The catch-22 of group home bylaws

Bert Gockel wants nothing more than to live quietly in the tranquil rural community of Springfield, Man. But the community won’t let him. He’s not an axe-murderer or a pedophile, though some would say he’s being treated like one. He is being excluded from Springfield because he is an intellectually disabled person who needs special care. New Directions, a Winnipeg-based social service agency, is seeking to house him and one or two other people with similar disabilities in a “shift-staffed home” where they will receive the 24-hour care they need to carry on their everyday lives.
But local residents don’t want them in their neighbourhood and the local council is denying the agency planning permission. The agency has responded by taking the municipality to court, claiming before The Court of Queen’s Bench that the local zoning bylaw, or the way that the municipality is interpreting it, has “a discriminatory impact on persons with disabilities” and is inconsistent with the Charter of Rights.

It’s discriminatory because the only thing that distinguishes Gockel and his would-be housemates from any other residents of single-family homes is their needs as disabled people, says Shereese Qually, an associate at Taylor McCaffrey LLP in Winnipeg, who represents New Directions. A shift-staffed home is “the only way they can live in the community, the only way that provides for substantive equality,” she says. “The community should have resources like this because every community has disabled people. The fact that they don’t encourage this is shocking to me.”

Claims that municipal zoning bylaws discriminate against disabled people and other vulnerable groups have also become prevalent particularly in Ontario, where a case currently before the province’s Human Rights Tribunal could well result in almost every municipality in the country finding that it needs to rewrite its planning regulations.

In the first such case to come before a human rights tribunal, the Dream Team, a group that advocates for supportive housing, is claiming that provisions in a number of City of Toronto zoning bylaws discriminate against people with disabilities by imposing minimum separation distance standards for the development and location of group homes, residential care facilities, and other types of supportive housing.

Numerous municipalities across Canada use separation provisions as a way of limiting the number of group homes and other such facilities in each neighbourhood. Municipal politicians and staff are often put under pressure by citizens concerned about decreased property values, increased traffic, or new neighbours whom they consider undesirable. Accepted planning principles, reinforced by various court rulings, require that zoning bylaws focus on land use issues and not the people who may live on the property. Requiring that group homes be located a certain distance apart, therefore, provides an apparently technical solution to a politically charged issue.

Many municipal planners view these regulations as a way of preserving the integrity of neighbourhoods by ensuring there is not a concentration of one single type of use. In Kitchener, Ont., for example, a separation bylaw was enacted to arrest what was seen as the decline of a downtown neighbourhood where there was a concentration of multiple dwellings with absentee landlords, assisted and supportive housing, and residential care facilities, together with problems relating to drugs and prostitution, according to Kim Mullin, a partner with WeirFoulds LLP who acted for the City of Kitchener at an Ontario Municipal Board hearing challenging the separation bylaw on the basis it was discriminatory.

In this case, the OMB issued an interim order in 2010 instructing the municipality to analyze its bylaws in light of the Human Rights Code and the Charter of Rights. The board stated: “That analysis is glib, if it merely assumes that telling persons with disabilities and/or on public assistance to ‘just go elsewhere’ is no encroachment on human rights, or that it was just a small one, or that it was for ‘a greater good.’” Qually says circumstances in the neighbourhood subsequently changed and the municipality decided there was no longer a need for the restrictive planning regulations.

Advocates for supportive housing argue that such bylaws are discriminatory in several ways. To begin with, there is the fact that various groups of people — the intellectually disabled being a prime example — cannot live in the community without support from caregivers. Qually points out that people who are already living in a private home when they become afflicted with disability may employ as much round-the-clock care as they need without the municipality or anyone else having any grounds to interfere. So what is the difference, she asks, between this situation and a group home or a shift-staffed home that complies in every other way with planning regulations?

Then there is the claim that bylaws limiting group homes and other such facilities severely limit the opportunity of disabled people to find appropriate accommodation because they need to be in neighborhoods where they have convenient access to public transit and other services. There are also numerous situations where a suitable property becomes available or is donated to a supportive housing agency, but it cannot be used because there happens to be another group home within the minimum separation distance specified by the bylaw.

Furthermore, such bylaws reinforce stereotypes, make a very negative statement about disabled people and empower those with a not-in-my-backyard mentality that is often vented in hostile and pejorative ways at public meetings where disabled people are present, according to Kathy Laird, executive director of the Human Rights Legal Support Centre, which assists people making claims before Ontario’s Human Rights Tribunal.

Laird says groups representing disabled people in four Ontario municipalities have filed applications before the Human Rights Tribunal regarding discriminatory planning regulations. In two of these cases, the issues may have been resolved without a hearing. The Town of Smiths Falls in eastern Ontario has agreed to amend a bylaw provision that currently puts a cap on the total number of “mentally retarded” people who can be accommodated in group homes within the community. And in Sarnia, Ont., where city council has enacted new bylaws to remove barriers for those requiring supportive housing, Mayor Mike Bradley issued this statement: “Arbitrary restrictions on group homes are discriminatory and have nothing to do with planning and everything to do with negative stereotypes about disabled people. I would like to see the government prescribe regulations to supersede all such bylaws across Ontario.”

The Toronto case cleared its first hurdle earlier this year when the tribunal ruled that it does have jurisdiction to consider the matter. However, the City of Toronto has since filed an application for a judicial review before Ontario’s Divisional Court. Laird says a key issue in this review will be the city’s claim that the eight individuals on whose behalf the Dream Team has launched the complaint did not directly suffer any discrimination, as they were not denied a spot in a group home as a result of the city’s bylaw. As she explains it, this is a catch-22-type argument, since a group home could not be established without planning approval and no one could be denied a place in a non-existent facility. City representatives declined a request for an interview.

Mullin says a fundamental issue to be determined in this and other similar cases is whether human rights concerns can trump planning regulations or vice versa. It’s an issue that will, she says, eventually have to be decided by the courts.

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