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December 8, 2014

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Law Times • December 8, 2014 Page 3 www.lawtimesnews.com Tanudjaja v. Canada Appeal judge's dissent a silver lining for homeless advocates By yamri Taddese Law Times nce again, the court has told advocates for the homeless they can't sue the provincial and federal govern- ments for their alleged systemic failures that have allowed for homelessness. The Ontario Court of Ap- peal rendered a split decision last week upholding a ruling that struck a unique application raising new questions around what is a legal issue versus a po- litical one. The court barred the matter on the basis that it had no prospect for success. Had the matter in Tanud- jaja v. Canada (Attorney Gen- eral) proceeded, it would have been the first time homeless- ness would have been used as grounds for a claim under ss. 7 and 15 of the Charter of Rights and Freedoms. But in a 2-1 decision, the Court of Appeal found the mat- ter is "not justiciable." "To embark, as asked, on judicial supervision of the ad- equacy of housing policy devel- oped by Canada and Ontario takes the court well beyond the limits of its institutional capac- ity," wrote Justice Gladys Pardu on the majority's behalf. The plaintiffs, represented by two pro bono lawyers, didn't cite specific legislation they want- ed to challenge. Rather, they wanted to present evidence that shows a network of government programs and actions have left poor and racialized people as well as those with disabilities without "security of the person." Lawyer Peter Rosenthal, one of the lawyers for the plaintiffs, was reeling from the court's ruling last week but he and his clients — three individuals who are either homeless or lack "ad- equate housing" — have made a decision to seek leave to ap- peal from the Supreme Court of Canada. If allowed to present evi- dence, his legal team would have sought to demonstrate that even after controlling for factors such as poverty, those with inade- quate housing have a shorter life expectancy, says Rosenthal. "We expect to be able to prove, if allowed to present evi- dence to the court, that these government policies are literally killing people," he says. For the federal government, those faulty policies include the cancellation of funding for so- cial housing, withdrawal from the administration of affordable rental housing, and phasing out funding for affordable hous- ing projects under cost-sharing agreements with the provinces, according to the claim. The case accused the On- tario government, meanwhile, of terminating the provincial program for constructing new social housing, allowing the conversion of affordable rental housing to non-rental uses, and handing over the responsibility for funding social housing to municipalities that "lack the tax base to support such construc- tion." Pardu found the court didn't have a definition of "adequate housing." "Finally, there is no judicially discoverable and manageable standard for assessing in gener- al whether housing policy is ad- equate or whether insufficient priority has been given in gener- al to the needs of the homeless," she wrote. "This is not a question that can be resolved by application of law, but rather it engages the ac- countability of the legislatures." Rosenthal says an appropri- ate definition of adequate hous- ing, based on internationally accepted standards, is part of the 10,000 pages of evidence his team has put together. His po- sition suggests that if the court had only heard the plaintiffs out, the evidence would have answered a lot of its questions about those issues. What the plaintiffs are seek- ing, at the very least, is a decla- ration that governments have a duty to implement sound hous- ing policies. But according to the ap- peal court's majority, "were the court to confine its remedy to a bare declaration that a govern- ment was required to develop a housing policy, that would be so devoid of content as to be effec- tively meaningless." According to Rosenthal, the court had no evidence to reach that conclusion. "Declarations are often very important and if the court did make a declaration that the s. 7 and 15 rights of homeless and inadequately housed people were being violated by govern- ments, that would have some positive effects. Governments would have to take notice and try to do something about it." The dissenting decision in Tanudjaja, written by Jus- tice Kathryn Feldman, was starkly different from the ma- jority opinion. "The application raises sig- nificant issues of public impor- tance. The appellants' approach to Charter claims is admittedly novel. But given the jurispru- dential journey of the Charter's development to date, it is nei- ther plain nor obvious that the appellants' claims are doomed to fail," she wrote. Feldman also said a case named Gosselin v. Quebec had in fact left the door open to a "posi- tive obligation" under s. 7 of the Charter. "Although the development of Charter jurisprudence has to date followed a fairly consis- tent procedural path, and has involved challenges to particu- lar laws, we are still in the early stages of that development," she wrote. "There is no reason to believe that that procedural approach is fixed in stone. This application asks the court to view Char- ter claims through a different procedural lens. That novelty is not a reason to strike it out," she added. Feldman's opinion may well help in obtaining leave to the Supreme Court, says Rosenthal. Constitutional lawyer Mary Eberts represented one of the eight interveners, the Colour of Poverty — Colour of Change Network. She says the major- ity decision ref lects the courts' fear of appearing to be making policy. "The courts are very careful in these matters to signal to the political authorities that they're not trying to make policy and so I think that's probably one of the things that lie behind this decision," she says. At the lower court, a mo- tion judge had found it unten- able that s. 15 of the Charter was relevant in the absence of discriminatory laws or discriminatory applications of them. That homelessness mostly affects people with disabilities, aboriginals, seniors, youth, ra- cialized people, newcomers, and those who receive social assis- tance wasn't enough to engage the Charter. "The judge of first instance said it cannot possibly be a s. 15 case because there are so many different claimants, they are characterized by gender, age, race, disability," says Eberts. "[The judge found] they are so many that there can't pos- sibly be a functioning case, whereas what we were anxious to point out was, yes, people are characterized by many different grounds of disadvantage and they accumulate. It's not a dis- qualifier that someone has more than one identifiable charac- teristic. It is in fact a factor that makes their disadvantage more acute." LT NEWS Let the experts help you to narrow your search and save you research time. Canadian Patent Reporter has been Canada's leading intellectual property law report since 1942. This renowned resource, available online and in print, includes precedent-setting intellectual property law judicial and board decisions from across Canada. 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