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Social Housing (Ontario)
Legal Guide
Ch.1 - Understanding the Law of Social Housing In Ontario
(23 November 2021)- Overview
(a) Lament
(b) History
- The Basic HSA Structure
(a) Overview
(b) The Provincial Role
(c) Service Managers
(d) The Housing Services Corporation (HSC)
(e) Local Housing Corporations (LHC)
- Designated Housing Projects
(a) Overview
(b) Identifying 'Designated Housing Projects'
(c) The Categories
(d) Administration of Designated Housing Projects
(e) The 'Housing Provider' Role
(f) Part V Housing Projects
(g) Funding Transferred Housing Programs [Part VIII]
(h) Part VII Housing Projects
- Control: The HSC, Service Managers and Housing Projects
(a) Overview
(b) Understanding the Forms of Social Housing
(c) Means of Control
1. Overview
(a) Lament
I've dreaded the task of turning the law of the Housing Services Act (HSA) into a workable tenant advocacy guide. When they drafted the Housing Services Act (and it's five regulations) the task was so inherently-difficult (or the style of drafting used was so inadequate for the task) that it fails in it's main task, that of communicating the law to Ontarians. I found the legislation very dense, obscure, hugely delegation-dependent (ie. there's a Regulation for practically everything - you go spinny trying to understand one provision without knowing the three or four that inform it), unintuitive and often redundant in style. And that's a comment from someone who has a long-familiarity with Ontario social assistance law (welfare and ODSP) upon which this social housing law has both administrative (ie. it's largely municipal, like welfare law), style and conceptual similarities.
The struggle with concepts like: 'transferred housing programs', Part VII projects, 'local housing corporations', the innumerable original housing programs that were in need of 'reform' - the many schedules and charts - and the many other concepts that have come and gone as Ontario social housing law has undergone it's continued 'reform' over the past 30 years, has been perhaps the most difficult I have had to do since I started writing these legal guides 25 years ago.
As well, understanding the HSA system alone is not enough, as it really only deals with the RGI (rent-geared-to-income) side of things. Full tenant advocacy requires the additional mastery of the Residential Tenancies Act (RTA) with whom social housing has an additional complex partial-exemption relationship. I have attempted to include that with appropriate links to the pre-existing Isthatlegal Residential Tenancies (Ontario) Legal Guide.
On the safe assumption that people who don't work directly in the social housing system (and I suspect many that do) find the HSA system similarly dense, I record in this chapter the results of the gradual understandings that have led me to my present (hopefully accurate) understanding of the system, aided by a double-dose of the OCD that so necessary to legal writers everywhere.
(b) History
The political task of social housing reform was (and is) fairly daunting (but not impossible). Facing up to the age-old (at least in the English common law system with it's central dependent on land rights) marriage of land law with capitalism, Canadian law has tried to come the grips with the fully-foreseeable result that the poor can't afford homes, even rented homes. At the date of writing (the summer of 2021) this is all so obvious with the worst rental housing shortage situation I have seen in my life, with rent (and home purchase) prices going through the roof and rental stock close to full occupancy.
With Canada's constitution not delegating 'housing' neatly into s.91 and 92 jurisdictional categories (mostly because they never anticipated it as an issue) - and with the good sense of Ontario legislators in allowing municipalities co-equal jurisdiction in housing - social housing advocates have (admirably, but inadequately) practically advanced the issue 'on all fronts' - with housing projects [HSA 2] of all description arising (ie. municipal, Ontario, federal, OMHC, CMHC - non-profit, share and co-operative corporations - various rent subsidy and supplement programs and more). Finally, the inevitable impulse came to rationalize these (now hundreds) of housing projects into some legal coherence, and social housing reform in Ontario has it's birth in the Social Housing Reform Act, 2000 under the notoriously insensitive Mike Harris PC government.
The impulse to 'municipalize' new system was there from the start, but it came to greater fruition with the Housing Services Act, 2008 under the later Liberal McGuinty administration.
