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Focus: Feds can redeem reputation on housing

Focus On: Legal specialists & boutiques
|Written By Michael McKiernan

The federal government will get a chance to redeem its international reputation for its approach to homelessness when it kicks off discussion about Canada’s first national housing strategy in a generation, according to an affordable housing advocate.

The Trudeau government announced its intention to develop the strategy in its March budget, just weeks after a United Nations committee expressed its concern “about the persistence of a housing crisis” in Canada, rebuking the government for its lack of a national plan and insufficient funding for housing. Housing minister Jean-Yves Duclos has said public consultations will open in the summer before he and his provincial counterparts meet in the fall to thrash out an agreement.

Kenneth Hale, the director of legal services at the Advocacy Centre for Tenants Ontario, was part of a team that claimed Canadian governments’ failure to provide adequate housing to homeless and vulnerable people violated s. 7 of the Charter, which guarantees “security of the person.”

The action, launched in 2010, asked the Ontario Superior Court to force the federal government to develop a rights-based housing strategy. Although it was dismissed, Hale travelled personally to Geneva to repeat the demand before the UN Committee on Economic Social and Cultural Rights, as part of its 10-year review of Canada’s compliance with the committee’s 40-year-old International covenant.

“When the federal government announced the consultation about a housing strategy, it made it feel like the trip was worthwhile,” Hale says. “Who knows when or if they would have gotten around to it if we hadn’t made that big push. One of the things about policy development and advocacy is you never know exactly what worked and what didn’t. Sometimes, you end up taking credit for things you didn’t really do, but we will claim our victory.

“We’re trying our best now to help shape the consultation, and hopefully something will come of it,” Hale adds.

He says he’s still frustrated the right to housing Charter challenge never got a full hearing on the merits, since lawyers for the federal and Ontario governments were successful with a motion to strike in 2013.

A year later, Ontario’s appeal court upheld the judgment, concluding that there was no justiciable issue before the court, since the Charter does not impose a positive obligation on governments to provide affordable, adequate, or accessible housing.

The Supreme Court of Canada also denied leave to appeal, drawing more criticism from the UN committee, which urged the federal government to reconsider its litigation strategy with a view to fostering “the justiciability of economic, social and cultural rights,” and even suggested judicial training to ensure awareness of Canada’s obligation under its International Covenant.

This has proven to be a busy year so far for Hale and ACTO, with another consultation underway closer to home, where Ontario’s provincial government has proposed changes to the Residential Tenancies Act as part of its Long-Term Affordable Housing Strategy.

The province says the changes are designed to boost the supply of affordable units by encouraging smaller landlords and private homeowners to venture into the market for the first time.

For example, the proposals would make it easier to enforce no-smoking agreements by allowing landlords to terminate tenancies for smoking breaches without having to show the unit was smoke-damaged.

Landlords who let out apartments in small buildings would also be allowed to ban pets if they also live in the same complex. Currently, landlords are free to include no-smoking and no-pet clauses in rental agreements, but breaches of either are not considered grounds for eviction.

Hale says he is less encouraged by these developments.

“The whole objective of the affordable housing strategy is to reduce homelessness, so it seems crazy to me that you would try to do that by making evictions easier,” he says.

“These are not the real problems with the system. They should be looking at why thousands of apartments are overrun with bedbugs, why some landlords can’t keep elevators in working order, and a whole bunch of more major problems.”

Jordan Donich, a Toronto lawyer who acts for both sides in landlord and tenant matters, says he welcomes the proposals as a way to partially re-balance a system that he sees as skewed in favour of tenants when it comes to eviction. He points to section 83 (1) of the act, which he says gives the Landlord and Tenant Board very broad power to deny an eviction application or postpone its enforcement. 

“I think the law as developed to date favours tenants, which makes some sense because of the general power imbalance between landlords and tenants,” Donich says.

“I think these changes would bring back a lot of the freedom to contract that has been stripped away by the act. I’m not saying it should be the Wild West, but residential leases don’t need to be as strictly governed by legislation as they are now.”

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