December 1, 2014 3:17 pm

No place for courts in affordable housing fight, Ontario’s top court rules

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TORONTO – An argument over whether people have a constitutional right to adequate housing that governments are violating is not up to judges to decide, Ontario’s top court ruled Monday in a split decision.

In its ruling, the Court of Appeal sided with a lower court that tossed the case without even hearing arguments on its merits.

“The appellants assert that (the charter) confers a general free-standing right to adequate housing,” the Appeal Court said. “This is a doubtful proposition.”

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Four people who are either homeless or are on lengthy waiting lists for subsidized housing along with an activist organization argued the federal and Ontario governments have caused homelessness or inadequate housing.

Among other things, they cited cancelled funding for new social housing, a lack of rent subsidies and rules they said make tenant evictions easier.

They wanted the court to order Canada and Ontario to implement strategies to reduce homelessness and inadequate housing.

A Superior Court justice tossed the case as having no chance of success and beyond the jurisdiction of the courts.

In their decision, Appeal Court Justice Gladys Pardu with the backing of Justice George Strathy agreed the courts should not get involved in policy debates that are more properly left to governments.

“Issues of broad economic policy and priorities are unsuited to judicial review,” they said. “Here the court is not asked to engage in a ‘court-like’ function but rather to embark on a course more resembling a public inquiry into the adequacy of housing policy.”

However, in a sharply worded dissent, Justice Kathryn Feldman came to a different conclusion.

The case, she said, had been brought on behalf of a large, marginalized, vulnerable and disadvantaged group who face profound barriers accessing the justice system, and raises issues basic to their life and well-being.

READ MORE: What the mayoral candidates are saying about TCHC, affordable housing

In addition, Feldman noted, eight “credible” institutions – among them Amnesty International and the Ontario Human Rights Commission – had intervened in the appeal.

The 10,000 pages of evidence presented should have been judged on its merits, she said.

“This application is a serious attempt made on behalf of a broad range of disadvantaged individuals and groups,” Feldman said in her dissenting opinion.

“The appellants put together a significant record to support their application. That record should be put before the court.”

Emboldened by Feldman’s views, the applicants said they would ask the Supreme Court of Canada to hear a further appeal.

One of them, Janice Arsenault, called housing a fundamental human right.

“I feel like I’m not an important Canadian citizen,” said Arsenault, a mother of two who became homeless after her spouse died.

“I feel like I’m being swept under the rug. Do I not have rights because I don’t make $60,000 or $70,000 a year?”

Fay Faraday, one of the lawyers involved, called the majority Appeal Court decision “troubling.”

The decision, she said, is typical of what the marginalized often face in trying to access justice.

“When you challenge the status quo, it is characterized not as a rights claim, but as a political claim,” Faraday said.

“People who are marginalized have rights, and what rights look like from their perspective, people in positions of power have difficulty recognizing.”

© 2014 The Canadian Press

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