Test Case Litigation

CERA initiates and collaborates with community partners on test case litigation to address systemic discrimination in housing:
Charter Challenge to Homelessness and Inadequate Housing | Refusal to Waive Fees for Humanitarian and Compassionate Applications | Minimum Income Criteria | Racial Discrimination and Income Criteria | Discrimination Against Newcomers | Discrimination Against Families with Children | Discriminatory Social Housing Subsidy Rules

Charter Challenge to Homelessness and Inadequate Housing

CERA has been working closely with the Advocacy Centre for Tenants Ontario (ACTO), the Social Rights Advocacy Centre, private bar lawyers Peter Rosenthal and Fay Faraday on a historic Charter of Rights and Freedoms challenge that seeks to address homelessness and inadequate housing in Canada and Ontario.

Formerly and currently homeless Ontarians launched the landmark legal challenge against the federal and provincial governments at the end of May 2010. The case seeks a Court declaration that Canada and Ontario have violated their rights under section 7 and section 15 of the Canadian Charter of Rights and Freedoms by creating and maintaining conditions that lead to and sustain homelessness and inadequate housing. The Notice of Application filed with the Ontario Superior Court argues that the Charter and international law require that Federal and Provincial governments to implement effective housing strategies that will reduce and eventually eliminate homelessness and sub-standard living conditions.

The remedy being sought is that the federal and provincial governments must implement effective national and provincial strategies to reduce and eliminate homelessness and that these strategies must be developed and implemented in consultation with affected groups and must include timetables, reporting and monitoring regimes, outcome measurements and complaint mechanisms.

Amended Notice of Application filed with the Ontario Superior Court.

Affidavit of Leilani Farha.

Media Coverage

Toronto Homeless Launch Charter Challenge in the Toronto Star – Laurie Monsebraatten, Thursday 27 May 2010

Challenge to Refusal to Waive Fees

CERA has been assisting the Social Rights Advocacy Centre and the Charter Committee on Poverty Issues and several rights claimants in an historic challenge to the refusal of the Federal Government to provide for a waiver of fees for Humanitarian and Compassionate Applications for Permanent Residency under the Immigration Act for those who live in poverty.

Justice Snider of the Federal Court dismissed the applications. She found two of the applications moot, and dismissed the application of Nell Toussaint, finding that poverty is not a prohibited ground of discrimination under the Charter. This decision is being appealed to the Federal Court of Appeal, where CCPI has again been granted intervenor standing.

CCPI Memorandum of Argument for Application to Intervene

Decision on Intervention Application

CCPI Memorandum of Argument

Applicants’ Expert Evidence

Gunther v. Canada (Citizenship and Immigration) (2009 FC 875)

Krena v. Canada (Citizenship and Immigration) (2009 FC 874)

Toussaint v. Canada (Citizenship and Immigration) (2009 FC 873)

Appeal to the Federal Court of Appeal

Toussaint v. Canada (Citizenship and Immigration) FCA File No. A-408-09

CCPI Memorandum of Argument for Application to Intervene FCADepartment of Justice Response

CCPI Response

Decision to Grant CCPI Intervenor Status

Minimum Income Criteria

Minimum income criteria is a major barrier to housing for disadvantaged groups and it raises a number of issues of discrimination. Here you will find the first income criteria case decided in Ontario, which found that the use of minimum income criteria constitutes discrimination based on sex, age, race, marital status, family status, place of origin, citizenship and receipt of public assistance. You will also find subsequent cases that have addressed different aspects of the impact of income criteria on disadvantaged groups.

Cases

Kearney et al v. Bramalea Ltmd., et al. (1998)

Vander Schaaf v. M & R Property Management Ltd. and Gerald Pearlstein (2000) RTF

Press

“Ruling bars bias against low-income tenants: Landlords can’t set arbitrary ratios on rent”. By Margaret Philp, The Globe and Mail (December 23, 1998) HTML

Racial Discrimination and Income Criteria

Newby and Sinclair, a young black couple, applied for an apartment in Toronto but their application was rejected by the landlord because they failed to meet a specified rent-to-income ratio and job tenure criteria. Newby and Sinclair felt that the criteria used by the landlord have an adverse impact on young prospective tenants and prospective tenants who are persons of colour because their incomes are significantly lower than those of older adults and those who are not persons of colour. After filing human rights complaints, their case eventually was heard before a human rights Board of Inquiry. The Board of Inquiry found that minimum income criteria or rent to income ratios constitute discrimination on the grounds of race and age, and are prohibited under Ontario’s Human Rights Code.

