Tracy Heffernan: A constitutional right to housing

By Tracy Heffernan

Tracy Heffernan is co-counsel in Tanudjaja v. Canada and program director at the Advocacy Centre for Tenants Ontario. Her centre organized the Right to Housing Coalition of people from many backgrounds and expertise, including people with lived experience of homelessness or of being inadequately housed, community organizations, advocacy groups and academics. 

We are asking the court to tell our government to adopt a national housing strategy to ensure that all Canadians have access to safe, affordable housing.

We have a crisis of homelessness in Canada

To understand why, please consider this stark reality: most people in Ontario who lose their housing do so because they’re poor. With over 156,000 households on the wait list for social housing in Ontario, the majority of our impoverished population live in rented, unsubsidized apartments.

Low-income people cannot afford the ever-escalating rents – a result of the provincial government’s decision to axe rent control provisions. They are victims of federal and provincial cuts to social programs and a minimum wage that keeps people in poverty even if they work full time all year. And when they’re evicted. they literally have nowhere to go. 1

As a result, we have 150,000 to 300,000 people who are visibly homeless, plus 450,000 to 900,000 “hidden homeless”. 2Aboriginal peoples face the most severe impact of homelessness and the lack of adequate housing, followed by racialized communities, single parents and people with mental and physical disabilities.

Housing was once considered a social right in Canada

It hasn’t always been like this. In 1973, Ron Basford, then Minister of State for Urban Affairs, called housing a social right — a right that included not just a home but a community, in which individuals could live and grow and flourish. The government acted on this belief, investing money in housing construction across the country for people with limited incomes.

Radical defunding of these programs began in the late 1980s. The consequences were almost immediate, and marked the beginning of Canada’s current crisis of homelessness.

By 2009, Miloon Kothari, the UN Special Rapporteur on Housing, issued a cri de coeur: he called the housing and homelessness crisis in Canada a “national emergency.” 3

Today Canada is — shockingly – one of the only countries in the Western world without a national housing strategy.

Homelessness costs more than housing people

The alarming statistics on the growing numbers of homeless people in this province make no sense when it actually costs more to keep people homeless than to provide housing, even when that housing includes social supports.

According to a recent Alberta Secretariat for Action on Homelessness study, the financial costs of homelessness, including the cost of shelter beds, hospital beds and jail came to $6.65 billion in Alberta over 10 years. That’s more than double the $3.31 billion it would have cost to end homelessness through rent supplements, social housing and other such means. 4

Furthermore, another recent study, released by the Mental Health Commission of Canada, found that $22 is saved for every $10 invested in housing first services. 5

And those figures don’t address the high social and societal costs of homelessness. As Professor Stephen Gaetz notes, we can do the right thing and save money. 6

A court battle begins

Four courageous individuals and one small but mighty organization stepped forward and asked the Right to Housing coalition to redress this wrong by serving a law suit against the provincial and federal governments 7. They are:

  • Ansar, father of four children, two of whom have physical or mental disabilities. Ansar is unable to work due to a catastrophic industrial accident.  His family of six lives in a two-bedroom inaccessible apartment and will likely need to wait 12 years before it reaches the top of the wait list for an affordable, accessible home. By then, his son, who has cerebral palsy and currently must be carried from room to room as his wheelchair is too wide for the hallways, will be 20 years of age.
  • Janice, forced to spend 64 per cent of her modest income on housing. She and her two young sons lost their home after her husband died suddenly, and they spent 10 months couch surfing with neighbours. They tried living in a shelter for a time. But the violence, a lack of privacy, bedbugs, and theft endemic to such places forced her, heartbroken, to send her children to live with her parents, 2,000 kilometres away.
  • Jennifer, a young single mother who is a straight A college student with high hopes for her future and that of her young children. She spends her entire social assistance cheque on rent and tries to subsist on a child tax benefit to feed herself and her children, buy clothes, and pay for transportation.
  • Brian, who lives on the streets of Toronto. He lost his job when he was diagnosed with cancer and became severely depressed. Without a paycheque, he could no longer pay his rent. He lost his home.
  • The small but mighty Centre for Equality Rights in Accommodation, which tackles housing and human rights issues across the province by working with low income and homeless people, providing advice, direct services and public education.

The legal arguments

The argument before the court is that the governments’ action and inaction with regard to housing and homelessness violates:

  • several international treaties and covenants to which Canada is a party
  • two sections of the Charter: section 7, the right to life, liberty and security, and section 15, the right not to be discriminated against on the basis, among others, of race, gender, family status and physical or mental disability.

Our country played a central role in drafting the Universal Declaration of Human Rights, which guaranteed the right to adequate housing in 1948. Among the other international treaties which guarantee this right, we have ratified:

  • the International Covenant on Economic, Social and Cultural Rights
  • the International Covenant on Civil and Political Rights
  • the Convention on the Rights of the Child
  • the Convention on the Elimination of all Forms of Discrimination and
  • the Convention on the Rights of Persons with Disabilities

We are asking the court to enforce these guarantees.

