Everyone should fear The Ontario Human Rights Commission (OHRC) which has enormous power. Sometimes, in our small corner of Eastern Ontario, we are slow to pick up on issues of discrimination against prohibited classes. The following examples of council’s brushes with the OHRC are included, not to criticize or embarrass but to illustrate the importance of remaining alert to the human rights issues which these days seem to confront public officials at every turn.
1. Group Homes:
In 2011-2013, some of our council members had an unwelcome encounter with the OHRC which must have been an eye-opener. The OHRC application followed an attempt by council to stop a group home at 78 Beverly St., operated by Brian Henley and Kendra Henley (aka Kendra O’Bryan Henley and Kendra Ann O’Bryan). The group home, called Abbey Dawn Place, for developmentally challenged adults, was not welcome by all neighbours in the quiet residential area of Town.
Council received legal advice and input from the owner and the neighbours in an open session of October 11, 2011 which is recorded in the minutes. The Town lawyer made the Town’s legal position clear. But council decided to go its own way. Councillor, Marg Isbester (now deputy mayor), left the room and took no part in the discussion.
Minutes of Council, October 11, 2011 read as follows:
Councillor lsbester left the room.
Tim Wilkin. Cunninnham Swan – Legal Opinion (Group Home)- 78 Beverly St. Tim Wilkin, solicitor for Cunningham Swan, gave council an overview of the reason for his opinion in this matter. In essence, Kendra O’Bryan had put in an application to be licensed and funded by the Homes for Special Care Act which is administered by Providence Continuing Care. The purpose of the license was to provide a program for enhanced care for people with mental disabilities. There is a rigorous licensing process under the Act with continuous monitoring and supervision by Providence staff. If the home falls below their standards the license can be revoked. Currently 78 Beverly Street is zoned R3 which permits a group home. Mr. Wilkin’s opinion was thus does the proposed use meet the definition and comply with the zoning by-law.
Mr. Wilkin’s opinion was that the group home definition in the zoning by-law was outdated and contrary to the Provincial Policy Statement and arguably the Charter. Mr. Wilkin gave further opinion with regard to the definition and that it discriminates against persons with disabilities and thus is likely unenforceable. The general movement is towards greater tolerance in society and courts interpret municipal bylaws with a fair, large and liberal interpretation. The Provincial Policy Statement states that the municipality must plan and meet the needs of persons with disabilities. Group homes should be allowed in all residential zones and persons with disabilities should be treated equally and fairly. Any attempt to prosecute Ms. O’Bryan was seen by Mr. Wilkin as unsuccessful.
Members of the public in attendance were given an opportunity to speak on this matter. In response to many of the inquiries Mr. Wilkin advised that the group home operator must still comply with other municipal by-laws and that the activities related to the group home would be reviewed by Providence Continuing Care as part of their ongoing supervision and monitoring of a licensed group home.
[There were several questions from the public.]
At that point the audience got unruly and Mayor Schermerhorn called off discussion.
Mr. Wilkin provided council with their options: 1. Do nothing, which is consistent with his opinion that the use conforms to the zoning by-law; 2. Do nothing, which leaves it open for individuals to challenge the operator for a violation of the zoning by-law, which would likely not be successful; 3. Remove group homes as a permitted use, which would likely not be successful if challenged. The current zoning by-law limits the number of group homes within the former municipalities but this is not a problem in this case. Mr. Wilkin advised that there is no time limit on giving the zoning compliance letter. The benefit is that once the group home is licensed then it will be supervised by Providence Continuing Care.
Councillor Lucas stated that he had a problem with the process. The number of people in the home is a problem and he questioned what is below the standards? Mr. Wilkin advised what is required for the home to be licensed and that Providence Continuing Care says it meets their standards. More funding is provided if every resident has a separate bedroom. The application was for seven residents. Mr. Wilkin also advised in response to a question that Providence Continuing Care had been invited to the meeting but declined.
Deputy Mayor Cole had an issue with the province overriding the use of housing as dictated by the municipality. Mayor Schermerhorn agreed that if he was living in the area he would be upset too and that it was the wrong spot for a group home. Council thought it would be prudent to hold off issuing the zoning compliance letter for three weeks in order to allow people time to express their concerns to the licensing agency.
Councillor lsbester returned to the room.
The Group home owner then filed a complaint to the Ontario Human Rights Commission (OHRC):
- Toronto Star August 7, 2012
- Kingston Whig Standard August 8, 2012
- Napanee Beaver August 16, 2012
- Napanee Beaver August 30, 2012
- A facebook Group “Help Save Abbey Dawn” was set up which generated a lot of noise but shed very little light on the issues involved.
Eventually, a mediation was held at the Ontario Human Rights Commission and the matter was settled:
What did this trip to the OHRC cost us? There are various rumors but we will never know for sure. After the October 11, 2011 meeting, all subsequent council meetings were conducted in secret and all parties signed a confidentiality agreement at the OHRC, and no one is talking. Was the payout funded by the Town’s insurance company as is rumored?
2. Methadone Clinics:
No, you can’t discriminate against methadone clinics either. Their patients are also a protected class, just like the occupants of group homes. And you can’t use a re-zoning by-law to stop somebody after you give them a building permit. Too bad nobody told council this before they ordered a planning study, and (eventually) a legal opinion.