2. The Basic HSA Structure
(a) Overview
The Ontario social housing legal regime is governed by the Housing Services Act, 2011 (HSA). It's purposes are to [HSA 1]:- "to provide for community based planning and delivery of housing and homelessness services with general provincial oversight and policy direction"; and
- "to provide flexibility for service managers and housing providers while retaining requirements with respect to housing programs that predate this Act and housing projects that are subject to those programs."
That's a succinct characterizarion of the social housing system - coupling it's origins in social housing reform (basically the consolidation of most non-profit housing in Ontario under municipal financial and administrative over-seeing) with
overall provincial control. The HSA system takes some getting used to, being one of multiple legal bodies and government levels interacting in complex fashions.
In two very real legal senses the existing Ontario HSA social housing system is top-heavy with housing projects constructed in pre-reform (pre-2000) times, the 'designated housing projects' ("designated") [under HSA 68].
Firstly, the reality of Ontario social housing is that most social housing projects existed before reform in 2000, and the HSA's primary structuring treats them as though they are a temporary transitional phenomenon. The HSA as a whole is structured with grand hopes of federal and provincial social housing that never came to pass in (at least) the next 20 years (the City of Toronto being a thankful exception to that rule).
Secondly, the major bulk of the legislative text of the HSA and it's Regulations address only a portion of the 'designated' housing projects [HSA Part V], with it's setting-out of the extensive (and jurisdictional complex) RGI assistance system and the tragically necessary 'waiting-list' rules.
Given this massive disparity between the 'designated housing project' aspects of the HSA, and the failed post-reform elements (the 'post-reform'), I have divided it into two sections, with the 'designated' addressed in the next section.
(b) The Provincial Role
. Provincial Policy Role
Municipal and district 'service managers' are integral to provincial social housing and homelessness policy. For this purpose provincial social housing goals are ones that [HSA 4, Gen Reg 3-5]:- are focussed on achieving positive outcomes for individuals and families;
- address the housing needs of individuals and families in order to help address other challenges they face;
- have a role for non-profit corporations and non-profit housing co-operatives;
- have a role for the private market in meeting housing needs;
- provide for partnerships among governments and others in the community;
- treat individuals and families with respect and dignity;
- are co-ordinated with other community services;
- are relevant to local circumstances;
- allow for a range of housing options to meet a broad range of needs;
- ensure appropriate accountability for public funding;
- support economic prosperity; and
- are delivered in a manner that promotes environmental sustainability and energy conservation.
The Minister of Municipal Affairs and Housing shall issue policy statements to guide service managers [HSA 5], and local service managers shall each have a 'housing and homelessness plan' which must be approved by the Minister [HSA 6-10].
. Ontario Crown Liability
"No cause of action arises against the Crown in right of Ontario or an agent of the Crown in right of Ontario as a direct or indirect result of a change to, or discontinuance of, the system or process established by the Minister before this section came into force for renewing or replacing mortgage financing for housing providers" [HSA 177].
(c) Service Managers
. Overview
It's a constant source of confusion to new-comers to the social housing scene that 'service managers' are not a social-housing related administrative position. You can't say, sensibly: 'go and fetch the service manager, please'. 'Service managers' rather are the 47 Ontario municipalities and district boards (DSSABs) that are at the heart of the HSA social housing system - along with the direct housing providers such as local housing corporations (LHCs) and non-profit corporations [HSA s.2,11-23, Reg 6-9.2] .
There is a slight twist, since - legally - the service managers for the incorporated municipalities are those very same municipalities, but for the unincorporated northern 'districts' the service manager is the local 'District Social Services Administration Boards' (or 'DSSAB'). The DSSABs existed before the HSA system, as the district's body for administering welfare (ie. the Ontario Works Act).
'Service managers' aren't so much defined in the HSA, as they are listed with their service areas: Schedule 2 of the General Regulation [HSA 11-23, Genl Reg 6-9.2].
