April 3, 2012
RIVER CITY VINEYARD WITHDRAWS OMB HEARING
RE: Rezoning of Men's Mission
River City Vineyard (RCV) announces its decision to withdraw its pending appeal with the Ontario Municipal Board (OMB) regarding the zoning application to operate a space classified as a 'Men's Mission' within the church at 260 Mitton Street North Sarnia Ontario.
River City Vineyard will continue to offer shelter for individuals based on the designation of 'Church (place of worship)' (zoned UR1-27) because RCV believes that it is part of our act of worship and our right under Section 2 of the Canadian Charter of Rights and Freedoms.
Overview
Through accompanying documents RCV hopes to answer the following questions:
- If you believe you are a 'Church' and can offer shelter to the needy as a 'right', then why did you apply for rezoning in the first place?
- Why did you apply for an OMB hearing and then withdraw? Did RCV believe that they could not win the case?
RCV View
We believe that following three issues are at the core of our withdrawal and we want to explain each of these separately:
- RCV has the right to offer shelter as a church. In other words, we are exempt from the need to obtain a different zoning.
- RCV shelter constitutes "good planning" as far as land use and impact to the neighbourhood is concerned. We believe that we could have won the OMB petition based on "good planning?"
- The whole premise that the homeless population "is a problem waiting to happen" is discriminatory.
Summary
This document supports RCV's stand on the issue and summarises what we believe to be true.
- RCV believes that according to Section 2 of the "Canadian Charter of Rights and Freedoms" we have the religious freedom to help people, and that also includes helping them by providing shelter.
- We have identified 25 churches (24 in Ontario itself) that provide shelter under this Section of the Charter.
- We believe that according to the Ontario Human Rights Commission, people can choose where they want to live. To put it another way, people cannot choose who lives in their neighbourhood.
- River City Vineyard has a residence facility in a residential neighbourhood and any resident is allowed to live there and should not be identified as belonging to a certain "code group". Re-zoning is not required beca-use they are a certain group of people (i.e. homeless which is considered to be people zoning).
- We have identified more than 15 court cases that set precedence in our favour. We do not see the need to put the time, energy and money into yet, another court case (River City vs. The City of Sarnia.) In other words, the issue has already been dealt with in our court system.
- We believe that our shelter fits in the criteria of "good planning" and we have provided further documentation to support this.
A BRIEF BACKGROUND AND WHY WE APPLIED FOR REZONING
It has always been our belief that we have the right to exercise our sacrosanct freedom and show compassion to those in need. When we saw a need for a shelter in October 2006 we acted upon it, believing it was the right thing to do.
Within a week our actions instigated a complaint which was followed by a meeting with the Mayor, City planner, City Solicitor and others. At that meeting, we were asked to apply for a rezoning. In the spirit of cooperation and to avoid a confrontation, we complied with the request and started the process of getting the rezoning.
We really believed that people would see the value we offered at no cost to the city and that we would be granted a zoning change.
WHY WE ARE WITHDRAWING FROM THE OMB
1. Place of worship does not need to be rezoned
RCV has decided to withdraw from the appeal process after consulting with several other places of worship across Canada that has had similar experiences. We have consulted with legal parties who have acted as consultants and representatives of places of worship, when zoning conflicts have arisen in relation to services that places of worship offer to marginalized segments of the civic population.
In every case, it was determined that the place of worship did not need to be rezoned but could operate services – from soup kitchens to emergency shelters – as a part of their building designation.
Indeed, even in Sarnia the then Director of Planning and Building for the city, Michael Schnare, affirmed this in a planning report presented at a City Council Meeting on July 16, 2001.
To quote Mr. Schnare:
In addition to religious worship and the fulfilment of spiritual needs, churches have always responded to the needs of the community by offering services as the needs arose, with the support of their congregations. Municipal By-laws were therefore developed to recognize and allow many forms of church-related or church-sponsored activities that ranged from bingos, soup kitchens, food banks, community halls, drop in centres, day care centres, to emergency shelters."
