Simon's Megalomaniacal Legal Resources

Social Housing (Ontario)
Legal Guide

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Ch.5 - Selection System
(23 November 2021)

1. Overview
   
2. Understanding the Social Housing Selection System
   (a) Context
   (b) Overview
   (c) The Start
   (d) Duration
   (e) The End of the Wait
   
3. Centralized Waiting List Rules
   
4. Household Preference
   
5. Transfer Priority
   Legislation Note
   (a) General
   (b) Types of Transfers
   (c) Selection from Market-Rent Tenants Within Same Housing Provider
   
6. Special Priority
   
7. Special Needs
   
8. Size and Type Determination
   
9. Alternative Housing Provider Mandate/Policy Refusal
   (a) General
   (b) Housing Providers May Refuse Households Under Certain Circumstances

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1. Overview

A service manager shall have a local system for selecting households (the 'system') from those waiting for RGI assistance in the housing projects in the service manager’s service area [HSA 47; Genl Reg 45-51].

The system shall include [HSA 47(2); Genl Reg 46]:

• Waiting List Rules
  
  A centralized waiting list. ['waiting list'];
  
  
• Vacancy Rules
  
  Rules for determining whether a unit that becomes vacant should be occupied by a household that will be receiving RGI assistance. ['household preferences', 'transfers'];
  
  
• Housing Provider Rules
  
  Rules governing the selection by a housing provider of households to occupy units or receive RGI assistance. ['size and type', 'housing provider mandate'], and
  
  
• Priority Rules
  
  Priority rules for households waiting for RGI assistance ['special priority' and 'special needs].

The above categories of RGI selection rules are drawn directly from the legislation, and they are not wrong. However, I find that the topics annotated in parentheses are more reflective of the 'selection system', it's sequence and how it works practically - and this chapter is organized according to these issues [see s.2(b) and ss.3-9 for an expansion of these issues].

For clarification, a 'service manager' (which is a municipality or a DSSAB, not an administrative position) 'administers and funds' social housing, while a 'housing provider' operates it. The household selection 'system' therefore is established by the service manager (and provincial rules), but applied by the housing provider day-to-day [HSA 49].


2. Understanding the Social Housing Selection System

(a) Context

The HSA selection system is based on a waiting list, but it's more complicated than just waiting for your 'number to come up'. First off, the 'number' that comes up is the date of your application, not a ranked number - the date of application is gold for these purposes. But there is still lots going on here that you (the household applicant) won't know about, and that's an intentional state of affairs.

What I set out in this 'Understanding the Social Housing Selection System' section is what I can infer about the actual working of the HSA household selection scheme - drawn from the HSA and it's Regulations, many of the 47 different (and they are different) service manager (municipality or DSAAB) websites that I have reviewed - and common sense.

This task is greatly hindered by the intentional secrecy that permeats the process. Presumably this secrecy is to prevent several potential negative phenomenon: applicant 'harassment' of the housing staff ('where am I today?'), the potential 'trading' of applicant ranking (insofar as influencing rankings is possible) - and to avoid responsibility for false hope.

But these concerns are all integrally related to the raw, sheer delay intrinsic in the Ontario social housing system and the legions of poor, disabled and otherwise distraught people so desperate for housing in what is (in 2021) an undeniably cruel rental housing market. The term economically 'dysfunctional' is too mild a one for the human suffering it causes.

Wait times are commonly over ten years in duration, making death a leading cause of list reduction - death commonly accelerated by whatever sad and dangerous living situation the applicants are forced into meanwhile, while 'waiting' the years and years it takes to get a modest unit.

This delay is something so unique (and eminently foreseeable) that they had to pass provincial laws just to manage the sheer disparity between demand and supply of this essential service. That is, extensive rules about the 'wait' itself.

Added on to this is one of the most undecipherable statutory and regulatory schemes that I have ever had the displeasure of trying to convert to a decipherable lay legal guide (and I've done lots of hard ones already), and you have it: Ontario social housing in 2021.

This chapter - and indeed this whole Legal Guide - given this unusual and tragic state of affairs, is my 'best guess' at how this system does and should (legally) work. Being a 'best guess' means I am not sure if I have it right - so I welcome any clarifying insight into these issues by those in-the-know or otherwise.

