision to terminate services. The landlord in such a situation is not actually evicting the tenants but realistically the tenants will have to leave if they cannot receive attendant services in their homes. It would be extremely unlikely that a resident could find a substitute service provider and be able to remain in her home. On the other hand, if the landlord also provided the attendant services, the tenant units would likely be found to be "care homes" under the RTA. If the tenant's unit were considered a "care home" under the RTA, then the landlord would have to apply to the LTB before the tenant could be transferred or evicted. A landlord may apply to the Board for an order transferring a tenant out of a care home and evicting the tenant if, (a) the tenant no longer requires the level of care provided by the landlord; or (b) the tenant requires a level of care that the landlord is not able to provide. The Board may issue an order under clause (1) (b) only if it is satisfied that, (a) appropriate alternate accommodation is available for the tenant; and (b) the level of care that the landlord is able to provide when combined with the community based services provided to the tenant in the care home cannot meet the tenant's care needs. As such, tenants living in units which are not found to be "care homes" under the RTA could be more vulnerable to losing their homes than tenants living in "care homes". This is because the above provisions only operate in relation to "care home" units, and there is no general equivalent provision in the RTA. If the supportive housing provider finds that the resident no longer meets the elegibility requirements, acted contrary to the applicable rules or decides to terminate the person's right to live in the supportive housing for another reason, the resident has no apparent means to have that decision reviewed (except perhaps through a judicial review) unless the unit can be considered to be a care home. However, the extent to which the "care home" provisions afford protections to tenants remains unclear. Most service agreements reviewed by ARCH indicated that the landlord has the right to terminate the tenancy if the tenant ceases to meet the qualifications required for occupying a unit. This clause was present even in contracts where the landlord acknowledged that the housing was covered by the RTA/TPA. ARCH is aware of no decisions in which the LTB, former Tribunal or courts have reviewed the decision of the landlord that the tenant no longer requires the provided level of care or requires a level of care that the landlord is not able to provide. The LTB may in fact find that it does not have jurisdiction to review such a decision. In addition, it should be noted that "alternate accommodation" that the care home provider is required to find before transferring a resident out, is most often a long-term care facility. This is often inappropriate for persons with physical disabilities and often results in isolating persons with disabilities rather than promoting inclusion and independence. ARCH submits that clear and comprehensive tenancy protection in the supportive housing context would greatly strengthen supportive housing programs. If tenants with disabilities are certain of their rights, including security of tenure as well as their legal right to seek repair of sub-standard residences, they will enjoy a degree of fundamental security and a greater opportunity for well-being. There is no defensible justification for tenants who live in supportive housing to have reduced or unclear tenancy protections. Accommodation of Persons with Disabilities by Board and Tribunal Members ARCH hears concerns from persons with disabilities on a case by case basis and so we are not completely aware of the extent to which the LTB's hearings, offices and processes are inaccessible to persons with disabilities. However, we do receive calls indicating that there is no consistent practice of accommodating disability by the LTB and formerly by the ORHT. Anecdotal examples of the failure to accommodate include: the denial of the request made by an individual with a visual disability to have alternate format of documents at a hearing; the denial of an adjournment request based on an individual's disability; and the denial of a hearing by videoconference or telephone in order to accommodate a person who could not get to the hearing because of his disability. ARCH recently received a call from a person who attended a LTB hearing with a letter from his physician which outlined the tenant's accommodation needs during the hearing process. The landlord's agent refused to comply with the request and the LTB member did not ensure that the tenant's needs were met. In addition, a review of decisions made by Board and Tribunal members reveal the inconsistencies in the application of the Code and in particular the application of the undue hardship test. VII. AODA implications The Commission in its Background Paper at page 44 notes that "housing providers will be required to set accessibility standards for persons with disabilities". As the Standard dealing with the Built Environment under the Accessibility for Ontarians with Disabilities Act (AODA) is not yet developed, it is uncertain as to its eventual impact on this issue. In contrast, the Customer Service Standard which