Groups that have experienced historical disadvantage and who are identified by Code grounds are more likely to experience low social and economic status.[75]
Poverty is linked closely with inequality, particularly for women (especially lone mothers and elderly women), Aboriginal people, racialized groups and people with disabilities. Therefore, policies and practices that disadvantage people who have low incomes are likely to disproportionately disadvantage members of Code-identified groups.
A person’s social and economic status is highly relevant to their housing situation. More often than not, it will dictate the type of housing available and the likelihood that they will get the housing they are seeking. High market rents, insufficient social housing supply, low minimum wage and social assistance rates, and income-related rental requirements all make it very hard for a person who has low social and economic status to find and keep adequate housing.
Tenants with low social and economic status are also more vulnerable to differential treatment by housing providers. Some housing providers have negative attitudes towards people who are poor. They may screen out prospective tenants based on stereotypes about poverty and poor people, they may impose illegal rental criteria (such as security deposits), they may provide substandard housing-related services, they may engage in harassing behaviour, and/or they may be more quick to try to evict.
Poverty, if left unaddressed, and if not understood as part of larger patterns of systemic discrimination, can undermine the cohesion and prosperity of our communities. One of the most extreme outcomes of low social and economic status is homelessness.[76] Discrimination puts many groups at higher risk of homelessness. And, once a person or a family becomes homeless, it is very hard to re-enter the “mainstream” of society, and the potential for unequal treatment and further discrimination increases steadily.[77] Inadequate housing is also cited often as a significant factor in the relinquishment or apprehension of children into the care of children’s aid societies. Once children are separated from their parents, it may be very challenging for parents to regain custody.[78]
Social and economic rights and homelessness in Canada and Ontario have been identified as a priority by international human rights bodies. The Universal Declaration of Human Rights[79], adopted by the United Nations General Assembly in December 1948, proclaimed the inviolability of social and economic rights. Article 2 of the Declaration states that everyone is entitled to these rights without distinction of any kind based on grounds such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
The moral statements expressed in the Declaration were given legal force through two covenants: the International Covenant on Civil and Political Rights[80] and the International Covenant on Economic, Social and Cultural Rights. The ICESCR is one of the most influential and comprehensive international documents in the area of social and economic rights, and directly addresses the right to housing.[81] Article 11 of the ICESCR states:
The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international co-operation based on free consent. [emphasis added]
General Comment 4: The Right to Adequate Housing by the Committee on Economic, Social and Cultural Rights[82] clarifies that the right is to adequate housing, including considerations of security of tenure, accessibility, habitability, and affordability, among others. Financial costs associated with housing should not be at a level that compromises or threatens attaining and satisfying other basic needs.[83]
Canada became a party to the ICESCR in 1976, and by doing so agreed to take appropriate steps towards realizing the right to adequate housing. Under the ICESCR, governments must periodically report on progress being made on implementing and realizing rights set out in the Covenant.
Article 28 states that the Covenant's provisions "shall extend to all parts of federal States without any limitations or exceptions." For this reason, the ICESCR is binding on the federal government and each of the provinces and territories, and rights that are within provincial competence are the obligation of the provincial and territorial governments.[84]
Article 2 describes the nature of the legal obligations under the ICESCR and the way that States Parties should approach implementing the substantive rights. States Parties must take steps to the maximum of their available resources with a view to achieving progressively the full realization of ICESCR rights by all appropriate means. General Comment No. 9: The Domestic Application of the Covenant by the Committee on Economic, Social and Cultural Rights states that legislative measures alone are not enough: administrative, judicial, policy, economic, social and educational measures will be required by governments to ensure ICESCR rights.[85]
It is clear that for many Canadians, the realization of these international and domestic rights has been sporadic at best. One’s housing situation is generally a good indicator of one’s overall social and economic condition. Many continue to struggle in the rental housing market, and may find themselves in housing that is neither affordable nor adequate, or, in extreme cases, may find themselves homeless.
