Affordable Housing and Condos: ‘Single-Family Rule’ Requires a Rethink

As opportunities to secure an affordable home in the Greater Toronto Area (“GTA”) become increasingly sparse, the explosive construction of condominium (“condo”) units across the city appears to offer some relief to our rampant housing crisis.¹ However, those seeking to call condos their homes – whether by purchasing a unit as an owner or leasing as a tenant – currently face a potentially discriminatory hurdle that is explicitly prohibited by municipal zoning law: the “single-family rule.” This rule limits occupants on the basis of familial relationship, which can be defined in vastly different ways from condo to condo.

Single-family rules are justified by condo corporations as a way to ensure that unrelated, transient tenants and rooming houses – where single rooms are rented out as opposed to the entire unit – are prohibited from condo communities. However, these rules do much more than that, as they prevent any co-living arrangements, even if they are relatively stable and longer-term. Single-family rules also open up the possibility of discrimination prohibited by the Human Rights Code (“the Code”). At a time when affordable housing, and housing in general, is critically unavailable, continuing to accept single-family rules is an anachronistic value that must be eliminated, especially in order to align with municipal zoning and property standards rules as well as the Code. This alignment can be achieved by condo corporations without resorting to regulating residents by relationship.

Case Law Overview: Ontario Superior Courts Have Upheld Single-Family Rule

A canvas of the case law demonstrates that Ontario courts tend to defer to condo-governing documents that enforce single-family rules.

In Nipissing Condominium Corp. No. 4 v. Kilfoyl [“Kilfoyl”], a 2009 decision upheld by the Court of Appeal, the court accepted a very narrow definition of “single family” found in a condo corporation’s declaration: “a social unit consisting of parents and their children, whether natural or adopted, and includes other relatives if living with the primary group.” The court concluded this was not offside the Code “on the facts of this case” because the restriction “has been interpreted by the corporation to include in that definition a more expansive definition of family in order to comply with the requirements of the Code.”²

In Kilfoyl, the court upheld the restriction and relied on section 7(4)(b)(c) of the Ontario Condominium Act, 1998, which permits condo declarations to contain conditions or restrictions on the occupation and use of units. The court held that “the peaceful use and enjoyment by each family of its own unit ought not be breached by the actions of any individual who does not conform to the contractual obligation entered into in accordance with the Declaration when the condominium was purchased.”³ The court emphasized that the condo is “unique in that individual families have their privacy protected within their own units but at the same time are required to live by rules of the community as they pertain to the common areas used by all members of the individual condominium project.”⁴

A similarly narrow definition was endorsed two years later in 2011, in Chan v. Toronto Standard Condominium Corp No. 1834 [“Chan”]. In Chan, a condo unit owner had installed internal locks within her unit that she had been renting out to separate, unrelated tenants. This was contrary to the single-family rule in her condo’s governing documents. The court reasoned that in giving deference to condo rules, they “should not pronounce on the propriety of a rule except where the rule is clearly unreasonable or contrary to the legislative scheme. The court should accept the board’s decision unless it has acted capriciously or unreasonably.”⁵ The court did not consider the Code in this application.

In the 2015 ruling of Ballingall v. Carleton Condominium Corporation No. 111 [“Ballingall”], involving whether a director had breached his obligations, the Ontario Superior Court was presented with a different condo corporation’s much more broad and expansive definition of “single family.”

In Ballingall, tension had risen between condo unit owners who wanted to live amongst a community of resident owners, without transient, unrelated tenants, and those who wanted to maximize earning potential by renting units to students of the nearby university. The condo’s governing documents included a rule restricting unit occupation to private single-family residences only, but omitted a definition of “single family.” Accordingly, the board took the position that with the lack of a definition for “single family” within their governing documents, the narrow definition of family accepted by the courts would be applicable. However, following a recommendation from their legal counsel, the corporation passed a rule with a significantly more expansive definition of family that captured a wider net of living dynamics, ranging from single persons living in the unit to “two or more unrelated persons who are living together… provided that it is clear that their collective intention is to live together permanently.”⁶

Consequences of the Single-Family Rule

While condo corporations who follow Ballingall’s expansive framework may allow for a wider range of diverse relationships among tenants, this begs the question as to why the “single family” is accepted as a means for regulating concerns such as transient living arrangements. When the definition is interpreted so expansively, it is divorced from the concept of a “single family” as we understand it and the concept loses all meaning. Further, the requirement for unrelated persons to declare intention to permanently live together is absurd, as neither family members nor common-law partners are expected to do this. Familial relationships can and do dissolve and there is no guarantee that families will be together “permanently,” even if there is an expectation of longer term cohabitation.