We are asking the court to tell the provincial and federal governments that their actions and inactions are in violation of the Charter and international law.

We are asking the court to tell our governments they must ensure that all Canadians have adequate housing by adopting a national housing strategy, in consultation with groups across Canada.

The government response: motion to strike

For over a year and a half and on a shoestring budget, with lawyers working pro bono and experts giving freely of their time, the legal team compiled 10,000 pages of expert witness 8 testimony as evidence of the s. 7,  s. 15  and international law violations.

Six months after receiving the evidence, the governments responded by bringing a motion to strike. This is a legal proceeding that blocks the court from reviewing any evidence. It’s required by law to be brought promptly – not a full two years after receiving notice of the case, let alone after the other side has incurred time and expense amassing an evidentiary record.

After three days of hearing in a jam-packed courtroom about whether or not the motion to strike should be allowed, Justice Lederer issued a 52-page decision allowing the motions to strike and dismissing our application.

He suggested that questions which reference the level of assistance to those in poverty, the basis for eviction, or the treatment of those with psycho-social and intellectual disabilities should not be entertained in a court room.

Justice Lederer’s decision raises fundamental questions about access to justice for the poor in Canada.

Arguing at the Ontario Court of Appeal

On October 4, 2013 we filed an appeal of this decision to the Ontario Court of Appeal. In March 2014, Court of Appeal Justice Feldman granted intervention status to an unprecedented eight groups and coalitions. 9

For three days in May 2014, the Advocacy Centre for Tenants Ontario joined eight intervenors to argue that the most marginalized communities in Canada should have the right to be heard by the court on a full evidentiary record. The governments of Ontario and Canada argued that the court should dismiss the appeal. The court will issue a decision in the coming months.

And that’s not all…

People often refer to litigation as a last resort. But in our coalition, litigation is just one of many strategies. We also organize, mobilize, lobby and educate the public. I encourage you to visit ACTO’s website to learn what we are doing.

Why we are fighting so hard to be heard

The 10,000 pages of evidence which the provincial and federal governments have blocked from being allowed before the courts include two affidavits from people who had been homeless and battling mental illness. One of these people is Linda Chamberlain, who lived on and off the streets for close to 35 years. Her views on why we should hold the state accountable for ensuring adequate housing, as a right for all, are compelling:

When I got my apartment at Mainstay Housing, it felt like I was awake for the first time in my life. I was 47 years old. I had a clean home, my own space, and a feeling of safety after thirty years of living in shelters, on the street, or in rooming houses. At first I thought it was a mistake; that I wasn’t good enough; that it was too good to be true. I didn’t unpack for the first year I lived there because I was so afraid that I wouldn’t be able to stay.

We hope that the Right to Housing challenge will provide all those who live in Canada with the security and community that Linda Chamberlain finally found.

Our witnesses

  • Dr. Stephen Hwang
  • former UN Special Rapporteur Miloon Kothari
  • Professor Janet Mosher
  • former OHRC Commissioner Catherine Frazee
  • Professor Paula Goering
  • Many more.

Go to all 11 expert witness affidavits

Our intervenors

  • Amnesty International Canada
  • ARCH Disability Law Centre
  • The Dream Team
  • The HIV/AIDS Legal Clinic Ontario
  • The Charter Committee on Poverty Issues
  • Pivot Legal Society
  • The Colour of Poverty/Colour of Change Network
  • The David Asper Centre for Constitutional Rights
  • The Income Security Advocacy Centre (ISAC)
  • The ODSP Action Coalition
  • The Ontario Human Rights Commission
  • The Women’s Legal Education Action Fund

Go to a complete list of interveners


  1.  This reality is reflected at the Landlord and Tenant Board in Ontario. In 2012/2013 close to 75,000 applications for eviction, almost 75% of which were for rent owing.
  2. The hidden homeless are primarily women feeling abuse, families and youth. They are also often people  afraid to go to homeless shelters due to the violence, bed bugs and theft. In addition, they can include people affected by the fact that many shelters do not accept children or families and are not wheelchair accessible.
  3. At the highwater mark in 1988, the federal government funded the construction of 20,000 units of affordable housing across Canada. In 2013, despite rising homelessness, the government funded 613.
  4. See: http://www.housing.alberta.ca/documents/PlanForAB_Secretariat_final.pdf/
  5. http://www.mentalhealthcommission.ca/English/node/24376
  6. [1] See: The Real Cost of Homelessness: Can We Save Money by Doing the Right Thing? 
  7. Go to a list of organizations that are part of the the Right to Housing coalition or who have supported the case
  8. Go to all 11 expert witness affidavits
  9. Go to a complete list of interveners