Taking the constitutional right to housing challenge to the Supreme Court of Canada

by Tracy Heffernan

My last blog for Legal Aid Ontario explained why many social justice advocates are asking the court to tell our government that Canada needs to adopt a national housing strategy.

The background

At that time, the Superior Court of Justice had issued a decision allowing the governments’ motions to strike our legal application seeking such a strategy. A motion to strike means no evidence can be before the court. This meant not only that the claim, brought by homeless and inadequately housed individuals, was dismissed – but also there could be no evidence before the court of the extent of homelessness across Canada or the high mortality and serious health issues of those who are homeless and inadequately housed.

As a result, the Advocacy Centre for Tenants Ontario joined several lawyers at the Ontario Court of Appeal 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 courtroom was so full that spectators anxious to hear the arguments spilled into an overflow room next door.

The Ontario Supreme Court judgment

The court issued its judgment on Dec. 1, and it was not in our favour.

Of the three judges, two dismissed our appeal. They agreed with the lower court that our application had “no reasonable cause of action” and that therefore the motions to strike should be allowed.

The third judge, Justice Kathryn Feldman, offered a strong dissenting opinion. She noted that such determinations could not be made in the absence of evidence. She said that a motion to strike should never be used, “to frustrate potential developments in the law.”

Justice Feldman also found that,

“The Supreme Court of Canada left open the issue of both the existence and the extent of positive obligations under the Charter to give effect to social and economic rights. It is therefore premature to decide at the pleadings stage that the issues are not justiciable.”

Next steps

In our view, this case raises critical issues of access to justice under the Charter. Our next step is to seek leave to appeal at the Supreme Court of Canada. This means that we will ask the court’s permission to file an appeal.

Since 1989, the Supreme Court has left open the question of whether economic rights fundamental to human life and survival are protected by the Charter. Here is our question to the Court: should this critical question be decided in the absence of any evidence?

This case offers the Court the opportunity to consider the following issues:

  • Can the justiciability of economic rights fundamental to human life or survival be determined in the absence of evidence?
  • Can the extent of positive obligations to safeguard the rights to life and security of the person under s. 7 of the Charter be determined in the absence of evidence?
  • Is homelessness an analogous ground on which discrimination is prohibited under s. 15 of the Charter?
  • Under what circumstances can motions be brought to strike novel constitutional rights claims?


If the Court refuses leave to appeal, this will spell the end of the case, at least before Canadian courts. And the message to marginalized communities across Canada will be clear: the court is not prepared to hear rights claims brought by the very people that should be protected by the Canadian Charter of Rights and Freedoms.

And yet, as Justice Feldman concludes:

“This application is simply not the type of “hopeless” claim for which Rule 21 (motion to strike) was intended. It has been brought by counsel on behalf of a large, marginalized, vulnerable and disadvantaged group who face profound barriers to access to justice. It raises issues that are basic to their life and well-being. It is supported by a number of credible intervening institutions with considerable expertise in Charter jurisprudence and analysis. The appellants put together a significant record to support their application. That record should be before the court.”

Since the New Year, four homeless men have died in Toronto. Two froze to death. One was in a hut that caught fire, and died as a result. They were on the streets because they did not have a home — along with more than 250,000 other people across Canada. Surely it’s time for these senseless deaths to end.

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