All HSA-governed housing projects in Ontario have 'service managers' - all the ubiquitous Part V housing projects, and even the directly-run 'local housing corporations' (LHCS) which have a 'related service manager' (ie. normally the municipality in which they are located) [HSA 24].
. The Role of Service Managers
The role of a service manager is, "in accordance with its housing and homelessness plan, [to] carry out measures to meet the objectives and targets relating to housing needs within the service manager’s service area" [HSA 12]. "A service manager may establish, administer and fund housing and homelessness programs and services and may provide housing directly" [HSA 13(1)].
The Minister may require a service manager to conduct an "enumeration of persons who are homeless" [HSA 19.1] and report annually to the Minister on it's work [HSA 20-21, Genl Reg 8.1-9]. Annual public reports are required by the service manager on measures and progress on its housing and homelessness objectives and targets, and on any portable housing benefits it offers [HSA 22, Genl Reg 9.1-9.2].
In a clear sign of the odd administrative relationship the 47 service managers have with the over-seeing province, service managers are subject to disciplinary remedial sanctions on contravention of the Act [HSA 23]. The provincial fear that municipalities may not administer the HSA fairly with households, or in a financially-responsible manner, is made clear in this provision.
Written consent of the applicable service manager is required, with notice to the Minister, for the transfer or mortgage of (1) a Part VII housing project or (2) a designated housing project to which a pre-reform operating agreement applies [HSA 162-165, 167 (Tables); Genl Reg 142, 144]. There are exceptions to this requirement [HSA 162(4), Genl Reg 141].
Amendments to corporate "articles or any other document or instrument" or corporate amalgamation requires consent of the service manager [HSA 166, Genl Reg 143].
(d) The Housing Services Corporation (HSC)
. Overview
If there is one central body that (literally) binds social housing in Ontario, it is the Housing Services Corporation (the 'HSC', or the 'Corporation').
. Membership
Everybody who's anybody in the Ontario social housing world is a member of the HSC [HSA 127]:HSA 127
The members of the Corporation are,
(a) all service managers;
(b) all local housing corporations (LHCs);
(c) the housing providers that are non-profit corporations and that are prescribed for the purposes of this clause;
(d) the housing providers that are non-profit housing co-operatives under the Co-operative Corporations Act and that are prescribed for the purposes of this clause; and
(e) the housing providers or other persons that meet the requirements prescribed for the purposes of this clause. For service managers and LHCs membership is by fiat of the HSA.
For non-profit corporations and non-profit housing co-operatives the corporation is either deemed to be a member if they were a member under the SHRA [SHRA 140(2)(e)] or if they have applied and been admitted to membership since then [Gen Reg 129(3,5)]. Such a corporation may resign from membership [Gen Reg 129(4)].
. Other
The Housing Services Corporation is a single provincial non-share corporation that 'provides support' to housing projects province-wide [HSA 120-154, Genl Reg 128-137].
The Corporation shall establish and manage insurance programs and pool capital reserves, and conduct research and provide advice to "Ontario, service managers and housing providers" [HSA 124].
The Corporation is not a Crown agent, nor an administrative unit of Ontario [HSA 125]. It shall have a Chief Executive Officer [HSA 141], and be funded by levies on the service managers (local municipalities) [HSA 146].
It's membership is made up of all service managers, all local housing corporations, and some non-profit corporations [Genl Reg, Sched 6] and non-profit housing co-operatives [Genl Reg, Sched 7] [HSA 127].
The Corporation is an 'institution' for the purposes of the Municipal Freedom of Information and Protection of Privacy Act [HSA 154].
(e) Local Housing Corporations (LHC)
A local housing corporation (LHC) is the post-reform version of a pre-reform (and continuing) 'housing provider', although housing providers are normally non-profit corporations and LHCs are all (by law) share corporations.
Local housing corporations (LHCs) are defined [and were so defined under the Social Housing Reform Act, 2000 ("SHRA")] as share-holding corporations under the Business Corporations Act [SHRA s.23, HSA 24-37]. As the Minister was first allowed to create LHCs in 2000 [under SHRA 23], they are post-reform phenomenon (and therefore no LHC is as such a Part V designated housing project) - although LHCs may have pre-reform designated housing projects transferred (in ownership) to themselves [HSA 27(5)].
