Earlier this year, we considered the Ontario Superior Court’s decision on the landmark Charter application regarding housing rights in Tanudjaja et al. v. the Attorney General (Canada) (“Tanudjaja”). The applicants, four individuals in precarious housing situations, requested the Superior Court make a declaration that the federal and provincial governments had violated their rights under the Charter of Rights and Freedoms: specifically, the right to life, liberty and security (Section 7), and the right to the equal protection and equal benefit from the law (Section 15), by failing to implement a national and provincial housing strategy.  

The application was brought by four individuals, who identified in their submissions as homeless, together with the Centre for Equality Rights in Accommodation (CERA), a non-profit, housing rights organization.  

The application was dismissed by the Superior Court. The decision to dismiss was appealed.

The Ontario Court of Appeal released its decision last week. The Court dismissed the application, thus rejecting the argument that the Charter places a positive obligations on government to ensure that individuals are granted their social and economic rights. This outcome is undoubtedly disappointing not only to those involved in activism around homelessness and housing, but to social justice activists seeking redress through the courts.

The Court of Appeal’s decision

The Court considered the applicants’ submissions that the federal and provincial governments had granted insufficient priority to issues of homelessness and inadequate housing. In the Court’s view, the applicants were seeking a broad declaration on a “political issue” rather than addressing any particular legislation or action enacted by the government. The Court found that in this case, there was no sufficient legal component to engage the decision-making capacity of the courts

The Court went on to address the applicants’ submission that the Charter encompassed a “general, free standing right to housing.” The Court described this as a “doubtful proposition” in light of two prior Supreme Court decisions in which the Court had rejected arguments that the Charter imposed on governments a positive obligation to ensure access to health care or a minimum level of social assistance.

On the basis of prior Charter jurisprudence, the court held that the Charter did not impose a positive obligation on government to ensure that all individuals were granted their Charter rights.

Moreover, the Court stated that this was not a question that could be resolved by application of law, but was more suited to the legislature. It stated that the application required the Court to embark on a course more resembling a public inquiry into the adequacy of housing policy.

Having upheld the lower court’s decision to dismiss the application, the Court found it unnecessary to explore the limits of the extent to which positive obligations could be imposed on the government to remedy Charter violations.


Justice Feldman’s dissent

While two of the three judges agreed that the application should be dismissed, Justice Kathryn Feldman delivered a compelling dissent to the majority opinion. Justice Feldman began her dissent by noting that an application or claim should not be struck out unless it is plain and obvious that it disclosed no reasonable cause of action. She stated that novelty was no reason to strike out a claim, and went on to state that the motion to strike out a claim “should not be used […] as a tool to frustrate potential developments in the law.”

In contrast to the majority, Justice Feldman highlighted the extent to which jurisprudence around positive rights under the Charter is unsettled. The Justice stated that there were special circumstances under which Section 7 of the Charter could obligate the government to take action, and the Justice was critical of the lower court for failing to consider those circumstances. Justice Feldman highlighted the fissures in this debate by quoting from an earlier Supreme Court decision, in which the Court acknowledged that:

The question therefore is not whether s. 7 has ever been — or will ever be — recognized as creating positive rights. Rather, the question is whether the present circumstances warrant a novel application of s. 7 as the basis for a positive state obligation to guarantee adequate living standards.

The Justice went on to criticize the lower court for dismissing this application without any consideration of “special circumstances” that might require a varied interpretation of the Charter. She noted that the Court had dismissed the application without any regard for the 16 volumes — or 10,000 pages (!) — of evidence filed by the Applicants.

Finally, Justice Feldman  addressed the applicants’ argument that the issue of homelessness disproportionately affects marginalized populations, including women, persons with disabilities, Aboriginal people, and seniors, and constitutes a violation of their Section 15 rights. The Justice stated that this issue could be decided only upon consideration of the full evidentiary record, and not prior. 

Reflecting on the outcome

Tanudjaja represents the collective effort of numerous individuals and grassroots organizations — including the eight non-profit organizations who served as interveners — to address the grave housing crisis in Ontario and Canada, signalled by the fact that there are 160,000 families on the waitlist for affordable housing in Ontario alone. While the Court of Appeal was unwilling to find that the Charter encompasses positive rights, Justice Feldman’s dissent suggests that this decision may be appealed to the highest court. Moreover, the mobilization of critical stakeholders to bring this issue before the courts is an indication that the struggle is not over, and that mobilization on the issue of access to affordable housing will continue yet.

Iler Campbell LLP is a law firm serving co-ops, not-for-profits, charities and socially-minded small business and individuals in Ontario.

Pro Bono provides legal information designed to educate and entertain readers. But legal information is not the same as legal advice — the application of law to an individual’s specific circumstances. While efforts are made to ensure the legal information provided through these columns is useful, we strongly recommend you consult a lawyer for assistance with your particular situation to obtain accurate advice.

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Safia J. Lakhani

Safia J. Lakhani

Safia J. Lakhani is an associate at Iler Campbell LLP, and a contributor to rabble’s Pro Bono column. Safia practices in civil litigation, assisting non-profits on construction disputes and other...

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Pro Bono

Pro Bono is a monthly column written by lawyers and legal experts at Iler Campbell LLP that explores the murky legal waters activists regularly confront in doing their work.