directly encompasses the subject matter at issue in this submission i.e. the delivery of housing and supportive services, falls short of having any real impact on removing some of the aforementioned barriers. The Standard could have significantly impacted the delivery of housing and supportive services but it does not. As disappointing is the proposed initial standard on transportation which has been released for public consultation. Thus ARCH submits that the Commission be cautious about an over-reliance on the possible impact that future standards pursuant to the AODA may have on these pressing issues. [1] Statistics Canada, Residential Care Facilities 2004/2005 (Ottawa: Statistics Canada, 2007), ,online: Statistics Canada (last accessed: 31 August 2007). [2] W. Hwang, "Homelessness and health" Canadian Medical Association Journal 164:2, 229-233 (2001); See also: St. Stephen's Community House Corner Drop-in & Toronto Western Hospital University Health Network, The Struggle to Eat Well, (Toronto: St. Stephen's Community House Corner Drop-in & Toronto Western Hospital University Health Network, March 2006), online: [3] See Citizens with Disabilities-Ontario Accessible Housing Survey online: (last accessed: 31 August, 2007); See also: S. Novac, J. Darden, J.D. Hulchanski & A.M. Seguin, "Housing Discrimination in Canada: What do we know about it?" Research Bulletin #11 (Toronto: Centre for Urban and Community Studies, December 2002); Tracy Smith-Carrier, Beverly Patterson and Dan Vandebelt, "Housing & Homelessness: The Challenges Faced by People with Physical Disabilities" (Cambridge: Social Planning Council of Cambridge and North Dumfries, 2003). [4] Ontario Human Rights Commission, Ontario Human Rights Commission Consultation Paper: Human Rights and Rental Housing in Ontario, (Toronto: Ontario Human Rights Commission, 2007) at 43. [5] See Supreme Court reasons in Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624 at para. 56. See also D. Pothier, "Miles to Go: Some Personal Reflections on the Social Construction of Disability" (1992), 14 Dalhousie L.J. 526. [6] Convention on the Rights of Persons with Disabilities, Adopted by UN GA 13 December 2006: UN GAOR Plen., 61st Sess., 76th Mtg., UN Doc. GA/10554 (2006). Open for Signature March 2007. [7] Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497 at para. 53 [8] Nova Scotia (Workers' Compensation Board) v. Martin; Nova Scotia (Workers' Compensation Board) v. Laseur, [2003] 2 S.C.R. 504, 2003 SCC 54 at paragraph 93. [9] British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 S.C.R. 868. [Grismer] [10] Ibid. at para. 32. [1] See for example the Commission publication, "How Far Does the Duty to Accommodate Go" or "Policy and Guidelines on Disability and the Duty to Accommodate". [12] Council of Canadians with Disabilities v. Via Rail Inc. 2007 SCC 15, at para. 121. [13] Human Rights Code, R.S.O. 1990, c.19, s.17 (2) [hereinafter Code]. [14] Ontario Human Rights Commission, Guidelines on Accessible Education,(Toronto: Queen's Printer for Ontario, 2004) at 34. [15] Commission background at 43. [16] British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees' Union (B.C.G.S.E.U.), [1999] 3 S.C.R. 3 at paras. 40, 41, 55 & 68 [Meiorin]; Grismer supra note 9 at para. 22. [17] Granovsky v. Canada (Minister of Employment and Immigration), [2000] 1 S.C.R. 703, 2000 SCC 28, at para. 30. [Granovsky] [18] Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montreal (City), [2000] 1 S.C.R. 665 at paras. 71, 72, 77- 81; Granovsky supra note 9 at paras. 30, 34, 36, 37 and 39. [19] Convention on the Rights of Persons with Disabilities, Adopted by UN GA 13 December 2006: UN GAOR Plen., 61st Sess., 76th Mtg., UN Doc. GA/10554 (2006), Signed by Canada March 30, 2007, at Preamble (v), arts. 2, 4, & 9. [20] Canadian Psychiatric Association, Mental Illness Awareness Week Guidebook, 2001. [21] Mayor's Homelessness Action Task Force. Taking Responsibility for the Homeless: An Action Plan for Toronto. (Toronto: Access Toronto, 1999) at 112. [22] Eagleson Co-operative Homes Inc. v. Th'berge, [2006] O.J. No. 4584. (Ont. Div. Ct.); Vanwygaarden v. Cummings (2006; Gasgoyne). Files Nos. EAL 47938 and EAT-06934 (ORHT) [CRO No. HOU -D-05124]FIX CITE; Canadian Mental Health Association Metropolitan Toronto Branch v. Howard (20 August 2004; Trueman), City Park Co-operative Apartments Inc. v. Becker, [2006] O.J. No 1439 (QL) (Div. Ct.). [23] Dying for a Home supra note 2 at p. 43 [24] Ibid at 141. [25] R.S.O. 1990, c. D11. [26] S.O. 2006, c. 17, s. 5. [27] Eldridge, supra at para. 56. and Marcia Rioux, "Rights, Justice, Power: An Agenda for Change, A Culture of Diversity, Rights-Based Technology", Perspectives on Disability 2nd, ed. Mark Nagler, (Hamilton: Health Market Research, 1993) 515 at 517-520. [28] See: Statistics Canada, Disability Statistics Participation and Activity Limitation Survey 2001 (Ottawa: Statistice Canada,2001) PALS Data For Ontario, "2001 PALS: Tenure of Home and Barriers to Accessibility Within Home or to enter or Leave Home available at http://www.mcss.gov.on.ca/NR/rdonlyres/92F72127-4EE4- 46BE-A114-31ADD6415B33/1398/PALS_home_barriers.pdf and also report on waiting lists in Toronto in Housing Connections 2006 Annual Report available at: http://www.housingconnections.ca/pdf/annualReports/2006/Annual%20Report%202006.p df