The next summary section is just that, a summary of what comes later. In it I try to present an insight into how the 'selection system' works (or again, 'should work') in the 47 different Ontario service manager jurisdictions. Hiving legal management off to 47 different governments, and those being the most junior level of government in the Canadian legal system, one can expect inconsistencies in practice (as much as we can detect them). But coupling that with an intentional culture of secrecy - and the desperate life-threatening consequences of not getting housing to the thousands and thousands of still-waiting 'households' - one should not be surprised if the norms of administrative law are strained, if not broken.

(b) Overview

From this point on in this summary analysis, you can assume that applicants we are talking about are RGI eligible and 'normally' prioritized. 'Special priority' (for victims of abuse and human trafficking) is dealt with in a separate Chapter [Ch.6: "Priority Ranking (Special Priority)"] - as is 'special needs', the euphemism for the disabled in the system [Ch.8: "Special Needs"]. Transfer priorities are also deal with separately.

These assumptions allow me present a simpler selection model, but I will explain the role of these priorities and exceptions within the selection system for context.

For explanation I break the selection system into three parts: the start, duration and the end of the wait.

The 'start' of the waiting list is an explanation of the law of 'waiting lists' and the key issue of 'household preferences', something that any initial applicant will experience.

The 'duration' is the years-long drag through the process where the secrecy takes it true toll in ignorance. In this section I canvass the several 'override' (aka priority) provisions that allow some applicants to jump ahead of others. The issues covered here are 'transfers', 'special priority' and 'special needs'.

Lastly the 'end' section, which can be referred to as the 'top of the list'. That is, what happens when your application date is the oldest amongst the applicants and you are being considered for actual placement in a unit. The issues addressed here are the 'size and type' of units, and the 'housing provider' discretionary mandate/financial-risk refusals.

(c) The Start

. Centralized Waiting List

As far as I can tell, the selection system is mostly just a straight chronological waiting list - ie. your name comes up when the person chronologically before you either receives or refuses a unit. Every six months applicant households are contacted to re-verify or correct changed contact and other personal information, failing which they can be removed from the list.

I have found it better not to think of this as a 'list' however, and better to think of the system as one centred on your 'date of application'. The difference may seem slight but focussing on date of application is more in accord with the logic that housing administators must use when administering the system. The question: 'where are they on the list?', I doubt has much practical use - while the date of application is an easier, more accurate and straight-forward way of ranking applicants for selection.

The waiting list is explained more thoroughly in s.3.

. Household Preference

That said, some of the service manager websites used the term 'modified waiting list' to refer to waiting lists being 'housing project-specific', ie. specific according to the 'preferences' stated by the household. Applicant households are asked (indeed it is expected of them) to specify which local housing providers they 'prefer', usually 3 or 4 housing projects.

It seems reasonable to infer (it would be insane if it was otherwise) that if a household (which can be as few as one person) changes their preferences during their wait, that they don't get bumped back down to the first spot on that project's waiting list - rather the household gets 'inserted' on the project's waiting list according to the date of their original application. That's a main reason why I prefer the date of application as a better ranking metric.

As you will see in s.4, the household preference choices you make may be the last effective control you have in advancing your actually getting a place sooner.

(d) Duration

. Wait, then Wait Some More ...

Now you wait, always for years. Then, you wait some more. Try not to die in the process, it creates a lot of paperwork.

This section is about what's going on while you wait. You won't hear or see anything about these rules in practice, but they are happening. They're mostly about households overriding you (or alternatively 'you overriding them', but remember it's an assumption of this explanation that your household is 'normally' prioritized, so in this example no priorities operate in your favour).

. Transfers

Households already in the broader Ontario social housing system, who then want to transfer to one of your 'preferred housing providers', get a de facto override over you. This isn't referred to as a 'priority' (nor are 'transfers' referred to under that term), but that's what they are: a transfer priority.

There are several categories of transfers, depending from how far away the transferee household is coming: ie. 1. within the housing provider, either as a market-rent tenant (shifting to RGI) or another RGI tenant (maybe as a result of them being over-housed), 2. within the same 'service area' (the local municipality or district which is under the same service manager), and 3. outside of the service area (but still in Ontario). There are no arrangements for transferring households into Ontario from outside Ontario.

See s.5 for more about transfers.

