Housing rights case dismissed — but a door remains open

February 4, 2015

It is estimated that 1.3 million people have experienced homelessness in Canada over the past five years. The country’s streets are host to some 235,000 people on any night, and many more struggle in inadequate or unreliable housing. Yet despite these unconscionable numbers, Canada does not have a federal housing strategy — a lone outlier among G8 countries.

Back in November 2014, we reported in a two-part blog-post (part 1, part 2) about our rationale for intervening in the housing-rights case, Tanudjaja v. Canada, in coalition with ARCH Disability Law Clinic, the HIV/AIDS Legal Clinic Ontario (HALCO) and the Dream Team. This landmark challenge before the Ontario Superior Court alleges that both the provincial and federal governments have failed to implement effective strategies to reduce and eliminate homelessness. We contend that inadequate housing violates people’s rights to equality, life, liberty and security of the person, as guaranteed by the Canadian Charter of Rights and Freedoms. The governments had succeeded on a motion to strike, in effect having the case thrown out before the evidence was even presented. The applicants appealed the granting of the motion to strike. Unfortunately, the Court dismissed the appeal on December 1, 2014 — even more disappointingly, World AIDS Day.

But some glimmer of hope still exists for the case. The divided decision came from a three-judge panel, with the dissenting voice leaving open a possible door for a Supreme Court appeal. According to the majority, the case raised political, not legal questions, which went “well beyond the limits of the court’s institutional capacity” — a view that lawyers for the homeless found “profoundly disturbing,” as quoted in the Toronto Star. However, Justice Kathryn Feldman offered a dissent that acknowledged the case’s important Charter implications. According to her, the case addressed “profound barriers to access to justice,” and a court of law was precisely the venue where these fundamental, rights-based questions should be raised.

Along with the other agencies who intervened in Tanudjaja, we at the Legal Network believe housing is a human right. Housing and health are closely linked, demonstrated by the fact that the homeless population faces higher rates of HIV infection than the general public. People living with HIV also have a harder time finding accommodation due to HIV-related stigma and discrimination. On the other hand, when people living with HIV have secure food and housing, the odds double that they will be successful on treatment.

We sincerely hope this important case is appealed to the Supreme Court, and we remain committed to supporting its promise of an equal right to housing for all.