Hey, that’s not fair – or is it? · Introduction to human rights and housing CHF Canada...

Introduction to human rights and housingCHF Canada Workshop

Hey, that’s not fair –

or is it? B2: Introduction to Human Rights and

Housing

June 6, 2019, 1:00 p.m. to 3:00 p.m.

Celia Chandler, Iler Campbell LLP

[email protected]

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“We need human rights. Whether we like it or not,

religious, ethnic and cultural diversity is part of our modern

world – and increasingly, part of our national and

community reality.

Human rights and the respect for every individual

upon which they rest, offer the best hope for

reconciling the conflicts this diversity is bound to

generate.

If we are to live together in peace and harmony …– we

must find ways to accommodate each other.”

-- Right Honourable Beverley McLachlin,

Former Chief Justice of Canada (2009)

Human Rights are Important

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What does this mean in a Co-op?

• human rights always considered

• co-op accommodates

• board seen as unfair

• people use human rights language –

mean personal preferences

• accommodation details private

• co-op members and staff need

• education and

• to promote human rights

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Good for you,

you’re here!

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1. Human Rights Legislation

2. Duty to Accommodate

• Case Studies

3. Rouge Valley & Vineyard Decisions

4. Competing Human Rights

• Case studies

5. Human Rights and Behaviour Flowchart

6. Resources

7. Quiz

Overview

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Legal information?

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Legal advice?

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Human Rights

legislation

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Example from the Ontario Code

Accommodation

2 (1) Every person has a right to equal treatment with respect to the occupancy of accommodation, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status, disability or the receipt of public assistance.

Harassment in accommodation

(2) Every person who occupies accommodation has a right to freedom from harassment by the landlord or agent of the landlord or by an occupant of the same building because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sexual orientation, gender identity, gender expression, age, marital status, family status, disability or the receipt of public assistance.

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HR in context HR

Code

Other

legislationLandlord tenant, corporate act,

Employment, etc.

By-laws; occupancy

agreements; leases

Personal Preferences

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• Applies to the Co-op as a housing

provider and an employer

• Protected grounds under the

Human Rights Code

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HR legislation - Protected grounds

• association with protected groups or individuals

• age (some provinces have exceptions)

• creed / religion

• disability – physical, mental, disfigurement

• ethnic, national, aboriginal origin, citizenship, ancestry

• family status / marital status

• gender identity and expression

• irrational fear of contracting an illness or disease

• language / linguistic background

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HR legislation - Protected grounds

• political belief, opinion, convictions, affiliation or activity

• race / colour

• receipt of public assistance / source of income

• record of offences / criminal charge or record

• sex (including pregnancy)

• sexual orientation

• social origin / condition / disadvantage

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Duty to accommodate

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Providing something for one member that others do

not get so that the member needing accommodation

has a similar housing experience as other members

have.

What is accommodation?

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Like this

Interaction Institute for Social Change | Artist: Angus Maguire

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• respect for dignity

• undue hardship

• no set formula - consult

• be responsible and willing - explore solutions

• comply voluntarily

Principles for Accommodation

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Who does what?

• Role of person requesting accommodation

• Role of co-op receiving the request

• What is the co-op entitled to know?

• What is the co-op entitled to say to the

requester?

• What is the co-op entitled to say to others?

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Undue Hardship

Very high threshold

Two things to consider:

1. cost (including external sources of funding),

2. health and safety

Nothing else.

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Minimize costs

• distribute costs across budget

• phase in

• tax deductions

• reserve fund

• use creative & less expensive solutions

• outside sources of funding

Undue Hardship - Cost

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What can the Co-op consider when thinking

about health and safety?

• nature of risk

• severity of risk

• probability of risk

• scope of risk

Undue Hardship – Health and Safety

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Other considerations?

• “knew building was inaccessible”

• member preferences

• “that’s not fair”

• business interests

• inconvenience

Undue Hardship

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Case studiesDoes someone have a human right?

If so, who has a human right and what is the protected ground?

Should the board try to accommodate?

If so, how?

What procedural steps should the board take?

Is there an issue of undue hardship?

If there is possible undue hardship, is it cost or health and safety?

Does someone have a personal preference?

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• Beatrice is a senior member who has become isolated since her husband died

• During unit inspection – first in years – co-op finds B’s unit filled with boxes and a bug issue

• B won’t let provider in for full inspection (twice)

• Co-op begins the eviction process

• B doesn’t come to the board meeting, son does –says his mom has mental health issues causing hoarding

Case study 1: Excessive clutter (aka hoarding)

HR in context HR

Code

Other

legislation

Leases, Rules


Hoarding

as MHD?

grounds to

evict?

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• Sophia & two young teenagers - lived in their unit for 5 years.

• heard that her neighbours’ toddler has extreme sensitivity to

dust

• co-op replaced the neighbours’ carpet with parquet

• others say “not fair” - plan to replace all carpets after 10 years

• Sophia’s carpet looks old – not changed since she moved in

• daughter has a cough - lasts three months

• dust in the carpet is the cause?

• asks board for parquet – will cough go away?

Case study 2: Carpets and allergies

HR in context HR

Code

Other

legislation.

Leases, Rules


Allergy as

disability?