A LHC must at all times have a majority of votes held by the local municipality (referred to as the 'related service manager') [HSA 30(2), 32-34], and the balance of the shares may only be owned by a local municipally-owned corporation (ie. a local lower-tier municipality) [HSA 30(1)].
A LHC is not a Crown agent nor an "administrative unit of the Government of Ontario" [HSA 25]. As well, LHCs are not 'commercial enterprises' under the Municipal Act, 2000 (or it's Toronto counterpart) ('commercial enterprises' are not eligible for assistance grants by the municipality, this provision allows such assistance). Nor are they a 'local board' of a municipality (ie. an agent of the municipality) [HSA 26].
LHCs are, like other HSA entities, subject to both local and provincial rules [HSA 27, Genl Reg 11] dealing with such things as budgeting, funding, reporting, maintenance, capital funds and such. Provincial rules govern over local rules unless the provincial rules allow their paramountcy [HSA 27(4)].
LHCs are financially subsidized by their 'related service manager' (local upper-tier municipality) [HSA 28, Genl Reg 12].
3. Designated Housing Projects
(a) Overview
Now to return to the 'designated housing project' aspects of the HSA - the aspects I set aside [in s.2(a) above] but which take up the majority of both housing projects in Ontario and of the legislative text of the HSA. 'Designated housing projects' are, essentially, pre-reform housing projects.
As well, in conjunction with designated housing projects, you will also also commonly see references to 'transferred housing programs', the original social housing programs that the 'projects' were created under.
All 'transferred housing programs' (and thus all 'designated housing projects') were, under SHRA, transferred to Ontario and the OMHC [SHRA 10]. Then in the HSA [under s.3,68], there was the pivotal provision bringing pre-reform 'transferred housing programs' and their associated 'designated housing projects' under municipal (ie. service manager) governance:HSA 68(1)
A service manager shall administer and fund a transferred housing program as it relates to a housing project designated in the regulations for the purposes of this subsection. You will also hear these being referred to as 's.68' housing projects.
(b) Identifying 'Designated Housing Projects'
The first task here is to simply identify when you are dealing with a designated housing project.
They are not defined in the usual legislative sense, they are 'listed', here in Reg 368/11: Designated Housing Projects - Section 68 of the Act. And it's quite a list, you should view it now if your haven't before. The 'list' is organized by municipalities and districts, and sets out the many pre-reform designated housing projects and the transferred housing programs they originated under - the latter being defined by their indicated alpha-numeric categories in General Reg 367/11, Schedule 1.
(c) The Categories
Below is a combined listing of all the s.68 designated housing projects, setting out their category, their historical description and the criteria by which these programs were transferred to the HSA system [copied from General Reg Schedules 1 and 5]:- 1. Public Housing
The 'public housing' program category comprises the following program categories:
. Program Category Number 1(a)
The public housing programs administered before January 1, 2001 by Local Housing Authorities for the object of providing appropriate housing exclusively to applicants selected on the basis of being financially unable to obtain affordable, suitable and adequate housing on the private market, as determined by Ontario, in housing projects that immediately before January 1, 2001 were owned or leased by the Ontario Housing Corporation or jointly by the Ontario Housing Corporation and the CMHC.
. Program Category Number 1(b)
The public housing program administered before January 1, 2001 by the Ministry for the object of providing appropriate housing exclusively to applicants selected on the basis of being financially unable to obtain affordable, suitable and adequate housing on the private market, as determined by Ontario, in housing projects that immediately before January 1, 2001 were owned or leased by the Toronto Housing Company.
. Criteria
The 'criteria' by which these programs were transferred to the HSA system are:
1. The service manager shall provide adequate publicly owned rental housing accommodation for households.
2. The service manager shall provide rent-geared-to-income units and may provide market rent units to households.
3. The annual income of a household, at the time of its selection to reside in a rent-geared-to-income unit, shall not exceed the applicable household income limit.
