Legal Strategies
The Legal Strategies research stream is focused on investigating the claiming of social rights as legal rights. Community and academic researchers have been assessing:
How human rights practice can be made more inclusive of social rights claimants and provide effective remedies to social rights claims
How legal challenges can be better coordinated with political advocacy and enhanced democratic accountability
How international norms and values with respect to social rights can be better applied in domestic social rights litigation and adjudication
How judicial and administrative processes can be made more accessible to participation by those living in poverty and more responsive to social rights claims
How various levels of government, government officials and human rights institutions can play a more constructive role before courts and tribunals in implementing their obligations to ensure effective remedies to social rights
How to better ensure that social rights inform program design and discretionary decision-making at all levels of government
Initiatives in this stream are multi-faceted, including community consultation and academic – community partnerships in case development, preparation of expert evidence, development of legal arguments, fashioning remedies, assessing outcomes, and strategic consultations for new strategies. A common feature of all of the social rights litigation undertaken in the CURA has been the incorporation of strategies to link domestic and international social rights.
Research in Support of Social Rights Litigation
CURA research has supported or developed litigation initiatives under the Canadian Charter of Rights and Freedoms, human rights legislation and other law to create or promote legal remedies and meaningful accountability for social rights in Canada. These claims had also been supported by research into relevant international human rights law.
The Right To Housing
Historic Charter Challenge to Homelessness and Inadequate Housing: Tanudjaja, CERA et al. v Canada and Ontario.
CURA community partners, the Social Rights Advocacy Centre(SRAC) and Centre for Equality Rights in Accommodation (CERA), have engaged in extensive legal research and evidentiary support for this historic challenge to homelessness and violations of the right to adequate housing in Canada. The challenge has been launched by a broad coalition of organizations and individuals affected by homelessness and inadequate housing.
The Notice of Application was filed in Ontario Superior Court on April 26, 2010 by CERA along with claimants Jennifer Tanudjaja, Janice Arsenault, Ansar Mahmood and Brian Dubourdieu. The case represents a significant advance in social rights practice in Canada both because of the nature of what is challenged and the remedy that is sought. Extensive evidence was filed by the applicants over the following months. In an attempt to subvert any access to justice for those affected by one of the most serious violations of the fundamental human rights to life, security of the person and equality in Canada, the respondent governments of Canada and of Ontario filed a Motion to Dismiss the case without any hearing into the evidence. Interveners representing a wide range of groups organized in four coalitions of interveners around key issues at stake in the Motion to Dismiss and sought leave to intervene. Two coalitions of interveners were granted leave to intervene and have filed facta in support of the applicants. For copies of all of the facta click here.
The claim is consistent with the nature of the rights violations addressed and the obligations of government to take reasonable measures to address homelessness and inadequate housing in line with available resources. The claimants do not challenge a particular legislative provision or government action but rather identify homelessness as the cumulative effect of a range of policies, programs and decisions which have failed to adequately consider or ensure the right to adequate housing. The applicants therefore challenge the failure of two levels of government to develop and implement strategies to ensure access to adequate housing as a human right. The Ontario and Canadian governments have failed to respond to repeated and urgent recommendations from United Nations human rights bodies, human rights commissions and a range of experts urging these governments to implement comprehensive housing strategies based on the right to adequate housing and including firm goals and timetables for eliminating homelessness. This is the first case in which the remedy sought in a Charter or human rights challenge in Canada is consistent with the comprehensive plan to implement and realize a social right that is required under international human rights obligations.
The litigation initiative has been accompanied by widespread mobilization among stakeholders and civil society campaigning for political response. This has resulted in legislative initia successful, will provide the remedy sought in the litigation. The case thus provides fertile ground for better understanding the relationship between legal and poltical strategies to implement social rights.
For more information and documents pertaining to this case click here.
For law reform initiatives related to addressing homelessness click here.
For documents filed in relation to the Motion to Dismiss, click here.
