AS HUMAN RIGHTS VIOLATIONS AN UPDATE ON CERA'S TEST CASE LITIGATION
Equality Rights in Accommodation 517 College St., Ste 315
Toronto ON M6G 4A2
(416) 944-0087 or
1-800-263-1139 (outside of Toronto)
CERA works to promote human rights in housing and to remove barriers that keep disadvantaged individuals and families from accessing and maintaining housing. CERA also takes forward legal “test cases” to promote and protect the human rights of poor people by
using a human rights approach to address poverty issues.
Twenty-five years ago Canada ratified the International Covenant on Economic, Social and Cultural Rights, recognizing that all levels of government in Canada have an obligation to ensure that everyone enjoys the right to an adequate standard of living, including adequate food, clothing and housing. At that time, homelessness was little-known in Canada. No one had imagined people routinely relying on food banks. Agreements between the federal government and the provinces under the Canada Assistance Plan required that social assistance be available to anyone in need, and that rates be sufficient to cover basic necessities, including housing.
Since 1976, we have experienced unprecedented economic growth, bringing new levels of affluence to many Canadians, yet at the same time we have witnessed the emergence of an unprecedented crisis of homelessness and poverty. Tens of thousands of Canadians are homeless and the numbers keep increasing, particularly among women and children. About 30,000 individuals now rely on shelters for the homeless in the City of Toronto every year, including over 6,000 children and increasing numbers of children are born into shelters. Every year in Ontario alone, 60,000 tenant households are threatened with eviction and close to one million Canadians rely on food banks each month. Homelessness has been declared a "national disaster" by the mayors of Canada's ten largest cities. continued on next page
Advocating for the Right to Adequate Financial Assistance When in Need
Challenging the Inadequacy of the Ontario Social Assistance Shelter Allowance
Fighting the Claw Back of the National Child Benefit
Demanding Accountability for Government Inaction on Homelessness
Recognizing Women's Equal Rights as Tenants
This “epidemic” of homelessness is the direct and predictable result of changes in government programs and legislation. Federal funding for new social housing was eliminated in 1993. The guarantee of adequate social assistance to cover the cost of housing under the Canada Assistance Plan (CAP) was revoked by the Federal Government in 1995 and transfer payments for social programs cut by billions of dollars. Ontario and other provinces slashed welfare rates even though it was well documented at the time that tens of thousands of households, mostly women with children, would be forced out of their housing. Since then, rents have increased by another 20% and single mothers on social assistance receive a shelter allowance of less than half of what they have to pay for a two bedroom apartment in Toronto. Unemployment insurance (now called "Employment Insurance") has been restricted, so that those most at risk of homelessness, women working part-time or in temporary jobs, will receive no protection from job loss – a leading cause of rent arrears and eviction.
International Human Rights Treaties The Government of Canada has signed and ratified a number of international human rights treaties, which means it has a legal obligation to uphold the rights contained in those treaties. For example, Canada ratified the International Covenant on Economic, Social and Cultural Rights in 1976. This treaty guarantees the right to an adequate standard of living, including adequate food, clothing and housing, and to the continuous improvement of living conditions. It also includes the right to be free from discrimination with respect to these rights. Among the other treaties Canada has ratified are conventions focusing on racial discrimination and discrimination against women. International human rights treaties can be found on the Internet at www.unhchr.ch/html/intlinst.htm.
The incomes of lower income households have been steadily eroded. More people are facing poverty and homelessness than ever before. In 1997, 2.8 million women, 19% of the total female population in Canada, were living in low-income situations and 56% of all families headed by single mothers were living in poverty.
The U.N. Committee on Economic, Social and Cultural Rights has expressed “grave” concern that Canada is allowing these violations of the right to adequate housing to occur, and has recommended that the problem of homelessness be addressed as a “national emergency”.
Governments in Canada have failed to adequately respond, however, and the problem continues to get worse. In fact, many recent government policies and laws have led to an increase in homelessness and poverty among Canadians. Rather than increasing social assistance and providing shelter allowances, as recommended by the U.N. Committee, governments have cut rates and eliminated programs. Rather than strengthen anti-discrimination legislation in housing, they have weakened it.
At CERA we believe that it is important to apply a human rights framework to these violations of fundamental human rights by governments. International law guarantees the right to adequate housing. The Canadian Charter of Rights and Freedoms guarantees the right to “security of the person” and protection from discriminatory policies that fail to address the needs of disadvantaged groups. Ontario’s Human Rights Code guarantees equality to groups such as single mothers, social assistance recipients and youth, who are increasingly denied access to housing. CERA believes it is time for those who are denied adequate housing in Ontario and across Canada to claim these fundamental rights.