4. The rent for a market unit shall be less than the fair market rent for similar accommodation in the same vicinity.
- 2. Rent Supplement
. Program Category Number 2(a)
All Rent Supplement Programs administered before January 1, 2001 by Local Housing Authorities or the Ministry that are not included in paragraph 4, including the following:
i. Rent Supplement — Regular.
ii. Accelerated Rental CMHC.
iii. Accelerated Rental OMC.
iv. Community Integrated.
v. Assisted Rentals.
vi. Limited Dividend.
vii. Private Assisted Rental.
viii. Ontario Rental Construction Plan.
ix. Canada Rental Supply Plan.
x. Convert-to-rent.
xi. Canada Ontario Rental Supply Plan.
xii. Renterprise.
xiii. Low Rise Rehabilitation.
xiv. Ontario Rental Construction Loan.
xv. Assisted Rental Housing.
xvi. Ontario Accelerated Family Rental Housing.
. Program Category Number 2(b)
With respect to units in projects owned, leased or administered by non-profit housing providers, the Rent Supplement Programs administered before January 1, 2001 by the Ministry that are not specifically listed in paragraph 3, including the following programs:
i. Community Sponsored Housing Program (1978-1985).
ii. Community Sponsored Housing Program (P2500) (1978-1985).
iii. Ontario Community Housing Assistance Program (1978-1985).
. Criteria
The 'criteria' by which these programs were transferred to the HSA system are:
1. The service manager shall provide rent-geared-to-income units to households.
2. The annual income of a household, at the time of its selection to reside in a rent-geared-to-income unit, shall not exceed the applicable household income limit.
- 3. Limited Dividend
. Program Category Number 3
The Limited Dividend Entrepreneur Program administered under the National Housing Act (Canada), section 26 as that section read before being repealed in 1999.
. Criteria
The 'criteria' by which these programs were transferred to the HSA system are:
1. The service manager shall provide units to households.
2. The annual income of a household, at the time of its selection to reside in a unit, shall not exceed the limit set by the service manager.
3. The rent for a unit shall be less than the fair market rent for similar accommodation in the same vicinity.
- 4. Non-Profit Low Rental
. Program Category Number 4
The Non-Profit Low Rental Housing Program administered under the National Housing Act (Canada), sections 26 and 27 as those sections read before being repealed in 1999.
. Criteria
The 'criteria' by which these programs were transferred to the HSA system are:
1. The service manager shall provide units to households.
2. Only units in non-profit housing projects may be provided.
3. The annual income of a household, at the time of its selection to reside in a unit, shall not exceed the limit set by the service manager.
4. The rent for a unit shall be less than the fair market rent for similar accommodation in the same vicinity.
- 5. Non-Profit 2% Write-Down
. Program Category Number 5
The Non-Profit 2% Write-Down Non-Profit Housing Program administered under the National Housing Act (Canada), section 95.
. Criteria
The 'criteria' by which these programs were transferred to the HSA system are:
1. The service manager shall provide market units and rent-geared-to-income units to households.
2. Only units in non-profit housing projects may be provided.
3. The annual income of a household, at the time of its selection to reside in a rent-geared-to-income unit, shall not exceed the applicable household income limit.
4. The rent to be paid for a rent-geared-to-income unit shall not be less than the rent that would have been determined under Part V of the Act.
5. The rent for a market unit shall be established annually by the service manager at not more than 95% of the fair market rent for similar accommodation in the same vicinity.
- 6. Non-Profit Full Assistance
. Program Category Number 6(a)
With respect to non-profit housing providers other than non-profit housing co-operatives, the Non-Profit Full Assistance Housing Programs administered before January 1, 2001 by the Ministry, not including the Municipal Non-Profit Housing Program, but including the following:
i. jobsOntario Homes.
ii. The Ontario Non-Profit Housing Program (P-3,000).
iii. The Ontario Non-Profit Housing Program (P-3,600).
iv. The Ontario Non-Profit Housing Program (P-10,000).
v. Homes Now.
vi. Federal/Provincial Non-Profit Housing Program (1986-1993).