On several occasions, the United Nations has expressed significant concern about Canada’s record in implementing social and economic rights.[86] For example, the Concluding Observations issued by the Committee on Economic, Social and Cultural Rights in 1998 expressed serious concern about the state of economic and social rights in a country as wealthy as Canada.[87]
In May 2006, the Committee on Economic, Social and Cultural Rights issued its review of Canada’s compliance with the Covenant. The Committee was critical of the fact that 11.2% of Canada’s population still lived in poverty in 2004, particularly in light of Canada’s economic wealth and resources. The Committee noted with concern that poverty rates remain very high among disadvantaged and marginalized people and groups such as Aboriginal people, African Canadians, immigrants, people with disabilities and youth.[88] The Committee was also concerned about the disproportionate number of women, especially lone mothers, living in poverty and the effect that one’s social and economic status has on one’s ability to access adequate housing. Some reports have directly attributed blame to cuts in social funding.[89]
The Committee also commented on the “insufficiency of minimum wage and social assistance to ensure the realization of the right to an adequate standard of living.”[90] The Committee recommended that “the State party assess the extent to which poverty is a discrimination issue in Canada, and ensure that measures and programs do not have a negative impact on the enjoyment of economic, social and cultural rights, especially for disadvantaged and marginalized individuals and groups.”[91]
Most recently, Miloon Kothari, the United Nations Special Rapporteur on adequate housing, noted in his March 2008 statement:
As a very wealthy country, with significant surplus in the federal budget, immediate attention is required for the most vulnerable part of the population living in inadequate housing and living conditions. There is no justification for not massively engaging in the improvement of the situation of all those that face inadequate housing and living conditions throughout Canada.[92]
Canada has also been subjected to criticism in the international context for the failure of its courts to provide remedies for violations of social and economic rights. Judicial and legislative reluctance to address social and economic issues as rights has real consequences for vulnerable groups, and has contributed to an increased focus on the role of human rights bodies in protecting these rights.[93]
1. Addressing issues of poverty in housing
It is clear that Canada’s promise to give effect to social and economic rights, including the right to adequate housing, will not be sufficiently realized unless governments, courts, tribunals, administrative bodies, housing providers, and other responsible actors take appropriate steps to ensure their fulfillment.
By endorsing the ICESCR, Canada committed to taking the necessary steps to make sure that all Canadians have access to adequate and affordable housing options. The extent of homelessness in cities across the country is just one indicator that many Canadians continue to face grave challenges finding appropriate housing. The OHRC has recommended that the federal, provincial and territorial governments of Canada coordinate their efforts to develop a national housing strategy to make sure that all Canadians have access to housing of an appropriate standard.[94]
Courts, tribunals and administrative bodies have a significant role to play in helping to fulfill Canada’s international commitment to provide adequate housing. Decision-makers who interpret housing-related legislation should do so in accordance with the right to adequate housing set out in the ICESCR. The Supreme Court of Canada has stated that Canadian law should provide at least as much protection as international human rights law, and, international law, according to the Court, helps give meaning and content to Canadian law. As L’Heureux-Dubé, J. stated in Baker v. Canada, one of the Court’s leading cases on the relationship of international law to Canadian law:
[T]he values reflected in international human rights law may help inform the contextual approach to statutory interpretation and judicial review... [T]he legislature is presumed to respect the values and principles enshrined in international law, both customary and conventional. These constitute a part of the legal context in which legislation is enacted and read. In so far as possible, therefore, interpretations that reflect these values and principles are preferred.[95]
Thus, the Supreme Court has affirmed that decision-makers should, as much as possible, and particularly in the absence of a contrary interpretation, be guided by Canada’s international obligations and the directions of international instruments, norms, laws, and interpretive bodies. Decision-makers that deal with housing issues should view themselves as local monitors of Canada’s international commitments and make every effort to use the lens of international human rights when deciding housing matters. In light of the fundamental importance of housing to an individual and to society at large, decision-makers should consider a tenant’s social and economic status when making housing decisions.[96]
Human rights legislation in Canada includes a range of protections in specified areas, including housing, to make sure that discrimination does not prevent people from participating equally in their communities. Since this legislation has a quasi-constitutional status, international law has a special relationship to human rights codes. Human rights decision-makers should, therefore, look to international law to expand current understandings of human rights legislation to include economic, social and cultural rights within their mandates. As the Universal Declaration reminds us, economic, social and cultural rights go to the core of dignity and equality. In this regard, human rights decision-makers should use the ICESCR as an interpretive tool in how they enforce, promote and give full attention to these rights when fulfilling all aspects of their mandates.[97]
The Ontario Human Rights Code emphasizes the importance of creating a climate of understanding and mutual respect for the dignity and worth of each person, so that each person can contribute fully to the development and well-being of the community. This sentiment is consistent with Canada’s international human rights commitments. The explicit reference in the Code’s Preamble to the Universal Declaration of Human Rights reinforces the notion that the Code should be interpreted in a way that is consistent with international human rights principles. This means that the Code’s protections against discrimination in housing should be interpreted in light of Canada’s commitment under the ICESCR to protect and promote social and economic rights, including the right to adequate housing.