He then goes on to say the following:
"We are of the opinion that as long as churches choose to be located in residential neighbourhoods, we will plan for them to be located there and will consider church sponsored activities as accessory uses to the church use."
Hence, back in 2001, the Director of Planning and Building for the City of Sarnia confirmed that a church or place of worship (such as RCV) did not need to be rezoned in order to offer shelter to those in need of it. While Mr. Schnare states "In addition to religious worship…" we would consider all the activities he lists as part of our religious worship.
Mr. Schnare confirmed what has been recognized in various civic communities across Canada. For example, Blythwood Road Baptist Church (BRBC) in Toronto faced similar pressures from neighbours and city councillors when they first opened their doors to serve the homeless 16 years ago. This church is located in a residential area, and despite objections and pressures from neighbours and City Council BRBC was able to continue offering shelter to the homeless – and still does so today – not because it applied for rezoning but because its building is designated as a 'church' or 'place of worship'.
Some churches associated with the 'Barrie Out of the Cold' Program have also faced similar challenges because they are located in residential zones, but they have all remained open and continue to offer shelter services to people experiencing homelessness because they are designated as churches or places of worship. Barrie has six different churches that shelter people at this time.[1]
There are at least 18 other churches in the Toronto area that provide shelter.[2]
When we had our first rezoning meeting (in 2006) a similar case going on in "The Beaches" area of Toronto. Our city planner at that time, Mr. Schnare, cited the case as they were interested in the outcome to use as a precedent for us. In the end, the program went ahead without counsel approval as a 'church function'. This precedent was not mentioned in future rezoning meetings with RCV because it didn't have the desired outcome the city was looking for.
The church in 'The Beaches' became the centre of controversy when the congregation under Rev. Stephen Kierkegaard decided to participate in the 'Out of the Cold' program to provide shelter to the homeless during the winter. The program takes place in various religious institutions across the city, and helps provide extra space during the winter months when remaining outside can be deadly. St. Aidan's proposed providing beds for twelve people once a week.
This sparked strenuous opposition from neighbours in the expensive Beaches area. Concerns about the homeless bringing crime and reducing property values in the neighbourhood prompted some local residents to try to get a court order to halt the program. Eventually after a meeting was held to allay concerns, and critical publicity began to decry the objections, the church announced it was going to continue anyway, the program went ahead.[3] No rezoning took place.
10th Avenue Alliance Church, in Vancouver, recently faced similar challenges from the Vancouver City Council and some of its neighbours, due to soup kitchen and shelter programs operated as a part of the church. When the City of Vancouver tried to tell this church that it needed a different zoning to run these programs, lawyers from both the Evangelical Fellowship of Canada (EFC) and the British Columbia Civil Liberties Union (BCCLU) suggested that the City of Vancouver was violating their religious rights and freedoms by making this request.
Michael Vonn, a lawyer with the BCCLU, called the City's approach "highly" and "[c]learly discriminatory." Therefore, 10th Avenue Alliance Church did not apply for rezoning but continued to offer these services as a place of worship.
In the spring of 2007 a diverse group of faith communities, including conservative and liberal protestants, Roman Catholics, Jewish groups, Muslims and Sikhs joined together to call the city government to stop the practice of requiring faith communities to seek social service permits to care for the poor.
As this issue and the faith community protests hit the media, 10th Street Alliance Church received national TV, radio and newspaper coverage.
In July 2008, after three years of arguing with the City of Vancouver, city counsellors unanimously agreed that churches do not need social service permits to serve the poor and the churches were released from the need to continue the application process.[4]
In the case of 10th Avenue Alliance, the decision made by the Supreme Court of Canada in Syndicat Northcrest v. Anselem (2004) was highlighted as particularly relevant. A quote from that decision is helpful for understanding matters related to rezoning churches:
"the State is in no position to be, nor should it become, the arbiter of religious dogma. Accordingly, the courts should avoid judicially interpreting and thus determining either explicitly or implicitly, the content of a subjective understanding of religious requirement, "obligation", precept, "commandment", custom or ritual. Secular judicial determination of theological or religious disputes, or the contentious matters of religious doctrine, unjustifiably entangle the court in the affairs of religion."