. Program Category Number 6(b)
With respect to non-profit housing co-operatives, the Non-Profit Full Assistance Housing Programs administered before January 1, 2001 by the Ministry, not including the Municipal Non-Profit Housing Program, but including the following:
i. jobsOntario Homes.
ii. The Ontario Non-Profit Housing Program (P-3,000).
iii. The Ontario Non-Profit Housing Program (P-3,600).
iv. The Ontario Non-Profit Housing Program (P-10,000).
v. Homes Now.
vi. Federal/Provincial Non-Profit Housing Program (1986-1993).
. Program Category Number 6(c)
The Municipal Non-Profit Housing Program (1978-1985).
. Criteria
The 'criteria' by which these programs were transferred to the HSA system are:
1. The service manager shall provide market units and rent-geared-to-income units to households.
2. Only units in non-profit housing projects and projects owned by service managers or corporations wholly owned by service managers may be provided.
3. At least 25% of the units in each housing project shall be rent-geared-to-income units.
- 7. Urban Native Fully Targeted
. Program Category Number 7
The Urban Native Fully Targeted Housing Program administered under the National Housing Act (Canada), section 95.
. Criteria
The 'criteria' by which these programs were transferred to the HSA system are:
1. The service manager shall provide rent-geared-to-income units to aboriginal households.
2. Only units in aboriginal non-profit housing projects to which this program applies may be provided.
3. The annual income of a household, at the time of its selection to reside in a unit, shall not exceed the applicable household income limit.
4. The service manager shall ensure that as many units as possible in each housing project are rent-geared-to-income units.
- 8. Urban Native 2% Write-Down
. Program Category Number 8
Description
The Urban Native 2% Write-Down and Additional Assistance Program administered under the National Housing Act (Canada), section 95.
. Criteria
The 'criteria' by which these programs were transferred to the HSA system are:
1. The service manager shall provide market units and rent-geared-to-income units to aboriginal households.
2. Only units in non-profit housing projects to which this program applies may be provided.
3. The annual income of a household, at the time of its selection to reside in a rent-geared-to-income unit, shall not exceed the applicable household income limit.
4. The rent to be paid for a rent-geared-to-income unit shall not be less than the rent that would have been determined under Part V of the Act.
5. The rent for a market unit shall be established annually by the service manager at not more than 95% of the fair market rent for similar accommodation in the same vicinity.
(d) Administration of Designated Housing Projects
With the Housing Services Act, 2008 (HSA) focus on municipal management these transferred projects are to be administered and managed by municipal 'service managers' (municipalities or welfare DSSABs) [HSA 68(1)] [see s.2(c) re service managers, above].
Service managers administer and fund designated housing projects according to (1) "this Act and the regulations, including such criteria and rules as may be prescribed for the program for the purposes of this clause" ('Act and Regs') and (2) "any applicable pre-reform operating agreement" ('pre-reform agreement') [HSA 68(2)].
A “pre-reform operating agreement” is an operating agreement reached prior to 2000, by a non-profit (or co-operative non-profit) housing provider with a level of government (other than a municipality), the OMHC, CMHC or a local housing authority [HSA 2]. They commonly embrace any pre-reform 'mandates' that the non-profit had, and the mandates have at least partial effectiveness under the HSA. In the event of conflict between the HSA and the pre-reform mandate, the mandates prevails [HSA 68(3)]. However, a pre-reform agreement may not be subsequently amended if it would result in a conflict with the Act and Regs [HSA 68(4,5)].
The service manager shall also keep records relating to the transferred housing programs and the housing projects [HSA 70, Genl Reg 88].
The Minister may audit the service manager over it's administration and funding of it's housing projects [HSA 71].