. Special Priority

The 'special priority' category is one for victims of domestic abuse and human trafficking. It is a straight-forward override that operates on the first suitable vacancy regardless of the competing applicant's date of application.

See Ch.6: "Priority Ranking (Special Priority)".

. Special Needs

'Special needs' people are disabled people, defined as: "one or more members who require accessibility modifications or provincially funded support services in order to live independently in the community" [HSA 38].

None of the following priority rules shall apply with respect to special needs housing [Genl Reg 51] (this avoids special needs applicants being 'jumped' by the priority-rule beneficiary):

. transfers from other RGI units [under Genl Reg 47];

. transfers from market-rent units with the same housing provider [under Genl Reg 48];

. housing provider mandate refusals [under Genl Reg 49]

. housing provider financial risk refusal [under Genl Reg 50].

The effect of these priority exceptions for special need applicants is that they have less competition for unit placements, and - ideally - tend to move faster to actual placement. How much 'less' can't be determined but if things otherwise operate according the rules, it should be an appreciable advantage. That said, special needs placements have additional rules (see Ch.8: "Special Needs").

(e) The End of the Wait

. Top of the List!

Again, you won't know that you're 'top of the list' [it's still better to think of you having the 'oldest application date'] due to the overall culture of secrecy, but - if you don't die or are otherwise are removed from the waiting list - you may end up there.

The previous rules that allowed for three refusals of an offered unit were repealed 01 January 2021, so you won't get any warning before you get contacted by a housing provider with their one offer. If you are at the third month of a fresh year-long lease where you are now, tough - you face breaking it or going back to the start of the waiting list (with this rental market thankfully the landlord can mitigate their losses easily, if not make more money, so breaking leases is easier).

There may be relief from receiving an offer at such a 'bad time', see s.3 below, 'Temporary Removal at Household's Request'.

. Size and Type Determination

Before you break open the (theoretical) champagne though, know that the vacancy that occurs might not be one suited to your household size and type. If you're a single person household awaiting a bachelor or a single bedroom, and the vacancy is for a three-bedroom - keep waiting. You're still 'on top of the list', but you still have to wait - again (and no, you won't hear about it). See s.8, below re "Size nd Type Determination".

. Housing Provider Mandate/Financial-Risk Discretionary Refusals

This is an artifact from the fact that most of the 'housing providers' covered by HSA Part V are 'old' pre-reform (pre-2000) non-profit corporations, transferred to effective municipal (service manager) control. Such housing providers have residual corporate 'mandate' rights that allow them to assert some policy concerns and thus refuse some applicants.

For instance, some of these have 'homeless or hard-to-house' mandates that entitle them to assert those rights (if they want) and thus refuse unit placement despite them otherwise being eligible (and 'at the top of the list'). As well, such housing providers can impose additional rules regarding the financial risk that particular households may pose to them, and refuse on similar grounds.

These are things particular to the housing provider that has 'your' candidate vacancy, and - if they exercise these rights - you probably (again) won't hear about it - you will just get refused and have to wait (at the top of the list though!) for a housing provider who is not so particular.

. Offer

Take it. Thank whatever god you pray to, and take it.

Now, on to a detailed legal discussion of the above summary issues.


3. Centralized Waiting List Rules

The local system must have a centralized waiting system, and must include rules that provide for the following [Genl Reg 46(1)]:

• Addition to the Centralized Waiting List When RGI Eligible
  
  A household shall be added to the waiting list upon the service manager determining that the household is eligible for rent-geared-to-income assistance.
  
  
• Removal from the List
  
  A household shall be removed from the list if:

  . the household requests to be removed,
  
  . the household ceases to be eligible for RGI assistance.
  
  This does not apply to a household that ceases to be eligible for RGI assistance for "accept(ing) an offer of a portable housing benefit and begin(ning) to receive that benefit" [under Genl Reg 32.1], if the service manager is satisfied that there are extenuating circumstances.
  
  or,
  
  . the household has accepted an offer of RGI assistance within the service area.
  
  Also, this does not apply to the acceptance of an offer of emergency shelter, or an offer of temporary housing that is provided while one or more members of the household are receiving treatment or counselling.

• Mandatory Removal Unless Extenuating Circumstances
  
  Unless the service manager is satisfied that there are extenuating circumstances, a household shall be removed from the list if the household:

  . is not receiving RGI assistance, and
  
  . has accepted an offer of a portable housing benefit made by the service manager.