Advancing the Right to Housing through a Challenge to By-Laws Prohibiting Homeless Persons from Sleeping in Tents Overnight in Parks: Victoria (City) v. Adams
CURA research supported an intervention by CURA Community Partner, the Poverty and Human Rights Centre (PHRC), before the British Columbia Court of Appeal in this important case on the right to adequate housing. While the trial judge in this case adopted a relatively narrow approach to the right to adequate housing, the decision relied extensively on previous work done in the international research stream to ensure that the right to adequate housing is recognized as a critical component of the right to security of the person under the Canadian Charter. The Court recognized that homelessness is a violation of the right to life and security of the person, but did not, in the context of this case, order governments to address the structural causes of homelessness or to take positive measures to ensure the right to adequate housing. CURA research supported a more substantive approach to the right to adequate housing under the Charter by the PHRC, and researchers have developed critical assessments of the decision and remedy in the case. This research has given rise to innovative strategies and approaches to move beyond a "negative rights" framework.
For more information on research related to the Adams case click here
The Right To Health
Toussaint v. Attorney General of Canada
This is the first case in which the right to healthcare as a component of the right to life, secured only for the more affluent in Chaoulli (see below) has been claimed as a component of Charter rights by someone living in poverty. Nell Toussaint is further disadvantaged by citizenship status. She is an undocumented migrant living in poverty who has been in need of healthcare to save her life. She applied for and was denied healthcare provided to other immigrants under a Federal program. CURA researchers assisted in developing the legal argument and evidence for this important claim to the right to healthcare in Canada, preparing the Charter arguments for the appellant.
For more information and research on this case click here.
Canadian Doctors for Refugee Health Care v. Canada
Socialrightscura is providing research support for proposed interventions by the Charter Committee on Poverty Issues and also by ESCR-Net, proposing to intervene jointly with Amnesty International. See the Written Representations of the Charter Committee on Poverty Issues, the Written Representations of Amnesty International/ESCR-Net. For more information on this case and additional documentation, click here.
CURA Co-Directors Martha Jackman and Bruce Porter provided extensive research in support of this joint intervention by the Charter Committee on Poverty Issues and the Canadian Health Coalition at the Supreme Court of Canada on the right to health under international human rights law as it impacts on the interpretation of the Canadian Charter of Rights and Freedoms. . Martha Jackman also acted as counsel for the interveners. This was the only oral intervention before the Court representing the interests of those who are unable to afford private healthcare and promoting the right to health as a universal right to publicly funded healthcare in Canada. Subsequent to the decision, CURA researchers have engaged in critical analysis and ongoing work with communities involved in assessing the outcome and strategizing further claims.
For the factum and other research on this case, click here.
The Protection Of Social Rights In Trade And Investment Agreements
CURA researchers Martha Jackman and Bruce Porter, working with the Charter Committee on Poverty Issues (CCPI), developed and presented arguments in this unprecedented constitutional challenge to the effects of new trade and investment arbitral regimes. CCPI was represented by Martha Jackman who co-counselled with lawyers Steve Shrybman and Steven Barrett from Sack Goldblatt Mitchell, representing the Council of Canadians and the Canadian Union of Public Employees. CCPI argued that by failing to adequately protect fundamental human rights in the investor-state adjudication mechanisms negotiated under the North American Free Trade Agreement, the Government of Canada had violated the Canadian Charter of Rights and Freedoms. It argued that the Charter requires international human rights be adequately protected in international adjudicative regimes when the government delegates to these bodies the adjudication of challenges to public policy that engage rights to equality and security of the person. Otherwise, CCPI argued, such delegation undermines the protections accorded by the Charter in adjudication of public policy issues in Canadian courts or tribunals.
For intervener factums, further research and other information on this case click here.