This is particularly relevant to the situation of RCV in the City of Sarnia because, by requiring RCV to have new zoning in order to offer sanctuary and shelter to people experiencing homelessness, the City of Sarnia is engaging in precisely the opposite of what the Supreme Court of Canada counsels—it is judicially interpreting and thus determining the content of RCV's understanding of its expression of worship.
Therefore, based upon precedence, RCV has decided to withdraw its appeal for rezoning and will continue to offer services to people experiencing homelessness based upon its designation as a church (place of worship).
Although having good grounds for its appeal, RCV did not want to set a precedent that would adversely impact other churches – which could happen regardless of whether or not RCV won or lost.
RCV did not want to set a precedent that would require other places of worship to treat this as a zoning matter when, in fact, it is a matter of religious rights and freedoms as those are expressed within places of worship.
We have been advised that to have any voice in an OMB hearing, we need to hire a professional planner and a lawyer. The advice we received from legal counsel was to not spend the money necessary to win the OMB and to use it instead to help the people we want to serve.
2. We have a Strong "Good Planning" Case for the OMB
The OMB is to be based on the question "Does it constitute good planning?" and we believe that we have a strong case to win. The following constitutes our arguments.
- The city approved the Good Shepherd's Lodge in Sarnia. The basis for this approval was mostly because the Inn of the Good Shepherd was the one asking.
- he Inn of the Good Shepherd purchased that property because they were looking for a building that they could renovate. They were approached by a real estate agent about the old Shriner's building on Confederation streeet that the real estate company had purchased. Once the Inn got into the design phase, they realized that it was more economical to build a new facility than renovate the old structure. The location of the site was not based on "good planning" for the ones requiring the services but on a mistake they made buying a used structure. They asked the city for a rezoning application and were granted one.
- This all happened after we had started our shelter and had met some opposition with a few neighbours.
From a "good planning" point of view, the premise of OMB makes sense only if you are a taxpaying citizen who has never needed the use of a shelter. The main thought echoed is: "Get them away from good taxpaying citizens who may negatively impact their neighbourhood."
From the perspective of the homeless person, it does not constitute 'good planning' as the shelter is not close to the other services they require like a meal at the Inn of the Good Shepherd on John St., the hospital, the addictions unit and all the shared services. To get there a bus pass is required. While we realize that the Inn will provide free bus passes to all their clients, they may not have one to get to the Good Shepherd's Lodge in the first place. Also, bus passes are a currency that can be used for non-bus activities like obtaining a cigarette, so handing out bus passes does not really solve the problem; it only makes 'bad planning' more acceptable.
RCV's rezoning is also very close in nature to the rezoning application of the Inn of the Good Shepherd on John Street. The John Street neighbourhood opposed the rezoning application and the City approved the rezoning application anyway. The opposition group took it to the OMB and lost their appeal.
Both rezoning applications are similar: religious facilities in a residential neighbourhood helping the poor. The only difference we see is that RCV is a church helping the poor and the Inn was using a church building and is not a church therefore needed the zoning change. But the point remains; the city would approve activities of helping the poor in a church building in a residential neighbourhood in one area but not in another. We consider that inconsistent.
'Good planning' would approve both of them or neither of them. The clients that RCV helps also go to the Inn of Good Shepherd for meals; in other words, so we both often serve the same clientele. The fact that we shelter people overnight instead of just during a meal makes no difference as the main argument against both of us seems to be attracting certain people groups into the neighbourhood.
The argument that "It has been determined that all of the emergency shelter needs of RCV's homeless population can be met by the new Inn of the Good Shepherd Lodge" is not a valuable argument to deny us rezoning. The fact that we consistently have had clients, even after Inn of the Good Shepherd's Lodge opened, proves that there still is a need.
The police still continue to use us a resource. Approving of a second shelter, even if the first one is not full, does not constitute bad planning. The truth is that no one agency can meet all the needs of the spectrum of people experiencing homelessness. Also, when a local coffee shop is being proposed, there never is a consideration on how many coffee shops there are in our town and if we really need another one, or not.
