Law Times

Page 8 July 11, 2016 • law Times www.lawtimesnews.com UN rebuked lack of national plan Feds can redeem reputation on housing BY MICHAEL MCKIERNAN For Law Times T he federal government will get a chance to re- deem its international reputation for its ap- proach to homelessness when it kicks off discussion about Can- ada's first national housing strat- egy in a generation, according to an affordable housing advocate. The Trudeau government an- nounced its intention to develop the strategy in its March budget, just weeks after a United Nations committee expressed its concern "about the persistence of a hous- ing crisis" in Canada, rebuking the government for its lack of a national plan and insufficient funding for housing. Housing minister Jean-Yves Duclos has said public consultations will open in the summer before he and his provincial counterparts meet in the fall to thrash out an agreement. Kenneth Hale, the director of legal services at the Advocacy Centre for Tenants Ontario, was part of a team that claimed Canadian governments' failure to provide adequate housing to homeless and vulnerable peo- ple violated s. 7 of the Charter, which guarantees "security of the person." The action, launched in 2010, asked the Ontario Su- perior Court to force the fed- eral government to develop a rights-based housing strategy. Although it was dismissed, Hale travelled personally to Geneva to repeat the demand before the UN Committee on Economic Social and Cultural Rights, as part of its 10-year review of Canada's compliance with the committee's 40-year-old Inter- national covenant. "When the federal govern- ment announced the consulta- tion about a housing strategy, it made it feel like the trip was worthwhile," Hale says. "Who knows when or if they would have gotten around to it if we hadn't made that big push. One of the things about policy de- velopment and advocacy is you never know exactly what worked and what didn't. Sometimes, you end up taking credit for things you didn't really do, but we will claim our victory. "We're trying our best now to help shape the consultation, and hopefully something will come of it," Hale adds. He says he's still frustrated the right to housing Charter challenge never got a full hear- ing on the merits, since lawyers for the federal and Ontario gov- ernments were successful with a motion to strike in 2013. A year later, Ontario's ap- peal court upheld the judg- ment, concluding that there was no justiciable issue before the court, since the Charter does not impose a positive obligation on governments to provide af- fordable, adequate, or accessible housing. The Supreme Court of Can- ada also denied leave to appeal, drawing more criticism from the UN committee, which urged the federal government to recon- sider its litigation strategy with a view to fostering "the justicia- bility of economic, social and cultural rights," and even sug- gested judicial training to en- sure awareness of Canada's ob- ligation under its International Covenant. This has proven to be a busy year so far for Hale and ACTO, with another consultation un- derway closer to home, where Ontario's provincial govern- ment has proposed changes to the Residential Tenancies Act as part of its Long-Term Affordable Housing Strategy. The province says the chang- es are designed to boost the supply of affordable units by en- couraging smaller landlords and private homeowners to venture into the market for the first time. For example, the proposals would make it easier to enforce no-smoking agreements by al- lowing landlords to terminate tenancies for smoking breaches without having to show the unit was smoke-damaged. Landlords who let out apart- ments in small buildings would also be allowed to ban pets if they also live in the same com- plex. Currently, landlords are free to include no-smoking and no-pet clauses in rental agree- ments, but breaches of either are not considered grounds for evic- tion. Hale says he is less encour- aged by these developments. "The whole objective of the affordable housing strategy is to reduce homelessness, so it seems crazy to me that you would try to do that by making evictions easier," he says. "These are not the real prob- lems with the system. They should be looking at why thou- sands of apartments are over- run with bedbugs, why some landlords can't keep elevators in working order, and a whole bunch of more major problems." Jordan Donich, a Toronto lawyer who acts for both sides in landlord and tenant matters, says he welcomes the proposals as a way to partially re-balance a system that he sees as skewed in favour of tenants when it comes to eviction. He points to section 83 (1) of the act, which he says gives the Landlord and Tenant Board very broad power to deny an eviction application or post- pone its enforcement. "I think the law as developed to date favours tenants, which makes some sense because of the general power imbalance between landlords and tenants," Donich says. "I think these changes would bring back a lot of the freedom to contract that has been stripped away by the act. I'm not saying it should be the Wild West, but residential leases don't need to be as strictly governed by legisla- tion as they are now." LT REGISTER ONLINE www.lexpert.ca/cpdcentre 4th Annual Canadian Construction Insurance Law Keeping Pace in the Evolving World of Canadian Construction Bruce Reynolds & Sharon Vogel, Partners of Borden Ladner Gervais LLP 6th Annual Social Media Law Navigate the Legal Landmines of Social Media Susan Vogt, Daniel Cole & Eric Macramalla, Partners of Gowling WLG Duties of Good Faith Are your Contractual Relationships Balanced with Honesty? 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