CERA'S TEST CASE INITIATIVES
RECENT ACCOMPLISHMENTS CERA has worked on initiatives to help define the legal obligations of landlords and of provincial governments.
1) Human Rights Tribunal Prohibits Landlords' Use of Income Criteria Significant numbers of landlords in the private housing market use minimum income criteria or rent-to-income ratios to select tenants. Landlords often disqualify low-income persons from renting the most affordable and appropriate apartments if their rent would amount to more than 30% - 40% of their income.
The Ontario Human Rights Code The Ontario Human Rights Code is a provincial law that sets out human rights standards in the areas of employment, housing and services. With respect to housing, the Code prohibits discrimination based on race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status, handicap, or the receipt of social assistance.
Anyone who feels his or her rights have been violated can file a complaint with the Ontario Human Rights Commission. For more information about human rights and housing visit CERA online www.equalityrights.org/cera/ and click on “human rights in housing” on the main menu.
In 1989-90, CERA represented three low-income women who filed a human rights complaint challenging the use of minimum income criteria to refuse them apartments. This case, Kearney v. Bramalea Ltd., was heard before an Ontario human rights Board of Inquiry. In December 1998, the Board decided that the landlords' use of minimum income criteria constituted discrimination under the OntarioHuman Rights Code on the basis of age, sex, race, marital status, family status, and receipt of public assistance.
In 2001, the Kearney case was appealed by the landlords to the Divisional Court. The Court upheld the Board's findings of discrimination. The Court also took the opportunity to interpret a 1998 regulation to the Human Rights Code regarding the use of income information in screening prospective tenants. In a confusing decision, the Court indicated that landlords are permitted to use minimum income criteria as long as the criteria were not the "sole factor" considered. CERA sought clarification of this part of the Court’s decision through an appeal, however, permission to appeal was denied. The clarification of the meaning of the new regulation was left to subsequent cases before the Board of Inquiry.
In November 2001, the Board of Inquiry released Newby v. Hunter Investments, another decision on landlords’ use of minimum income criteria. This decision was a major victory for CERA and low income tenants. Following its decision in Kearney, the Board found that minimum income criteria constitute discrimination on the basis of race and age, and are prohibited under the Human Rights Code. The Board also clarified the Divisional Court’s decision regarding the 1998 regulation to the Code, and interpreted the new regulation to prohibit the use of minimum income criteria to disqualify social assistance recipients or any other group protected from discrimination in housing. The Board warned landlords that the continued use of minimum income criteria would likely result in further human rights complaints being filed against them.
Ontario landlords have been warned that the continued use of minimum income criteria would render them susceptible to further human rights complaints.
Charter of Rights and Freedoms The Canadian Charter of Rights and Freedoms is part of the Constitution -- the highest law in Canada. The Charter guarantees fundamental freedoms such as freedom of conscience and religion, freedom of opinion, and freedom of association. The Charter also protects democratic rights, mobility rights, legal rights and equality rights. Of particular importance in challenging homelessness and poverty are:
Section 7: Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
Section 15(1): Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
Find the Charter of Rights and Freedoms at http://laws.justice.gc.ca/en/const/annex_e.html.
Despite the fact that we have largely won the legal battle, significant work remains to translate the legal victory into changed landlord practices. Many families in shelters are still being denied access to apartments on the basis of income criteria. CERA has begun a campaign to inform homeless families, shelter workers, and Housing Help organizations throughout Ontario about these significant legal victories and how to use them to assist people in accessing housing.
2) The Right to Adequate Financial Assistance When In Need In 1989, Louise Gosselin went to court in Quebec to challenge massive cuts to social assistance benefits imposed by Quebec’s "workfare" programme. As a single person under 30, employable, but not enrolled in a workfare placement, Ms. Gosselin had her benefits drastically reduced from an entitlement of $434 per month to a mere $158. Eventually it was increased, but only by about $30 to just $185 per month. It is largely undisputed that no one could find adequate food and housing in Montreal for this paltry amount. As a result, thousands of young women and men on social assistance had to resort to degrading or illegal activities just to survive. Ms. Gosselin was forced to endure homelessness, an abusive relationship, and other risks to her security.