• Periodic Review
  
  For each household on the list, the service manager shall determine, at least once in every 24-month period after the household was added to the list, whether the household is still eligible for RGI assistance. This is separate from the six-month waiting list contact information check-up referred to above in s.2(c).
  
  
• Temporary Removal at Household's Request
  
  If a household so requests, the service manager may temporarily remove a household from the list for a period of time agreed upon by the service manager and the household [Genl Reg 46(1)7].
  
  This provision may have use, if handled carefully, for dealing with residual lease terms in your present premises (if you are lucky enough to have premises).
  
  
• Reinstatement After Temporary Removal
  
  The service manager shall reinstate a household temporarily removed from the list:

  . the period of time has expired, or
  
  . the household requests to be reinstated.

• Temporary Removal Where Special Priority Status
  
  The service manager shall remove a household from the list for up to one year if:

  . the household was included in the special priority household category following a request for inclusion relating to the abuse, other than trafficking, of a member of the household,
  
  . the household requests to be temporarily removed from the list,
  
  . the member who made the request advises the service manager that the abused member is or will be living with the abusing individual, and
  
  . the service manager has not previously removed the household under this paragraph.

• Reinstatement After Temporary Removal Where Special Priority Status
  
  The service manager shall reinstate a household temporarily removed from the list on the earlier of:

  . the date on which the household makes the request to be reinstated, or
  
  . one year after the household was removed from the list.

4. Household Preference

The HSA and service managers refer to this as 'household preference', although it may not simply be a matter of choice - ie. you may have to 'prefer' something, even though you want the first available. The law is ambiguous on this:

46.1(1)
A service manager’s system for selecting households must include rules that provide for a household to indicate preferences for housing projects in the service manager’s service area.

Huh? Does that mean you have to chose preferences? or that there must be rules about whether you have to chose preferences? A subtle distinction, but an important one. How your local service manager deals with this ambiguity can be a serious ranking problem. This is because the rules also provide that if the household does not indicate a preference for a housing project, the choice is up to the service manager [Genl Reg 46.1(2)]:

46.1(2) The rules shall provide that, until a household has indicated a preference for a housing project, the preference of the household shall be any housing project in the service manager’s service area or in any part of the service area determined by the service manager.

Does a choice of 'please give me the first available', mean no such preference - or not?

This rule [Genl Reg 46.1(2)] is the crucial rule for households wishing to get a place 'as soon as possible', and - in the bizarre secrecy of the waiting-list world - it won't be presented as such. Unless there is a specific (and valid) local rule that limits the number of 'preference' options that a household may elect, the household wanting housing ASAP may be tempted to select all housing projects within the local service manager's service area (ie. the entire municipality or district). The tension though is that the service manager may take an 'all-projects' choice as a 'no-choice', and apply their preferred selections for the household - which have no guarantee of being advantageous to the household. And the household, trying this tactic, may have no idea whether it's working as they hoped and intended given the culture of secrecy about letting households know anything about their ranking position.

In any event, such rules shall permit a household to change or remove its preference for a housing project [Genl Reg 46.1(3)]. The service manager shall make reasonable efforts to notify households about these rules [Genl Reg 46.1(4)].


5. Transfer Priority

Legislation Note: One function of legislation is to set out law, but that is a pointless goal if the text given can't communicate the law to people who have to read and apply it - which, in a democracy, means everyone. The HSA has been criticized for the difficulty that even it's administrators have in understanding it, and these vacancy/transfer rules [Genl Reg 47] are no exception to this problem.

Ostensibly Genl Reg 47 is about 'vacancy rules', ie. the system shall "include rules that provide for the following in relation to the selection, for a vacant unit" for a household receiving RGI assistance [Genl Reg 47(1)]. These are referred to as 'vacancy rules', likely because they precede size/type and housing provider mandate/financial-risk discretion choices (dealt with below), issues that would arise only after a vacancy occurs. But, in a discussion of household selection system rules, there's no real point in discussing 'vacancies' as such - because household selection rules presuppose the prior occurence of vacancies - I mean, what else what are households being selected for other than filling vacancies.

Genl Reg 47(1) is a key and central provision, but it's really about 'transfers' and you have to read it very carefully to reach that conclusion. It all turns in s.47(1)5,5.1 and 7, which finally mention transfers for the first time (though, just to be further unhelpful, not be that name).

