Alberta’s Bill 23, the Alberta Human Rights Amendment Act of 2017, was introduced with a stated purpose to enhance protections of children in housing and bring children’s rights in alignment with the Canadian Charter of Rights and Freedoms. We compared Alberta and Ontario’s relevant legislation regarding housing rights for children, in order to see whether or not the bill was successful in living up to Canada’s Charter Equality Rights protections, established in 1985.

Legislative protections for children in housing in Alberta did improve in 2017 with Bill 23 in several areas. The legislation also left children lacking in protections that are required under the Canadian Charter of Rights and Freedoms, like protections for age and family status, which were explicitly exempted in existing condos, coop housing and mobile home sites until 2032. In some important ways, this represents a step backwards.

In Ontario, the legislation that protected children in housing came into effect in December 1986. Once the legislative bill received royal assent, it was law. In Alberta, Bill 23 was passed and then allowed new developments to continue to register discriminatory bylaws for six weeks until the law took effect on January 1st of 2018.

In Ontario in 1981, (a time when there was no Charter in Canada), the province already had protection for children in housing, except where units shared a common main entrance. This would mean that multi-unit apartment housing, with shared hallways, could remain ‘adults-only’; however, townhouses or duplexes with upstairs and downstairs using separate entrances would have already effectively had family status protections.

Though the Charter was signed in April 1982, the Equality Rights only came into effect in April 1985. The next time that the human rights legislation in Ontario was reviewed, a comprehensive set of changes occurred. It was determined that discriminating against children was discrimination against family status and could not be justified, thus in 1986, the exemption for shared entrances was eliminated.

Subsection 14 - Equality Rights Statute Law

Alberta, in contrast, remained in a state of non-compliance with protection for age in housing until 2018, despite this being a ground specifically mentioned in the Equality Rights of the Charter of Rights and Freedoms of Canada.

But, all of this changed in 2018, right? Or did it not? Alberta did legislate protections in rental housing.  However, Alberta also decided it would continue to remain in non-compliance with age and family status protections in condos, cooperatives and mobile home site tenancies for another 15 years.

In Ontario, the condo lobby had tried to get an exemption for condos.  Nevertheless, the government held fast to protections for children. That in a Liberal minority government, where the Progressive Conservatives, with a plurality of seats, wanted an exemption for condos.  Yet the Liberal minority, backed by the NDP, remained firm in saying ‘No.’

Attorney general quote - pp 66-67

One quote of note (pp. 65-66) from the attorney general of the time, the Hon. Ian Scott, made clear how he believed that the notion — of ascribing one kind of title to one form of building and a different kind of title to another form of building — would fly in the face of the Charter:

There is another danger that is even more important. I have it from persons who study these things that if an exception is made for condominium owners, distinguishing them from tenants, an attack can be made on the adults-only section based on section 15 of the Charter, which is designed to advance equality rights. Under section 15 of the Charter, the Legislature of Ontario would then be discriminating between those who rent and those who buy under the Condominium Act, allowing one kind of title to one and another kind to another. That discrimination would have to be justified under section 1 of the Charter for there to be a distinction in a free and democratic society between a policy of allowing children in one kind of building and not in another. [Source]

In Alberta, a majority NDP government allowed the condo lobby’s request to exempt condos for 15 years, so as to grandfather in any age-discriminatory policy in place as of December 31, 2017. This was separate and apart from any provision for seniors-only housing. Months prior to the introduction of the bill, when asked about why discriminatory policies could be allowed to continue, one condo lobby representative suggested that they were going to try to ask for everything they could, likely with the notion that by asking for as much as they could, they might hold onto seniors only housing which they desired most, claiming that was the great majority of adult only housing. Unfortunately for children and their caregivers in Alberta, the Government of Alberta accommodated the 15-year extension.

The impetus for amending human rights legislation in Ontario was a major revamping of legislation, given that the Charter was newly in effect, at the time. As the Charter’s Equality Rights took effect in 1985, it was presumably the first major overhaul of human rights laws, if not the first amendment of any kind to human rights laws, subsequent to the Equality Rights taking effect. Age protection and family status protection was introduced as part of a much more comprehensive set of laws.

Whereas in Alberta, the impetus was a court ruling. The Province of Alberta was ordered to add protection for age to its human rights laws. Given that the area of focus was age, and not everything, as with Ontario, the complexity involved would be much more limited. Yet, while some protection for age was introduced, there were gaping holes in the laws, with the biggest gap being a 15-year continued non-adherence to family status protections.

Another area of comparison is the rapidity of the change. In the case of Ontario, the human rights legislation was amended early on in the government’s mandate. Often enough, important things within a government’s agenda might be done early in a government’s mandate, while things to entice voters might be done near the end of a term, as the next election approaches. Hence, the first few bills and the last few bills in a government’s mandate might be most memorable. For Ontario, a look at human rights legislation was being considered by the short-lived Progressive Conservative government, before it collapsed. However, upon the Liberal minority assuming the reins, the move towards amending the human rights laws proceeded — and became law within about six months of the Liberal minority taking hold.