Ms. Gosselin is challenging the Government of Quebec for denying her financial assistance adequate to cover the basic necessities of life. Her case is currently being decided by the Supreme Court of Canada. Its outcome will have huge implications for poor people across the country, as it provides an opportunity for the Court to affirm that the right to an adequate standard of living is central to our rights to security and equality. CERA believes that the Charter of Rights and Freedoms, which protects the right of Canadians to life, liberty and the security of the person, obligates governments to provide adequate assistance. If Ms. Gosselin’s case is successful, the severe welfare cuts instituted by provinces such as Ontario and Alberta will be open to challenge.
CERA believes that a right to an adequate standard of living is included in Charter rights to life, liberty and security of the person.
CERA assisted coordinated the intervention by the Charter Committee on Poverty Issues at the Supreme Court of Canada in support of Ms. Gosselin and continues to do public education and outreach around this case. CERA will play an important role in this respect when the decision is released sometime in the next year. The Supreme Court decision will be summarized for distribution and its effects on government obligations to address poverty and homelessness will be widely publicized.
CURRENT CASES CERA is currently working with housing and anti-poverty advocates from across Canada to launch and continue a number of test cases that challenge homelessness and poverty as violations of human rights. These groundbreaking initiatives are an effort to ensure that adequate housing and an adequate income are enjoyed by all.
1) Challenging the Inadequacy of the Ontario Social Assistance Shelter Allowance Since 1998, when rent controls were removed from vacant apartments in Ontario, rents have been rising dramatically. Across the province, the average rent for a two bedroom apartment jumped by 5.6% between 1999 and 2000 – double the inflation rate. In Ottawa average rents rose that year by over 12%! In Toronto, St. Catharines, Ottawa, and London rents increased by 4% in 2001.
What does this mean practically? In 2001 in Toronto the average monthly rent for a two bedroom apartment was $1,027, yet the shelter allowance for a single parent with one child is only $511, about half the amount of rent she is likely paying. Her entire monthly cheque is only $853, or if her child is over 12 years old, $893. Average rents outside of Toronto are also considerably more than the shelter allowance. In Hamilton and Windsor the 2001 average rent was over $700 and in Ottawa it was over $900.
As a result of this discrepancy between housing costs and shelter allowance rates, individuals and families receiving social assistance inevitably have to pay a huge proportion of their income on rent, leaving them with very little left over for food and other necessities.
Over the last few years, CERA has promoted the increase of social assistance rates. Recently, CERA organized a coalition to launch a provincial campaign aimed at increasing the shelter allowance component of social assistance benefits. So far, the coalition members are the Advocacy Centre for Tenants Ontario (ACTO), DAWN Ontario: DisAbled Women's Network Ontario, the Income Security Legal Clinic (ISLC), Ontario Social Safety Network, Somerset West Action Network (SWAN), and The Workfare Watch Project. Others are welcome to join. Under the banner "Feed the Kids AND Pay the Rent", the campaign encourages local activists to raise awareness and initiate action on this issue in their communities. The campaign currently has contacts in London, Hamilton, Toronto, North Bay, Peterborough, Sarnia, Cobourg, Halton, Muskoka, Ottawa, and Kingston. With the support of the National Union of Public and General Employees, customized campaign posters are available to anti-poverty activists around the province. For more information contact Sherrie Tingley at CERA Ottawa: (613) 789-2228.
In addition to the "Feed the Kids AND Pay the Rent" campaign, CERA is launching a case under Ontario’s Human Rights Code to challenge the government’s shelter allowance policies. The Human Rights Code protects public assistance recipients from discrimination in housing and requires that their needs be accommodated where reasonable. Complaints will be filed on behalf of individuals who are facing obstacles accessing housing because of the inadequacy of the shelter allowance.
Many Ontario families have to choose between paying the rent or feeding their children.
Jocelyn Samson is one of the complainants launching this human rights case. Faced with homelessness, Jocelyn lived for 8 months in severely overcrowded housing with her brother's family and two borders. She and her infant son had no privacy and slept in the living room, a common thoroughfare and TV room for everyone in the house. Jocelyn managed to find shared housing, but after paying her rent and other expenses, she still must rely on the food bank each month. As a young mother, she would like to find her own apartment and live independently with her 16 month old son. However, since her shelter allowance is only $511 each month, she cannot afford adequate housing in Toronto.
In advocating for Jocelyn and other women in similar situations, CERA will argue that Ontario’s shelter allowance policies keep social assistance recipients from accessing housing and are unreasonable in light of the province’s wealth.