At the council meeting on December 16, 2014, a concerned citizen complained about a new methadone clinic being opened next door. The CAO suggested an interim control by-law to stop the methadone clinic and a legal opinion was provided in closed session. After the closed session council voted to take no further action.
Then on the Council Meeting on January 13, 2015, after hearing a deputation from a different concerned citizen, council decided to reconsider the issue. Council authorized staff to bring forward an interim control by-law for the purpose of obtaining further information through the initiation of a land use study to determine the appropriate land use policies and regulations for methadone clinics within the Town and schedule a Special Session of Council to address the matter. All of this was done without asking for input from the doctors running the clinic or their landlord. And, apparently, no one knew that a building permit had already been issued to the clinic 6 months earlier.
In the week that followed, the Town planning consultant, John Uliana, prepared a 4 page planning report and a 4-page draft by-law to stop all new methadone clinics.
Then, apparently on the day before the special council meeting, someone somewhere realized that: (1) a building permit had been issued six months earlier, and (2) any attempt to stop methadone clinics might be a violation of the Ontario Human Rights Act.
The Special Meeting proceeded on January 20, 2015. The Town’s lawyer was there in person as was the planner, John Uliana, and several concerned citizens. The doctors running the clinic and their landlords still had not been notified formally of the meeting to determine their fate. Council decided to do nothing. In fact, there was nothing they could do. The minutes read as follows:
CLOSED SESSION RESOLUTION #32/15: Schenk & Harvey That Council resolve itself into closed session in order to discuss legal advice subject to solicitor-client privilege. CARRIED.
RESOLUTION #33/15: Isbester & Cole That Council rise and report from closed session; and further that all recommendations made within closed session be hereby adopted. CARRIED.
ITEMS FOR DISCUSSION (BEGIN AT 7:00 P.M.) Planning Report – Interim Control By-law for Methadone Clinics Mayor Schermerhorn reviewed the timeline relating to a building permit issued on June 17, 2014 by the Town for a medical clinic at 445 Centre Street North.
John Uliana, Town’s Planning Consultant advised that a medical clinic, which includes a methadone clinic, is a permitted use in the C2 (Arterial Commercial), C3 (General Commercial) and CF (Community Facility) zones. The building permit was issued in accordance with the permitted use under current zoning, and as a result, if Council were to pass an interim control by-law for a land use study of methadone clinics at this meeting, it would not apply to the clinic at the site of 445 Centre Street North or any existing clinic.
Deputy Mayor Isbester advised that that her support for an interim control by-law was to obtain more information regarding the operation of methadone clinics with respect to land use.
Mr. Uliana advised that it would be difficult to determine the public need for such clinics, and whether a methadone clinic would have any different impacts on land use than other medical clinics. In response to a question from Councillor Lucas, Mr. Uliana advised that definitions within the comprehensive zoning by-law can be further refined if warranted through analysis, but there must be a balance between specificity and generality of definitions. In response to a question from Mayor Schermerhorn, Mr. Uliana advised that studying the location of methadone clinics could be done as part of the 5 year review of the comprehensive zoning by-law, which is scheduled for 2015.
Councillor Harvey noted that Health Canada recommends that operators of methadone clinics pre-consult with the public regarding proposed operations. Mayor Schermerhorn asked if any members of the public wished to comment or ask questions regarding the issue.
[Several public comments were expressed.]
In response to a question from the Mayor Schermerhorn, Mr. Uliana advised that at the time of the building permit application, the Town could ask for the nature of the medical clinic at staff’s discretion. Mr. Uliana advised that building permits are issued through the Chief Building Official as legislated and are not required to come before Council if the use is permitted and it meets all applicable law, including zoning.
RESOLUTION #34/15: Isbester & Schenk That Council receive for information the Planning Report dated January 1 6, 2015 from John Uliana, IBI Group -Town Planning Consultant regarding an interim control by-law for methadone clinics. CARRIED.
BY-LAWS By-law No. 2015-0006 -A by-law to prohibit the use of land, buildings and structures within certain areas of the Town of Greater Napanee for purposes of methadone clinics and methadone dispensaries Mayor Schermerhorn called for a mover and seconder to approve the by-law. There was no mover or seconder for the by-law.
What did the special meeting plus the legal and planning consultations cost? We’ll never know.
If you have to choose between The Lord’s Prayer and another trip to the OHRC what should you do?
In 2009, the Ontario Court of Appeal in Freitag v Penetanguishene held that saying The Lord’s Prayer at the opening of council was illegal and contravened the Charter of Rights and Freedoms. It ordered the Town of Penetanguishene to stop the practice and to pay the complainant’s costs. A few municipalities in Ontario, including ours continued this practice. And some of them were sued. See Peterborough Woman Sues City.
In Napanee, the praying continued and anyone who wished was given a chance to leave the room while the Lord’s Prayer was said. This continued until April 2015 and, fortunately, no one challenged us on this.
On April 15, 2015, The Supreme Court of Canada ruled that the use of the Lord’s Prayer at the opening of Council meetings is a contravention of the Quebec Human Rights Act. In Simoneau v Saguenay the complainant was a non-believer and the decision of the Human Rights Tribunal ordering the municipality to pay him $30,000 was upheld.
After that, Napanee council, reluctantly, stopped saying the Lord’s Prayer.
The lesson? Councillors and municipal officials need to know the limits of the municipality’s legal authority and respect those limits. They need to be aware of Human Rights issues which often lurk in the background. And they need to know when to get legal advice.