Service managers shall give prompt written notice to the Minister of any housing projects in difficulty when it's mortage is guaranteed by Ontario [HSA 72, Genl Reg 89].
Written consent of the applicable service manager is required, with notice to the Minister, for transfer, mortgage or development of a designated housing project [HSA 161, 163-165, 167 (Tables); Genl Reg 142, 144], even if has been conveyed since the SHRA-transfer [HSA 161(3)]. There are exceptions to this requirement [HSA 161(4), Genl Reg 140].
Written consent of the applicable service manager is required, with notice to the Minister, for the transfer or mortgage of a designated housing project to which a pre-reform operating agreement applies [HSA 162-165, 167 (Tables); Genl Reg 142, 144]. There are exceptions to this requirement [HSA 162(4), Genl Reg 141].
Amendments to corporate "articles or any other document or instrument" or corporate amalgamation requires consent of the service manager [HSA 166, Genl Reg 143].
(e) The 'Housing Provider' Role
A feature of 'designated housing projects' (unlike most post-reform housing projects) is that they were created (not only under under a 'transferred housing program' but also) under a non-profit corporation that may have several housing projects under it [HSA 2]. This leads to a current situation where several housing projects may be operated by a single 'housing provider' (eg. that same non-profit corporation), and administered by a local service manager (typically the local municipality).Note:With this configuration (adding in provincial overall policy regulation and usually social assistance involvement as well) - one can start to see the jurisdictional mess that is the HSA. Such a situation may involve:
. the province,
. the service manager (usually the municipality)
. the housing provider (usually the pre-reform non-profit corporation)
. the housing project, and
. either the welfare administrator (again, the municipality in a different capacity) or if ODSP (the province, again in a different capacity) The housing provider has operational responsibility to:- ensure that "the project is well managed, maintained in a satisfactory state of repair and fit for occupancy" [HSA 69(2)];
- be "responsible, in relation to the project, for the collection of rent and the administration of leases" [HSA 69(3)];
- "give such information as the regulations require to the service manager that administers the transferred housing program to which the project is subject" [HSA 69(4)];
- prepare and follow the following plans relating to the governance or operation of the housing provider [HSA 69(5), Genl Reg 87]:
. a plan for training the staff and volunteers involved in the operation of the housing project;
. if the housing provider has a board of directors, a succession plan for the board;
. if the housing provider is a non-profit housing co-operative, a plan for educating the members about the governance of the co-operative.
(f) Part V Housing Projects
. Preamble
Another necessary step (and no, it doesn't end there) in dealing with 'designated housing projects' is isolating Part V projects from within the larger group of designated housing projects. Part V housing projects, which I have referred to above as forming the vast majority of Ontario social housing projects, are technically only a sub-set of 'designated housing projects'.
This is a second-level of top-heaviness built into the HSA legal regime. Part V housing projects [the unhelpfully-named: "Rent-Geared-to-Income Assistance and Special Needs Housing"] are so numerically larger than any other housing project forms that one can easily forget the other (non-Part V) designated housing projects which are briefly regulated by HSA Part VI ["General Rules for Transferred Housing Programs and Projects"].
. Identifying Part V Housing Projects
Note how above [see Reg 368/11] the 'designated housing projects' and their 'transferred housing programs are set out in alpha-numeric categories [ie. 1A, 1B, 2, 3, etc].
The Part V housing programs (and thus projects) are those indicated by categories 1A, 1B, 6A and 6B only [see s.3(c), above]. Category 1 are pre-reform housing projects directly owned by municipalities [1A] and the province [1B], while Category 6 are Ontario non-profit corporations [6A] and Ontario non-profit co-operative corporations [6B].
(g) Funding Transferred Housing Programs [Part VIII]
Funding respecting 'transferred housing programs' is received from the federal government and/or the CMHC and is distributed pro rata between the service managers, subject to allowed deductions [HSA 102]. Funding respecting 'transferred housing programs' is also paid by the province, subject to allowed deductions [HSA 103-108; Genl Reg 106-108].
