ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV-10-403688
DATE: 20130403

BETWEEN:

JENNIFER TANUDJAJA, JANICE ARSENAULT, ANSAR MAHMOOD, BRIAN DUBOURDIEU, CENTRE FOR EQUALITY RIGHTS IN ACCOMMODATION

Applicants

– and –

the ATTORNEY GENERAL OF CANADA and the ATTORNEY GENERAL OF ONTARIO

Respondents

(Responding Parties on Motion)

Tracy Heffernan, for the Applicants

Gail Sinclair & Michael Morris, for the Respondent, Attorney General of Canada

Janet E. Minor & Arif Virani, for the Respondent, Attorney General of Ontario

Laurie Letheren, for the Proposed Interveners, ARCH Disability Law Centre, The Dream Team, Canadian HIV/AIDS Legal Network and HIV/AIDS Legal Clinic Ontario

Molly M. Reynolds, for the Proposed Intervener, Amnesty Canda/ESCR-Net Coalition

Cheryl Milne, for the Proposed Intervener, David Asper Centre for Constitutional Rights

Jackie Esmonde, for the Proposed Interveners, Charter Committee on Poverty Issues, Pivot Legal Society, Income Security Advocacy Centre, Justice for Girls

Benjamin Ries & Craig Foye, for the Proposed Interveners, ACORN Canada, The Federation of Metro Tenants’ Associations and Sistering

HEARD: March 7 & 8, 2013

LEDERER J.:

Introduction

[1] These reasons concern five motions by which one party and four proposed Coalitions (groups of parties) seek to intervene in a motion to dismiss an application. The motion concerns the viability of what could be a significant application under the Charter of Rights and Freedoms. At the motion, the Attorney General of Canada and the Attorney General of Ontario (the respondents to the application) will submit that the application fails to raise a cause of action or a justiciable issue and should be dismissed.

Background

[2] The application is brought by four individuals and the Centre for Equal Rights in Accommodation (hereinafter referred to as “CERA”), which is described in the Amended Notice of Application as “an Ontario based non-profit organization which addresses human rights in housing”. The application proposes that adequate housing is a right which is protected by the Charter. It is the position of the applicants that, beginning in the mid-1990s and continuing to the present, the governments of both Canada and Ontario have taken “decisions which have eroded the access to affordable housing” and, in so doing, have acted to deny this right to the individual applicants and many others. At the application, it will be argued that this is contrary to s. 7 of the Charter, presumably on the basis that it transgresses on the right to life and security of the person, and s. 15 of the Charter because it discriminates against a group or groups that are either referred to in s. 15 or are analogous to those enumerated groups.

[3] The respondents to the application take the position that neither s. 7 nor s. 15 of the Charter include a general right to housing. They say that s. 7 does not impose a positive obligation on the government to provide housing or housing subsidies and that the claim does not meet the test for discrimination as found in s. 15. As the respondents see it, the application challenges economic and social policies that are essentially political matters beyond the institutional competence of the Superior Court. According to the Attorneys General, the application seeks relief which is imprecise, judicially unmanageable, unbounded in scope and which is beyond the jurisdiction of this court. It is on this basis that the respondents to the application bring the motion to dismiss it. The motion relies on Rule 21.01(1)(b) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. Under this rule, a party may move before a judge “to strike out a pleading on the ground that it discloses no reasonable cause of action…”. Generally, it is understood that such a motion will only be granted where it is “plain and obvious” that the proceeding cannot succeed.

... (continues verbatim — full decision text preserved exactly)

LED ERER J.

Released: 20130403

COURT FILE NO.: CV-10-403688
DATE: 20130403

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

JENNIFER TANUDJAJA, JANICE ARSENAULT, ANSAR MAHMOOD, BRIAN DUBOURDIEU, CENTRE FOR EQUALITY RIGHTS IN ACCOMMODATION

Applicants

– and –

the ATTORNEY GENERAL OF CANADA and the ATTORNEY GENERAL OF ONTARIO

Respondents

(Responding Parties on Motion)

JUDGMENT

LEDERER J.

Released: 20130403