The Code provides protection against discrimination in housing based on specific grounds, including “receipt of public assistance.” The inclusion of “receipt of public assistance” allows some individuals with low social and economic status to file human rights claims where they have been subjected to differential treatment in housing. However, many people with low social and economic status will not be in receipt of public assistance (e.g. people earning low wages, homeless people, etc.), but will still experience differential treatment in housing. In many cases, given the strong link between low social and economic status and membership in a Code-protected group, these people will be identified by one
or more Code grounds, and may experience discrimination based on an intersection of low social and economic status with other grounds.
Example: A housing provider denies a lone working mother with two children a one-bedroom apartment, even though she cannot afford a larger apartment. Although the grounds for the claim would be marital status and family status (receipt of pubic assistance is not applicable as the woman is working), it is the woman’s social and economic status that forces her to rent a one-bedroom apartment.
In such cases, decision-makers, as well as housing providers, should consider the impact that low social and economic status has on the overall discrimination experienced by the person.
An example of successfully protecting social and economic rights in the context of housing is the decision of an Ontario human rights tribunal in Kearney v. Bramalea Ltd. (No. 2).[98] The case involved the use by several landlords of minimum income criteria or rent-to-income ratios when assessing applications
for tenancy. Statistical evidence showed that the landlords’ use of such criteria had a disparate impact on individuals based on their sex, race, marital status, family status, citizenship, place of origin, age and the receipt of public assistance. The landlords could not establish a defence as they could not show that the use of the criteria was reasonable and bona fide, or that stopping the use of the criteria would cause undue hardship.
The approach used in Kearney recognized the intersection between social and economic status and grounds that are protected in the Code. The case sets a very important precedent for adjudicating social and economic rights before the Human Rights Tribunal of Ontario where evidence exists that discrimination based on social and economic status disproportionately affects groups that have been traditionally protected under human rights legislation.[99] The case has already been cited in several other decisions involving denial of rental accommodation[100] and has been referred to extensively in papers and articles as an example of a crucial victory for people living in poverty.[101]
The Government of Ontario has acknowledged the connection between poverty and human rights. Section 2(2)3 of the Poverty Reduction Act, 2009[102] recognizes, “That not all groups of people share the same level of risk of poverty. The poverty reduction strategy must recognize the heightened risk among groups such as immigrants, women, single mothers, people with disabilities, aboriginal peoples and racialized groups.” Section 2(3)3 of the Act also recognizes that “housing” is one of the key determinants of poverty and accordingly requires annual reporting on indicators to measure its success.
Because of the close connection between low social and economic status and membership in a Code-protected group, measures that subject people who have low social and economic status to differential treatment will frequently raise human rights concerns. Government, housing planners, policy-makers and housing providers should take make sure that their policies and practices do
not have an adverse impact on people identified by Code grounds.
Example: A housing provider directs certain applicant groups including students, new immigrants and lone mothers into its older, more run-down, yet more expensive buildings. The housing provider is less likely to respond to repair requests from people living in these buildings and more likely to seek eviction against these groups. However, if a new immigrant or lone mother applicant is in a professional occupation such as a doctor or lawyer, they are offered a much better unit in the housing provider’s newer, less expensive buildings. This form of streaming amounts to discrimination against certain groups because of their low social and economic status, and raises serious human rights concerns.
The creation of special programs, as authorized by section 14 of the Code, can be an effective way for governments and housing providers to help address pre-existing hardship and economic disadvantage in the housing context. See the section of this Policy entitled “Special Programs and Special Interest Organizations” for a more detailed discussion.
Example: A co-op provider appropriately applies an income needs test to applicants wishing to rent a fixed proportion of units subsidized to average market rent for that city. The subsidy scheme is designed to make sure that applicants are offered units adequate to their family size and of the same quality as other units in the building.
Under its new and enhanced mandate, the OHRC has broad powers to protect the public interest and to address incidents of tension and conflict in Ontario’s communities. It is the OHRC’s role to focus its efforts on addressing systemic discrimination and promoting a culture of human rights in the province. To this end, the OHRC will consider, where appropriate, the role that poverty plays in preventing individuals from accessing adequate housing.
[75] The connection between membership in a group identified under the Code and the likelihood
of having low income has been recognized by the Human Rights Tribunal of Ontario in several decisions, as well as by the Courts: see, for example, Kearney v. Bramalea Ltd. (No. 2) (1998), ibid.
[76] The homelessness crisis in Ontario’s cities has been well documented. In addition to extensive work conducted by the Toronto Disaster Relief Committee and the City of Toronto’s annual report cards on homelessness, the extensive Golden Report on Homelessness was released in January 1999.