Service managers shall apply such funding to the transferred housing programs they are responsible for [HSA 109-118, Genl Reg 109-125].
(h) Part VII Housing Projects
Part VII housing projects are those listed under categories 6a and 6b in Reg 368/11 [Designated Housing Projects – Section 68 of the Act] [HSA 73-101, Genl Reg 90-105]. Pre-reform these were Ontario non-profits [6A] and non-profit cooperative [6B] corporations (sometimes called 'provincial reformed'), many of which had unique corporate social mandates which survive at least in part [HSA 76] (eg. addressing homelessness). As such, most have 'housing providers' (non-profit or non-profit co-operative corporations) and Part VII of the HSA [at ss.82-100] is primarily structured with provincial and service manager enforcement against housing providers in the case of financial default.
Note that they are a sub-set (about half) of Part V housing projects, and are thus subject to the extensive Part V RGI rules which take up the bulk of this Social Housing (Ontario) Legal Guide.
Funding for Part VII housing projects is set out in Reg 369/11: Subsidies for Part VII Housing Projects [HSA 78, Reg 369/11 s.2]. But, generally "(a) service manager shall pay a subsidy to a housing provider" [HSA 78(1)] determined in accordance with this Regulation [HSA 78(1)].
4. Control: The HSC, Service Managers and Housing Projects
(a) Overview
The whole task of social housing reform through the Social Housing Reform Act, 2000 (SHRA) and the HSA has been one of control - firstly to the province and then delegated to the municipalities and districts. In pre-reform time (pre-2000) the field was a thriving and growing mess of all government levels, separate government agencies like the CMHC and the OMHC, civic-minded citizen groups and more. Afterwards it was overwhelmingly municipally and provincially-controlled and new growth languished. This sub-section attempts to show how that control is exerted legally.
(b) Understanding the Forms of Social Housing
To understand the mechanisms of HSA-dictated provincial control over social housing, you need to understand the different forms of housing projects both before and after reform.
Pre-reform (and continuing through the designated housing project-system) most social housing took the form of non-profit corporations. These are corporations 'without shares' (including non-profit co-operatives). In contrast, the post-reform 'local housing corporations' (LHCs) are all share-issuing under the Business Corporations Act (the OBCA) [SHRA 23, HSA 24]. These forms dictate different means of exerting control.
(c) Means of Control
The main forms of HSA control over housing projects are common to both the share and non-share (non-profit) corporation housing providers: the HSC and the 'service manager' (municipal) system.
Share corporations (LHCs) are members of the HSC by fiat law [HSA 127(b)], as are service managers [HSA 127(a)].
Then, most - if not all - designated housing projects are members of the HSC [see s.2(d) above]. These are listed at both General Reg Schedule 6: Members of the Housing Services Corporation Non-profit Corporations (Section 129) and General Reg Schedule 7: Members of the Housing Services Corporation Non-profit Housing Co-operatives (Section 129). Non-profit corporation (they are 'housing providers') membership in the HSC is incentived with RGI funding.
Membership in the province-wide 'Housing Services Corporation' (HSC) [itself a non-share corporation: HSA 121], requires those members to adhere to legislated standards - eg. HSC insurance, pooling of capital, natural gas purchases, research etc [HSA 124].
Second, the ubiquitous municipal 'service manager' regime imposes further controls over non-profits by (frequently extensive) direct regulation [see both s.2(c)], and as well the central service manager role played in Part V housing projects regarding RGI funding [see Chapters 2 to 9].
Next, for the post-reform 'local housing corporation' (LHC) system [see s.2(e) above] there is an additional control method. The primary mechanism bringing LHCs under the control of the HSA regime is that of share dominance. That is, by requiring 'service managers' (read: 'municipalities and district') to take on a controlling shareholder position [HSA 30(2), also 32-34]:HSA 30(2)
A corporation is a local housing corporation only if the related service manager owns, legally or beneficially, shares that carry voting rights sufficient to elect a majority of the board of directors.
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