New

carpet?

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•Tracey’s behaviour has changed - now hanging with Bob,

bad news

•Manager knows T has mental health disability and is a

former addict

•Bob threatens neighbour who is regularly complaining

•Others want T evicted

•Possible?

Case study 3: Tracey’s bad behaviour

HR in context HR

Code

Other

legislation.

Leases, Rules


Addiction and

bad behaviour as

MHD?

ground for

eviction?

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Rouge Valley Decision

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• 87 page HRTO decision, Mar 2016

• 1st significant decision for housing co-ops

• 10 complainants - $3,000 each

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What was happening

at the Co-op?

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Examples from Para 4 of decision

COME SEE THE INBREEDS AND RETARTS IN 406

COME SEE THE FAT SLOB PIGS IN 202

COME SEE THE DUMBFUCK HICKS IN 408

COME SEE THE DRUNK IN 608

COME SEE THE CUNT AND THE CRIPPEL IN 502

COME SEE THE CRIPPEL FREAK IN 705

COME SEE THE OLD WHORE IN 1008

COME SEE THE OLD DRUNK IN 506

COME SEE THE FAT OLD WHORE IN 905

BETTER THAN THE CIRCUS

EVERY NIGHT IN ROUGE VALLEY PARK

FREE SHOW

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What did the Board do?

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What did the complainants do?

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What did the HRTO say?

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Other lessons learned

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Vineyard Decision

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• HRTO decision, Mar 2019

• distinction between poisoned housing

environment (discrim) & harassment

• Co-op “made their best efforts to handle the

situation”

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Competing Human

Rights

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Competing rights principles

• No rights are absolute

• No hierarchy of rights

• Rights may not extend as far as claimed

• Consider context

• Look at extent of interference

• Core of right protected more than its periphery

• Respect both sets of rights

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The Policy Framework

Stage One: Recognizing competing rights claims

Stage Two: Reconciling competing rights claims

Stage Three: Making decisions

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How should we use the Policy?

1. Follow the 3 stage framework

2. Write down what you did

3. Solve the problem using the framework

4. Use your notes to defend against a human rights application if you get one

5. Assign someone responsibility for dealing with competing human rights issues

6. Have a HR policy or By-law

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STRETCH BREAK

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Case studiesDoes one person or more than one person have a human right?

If so, who has a human right and what is the protected ground?

Should the board try to accommodate?

If so, how?

Can the two rights co-exist?

What’s the best solution?

Is there an issue of undue hardship?

Does someone have a personal preference, not a human right?

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• Belinda – fifth floor – bugs – human right

• Rachel – PM – blames bugs on immigrants; will

fumigate by floor

• Rachel – enters at Belinda’s request – sees bugs,

takes photos

• Belinda complains to the board – bugs violate

human rights and interfere with her rights to use

unit; improper unit entry

Case study 4: But it’s my human right…!

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HR in context HR

Code

Other

legislation

Leases, Rules


“human

right to be

free from

bed bugs”

HR in context HR

Code

Other

legislation

Leases, Rules


“human

right to be

free from

bed bugs”

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• Billie – transgender woman

• Originally a Christian building – now more diverse

• Sybil, long term member and Christian complains –

Billie’s clothing and using the women’s washroom

makes her uncomfortable and offends their

spiritual beliefs

• Derogatory word written on bulletin board

• Sybil wants Billie evicted

Case study 5: Billie tampers with tradition

HR in context HR

Code

Other

legislation

Leases, Rules


Gender

expression

Spiritual

beliefs?

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HR in context HR

Code

Other

legislation

Leases, Rules


Gender

expression

Spiritual

beliefs?

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• Stan – recovering alcoholic – gets fired and

starts drinking again

• Large man – angry drunk

• Building full of older women, disabled or frail

• Stan nearly fell onto a frail neighbour

• Complaints

Case study 6: Stan the drinker

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HR in context HR

Code

Other

legislation

Leases, Rules


Addiction?

Age

related

frailty?

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Human Rights and

Behaviour Flowchart

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5. Resources

• Canadian Human Rights Commission www.chrc-ccdp.ca/eng

• Ontario Human Rights Commission www.ohrc.on.ca

• BC Human Rights Tribunal http://www.bchrt.bc.ca/

• Centre for Equality Rights in Accommodation

http://www.equalityrights.org/cera/

• CHF http://www.chfcanada.coop/eng/pages2007/home.asp

• Your lawyer

• Our blog www.ilercampbell.com

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http://www.chrc-ccdp.ca/eng

http://www.ohrc.on.ca/

http://www.bchrt.bc.ca/

http://www.equalityrights.org/cera/

http://www.chfcanada.coop/eng/pages2007/home.asp

http://www.ilercampbell.com/


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Quiz…

Things to take away with you:

1. Rights issues arise all the time in housing

2. Know the difference between a human right and a personal preference

3. Use available resources

4. Document, document, document…

5. Not all rights are equal but no rights will always trump other rights

6. Facts matter

7. Respect all view points

8. Act quickly to resolve issues before they become problems

9. Be creative and flexible

10. Human rights protection is a good thing!

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Hey, that’s not fair – or is it? · Introduction to human rights and housing CHF Canada...

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