In Alberta, the time frame for Bill 23 was mid-way through the NDP government’s term. The government was given one year from the time of a court decision, and it took almost the full year for the protection to take effect. Moreover, in the case of condos, cooperatives and condominiums, the government extended itself another 15 years to achieve full compliance with the Charter. It is concerning that a judge can give a deadline to a government for compliance, and then a provincial government can pick and choose who gets Charter-mandated protections and who doesn’t get Charter-mandated protection for a period of 15 years.

In Ontario, the government defended the protection that was introduced. There were major human rights inquiries and those inquiries upheld the protection involved. The first major precedent-setting pair of inquiries in Ontario involved condos. Moreover, a subsequent court decision upheld the protection for family status in condos. When contrasting rental housing and condos, condo owners could incur far greater financial losses if they were forced out of their homes, and hence, may have been more willing to fight in a human rights inquiry sort of a situation than renters of non-condo-based apartment housing.

Though protection may exist for non-condo-based rental housing, some renters may feel awkward stepping up to issue complaints, though they may well be in the right to do so.

Furthermore, the Government of Alberta did not produce an educational campaign to better instruct renters of their right to not be discriminated against in rental buildings. It would have been nice to let renters in Alberta know that they are now allowed to keep their reproductive freedoms and the roof over their heads post January 1, 2018. Though, in doing so, this might have inadvertently drawn attention to the fact that those protections still don’t exist in condos. That is, the Government of Alberta might not want to let renters know that they have Charter-mandated protection, as doing so could tip off those in condos, cooperatives and mobile home sites that they still lack Charter-mandated protection.

Such a campaign would likely expose the presence of family status rights, prior to Bill 23, even if no one ever challenged the discriminatory laws. Ironically, post-Bill 23, discriminated parties in Alberta condos may no longer be protected by family status protection as this ground was explicitly excluded from condos, cooperatives and mobile home site tenancies for the 15 years. Moreover, these forms of hosuing would be able to discriminate based on both age and family status. (In essence, a ‘two-for-one’ on discrimination capabilities.)  Sadly there was mention, in writing, of protection for family status in the Alberta Human Rights Act prior to Bill 23, and that family status protection in the Act, prior to Bill 23, did NOT include an exemption for condos, cooperatives and mobile home site tenancies — See Section 4 .)

Let it be noted again:  In 2017, the Alberta NDP government weakened the protections for family status, under Section 4 of the AHRA, so as to facilitate discrimination based on family status.  (Limiting this to those condos, cooperatives and mobile home site tenancies that had discriminatory policies in place as of Jan 1, 2018, but nevertheless, providing a means to engage in such discrimination by weakening family status protection, as it had existed on paper before the government’s introduction of Bill 23.)

Given that the Charter’s Equality Rights took effect on April 17, 1985 and Ontario’s passage of its legislation took effect in December 1986, the total time from the introduction of the Equality Rights of the Charter of Rights and Freedoms and the corresponding provincially legislated protections was less than two years. By contrast, in Alberta, thousands of properties will discriminate based on age and family status until the end of 2032, thus representing some 47 years from the time that the Charter’s Equality Rights were set to take effect. Is this merely a matter of Alberta thumbing its nose at the Charter as long as it can?

If Alberta so detested protecting reproductive freedoms that it was willing to engage the notwithstanding clause, then the notwithstanding clause would have been an option available to the government. Nevertheless, if a government goes as far as invoking the notwithstanding clause, a government can only do so for a period of five years. After five years, if a Charter-busting rule is to remain in effect, then the government of the day would either need to allow the the non-compliant rule to lapse or the government would have to actively invoke the notwithstanding clause yet again.  (Given a five-year maximum period, this would suggest a very real possibility that a new government could be in power, as opposed to the government that had originally invoked the notwithstanding clause.)  Yet, with the backdoor approach used by the Government of Alberta, this province has successfully managed three times the duration of time specified by the five-year threshold of the notwithstanding clause.

Since the change in Alberta’s government in 2019, the new Alberta government is keen to boast how wonderful Alberta’s human rights record is, when compared to other countries. Regardless of how Alberta stacks up against other developing countries on human rights violators, the situation regarding permissible ‘adults-only’ housing shows that Alberta still has much ground to cover. Of all the jurisdictions in North America, there are just two jurisdictions that allow discriminating against children in non-seniors-based housing, with both of these in Canada. (BC is the other jurisdiction in North America that permits discrimination against children via ‘adults-only’ condos.)  Disregarding the fundamental Equality Rights of our Charter, in order to marginalize children, is not acceptable in 2019, nor is it at all responsible or acceptable to continue to do so through 2032. When it comes to supporting children and their families and the ability for families to be protected from discriminatory anti-child barriers via properly-written and enforced human rights laws, the evidence could not be clearer: Our government really does need to clean up its act.

What do you think? Do you believe that the Government of Alberta can pick and choose which Charter Equality Rights it wants to honour, and in which situations, and when it can thumb its nose at those rights? As always, please feel free to reach out to us by email at anytime.

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