Cases

Newby and Sinclair v. Morris A. Hunter Investments (2001)

Background and Reports

Expert report of M.S. Mwarigha, on race, poverty and residential segregation. HTML

Expert report of Professor Michael Ornstein (Director of the Institute for Social Research at York University, Toronto) comparing age and race with income level in Canada. HTML

Press

“Poor? Coloured? Then it’s No Vacancy.” By Margaret Philp, The Globe and Mail (July 2000) HTML

Discrimination Against Newcomers

Victory for newcomers to Canada. CERA represented Aslam Ahmed in a case challenging tenant selection policies that require prospective tenants to have good Canadian landlord references and credit history, and to satisfy minimum income and job tenure criteria. An Ontario Human Rights Board of Inquiry found that these policies disadvantage newcomers to Canada, discriminate because of citizenship and place of origin and are illegal under Ontario’s Human Rights Code.

Cases

Aslam Ahmed v. Shelter Canadian Properties Ltd. (2002)

Discrimination Against Families with Children

Victory for families with children Part I. In January 2004, the Human Rights Tribunal of Ontario held that a landlord who asks the age of a prospective co-occupant on an application is prima facie committing an act of discrimination. This decision arose out of a human rights complaint brought forth by Albena St. Hill, a single mother with one child. Having been repeatedly unsuccessful in her search for accommodation over a period of six months, she was convinced that landlords were refusing her on the basis of having a child. On her next rental application, she withheld the fact that she had a child by not answering the question about the age of the co-occupant. Based on the information she provided, the landlord approved her application. However, when he later discovered that she in fact had a child, he refused to rent to her.

The Tribunal awarded Ms. St. Hill damages for being discriminated against on the basis of family status, and went further to hold that a question on a rental application which asks the age of the prospective co-occupant indicates an intent to discriminate. As a result, landlords who now opt to include this question on their applications are assumed to be discriminating unless they can prove otherwise. This decision has important implications for the legality of other questions on rental applications which may indicate an intent to discriminate, such as the applicant’s relationship to the co-occupant.

Victory for families with children Part II. When Maria Cunanan applied for a three bedroom apartment, the superintendent told her that her application would likely be rejected because she has three teenaged children. When her application was rejected, she filed a human rights complaint. The Human Rights Tribunal found that Edmond Lee of Boolean Develpments, who made all decisions regarding tenancy applications, had a general guideline or policy for matching units with families. Ms. Cunanan and her teenaged sons were not an “ideal” family under this formula. The Tribunal ruled that Boolean Developments and Mr. Lee discriminated against Maria Cunanan on the basis of family status.

Cases

Albena St. Hill v. VRM Investments Ltd. and Ray Milosevic. (2004)

Maria Cunanan v. Boolean Developments Ltd. (2003)

Discriminatory Social Housing Subsidy Rules

In 1995, Eleanor Iness filed a complaint with the Ontario Human Rights Commission alleging that a housing co-operative, operating under an agreement with the federal Canada Mortgage and Housing Corporation (CMHC), had discriminated against her because she was in receipt of social assistance. The co-op had been charging residents in subsidized apartments 25% of their income as rent, but changed its policy so that residents receiving social assistance had to pay the co-op the entire amount of their social assistance shelter allowance (amounting to more than 25% of their entitlement).

The case came to the Human Rights Tribunal of Ontario in the Fall of 2005. CERA retained Kate Stephenson of WeirFoulds Barristers and Solicitors to represent Eleanor, and Bruce Porter of the Social Rights Advocacy Centre and Professor Janet Mosher appeared as expert witnesses. We expect a decision by the summer of 2006. The outcome of this case will have broad implications as it will inform several other pending cases that raise the same issue, including the human rights complaint filed by Toni Panzuto, a long-time CERA Board member.

Case

Eleanor Iness v. Caroline Co-operative Homes Inc. (2006)