2) Fighting the Claw Back of the National Child Benefit The primary anti-poverty initiative undertaken by the federal government in recent years is the National Child Benefit Supplement, introduced in 1997. The Supplement was combined with an existing tax credit for low-income families to create the National Child Benefit (NCB). According to the federal government, one of the objectives of the NCB is to “prevent and reduce the depth of child poverty”. In contrast to this stated aim, by agreement with the provinces, the Supplement portion of the NCB may be clawed back from families in receipt of social assistance. In other words, a benefit that is designed to address child poverty is taken away from the poorest women and children, simply because they are in receipt of social assistance. This is done in all provinces but New Brunswick, Manitoba and Newfoundland.
The result of the claw back of the Supplement is that the majority of single mothers, who are most in need of the benefit, are denied it. This exclusion has a significant impact on women’s housing and homelessness. At over $100/month for the first child and close to $90/month for the second child, the Supplement could make a significant difference for a family living in poverty -- the difference between being evicted or being housed, eating or not eating.
A benefit that is designed to address child poverty is taken away from the poorest women and children, simply because they are in receipt of social assistance.
CERA believes that the claw back of the NCB Supplement discriminates against single mothers in receipt of social assistance and is in violation of their rights to life, liberty and security of the person and to equality under the Charter of Rights and Freedoms. CERA is currently working with a number of partners from across Canada to prepare a legal challenge to the claw back.
3) Demanding Accountability for Government Inaction on Homelessness Homelessness has been on the rise in cities across Canada for years now. We see it in the growing number of people forced to live in shelters, in the high numbers of evictions, in the increasing number people living “rough” on the streets, and in the huge number of tenants handing over almost all of their monthly income to landlords.
The federal government has seen the crisis of homelessness developing, yet it has done virtually nothing to stop it. In fact, many of its actions over the past six years have directly contributed to the crisis. For example, the federal government removed national standards for social assistance programs, opening the door to drastic benefit cuts in a number of provinces, including Ontario. It also changed eligibility requirements for Employment Insurance, cutting off thousands from benefits to which they would have otherwise been entitled. Starting in the mid-1980’s, the federal government began removing itself from the “business” of providing affordable rental housing. It has now transferred virtually all of its responsibility for existing social housing to the provinces and has not financed the construction of new affordable rental units since 1993 except for an inadequate amount of new Aboriginal housing.
CERA is working with people who have experienced homelessness to challenge the Canadian Government’s failure to address homelessness as a violation of the Charter of Rights and Freedoms.
Ashley Bagnato is one of several women participating in this legal case. She is a teen mother who spent a month and a half in a Toronto shelter last fall when she moved back to the city and couldn't find housing. While living in the shelter, both her young sons became ill. Her infant son developed pneumonia and was frequently taken to the hospital for care. Attending to her sons' health problems left very little time to search for adequate housing. Having moved twice in the few months since leaving the shelter, she now has secure housing, but struggles to support her family on her inadequate social assistance income.
In the legal action, CERA will be arguing that homelessness in Canada violates the right to life, liberty and security of the person and that government inaction on homelessness also has a discriminatory impact on women, children, people with disabilities, youth, Aboriginals and other groups protected under equality rights of the Charter.
The federal government's failure to address the crisis of homelessness is a violation of human rights.
For more information
in Accommodation 517 College St., Ste 315
Toronto ON M6G 4A2
(416) 944-0087 or
1-800-263-1139 (outside of Toronto)
4) Recognizing Women's Equal Rights as Tenants In the new climate of vacancy decontrol where landlords may increase the rent as high as they like at the start of a new tenancy, landlords are looking for ways to terminate tenancies to create new ones. When Alba Torres’ husband left her and their children, the landlord of their Ottawa apartment took the position that Ms. Torres was not a tenant when she resided with her husband. The landlord claimed the husband's departure signaled the termination of the tenancy because the rent cheques had been in his name. Ms. Torres was told that she had to pay a rent increase of approximately 30% after he left because she was a new tenant. Ms. Torres felt that she had no choice but to sign a new lease, even though she knew that she couldn’t afford the new rent. She is now challenging her landlord’s actions.
CERA and the Women’s Legal Education and Action Fund (LEAF) have retained the Advocacy Centre for Tenants Ontario (ACTO) to intervene in the appeal of Ms. Torres' case. CERA and LEAF are arguing that narrowly interpreting “tenant” in the Tenant Protection Act to mean someone who “pays rent” is contrary to the equality rights of the Charter. Like Ms. Torres, women often contribute to the rent through their unpaid labour in the home, such as childcare and housework. Like Ms. Torres, such women often don’t have an income. We are promoting a broad interpretation of the tenant definition, so that women will not be disproportionately excluded and subject to rent increases that put them at risk of losing their housing.