Aboriginal Women’s Rights
Challenging the Indian Act’s sex-based registration scheme: McIvor v Canada
Sharon McIvor, a CURA community research associate and her son, Jacob Grismer have been involved with a long-standing challenge to the sex-based registration scheme in the 1985 Indian Act. Gwen Brodsky, a research partner, has represented Sharon McIvor in this important litigation initiative. In 2009, the British Columbia Court of Appeal released its decision in McIvor v. Canada, finding that the sections of the Indian Act that determine Indian status constitute sex discrimination and are thus contrary to s. 15 of the Charter. The federal government passed Bill C-3, An Act to promote gender equity in Indian registration by responding to the Court of Appeal for British Columbia decision in McIvor v. Canada (Registrar of Indian and Northern Affairs) in December 2010 in an attempt to “fix” the discrimination. However, McIvor and CURA researchers Gwen Brodsky and Shelagh Day have been engaged in research and public education to explain that Bill C-3 still excludes many Aboriginal women from being eligible for status. McIvor most recently filed a complaint with the United Nations Human Rights Committee. A decision by the HRC is pending.
For research and documents on this case, click here.
Access To Justice/Poverty as a Ground of Discrimination
A critical aspect of social rights practice is securing access to courts and tribunals for the most disadvantaged and vulnerable in Canadian society. CURA research has provided extensive support to communities taking forward cases to improve access to justice for those in poverty or with few resources. Research has supported arguments that access to effective remedies is a critical component of Canada's obligations under international law; that effective remedies are guaranteed by both sections 7 and 15 of the Canadian Charter in order to ensure equality for persons living poverty and to conform with principles of fundamental justice; and that access to justice is guaranteed as a constitutional principle and as a critical component of the rule of law.
Challenge to Refusal to Waive Fees for Humanitarian and Compassionate Consideration to become a Permanent Resident in Canada; Poverty as a Ground of Discrimination– Toussaint v. Minister of Citizenship
Nell Toussaint was an undocumented migrant living in abject poverty who sought to submit an Application for Humanitarian and Compasionate Consideration of an Request for Permanent Residence in Canada. However , she could not afford to pay the $550 fee. She requested that the fee be waived on account of her poverty but this request was refused. She then filed a legal challenge to the refusal to waive the fee. Research supported an intervention by the Charter Committee on Poverty Issues (CCPI), who pursued the constitutional arguments in this case. CCPI argued in its intervention that poverty is an analogous ground of discrimination under s. 15 of the Charter, that access to H & C consideration without being barred because of poverty is protected as a component of fundamental justice under section 7 of the Charter, and the constitutional principle of access to justice and the rule of law applies not only to courts, but also to administrative decisions of such critical import as H & C.
The trial court found that there was no obligation on the Minister to consider a fee waiver request. The Federal Court of Appeal found on the basis of statutory interpretation only that the Minister was required, under the Act in force at that time, to consider a request for fee waiver. However, the Court found that there is no constitutional obligation to waive fees for those in poverty and the Federal Government has amended the IRPA to remove this statutory provision of discretion to consider fee waiver. Nell Toussaint sought leave to appeal to the Supreme Court of Canada on the consitutional decision. The leave application was denied.
For documents, decisions and other information on this research initiative click here.
Right to Legal Aid Test Case
Canadian Bar Association v British Columbia
CURA researcher Gwen Brodsky was co-counsel in critical test case litigation to establish a constitutional right to civil legal aid in British Columbia, brought forward by the Canadian Bar Association. Research in this case engaged central issues in social rights litigation such as standing and the capacity to seek structural remedies through constitutional litigation.
For documents and information on this case, click here.
CURA researcher Gwen Brodsky acted as co-counsel for the plaintiff in this case, who sought an interim order requiring the BC government and Legal Services Society to provide funded legal counsel until the conclusion of her family law trial. Research supported the constitutional claim that the government’s failure to provide the plaintiff with state-funded legal representation, and failure to establish and maintain a legal aid regime that ensures meaningful and effective access to justice by women in family law proceedings.
