Senior's-Only Housing Exemption in Nova Scotia
Donalee Moulton for The Lawyers Weekly
February 25, 2011
The Law Reform Commission of Nova Scotia
is recommending the legislative status quo remain unchanged for seniors-only housing
. In a new discussion paper, the commission advised that this type of housing should not be exempted from Human Rights Act
Halifax lawyer Jeanne Desveaux
gives the recommendation a thumbs up. "I totally agree with that," she said, adding, "We need to look at the underlying social issues as opposed to changing the legislation."
Last year, the provincial government asked the commission to explore whether an exemption should be included in the Human Rights Act in the wake of such blanket exemptions getting the force of law in B.C., Saskatchewan, and Newfoundland and Labrador.
"Under such an exemption, a housing development[...]which restricted residence to seniors would be immune from a complaint of age discrimination under the Act," the 28-page discussion paper stated.
"The legal issue is fairly straightforward," the authors added. While Nova Scotia's Human Rights Act prohibits discrimination on the basis of age, unlike some other provinces, it does not expressly address residential tenancies.
The commission, an independent advisor to the government, believes this is not necessary at present. "The Act has a number of existing defences and exemptions, and these seem to be preferable to a blanket exemption," said John Briggs, the commission's executive director.
"The kind of exemption that some other provinces have applies to any seniors-only restriction," he added. "So it could be a gated community, or a condo or apartment building reserved for seniors[...]That would shut the door against younger adults and families with children. Sometimes that might be justifiable, but not necessarily in every case."
"We need to fix the underlying problems, not reinvent the wheel," said Desveaux, a former nurse.
The discussion paper, "Seniors-only Housing," looks at a number of cases across the country that address age-based restrictions on housing eligibility.
"But because the cases have concerned the particulars of exemptions in the legislation in the relevant jurisdiction, they are not necessarily instructive in assessing how age-related restrictions will, or ought to, fare under human rights scrutiny, absent an exemption," the paper's authors noted.
"The critical analysis of a bona fide qualification or ameliorative program is largely missing from these decisions," they added.
The paper pointed out that a seniors-only housing exemption in the Human Rights Act would violate equality rights. "On its face, such an exemption would deny younger persons the opportunity to challenge an age-based restriction on available housing. If the exemption actually resulted in the denial of housing space to younger persons, (and it is likely that only in such a case would a challenge be brought) then that deprivation would be a further ground to challenge the exemption," the authors wrote.
"The interests at stake are not trivial; especially in a situation of housing scarcity, the limitation would raise the risk of exposing younger persons and families to situations of severe vulnerability from inadequate shelter," they added. "Short of this, the restriction would nevertheless deny younger persons and families access to housing options that might otherwise suit them?-?for reasons of proximity to a job, assistive facilities, and so on."
The availability of options also tips the scales, noted Briggs. "We see why in some cases a seniors-only housing development would be defensible in terms of providing care and services for important senior needs. We think the existing Act covers these to the extent they can be covered.
"But if it's just a matter of wanting to live apart from younger adults and families," he added, "we're concerned that reflects stereotypes that the Act is supposed to overcome."
Principles aside, there are also practical implications to amending the legislation, the commission noted. First, there is the question of what age the exemption should specify. B.C., Saskatchewan, and Newfoundland and Labrador have answered this question - 55 years of age - and extended the established definition of seniors in the process.
Other practical considerations include the issue of flexibility for the age of residents, how broadly the exemption should apply, and how best to amend the legislation.
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