Under the Code, this issue clearly touches on the protected grounds of family and marital status and raises potential concerns with three sections: Section 2, discrimination on the basis of accommodation; Section 3, discrimination on the basis of contracts; and Section 12, discrimination by association.⁷ Section 12 is potentially engaged in situations where landlords or condo owners may be required to enforce discriminatory occupancy requirements when searching for prospective tenants.

Despite these clear interactions with the Code, the Human Rights Tribunal of Ontario (“HRTO”), which has never adjudicated the matter, recently questioned its own jurisdiction to consider this issue at all. The HRTO initially characterized an application which challenged the single-family rule as “general unfairness,” rather than an application addressing a Code-protected ground, and issued a notice of intent to dismiss the application.⁸ The applicant filed responding materials to justify the continued hearing of the matter. It sat with the Tribunal for several months until the issue hit the media in the context of a different condo: in that case, a same-sex couple sought to live together in a condo in Toronto but were denied on the basis that they were not married and did not meet the condo’s single-family rule.⁹ The day after this negative media and resulting questions arising in the legislature, a vice-chair of the HRTO issued a decision that it was “neither plain nor obvious” that the issues did not fall under the Tribunal’s jurisdiction and allowed the matter to proceed.

The matter has since been settled between the parties, with the condo repealing the single-family rule and instituting rules which require tenancies to be at least a year and requiring all tenants to be on one lease. This addressed the concern related to short-term transient tenancies without controlling who people live with or requiring declarations of intended “permanency” in relationships.

Arbitrary Distinction Between Municipal Zoning By-laws and Condominium Law

The Condominium Act’s provision allowing rules related to occupancy and use of units has led to courts endorsing condo corporations’ decisions about which people are allowed to live there. This contrasts starkly with explicit prohibitions in the Ontario Planning Act and Ontario Building Code Act that do not allow municipalities to establish rules based on relationships.

Section 35(2) of the Planning Act prohibits zoning by-laws that distinguish “between persons who are related and persons who are unrelated in respect of the occupancy or use of a building or structure, or a part of a building or structure.”¹⁰ Similarly, section 15.1(4) of the Building Code Act¹¹ prohibits “the authority to pass a by-law that sets out requirements, standards or prohibitions that have the effect of distinguishing between persons who are related and persons who are unrelated in the respect of the occupancy or use of a property.”

What this means is that a municipality can in no way create municipal rules that discriminate on the basis of relationships. However, a condo corporation is entirely free to do so, subject only to the Human Rights Code. We posit that it makes no sense to have a provincial system that prohibits zoning and property standards on the basis of relationship, only to allow condos to make the decision about who is an acceptable owner or resident, which may or may not be compliant with the Code. Condos ought to regulate concerns like nuisance and transient tenancies through rules that actually address those concerns and not by prohibiting people based on a relationship status, particularly while experiencing a housing crisis and when so much development in the GTA is in the form of condos.

Following the recent media related to this issue, the Condominium Authority of Ontario’s (“CAO”) Guide for Residential Condominium Landlords and Guide for Residential Condominium Tenants were both updated in December 2021.The updates directed those with Code-related issues to contact either the Ontario Human Rights Commission or the Human Rights Legal Support Centre or to file an application with the Human Rights Tribunal of Ontario.¹² The CAO also updated its website to refer to the definition of “single family” that appeared in the Ballingall case.

However, directing individuals to challenge their condo’s by-laws and rules one by one – placing the burden on people who are trying to find housing without discrimination – is no solution to ending discriminatory rules and will not assist in the goal of quickly increasing affordable housing options. The process is especially pointless now as there have been reports that, due to considerable backlog, delays and waits for hearings at the HRTO can take up to three years.¹³

Conclusion

In the context of the very real housing crisis we face, every tool must be used to ensure housing is affordable and accessible. While condos require communal and collaborative efforts to ensure peaceable living arrangements for their residents, they do not need to pass rules that are or may be discriminatory under the Human Rights Code or are discriminatory as that is understood in the municipal law context. Condos can more than adequately address concerns around nuisance and transient tenancies by passing rules that address those issues, rather than seek to regulate people’s relationships.

We suggest it is time for the provincial government to ensure that the Condominium Act is amended to exclude occupancy rules based on relationship and finally bring that regime into full harmony with the Human Rights Code and the province’s municipal zoning and property standards rules, which prohibit rules on the basis of relationship.