Equity and human rights are critical components of land use planning, according to a precedent-setting decision by the Ontario Municipal Board in January of 2010 that struck down restrictive Kitchener by-laws. Municipalities are legally bound by the Ontario Human Rights Code and the Canadian Charter of Rights and Freedoms when they make planning and zoning decisions, ruled the board. The Ontario Human Rights Commission, which intervened in the Kitchener case, has noted that “adequate and affordable housing is a human rights issue” and has warned in recent reports that discriminatory municipal planning rules can violate the provincial human rights code. Housing advocates have long argued that municipal restrictions that limit, or ban entirely, certain types of housing and services from certain neighbourhoods can amount to unfair discrimination and a violation of human rights laws. With its recent decision, the Ontario Municipal Board has ruled for the first time that municipalities must carefully consider their housing and human rights obligations before passing planning and zoning bylaws. In its ruling, the OMB (which is a provincial legal tribunal that hears planning appeals) has ordered the City of Kitchener to go back to the drawing board with its planning and zoning rules that sought to limit the ‘concentration’ of social and supportive housing and services for people who are homeless, or people with physical or mental health disabilities in the Cedar Hill neighbourhood of that city.
The decision itself is complex, and runs for 49 pages. The OMB, through its legal decisions, sets the basic rules that guide municipalities in their planning and zoning practices. In the Kitchener decision, the board says that “decentralizing institutions and fostering a neighbourhood mix” are legitimate planning goals. But it warns that before municipalities adopt restrictive measures, they have to consider the equity and rights obligations imposed by the Ontario Human Rights Code and the Canadian Charter of Rights and Freedoms.