Ontario's proposed landlord drug liability law rattles supportive housing providers

The first time Fay Martin read up on the details of a proposed act to make landlords responsible for preventing drug activities in their units in Ontario, she says her hair stood on end.

As a founder and board member of Places for People, which rents out 20 affordable units in Haliburton Highlands, Ont., she says the legislation — which threatens landlords with fines or jail time if their properties are used for producing or trafficking drugs — conflicts with both the goals of her charity and possibly with its ability to survive long-term .

"It's going to be a total disincentive to housing the people that most need housing, and that the community needs to have housed," she said.

Martin said that's because it could discourage supportive housing providers from "taking a chance" on tenants who need a home but who may be dealing with addictions.

The act, which has received royal assent but has not yet been proclaimed into law, is a sub-section of Bill 10 — a multi-part piece of legislation broadly focused on public safety by making changes to areas like bail, courts and policing.

In the act, the government also says landlords will be able to legally defend themselves by taking "reasonable measures" to "prevent the [drug] activity."

With no clarity on what those measures could be, housing providers like Martin are anxiously waiting to learn more about what their new responsibilities will be — and how much they will cost.

Fines could reach up to $250,000 on the first conviction, something Martin says would "kill us." Her charity receives no additional funding from the government and relies on donations to subsidize its units, she says.

Jennifer Van Gennip, who works for supportive housing provider Redwood Park Communities in Simcoe County, Ont., is also worried, explaining that she's already seeing a "chilling effect in the sector around providing housing for people who use drugs" as a result of the proposed act.

"We're hearing about other supportive housing providers who are trying to get out ahead of it ... and evicting residents who use drugs," said Van Gennip, who is also a co-chair of the Ontario Alliance to End Homelessness.

What she wants is more information on who is being targeted under the act, with the hope that there is a "very clear" distinction between people who use drugs or do what she calls "survival dealing" — where people sell a small amount of drugs, to finance their own habits or pay for food or rent — and larger-scale trafficking and drug production.

Toronto-based lawyer John Fox , who specializes in law pertaining to affordable housing, says the legislation was written in a "fairly vague way."

"Some form of guidance is really needed here," said Fox, explaining that he expects more information from the province clarifying things before it comes into force.

Among the key questions now being discussed by landlords, whether non-profit, for-profit or commercial, is what the government means when it says that landlords can legally defend themselves by taking "reasonable measures" to stop drug activity.

Toronto is getting new supportive housing that will have doctors on site, mental health resources, as well as food programs. As CBC’s Ali Chiassion reports, it’s aimed at helping Toronto's unhoused population get back on their feet.

"People wonder whether that means more CCTV monitoring," said Fox. "Could it mean that in a lease that you should now include monthly inspections of the premises because you want to make sure that none of this is happening?"

Then there are uncertainties more specific to non-profit housing, says Fox, including how much liability will fall to a non-profit's board of directors, who are volunteers, and whether there will be any financial help for them to pay for whatever "reasonable measures" they are eventually expected to take.

CBC Toronto asked the Ministry of the Solicitor General about its timelines for putting the act into force and publishing more detailed regulations, but did not hear back by deadline.

Fox says the province is currently being urged by advocates to consider whether supportive housing should be excluded altogether from the act —something the province also did not confirm.

"[Supportive housing providers] are looking to be exempt from this act on account of the fact that their activities are directly related to reducing this kind of [drug] activity," he said. "This is not a risk that is fair for them to take on."

If that campaign is successful, Fox continued, it raises yet another wrinkle: how to distinguish between non-profit housing, which doesn't generate profits for owners and sometimes offers non-market rent, and supportive housing, which typically offers non-market rent and tenant support.

"That line will not be an easy one to draw," he said.

The hope now in the non-profit sector is for more consultations with the province, says Marlene Coffey, CEO of the Ontario Non-profit Housing Association.

"What we would expect is that as regulations are developed, we will work with the government in consultation and then there will be more clarity," she said.

Her association has also submitted a list of recommendations to the province, including requests for more funding and clarity on personal liability rules.

The Association of Municipalities of Ontario is asking for consultation as well, submitting in a letter to the Ministry of the Solicitor General in June that it is concerned about "unintended consequences… undue burdens… and risks to municipal landlords."

The Advocacy Centre for Tenants Ontario, meanwhile, is preparing presentations for front-line staff on how to "mitigate the negative impacts on Ontarians" of both this act and Bill 6, which gives new powers to municipalities to remove homeless people from public spaces.

"The practical impact of both Bills is that Ontarians will lose their housing and be pushed into greater precarity," the centre wrote in submissions sent this spring to Attorney General Doug Downey.