The question regarding "Quality of care offered by the program at RCV" is irrelevant and is certainly not a zoning issue.
Our Experience and Expert Views
Additionally we have decided to drop the OMB application based on our experience thus far. We started out with the rezoning application in the spirit of cooperation because the City asked us. We honestly believed the process would be fair. What we found out is that we were denied on the basis of allegations of causing problems to the neighbours none of which could be substantiated.
While we have been more than cooperative, we have not found the city's planning reports to be based on fact.
Originally we were told that an OMB was strictly based on 'Good planning' and all the other emotional matters would not be considered. So our course of action was that if we did lose the OMB, we would take our case to the courts based on human rights.
In our conversation with Jacquelin Pegg, Inquiry Analyst, Public Interest Inquiries, Ontario Human Rights Commission [180 Dundas Street West, Suite 800 ,Toronto, ON CANADA] she stated the following:
It is important that you know that they (OMB), like other Boards and Tribunals, are obligated to address human rights issues brought before them, and have done so in the past. In this case, you should set out what you believe the human rights concerns are.
We also spoke to the Director of Advocacy and Legal Services Advocacy Centre for Tenants, Ontario who states:
I am not sure that the City Council (or the neighbours) were addressing the right questions. There seems to be undue emphasis on the availability of beds at the Good Shepherd's Lodge and on anecdotal evidence about the behaviour of people who may or may not have been staying at the RCV shelter. I think there should have been more emphasis on the City's and the Province's planning documents.
There is a lot to think about here and I would be glad to give you whatever help I can.
I am attaching the decision of the Ontario Municipal Board in the case that we took there. It raises some similar issues to your case. We were very pleased with the way the OMB dealt with the issues and Kitchener ended up repealing the by-laws rather than come back to the OMB to justify them.
The decision he is referring to is the appeal concerning the right of the City to restrict any further development in the Cedar Hill neighbourhood. The appeal was against Official Plan Amendment 58 ("OPA 58"), and Zoning By-law Amendment 2005-91 of the City of Kitchener, Jan 2010
Based on the Ontario Human Rights Guide, we see a number of areas where discrimination has affected our rezoning application.
3. We are Opposed to Discrimination and People Zoning
Also central to our decision to refuse permanent rezoning for a Men's Mission, it is a case of "people zoning".
"People zoning", according to the OMB, is defined as zoning "which depends on personal characteristics of occupants of land to explain restrictions governing adjacent land uses" (cf. Grace Villa Nursing Home Ltd. V Regional Municipality of Hamilton-Wentwork, O.M.B.D. No. 112, 1992; see also the 2010 OMB decision, Advocacy Centre for Tenants Ontario v Kitchener (City)).
This practice is condemned by the Supreme Court of Canada (cf. R. v Bell [1979]) and by the Ontario Human Rights Commission (OHRC) which states "that zoning by-laws should be deemed invalid if their purpose is to regulate the user, as opposed to the use of the land" (cf. p4 of this report prepared by the General Manager, Planning & Economic Development Dept. for the City of Hamilton – http://www.hamilton.ca/NR/rdonlyres/CB8BA799-A8AC-422A-9BF8-A1BB95668D9C/0/www.ohrc.on.ca – accessed 12/Fec/20).
It is also a practice condemned by the City Planners for Sarnia who stated, in their report to City Council on October 24, 2011, regarding RCV:
It is important to note that preventing homeless people from location in this building through the use of zoning simply because they are homeless or exhibit certain characteristics is referred to as "people zoning" and this practice was made illegal by the Supreme Court of Canada.
However, once the objections about rise in crime rates and drop in property value are recognized as fallacious or unsubstantiated then any further use of zoning by-laws in order to prevent a 'Men's Mission' from existing at RCV would fall into the practice of people zoning.
The city states that there can be a women's shelter in Urban Residential classification 1-5 zones but a men's shelter is not allowed. That is discrimination against sex and an example of people zoning.