Advance Cost Awards - R v Caron, 2011 SCC 5
An important vehicle for access to courts in public interest cases is advance costs awarded to disadvantaged public interest litigants, in advance of the litigation and independent of the outcome of the decision. CURA researchers assisted a number of equality seeking groups in a joint intervention in the Caron case, in which the Supreme Court of Canada considered this issue. Gwen Brodsky acted as co-counsel for an intervener coalition which provided guidance to the Supreme Court of Canada on key issues raised in this case.
For more inormation on this research initiative click here
The Right To An Adequate Standard Of Living
CURA researchers have been concerned about the inadequacy of social assistance rates across the country and have been involved in a number of cases that challenge social assistance rates as being too low and a violation of the Charter and international human rights law. Research has focused on the protection of the right to an adequate standard of living as a component of the right to life, liberty and security of the person under section 7 of the Charter, as well as the right to equality under section 15 of the Charter.
Social Rights CURA researchers have conducted extensive research into the extent of poverty in Canada as a human rights violation that ought to be subject to an effective remedy. CURA researchers had previously been involved in Gosselin v. Quebec, the first case heard by the Supreme Court of Canada that dealt with the right to an adequate standard of living under the Charter, providing research and representation to two interveners in the case, the National Association of Women and the Law (NAWL) and the Charter Committee on Poverty Issues (CCPI). CURA research has continued to engage with the legacy of the Gosselin case, with extensive critical analysis and strategic thinking. For more information on ongoing research into the Gosselin decision and strategic litigation for the right to an adequate income click here.
Challenge to Inadequate Shelter Allowance Component of Social Assistance
CURA collaborative research partner, the Centre for Equality Rights in Accommodation (CERA) 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. 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 claimants argued that a denial of adequate assistance for housing is unreasonable in light of the province's available resources and the cost of homelessness and therefore violates the rights of social assistance recipients to reasonable measures under the Human Rights Code. The complaint was filed prior to more recent changes to provide for access to adjudication of human rights claims in Ontario. The Ontario Human Rights Commission had “gatekeeper” authority, and denied the claimants access to the Human Rights Tribunal. However, the research conducted in the case was put to good use in public education about the inadequacy for social assistance rates. CURA researchers in Ontario and British Columbia are assessing the viability of similar challenges being launched again.
For more information on this case click here.
National Child Benefit Supplement Clawback from Social Assistance Recipients: Chokomolin, Lance & Prine v. Her Majesty the Queen in Right of Canada, et al.
CURA researchers worked with a broad coalition of anti-poverty groups and legal advocates to develop and launch a challenge to the clawback of the National Child Benefit supplement from families on social assistance. For more information on this important initiative click here.
Eleanor Iness v. Caroline Co-operative Homes
This important case dealt with the question of whether social assistance recipients are protected from discrimination in inter-governmental agreements governing federally funded social housing. Despite recommendations from the Canadian Human Rights Act Review Task Force and many UN human rights bodies, the Federal Government has still not included protection from discrimination because of poverty or receipt of social assistance in the Canadian Human Rights Act. Eleanor Iness sought to add Canada Mortgage and Housing in this case to require that funding agreements with provincially regulated housing providers comply with provincial as well as federal human rights legislation. CMHC argued that as a federal agency, they are immune from provincial human rights regulation, and on that account, permitted to discriminate against people on social assistance. CURA researchers assisted in both the legal argument and provided expert evidence before the human rights tribunal in the case.
Disability Rights and Social Rights
British Columbia (Ministry of Education) v Moore; Keays v Honda
CURA researchers, Yvonne Peters and Gwen Brodsky, sit on the Human Rights Committee for the Council of Canadians with Disabilities (CCD), which oversees litigation initiatives in the area of disability rights.
Most recently, Gwen Brodsky has acted as pro bono counsel the CCD as an intervenor in British Columbia (Ministry of Education) v. Moore and Keays v Honda. In Keays, the CCD emphasized access to justice issues and the intersection between disability and poverty. In Moore, the CCD intervention at the Supreme Court of Canada emphasized the threats posed to substantive obligations to accommodate disability by formal comparator model applied by the BC Court of Appeal in this case. CCD also cited the provisions of the recently ratified Convention on the Rights of Persons with Disabilities as a relevant source of the interpretatoin of section 15 rights of persons with disabilities.
