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Social Housing (Ontario) Legal Guide
(23 November 2021)

Ch.9 - Advocacy


  1. Overview
    (a) Challenges
    (b) Service Manager Disclosure
    (c) Deferral or Forgiveness of RGI Rent (Ambiguous)
  2. Local Part V Rules, Form and Information Available to the Public
    (a) Service Manager Duties
    (b) Housing Provider Duties
  3. Freedom of Information (FOI) Laws
    (a) Freedom of Information (FOI) Laws
    (b) Limited Application to Part V-Governed Housing Projects
    (c) Potential Application to Non-Part V-Governed Housing Projects



1. Overview

(a) Challenges

Advocacy for social housing households and tenants starts with a basic familiarity with both residential tenancy law [see the Isthatlegal Residential Landlord and Tenant (Ontario) Legal Guide] and social assistance law [see both the Isthatlegal Welfare (Ontario Works) Legal Guide and the Ontario Disability Support Program (ODSP) Legal Guide ].

That makes the field already an exclusive one, but what truly drives the field into the legal nether-world (aside from the efforts of a few devoted legal clinic staff) are:
  • the inevitable poverty of the tenant client households and the inevitable low dollar-quantum at stake (leading to limited case law development);

  • a profound lack of secondary materials (which this Legal Guide hopes to partly remedy);

  • the difficulties in understanding the statute and regulations;

  • the near-extreme jurisdictional splitting of the law and rules across provincial, service-manager (municipal), non-profit corporate, and social assistance (both municipal and provincial) law;

  • the truly extreme spreading of the law over 47 service areas, as many municipalities (for welfare at least) and hundreds of corporate bodies; and

  • the marked lack of standardization of presentation of the law over the 47 different service-managers (and that's assuming they comply with their disclosure duties set out in s.2 below).
Any single one of these would raise the difficulty of advocacy in the social housing legal field, but with them combined the task is uniquely difficult.

(b) Service Manager Disclosure

As mentioned throughout this Social Housing (Ontario) Legal Guide, it is essential for social housing advocacy that the advocate (and better yet, the household) be equipped with a full set of 'local rules'. This is due to the awkward structuring of social housing rules into the provincial, and the local levels (there are 47 different local levels).

In fact, it gets even worse - at least for the advocate and their clients. This brief 'Advocacy' chapter deals only with public access to Part V-applicable 'rules, forms and information'. But Part V is not the only municipally-run RGI system governed by the Housing Services Act. This is implicit in HSA 39(2), which refers to RGI assistance not governed by HSA Part V.

So these 'non-Part V but still RGI' housing projects must have 'rules, forms and information' too. More on this below at s.3.
Note: Disclosure issues for 'special needs' housing are addressed in Ch.8 "Special Needs", s.8 "Local Rules, Form and Information Available to the Public".
(c) Deferral or Forgiveness of RGI Rent (Ambiguous)

The service manager may, upon the application of a household receiving RGI assistance, defer or forgive all or part of the rent payable by the household [HSA 51(1)]. A deferral or forgiveness under this section is binding on the housing provider [HSA 51(4)].

This provision is ambiguous, it allows such deferral or forgiveness for a household "receiving RGI assistance", but it doesn't limit it to 'RGI rent' - so it is arguable that past market-rate rent may also be forgiven. That said, the deferral or forgiveness is at the discretion of the service manager.

Also, the HSA provisions for this forgiveness or deferral were written in anticipation of local rules [HSA 51(2)], to be guided by 'requirements' set out the HSA regulations [HSA 51(3)]. However I cannot locate any applicable regulations. My best guess is that, practically, the issue has been left entirely to local rules, which renders it more ambiguous - because without regulations it can be argued that any forgiveness or deferral local rules are void.


2. Local Part V Rules, Form and Information Available to the Public

(a) Part V Service Manager Duties

The following rules, forms and information shall be made available to the public by the service manager [HSA 54(1)]:
  • RGI Applications (Local)

    The service manager’s procedures for applications for RGI assistance, including what information and documents the service manager requires for an application [under HSA 44(2)(b): "Contents of application"] and the form authorized [under HSA 44(4): "Form of application"] [see Ch.4, s.1: "Applications"].

  • Local Eligibility Rules

    The service manager’s local eligibility rules [made under HSA 42(1)2: "Eligibility rules"] [see Ch.3, s.3: "Local RGI Eligibility Rules"].

  • Local Occupancy Standards

    The service manager’s occupancy standards [under HSA 43: "Occupancy standards"] [see Ch.3, s.3(f): "Local Occupancy Standards"].