Furthermore, it would also violate previous court decisions which state that neighbourhoods are required to accommodate diversity and difference (cf., for example, Regina v Kuepfer et al. Ontario Court of Justice [Provisional Division] Provincial Offences Court. Startford, April 26, 1996). For, as the OHRC has stated in its comments regarding Ontario's 2005 Policy on Human Rights and Rental Housing, housing is a human right and a person's right to housing includes "the ability to live in the community of their choice without discrimination," which means that people "do not have the right to choose their neighbours" (cf. http://www.ohrc.on.ca/en/resources/submissions/ppsreview – accessed 12/Feb/20).
NIMBYism is a human rights issue. The following exerts are taken from the latest Ontario Human Rights Guide called "The Zone" and specifically from the page titled Overcoming opposition to Affordable Housing [5]
NIMBYism - a human rights issue
When affordable housing is being considered, there is almost always some opposition. Some of it may be legitimate (such as wanting to build a high-rise apartment building on a street with only single detached housing) - but other opposition has the potential to leave municipalities vulnerable to human rights complaints.
Discriminatory opposition to affordable housing for groups protected under the Code is a prime example of the "Not in My Backyard" syndrome or "NIMBYism." It happens when people hold negative attitudes or stereotypes about the people who live in affordable housing or use emergency shelters. This is often directly related to one or more Code grounds. This kind of opposition can be hidden in planning terms, and can be expressed in many ways, sometimes based on exaggerated concerns about changes to the neighbourhood, impact on traffic or about the building form.
NIMBYism often arises as a response to a local development. As well, it can be seen from "single issue" groups that are opposed to affordable housing.
Opposition to housing projects based on stereotypes or prejudice towards the people who will live in them can be a violation of people's rights to be free from discrimination in housing – which means it can be against the law.
The bottom line is that people do not have the right to choose their neighbours.
Some examples of discriminatory practices could include:
- requiring affordable or supportive housing providers to adopt restrictions or design compromises that are not applied to other similar housing structures in the area, such as:
- requiring fences or walls around the property to separate it from other neighbourhood homes because of the intended residents
- putting arbitrary caps on the numbers of residents allowed by project, ward or municipality
- requiring extra public meetings, lengthy approval processes, or development moratoria because the intended residents of a proposed housing project are people from Code-identified groups
- making discriminatory comments or conduct towards the intended residents of a housing project at public planning meetings or in published or displayed notices, signs, flyers, pamphlets or posters
- enacting zoning bylaws that restrict affordable housing development that serves people identified by Code grounds (e.g. group homes) in certain areas while allowing other housing of a similar scale.
Zone supportive housing as residential
Affordable, supportive and group housing – with or without support workers – are still residential uses. The OHRC does not support zoning such living accommodations as businesses or services, because these zoning categories can subject the people who live in the housing to higher levels of scrutiny and expectations than do other forms of residential housing.
(End of excerpts taken from "The Zone")
While this next case has more to do with people with disabilities, we believe that the same ruling applies to our case:
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.
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.
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.
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.
Court cases that support our Legitimacy
Here is a list of pertinent court cases that we believe apply to the legitimacy of River City' fight for justice take from Legal Opinion on Restrictive Zoning Provisions applying to Residences for Adults with Intellectual Disabilities[6]
Court cases:
1. 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.
2. 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 neighbourhood. 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.
3. 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.
4. 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:
5.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.
6. 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.
7. 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.
8. 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.
9. 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.
10. 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.
11. 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.
12. 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.
13. 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 neighbourhood, 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.
14. 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.
15. 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.
Conclusion
We are going to do what we believe is the right thing to do; to help people in need. We saw a need to provide shelter in November 2006 and that need is still there. It is our heart to work towards a harmonious relationship with all parties including the city, every neighbour and the other professional agencies we work with.
References
- http://www.barrieoutofthecold.org/about_us.php
- http://www.ootc.ca/2007_2008_Site_Schedule.pdf
- http://en.wikipedia.org/wiki/Church_of_St._Aidan_(Toronto)
- http://cmalliance.ca/reachingoutp2018.php
- http://www.ohrc.on.ca/en/resources/Guides/inthezone?page=inthezone-Overcomi.html#Heading95
- http://www.tayside.ca/news/?p=56