Also, Genl Reg 47(1)2-4 and 47(2) seems to be redundant (but not consequentially repealed) with the Genl Reg 32.2 amendment at 01 January 2021, which reduces the 'refusable offers' to one alone before RGI cancellation. These provisions are all premised on households with higher priorities refusing offers, and one refusal alone would effectively would punt them from the whole waiting list system.

(a) General

I use the terms 'new' and 'lateral' to distinguish between households that are not yet receiving RGI assistance ('newly housed'), and those that already are receiving RGI assistance but are seeking a lateral transfer within either the same housing provider, the same service area or Ontario ('lateral'). The same terms can apply to a lateral transfer from a market-rent unit to RGI, which sometimes occurs.

A household may be selected for a transfer only if the vacant unit is of a size and type that is permissible for the household [Genl Reg 47(1)8; HSA 46].

Priority rules do not apply to transfers [Genl Reg 47(3)].

(b) Types of Transfers

. General

The basic rule, excepted by transfers (below), is that on a vacancy occuring, a new household shall be selected [Genl Reg 47(1)1]:

. from the centralized waiting list (above), and

. in accordance with the service manager’s 'determination of priority' [under HSA 48].

. Lateral Transfer Within the Same Housing Provider Within Same Service Area

However, transfers operate as a priority - though not by that name in the legislation. The housing provider may select a household, regardless of whether or not the household is on the centralized waiting list required, if it [Genl Reg 47(1)5]:

• occupies another unit operated by the housing provider in the service area,
  
  
• is already receiving RGI assistance, and
  
  
• has requested a transfer to another unit operated by the housing provider in the service area.

When this selection situation applies, "the housing provider shall give a household in the special priority household category priority over a household that is not in the special priority household category" [Genl Reg 47(1)6] [this, by it's specificity, appears to be an exception to the Genl Reg 47(3) exclusion of special priorities to transfers].

. Lateral Transfer Within Same Service Area but Different Housing Provider

Also, a housing provider may select a household, with the approval of the service manager, regardless of whether or not the household is on the centralized waiting list, if it [Genl Reg 47(1)5.1]:

• occupies a unit operated by a different housing provider in the service area,
  
  
• is already receiving RGI assistance, and
  
  
• has requested a transfer to a unit operated by the housing provider in the service area.

When this selection situation applies, "the housing provider shall give a household in the special priority household category priority over a household that is not in the special priority household category" [Genl Reg 47(1)6] [this, by it's specificity, appears to be an exception to the Genl Reg 47(3) exclusion of special priorities to transfers].

. Lateral Transfer Within Ontario

If the local rules so provide, the housing provider may select a household if [Genl Reg 47(1)7]:

• the household occupies a unit in another service area in Ontario,
  
  
• the household is already receiving RGI assistance,
  
  
• the household has requested a transfer to a unit in the service manager’s service area,
  
  
• the service manager has determined that the household is eligible for RGI assistance, and
  
  
• the selection is part of an exchange arrangement under which households receiving RGI assistance in different service areas will move between service areas.

(c) Selection from Market-Rent Tenants Within Same Housing Provider

A local selection system shall include rules that a housing provider may, with the approval of the service manager, select a household that already occupies a unit in a designated housing project [a HSA Part V housing project] as a household to receive RGI assistance [Genl Reg 48(1)]. These, necessarily, are market-rent units.

This selection shall be made in accordance with [Genl Reg 48(2)]:

. the service manager’s determination of priority",

. the centralized waiting list, and

. households that already occupy units in the housing project.

6. Special Priority

This topic is big enough for it's own chapter. See Ch.6: "Special Priority".


7. Special Needs

This topic is huge by itself, big enough for it's own chapter. See Ch.8: "Special Needs".


8. Size and Type Determination

The service manager shall determine the size and type of unit that would be permissible if the household received RGI assistance [HSA 46(1)].

This determination shall be made in accordance with the local occupancy standards [see s.3(f) above] [HSA 46(2)].


9. Alternative Housing Provider Mandate/Policy Refusal

(a) General

"Alternative housing providers" ('AH providers') are (normally pre-2000) housing providers that have a mandate "to provide housing to households that are homeless or hard to house" [see HSA 76]. "Alternative housing units" ('AH units') are units with such housing providers that are "made available to households that are homeless or hard to house" [Genl Reg 49(3)]. Generally, these alternative housing providers are referred to as 'mandate' housing providers.

