"...The first two decades of Charter litigation testify to a certain timidity – both on the part of litigants and the courts – to tackle head on the claims emerging from the right to be free from want." (Louise Arbour)

Challenge to Inadequate Shelter Allowance Component of Social Assistance: C.B. v Ontario

With CURA research support, collaborative research partner, the Centre for Equality Rights in Accommodation worked with the Advocacy Centre for Tenants in Ontario in developing and taking forward a community-led challenge to the level of shelter allowance for social assistance recipients set by the Province of Ontario under Ontario Works (O. Reg. 134/98). Human rights complaints were filed simultaneously by a number of single mothers relying on social assistance, alleging that Ontario's shelter allowance policies keep social assistance recipients from accessing housing. The claims argued that the maximum allowance for shelter was unreasonable and entirely inconsistent with the actual rents that recipients needed to pay for appropriate accommodation.  The complaints relied on s. 11 of the Ontario Human Rights Code, which prohibits any requirement or factor that results in the restriction or exclusion of a protected group where the needs of the group can be accommodated without undue hardship. The complainants argued that the reasonableness standard in s. 11 should be applied consistently with Ontario’s obligations under international human rights law to adopt reasonable measures to ensure access to adequate housing.

The complaint was filed prior to eradication of the Human Rights Commission’s “gatekeeper” authority, whereby the Commission had authority to bar claimants’ access to the Human Rights Tribunal in cases which the Commission did not wish to proceed to a tribunal.  In this case, the Commission denied the claimants’ access to the Tribunal by dismissing these complaints under s. 34 of the Code as “vexatious”.  However, the research conducted in the case was put to good use in public education about the inadequacy of social assistance rates and the legitimacy of the legal arguments that had been advanced.  The Ontario Human Rights Commission, under its new role, recognized the legitimacy of the claims. In its report Right at Home, the Commission stated:

[S]ection 11 provides that a right under Part I of the Code is infringed where persons identified by a Code ground are excluded because of neutral rules or requirements that are not reasonable and bona fide in the circumstances. This determination requires a consideration of whether the needs of the group can be accommodated without undue hardship. This means that applications may be filed against a wide range of responding parties, including government and housing providers, based on the combination of sections 2, 9 and 11. For example, applications may be filed against government where shelter allowances are so low that people in receipt of social assistance are unable to afford housing. It could also be argued that this is a violation of section 1 of the Code, which prohibits discrimination in services. Similarly, arguments may be made that section 2 is violated when the denial of services by a support-service provider results in a person’s loss of housing because they are viewed as being unable to live independently. These kinds of situations give rise to serious human rights issues that the Commission will consider as it works towards developing its policy on human rights and rental housing and fulfilling its new mandate.

CURA researchers in Ontario and British Columbia are assessing the viability of similar challenges being launched again.

Complaint to Ontario Human Rights Commission

Response by government bodies to complaint

Ontario Human Rights Commission Section 34 Decision

Submission of Complainants in Response to the Application of Section 34

Submission of the Complaints in Response to the Reconsideration Report

Bruce Porter, Homelessness, “Human Rights, Litigation and Law Reform: A View from Canada” (2004) 10 Australian Journal of Human Rights 133

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