See CCD Intervener factum at the Supreme Court of Canada in Moore.
See CCD Intervener factum at the Supreme Court of Canada in Keays.CURA Social Rights researchers have also collaborated with the CCD on their CURA project, Disabling Poverty / Enabling Citizenship. The CCD project is co-directed by collaborative CURA Social Rights researcher, Yvonne Peters, while CURA Social Rights co-director, Bruce Porter acts as a collaborative researcher for the CCD CURA research..
Poverty and Homelessness as Grounds of Discrimination
CURA researchers have been extensively involved with litigation to address the use of poverty and homelessness as grounds of discrimination. For full details of CURA’s strategic litigation efforts and other related resources, click here.
Toussaint v. Minister of Citizenship
This case, referred to above under access to legal aid, also dealt with the issue of poverty as a ground of discrimination.
Boulter v Nova Scotia Power Incorporation
In this case, CURA research supported the claim that s. 67(1) of Nova Scotia’s Public Utilities Act discriminated against people living in poverty therefore violating s. 15 of the Charter. Section 67(1) required the same power rates to be set for all consumers, which precluded a rate affordability program for low-income consumers. Evidence was presented that showed how low-income people were adversely affected by the uniform electricity rate, often forcing them to choose between shelter and food. The Nova Scotia Court of Appeal found that poverty was not an analogous ground under s. 15 of the Charter because it was not an “immutable characteristic”. The Supreme Court of Canada dismissed the application for leave to appeal in this case.For more information on this case click here.
Advocacy Centre For Tenants Ontario v. City of Kitchener and the Regional Municipality of Waterloo
In this case, the Advocacy Centre for Tenants Ontario appealed to the Ontario Municipal Board (OMB) from the decisions of Kitchener City Council and the Region of Waterloo to approve by-laws that banned all forms of rooming houses and non-profit services from a new downtown neighbourhood called Cedar Hill. With the assistance of evidence provided by CURA community research partner, Bruce Porter, the OMB decided to give the City of Kitchener fifteen months to revise the laws to appropriately address the Charter and human rights requirements (news release). After considering the OMB’s decision and the positive changes that increased resources had made in Cedar Hill, Kitchener City Council voted to do the right thing and repealed the restrictive by-laws. The OMB was informed of the decision and dismissed ACTO’s appeal.
Promoting Competent and Effective Adjudication of Social Rights
Women’s Court of CanadaAcademic and community researchers joined with a number of other advocates and researchers in women’s equality issues to launch the Women’s Court of Canada on an innovative project bringing together academics, activists, and litigators in order literally to rewrite the Canadian Charter of Rights and Freedoms equality jurisprudence. Taking inspiration from Oscar Wilde, who once said “the only duty we owe to history is to rewrite it”, the Women’s Court operates as a virtual court, and ‘reconsiders’ leading equality decisions. The Women’s Court renders alternative decisions as a means of articulating fresh conceptions of substantive equality.
The first 6 decisions of the Women’s Court were published in the Canadian Journal of Women and the Law: (2006) 18 C.J.W.L. 27.
The Decision of the Women’s Court of Canada in Gosselin v. Quebec, delivered by Gwen Brodsky, Rachel Cox, Shelagh Day, and Kate Stephenson
Judicial Education
CURA Researchers have been engaged in extensive judicial education in Canada and internationally. CURA co-directors developed and presented a special presentation on poverty and the courts to a conference of all superior court judges in Ontario. Two community partners, the Centre for Equality Rights in Accommodation (CERA) and the Social Rights Advocacy Centre conducted workshops for administrative decision-makers and legal advocates across Canada. CURA researchers have presented research to judges and administrative decision-makers in a number of other contexts. For documents and further information on these and other initiatives, click here.