Smiths Falls to Remove two Provisions in Bylaws Accused of Being Discriminatory, will Study Third

Posted Mar 4, 2010
By Dianne Pinder-Moss

EMC News - While the Human Rights Legal Support Centre (HRLSC) is happy that the Town of Smiths Falls is planning to withdraw the "most offensive" provisions of the town's Zoning Bylaw and Official Plans related to group homes, it is still concerned about the distancing requirement.

"We are delighted they have responded so quickly to remove some of these provisions," Jennifer Ramsay, the centre's communications and outreach adviser, said on Friday while noting her concern about the separation distancing.

She was responding to an e-mail sent last week by town CAO Wayne Brown informing the centre that town council confirmed informally at its Feb. 24 meeting that they would support removing two of the three provisions being challenged as discriminatory by people with disabilities to the Human Rights Tribunal of Ontario (HRTO) and study the third.

Smiths Falls was one of four municipalities - Toronto, Sarnia and Kitchener were the others - named in the application filed in Toronto on Feb. 23 by the Dream Team, an organization comprised of people living with mental health issues "who advocate for more supportive housing for people with disabilities in Ontario."

According to an excerpt from the application to the HRTO, Smiths Falls' Official Plan and zoning bylaws have the effect "of limiting the sites available for supportive housing for people living with disabilities."

The sections being questioned relate to:

The two provisions which town staff has recommended be dropped from the planning documents, and council agreed informally at a special Committee of the Whole (COW) meeting held on the budget on Feb. 24, are those relating to the buffering and the number of individuals permitted in these types of group homes in Smiths Falls.

When the provision governing the number of mentally disabled people that could reside in group homes in Smiths Falls was originally put in place in 1994 before he was employed with the town, Brown said there was concern that when the Rideau Regional Centre (RRC) closed, a number of the staff would set up group homes. Along with being worried about the inability of the community "to provide the medical services for what these people would need," he told council, there was apprehension that not-for-profit groups would be exempt from taxation.

The concern, Brown said, was "if you happened to get 40 or 50 (group homes), you are going to lose 40 to 50 of these homes from taxation." The cap of 36 residents was arrived at, he explained, through comparisons with other communities in Ontario.

Certainly, the concerns of the day "didn't materialize," Brown stated, with the town's consultant planner Doug Grant having recommended, in the updating of the Official Plan and Zoning Bylaw, that this provision be removed. The town's CAO likewise said he didn't see any reason why the provision related to buffering wouldn't be taken out as well.

"The staff recommendation to remove anything had nothing to do with the latest initiative (before the HRTO)," Brown stressed in an interview with The EMC.

"It was one of the early things we were looking at (in revising the two documents)."

COUNCIL HAS ITS SAY

Stating that he was unable to speak as a member of council on these issues up to 1999 as he was an employee of the RRC, mayor Dennis Staples said at the Feb. 24 meeting individuals with these disabilities should be viewed the same as anyone else and should "enjoy the same rights and privileges as we enjoy."

In the opinion of Staples, council would be "well advised" to eliminate the first two policies. With regards to the third contentious item, the 300-metre separation distancing, he said he wasn't sure "how successful we would be in defending that."

According to Brown, that provision was originally implemented because of concerns, if there were three or four group homes on the same streets, residential property owners would be "overwhelmed" by vehicles from the group home facilities.

"Whether or not that is the case, staff is monitoring to see how many cars would be on average at group homes to see if it is a problem or not," he said on Thursday after getting the go-ahead from council to study the matter further.

At last Wednesday's meeting, councillor Ken Graham advocated "bend(ing)" on the two items staff had recommended be removed from the planning documents and "getting some solid legal advice on the third."

The day after the meeting, Brown said he had obtained legal advice and the advice he received was that, if it could be shown that group homes cause similar problems in terms of traffic "to what it would be with a commercial operation, you would have a strong argument."

One of the other communities named in the human rights challenge has already contacted the Town of Smiths Falls about a report Brown prepared a few years ago about the Ontario Municipal Board's (OMB) "impression" of separation distancing.

While he believes it would be "very favourable" for the town on this issue if the tribunal made its decision based on the OMB rulings, he also pointed out that "you are dealing with a different judicial body."

"It's always a bit of a crapshoot when you are dealing with the Human Rights Commission or the courts," he remarked. "You never know the outcome."

The position of the HRLSC, which is representing the applicants, is that there is "no legitimate planning rationale" for such a provision, according to Toby Young, director of legal services.

"That (the separation distancing) is the core fundamental complaint that is common to all of the municipalities (being challenged)," he said on Monday.

Now that the eight plaintiffs have filed the application with the HRTO, Smiths Falls and the other three municipalities named in the legal challenge have 35 days in which to file their response. After that occurs, the HRLSC would have 14 days in which to reply on behalf of the applicants.

"The purpose of the reply is if the municipalities raise some new matters that weren't in the original application," Young explained.

Once these steps are completed, the HRTO would then set a mediation date, which he indicated is usually approximately six months from the time of filing.

Should the mediation process not be successful, a hearing date would be scheduled.

While Young said usually the tribunal tries to complete a case within one year of its filing, "because of the size and the nature of this case, there's the possibility it could take longer than a year."

PEOPLE FIRST SPEAKS OUT

Although none of those filing the application are from the Smiths Falls area, the ARCH Disability Law Centre is representing a group with local representation that hopes to intervene in this matter. That organization is People First of Ontario (PFoO), an advocacy group for those with intellectual disabilities whose new president is Kory Earle, president of People First of Lanark County (PFoLC).

Although Earle believes Lanark County has gone a long way to being inclusive for those with disabilities, he views the provisions being challenged in Smiths Falls' Zoning Bylaw and Official Plan as "one step backward."

And he hopes all three, including the separation distancing, will be rescinded as soon as possible.

"I would be more concerned with a criminal living beside me than a person with a disability," he stated in an interview from Toronto on Monday where he was attending to his work as president of PFoO.

Upon his return back home to Lanark County on Friday, Earle intends to contact Smiths Falls council "to find out their take on this." He also hopes to appear before council at an upcoming meeting to address the matter.

To have a community in his home area be among those listed in the challenge to the HRTO is not something of which Earle is proud.

"Even if the bylaw changes tomorrow, we are celebrating something that should never have been in place," he stated.

Reproduced from http://www.emcsmithsfalls.ca/20100304/news/Smiths+Falls+to+remove+two+provisions+in+bylaws+accused+of+being+discriminatory,+will+study+third

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