Tanudjaja v. Canada

Charter of Rights and Freedoms - Right to life, liberty and security of the person - Equality - Justiciability - Homelessness - Housing Policy

The Court of Appeal for Ontario released a decision on December 1, 2014 in Tanudjaja v. Canada (Attorney General), upholding a motion judge's decision to strike a claim under the Charter of Rights and Freedoms in which it was asserted that actions and inaction on the part of Canada and Ontario have resulted in homelessness and inadequate housing.

This claim was brought by four individuals suffering from homelessness and inadequate housing and an organization dedicated to human rights and equality in housing called the Centre for Equality Rights in Accommodation. Their application alleged, among other things, that: changes to legislation, policies, programs and services instituted by Ontario and Canada have resulted in homelessness and inadequate housing; that Canada and Ontario have taken either no measures or inadequate measures to address the impact of these changes on the groups that are most vulnerable to or at risk of becoming homeless; that Canada and Ontario have failed to undertake appropriate strategic coordination to ensure government programs protect those who are homeless or at risk of homelessness; and that as a result, Canada and Ontario have created and sustained conditions which lead to, support and sustain homelessness and inadequate housing.

A majority of the Court of Appeal found that rather than challenging any particular piece of legislation or policy that had violated an individual's constitutional rights, the application submitted that the social conditions created by the overall approach of the federal and provincial governments violated their rights to adequate housing. The application pointed to various decisions by both levels of government that they alleged had resulted in greater homelessness and inadequate housing and they sought a wide range of remedies including declarations regarding the failings of these governments and an order that Canada and Ontario must implement effective national and provincial strategies to reduce and eliminate homelessness and inadequate housing. The application claimed breaches of both section 7 (life, liberty and security of the person) and section 15 (equality) of the Charter, based in part on the allegation that homelessness disproportionately affects "women, single mothers, persons with mental and physical disabilities, [A]boriginal persons, seniors, youth, racialized persons, newcomers and persons in receipt of social assistance".

A majority of the Court of Appeal upheld the motion judge's conclusion that the application is not justiciable. It found that "[i]n essence, the application asserts that Canada and Ontario have given insufficient priority to issues of homelessness and inadequate housing". In the majority's view, the application raised a question that could not be resolved by the application of law, but which instead engaged the accountability of the legislatures. It held that "[i]ssues of broad economic policy and priorities are unsuited to judicial review" and the Court was being asked to "embark on a course more resembling a public inquiry into the adequacy of housing policy". Furthermore, the Court of Appeal held that it was beyond the institutional capacity of the courts to supervise the adequacy of housing policies as one of the applicants' remedies sought.

One member of the Ontario Court of Appeal did, however, deliver a dissenting opinion in this matter, holding that it was an error of law to strike this claim at the pleadings stage as "while the claim is novel, both conceptually and substantively, it cannot be said, based on the state of the relevant jurisprudence to date, that the claim has no reasonable prospect of success".