  • Local System Rules for Selecting Households

    The rules [under HSA 47, esp 47(2): "System for selecting waiting households"], in the service manager’s system for selecting households [see Ch.5 "Selection System"].

  • Information on Local RGI Housing

    Information on the housing projects in the service manager’s service area where RGI assistance is provided. Housing providers shall provide such information as the service manager requests for the purposes of complying with this duty [HSA 54(2)].

  • Information on Provincial Rules

    Information about the provincial eligibility rules [prescribed under HSA 42(1)1: "Eligibility rules (provincial)"] [see Ch.3, s.2: "Provincial RGI Eligibility Rules"].

  • Information on Provincial Priority Rules

    Information about the provincial priority rules [prescribed under HSA 48(2)1: "Rules guiding determination (provincial)"] [see Ch.6: "Priority Ranking (Special Priority)"].
The information, documents and such (above) shall be made available by [Genl Reg 62]:
. allowing members of the public, during normal business hours, to inspect and copy them at their own expense; and

. posting them on the Internet.
(b) Part V Housing Provider Duties

In a separate, but related, duty the HSA places near-identical disclosure duties on housing providers.

A housing provider (at least one that operates a Part V housing project) shall make the same 'rules, forms and information' [set out in s.2(a) above, for service managers] themselves available [HSA 54(3); Genl Reg 63(1)].

The only variation is that the housing provider need only provide "information about the housing projects operated by the housing provider" - ie. only for it's own housing projects [Genl Reg 63(3); HSA 54(1)(5)].

Such disclosure by housing providers "shall be made available by allowing members of the public, during normal business hours, to inspect and copy them at their own expense" [Genl Reg 63(2)].


3. Freedom of Information (FOI) Laws

(a) Freedom of Information (FOI) Laws

Ontario has two generic freedom of information (FOI) laws, the Freedom of Information and Protection of Privacy Act (FIPPA) and the Municipal Freedom of Information and Protection of Privacy Act (MFIPPA). Both may conceivably apply in your social housing advocacy, within their limits.

General duties relating to the Freedom of Information and Protection of Privacy Act or the Municipal Freedom of Information and Protection of Privacy Act by housing providers and the service managers are set out in the HSA and it's General Regulation [HSA 169-176, Genl Reg 145-6].

(b) Limited Application to Part V-Governed Housing Projects

A big problem with using FOI laws to access service-manager local rules - ironically enough - is that HSA law [see s.2 above], already requires that they be publically accessible [HSA 54, 67].

Ontario's freedom of information laws allow a 'head' (the keeper of the subject records) to refuse disclosure "if ... the record or the information contained in the record has been published or is currently available to the public", or if it is expected that it soon will be published [MFIPPA 15, FIPPA 22].

So if a service manager is remiss in their public disclosure HSA duties (remembering that there are no standardized disclosure protocols in a very difficult area of law that even paid municipal staffers have trouble with), the municipal head would logically divert the FOI request issue to HSA law. Then, insofar as the HSA public access requirements are not complied with (or 'promised' to be complied with), the advocate is deprived of the formal access and appeal rights set out in the FIPPA and MFIPPA statutes.

Should the advocate be stymied in locating the HSA public access materials, they then are restricted to negotiating with the service manager to reach whatever result the service manager deems fit. This leaves the advocate with only the inaccessible, cumbersome, slow and expensive remedy of judicial review.

If you think that this is a pessimistic view of service-manager compliance, I have viewed dozens of service manager websites searching for compliance with their HSA public access duties, and found no single instance of coherent and page-dedicated content devoted to that duty. Many have piecemeal content located topically (for instance merged with staff policy directives which are then published), but that is of little use to the advocate requiring determination of specific information who must then search throughout the webite - often to no avail.

(c) Potential Application to Non-Part V-Governed Housing Projects

In s.1(b) [above] I referred to the little dealt-with subject of non-Part V advocacy, as not all RGI tenancies are governed by the HSA-dominant Part V rules. As non-Part V housing projects are not governed by the public disclosure rules set out in s.2 [above] they do not run into the FOI refusal provisions [see (b), above] and they are conceivably amenable to Ontario's FOI laws.

The most likely use of these laws would be where the service manager is the municipality, and one is seeking non-Part V RGI rules through MFIPPA. Other configurations of access requests are conceivable as much local HSA material and documents may be filed with the Minister of Housing and Municipal Affairs [under HSA 20-23, Genl Reg 8.1-9.2], which renders them vulnerable to the provincial FIPPA access as well - if the municipal approach runs into problems.

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