AH providers have the right to avoid local rules (to particular AH units at their choice) that 'new' household selections for vacant units must apply in accordance with the service manager's special priority rules (ie. abuse and trafficking) [Genl Reg 49(1), Genl Reg 47(1)1(ii)-4]. This means that AH providers and units can, if they chose, avoid the special priority rules if they have a 'homeless or hard to house' mandate.

These rules are explained below.

(b) Housing Providers May Refuse Households Under Certain Circumstances

. Application

These provisions apply to designated housing projects under program categories 1(a), 1(b), 6(a) or 6(b): see for your service area Reg 368/11: Designated Housing Projects - s.68 of the Act [Genl Reg 50(2)].

. Circumstances

A local selection system must include rules that allow housing providers to refuse to offer a household if any of the following circumstances apply, despite any other rule [Genl Reg 50(1)]:

• Violation of Housing Provider Mandate
  
  The housing provider has a mandate [under s.76 HSA, such as a 'homeless or hard-to-house' mandate] and offering the unit to the household would be contrary to that mandate.
  
  
• Rent Payment Risk
  
  The housing provider has reasonable grounds to believe, based on the household’s rental history, that the household may fail to fulfil its obligations to pay rent for the unit in the amount and at the times the rent is due.
  
  
• Failure to Agree or Comply with Non-profit Housing Co-operative Responsibilities
  
  The housing provider is a non-profit housing co-operative and the household does not agree to accept its responsibilities as a member, or the housing provider has reasonable grounds to believe that the household will not accept or will be unable to accept those responsibilities (Part V HSA housing can includes non-profit co-ops [Genl Reg 50(1)3]).
  
  
• Housing Provider Doubts Shared Housing Suitable
  
  The unit is one in which individuals will reside in a shared living situation and the housing provider has reasonable grounds to believe that it is unreasonable for the household to reside in the shared accommodation.
  
  
• Certain Past Legal Actions
  
  All of the following apply to a member of the household:
  
  
  • Illegal Acts Tenancy Termination of Member in Last Five Years (see below for specific illegal acts that apply)
    
    Within the past five years:

    . the tenancy of a member of the household was ordered terminated by the Landlord and Tenant Board (LTB) based on a notice of termination for illegal acts [RTA 61], or
    
    . the occupancy of a member of the household in a member unit of a non-profit housing co-operative was ordered terminated by the Landlord and Tenant Board based on a notice of termination for illegal acts [RTA 94.2(5)].

  • Termination was in a Designated Housing Project
    
    The tenancy or occupancy that was ordered terminated was in a designated housing project: see for your service area Reg 368/11: Designated Housing Projects - s.68 of the Act [Genl Reg 50(2)].
    
    
  • No Reversal of Termination
    
    The order terminating the tenancy or occupancy has not been cancelled by an LTB review [under SPPA 21.2] or overturned by a Divisional Court appeal [under RTA 210].
    
    
  • Specific Illegal Act Required
    
    The order terminating the tenancy or occupancy was grounded on an illegal act, trade, business or occupation involving one or more of the following:

    . An illegal act, trade, business or occupation involving drug offences [under RTA 61(2)(a) or RTA 94.4(4)(a)].
    
    . The illegal production, distribution or sale of cannabis.
    
    . The trafficking of persons.
    
    . The use or attempted use of physical violence against another person.
    
    . Physical harm, attempted physical harm, or a risk of physical harm to another person.
    
    . The use of threats to, intimidation of, or harassment of another person.

• Posing Safety Risk
  
  The housing provider has reasonable grounds to believe that accommodating the household would pose a risk to the safety of one or more other persons at the housing project.

. Remedies If Breach by Housing Provider

The local system for selecting households must include the following rules that provide for breach of the above ('mandate') provisions by a housing provider [Genl Reg 50(3)]:

• the housing provider shall notify the household of the refusal;
  
  
• if the household so requests, the housing provider shall review the decision to refuse to make the offer.
  
  These breach rules apply only to the first refusal by a housing provider to make an offer to a household and not to subsequent refusals by the housing provider with respect to the same household.