Feds seek to dismiss historic housing challenge even before legal arguments are made
The first round of an historic legal challenge on the right to housing will be argued in court on Monday and Tuesday – with federal lawyers seeking to have the action dismissed even before the legal arguments are heard. The Right to Housing legal challenge has been launched by legal advocates with the goal of recognizing a legally enforceable right to housing under Canada’s Charter of Rights and Freedoms.
The Wellesley Institute’s Director of Housing and Innovation, Michael Shapcott, has prepared one of the expert affidavits in support of the legal challenge.
Canada already recognizes the international legal right to adequate housing. Canada’s federal government is a signatory to the International Covenant on Economic, Social and Cultural Rights (CESCR). Article 11 of the CESR sets out the right to housing and requires that signatories “take appropriate action to ensure the realization of this right.”
This international legal obligation has never been incorporated into domestic law in Canada, so although the federal government recognizes the international right to housing, it does not want Canadians to use the courts to effectively realize this right. Section 7 of Canada’s Charter of Rights and Freedoms recognizes the right of Canadians to “life, liberty and security of persons” – and legal experts have said that this necessarily includes the right to housing.
Increasingly, Canadian tribunals and courts have been recognizing that Canada’s international legal obligations are binding in domestic law; and that domestic human rights laws include the right to housing. The Ontario Human Rights Commission has prepared both a detailed research report and a legal guide to the right to housing in the provincial context.
Many of the basic social determinants of health – including housing, food, and income – are recognized as fundamental human rights in the CESCR and other international legal instruments. The Right to Housing legal challenge is historic because it seeks to create a legally enforceable right in Canadian law.
But before the substance of the legal arguments can be made, the court will have to deal with a bid by the federal government to dismiss the legal action even before it has started. The federal motion claims that it is “plain and obvious” that the legal challenge will fail and wants the legal action to be tossed out of court even before the legal arguments can be made.
Two days have been set aside for legal arguments on May 27 and 28 at the Ontario Superior Court of Justice. Members of the public are welcome to observe the proceedings.