[77] Homeless people include people living on the streets, “hidden” homeless people who use shelters, and people at imminent risk of becoming homeless. Homeless people often find themselves at the outermost margins of society and are highly vulnerable to ill health, spread
of disease, harassment, abuse, malnutrition, dehydration, sleep deprivation and life threatening weather. Homelessness may, in turn, lead to the involuntary relinquishment of children to children’s aid societies, and the destruction of families.
[78] For more information, see pgs. 67-8 of the OHRC’s housing consultation report, supra, note 14.
[79] Universal Declaration of Human Rights, supra, note 3.
[80] International Covenant on Civil and Political Rights, 16 December 1966, 999 U.N.T.S. 171, Can. T.S. 1976 No. 47 (entered into force 23 March 1976, accession by Canada 19 May 1976).
[81] Ontario Ministry of the Attorney General, Constitutional Law and Policy Division, The Protection of Social and Economic Rights: A Comparative Study, Staff Paper (19 September 1991) at 34.
[82] Committee on Economic Social and Cultural Rights, General Comment 4: The Right to Adequate Housing, 13 December 1991, Article 11(1).
[83] In addition, there are a series of international conventions, declarations and agreements that address economic, social and cultural rights. In 1995, the United Nations estimated that there were no fewer than 81 formal agreements that address such issues as poverty eradication, employment generation and social integration; J.W. Foster, “Meeting the Challenges: Renewing the Progress of Economic and Social Rights” (1998) 47 U.N.B.L.J. 197 at 197. These instruments have further refined international legal norms relating to a wide range of social and economic
[84] Before ratification of both the ICESCR and the ICCPR, there was extensive consultation between the federal government and the provinces. After a 1975 Federal-Provincial Ministerial Conference on Human Rights, all the provinces gave their consent to Canada's ratification of both covenants.
[85] See General Comment No. 9: The Domestic Application of the Covenant, available at: www.unhchr.ch/tbs/doc.nsf/(Symbol)/4ceb75c5492497d9802566d500516036?Opendocument (date accessed: May 13, 2009). As the complaint procedure (Optional Protocol) under the ICESCR has not yet entered into force, the primary mechanism for enforcing the ICESCR is the state reporting and review process. Pursuant to Articles 16 and 17, States parties undertake to submit periodic reports to the ICESCR Committee on the programs and laws they have adopted and the progress made in protecting Covenant rights. The U.N. has proclaimed guidelines for the preparation of reports.
[86] See Canada United Nations Committee on Economic, Social and Cultural Rights, Consideration of Reports Submitted by States Parties under Articles 16 and 17 of the Covenant (Concluding Observations – Canada), 10 December 1998, E/C.12/1/Add.31 and United Nations Committee on Economic, Social and Cultural Rights, Consideration of Reports Submitted by States Parties under Articles 16 and 17 of the Covenant (Concluding Observations – Canada),
19 May 2006, E/C.12/CAN/CO/4, E/C.12/CAN/CO/5.
[87] The more recent 2006 Concluding Observations reiterated that most of the 1993 and 1998 recommendations had not been implemented, supra, note 86.
[88] The Committee identified a range of concerns, such as Canada’s response to homelessness,
a shortage of affordable housing, the insufficiency of minimum wage and social assistance rates, increasing poverty rates among Code protected groups, disparities between Aboriginal and African-Canadian people and the rest of the population with respect to realization of ICESCR rights, cuts to social programs, and the discriminatory impact of such cutbacks on certain disadvantaged groups and the significant barriers to enforcing ICESCR rights under domestic law. For more information, see the 2006 Concluding Observations, supra, note 86.
[89] See for example, the United Nations Committee on Economic, Social and Cultural Rights: Concluding Observations on Report of Canada Concerning the Rights Covered by Articles 10 to 15 of the International Covenant on Economics, Social and Cultural Rights, UN doc. E/C.12/1993/19; 20 CHRR C/1. See also recent media coverage such as “Canada’s Poor Face ‘Emergency’: UN,” The Toronto Star (May 23, 2006), which reported that the United Nations Committee on Economic, Social and Cultural Rights again criticized Canada in its 2006 Annual Report for its inaccessible employment insurance program, its meagre minimum wages, and the fact that it has let homelessness and inadequate housing amount to a “national emergency.”
[90] Ibid.
[91] Ibid.
[92] Kothari, Miloon, “Statement of the Special Rapporteur on adequate housing as a component of the right to an adequate standard of living, and on the right to non-discrimination in this context,” Report presented at the 7th session of the Human Rights Council (12 March 2008) at 6.
[93] For example, the ICESCR Committee has emphasized the role of human rights institutions and human rights legislation in a country’s efforts to fulfill its commitments under international treaties to achieve the realization of social and economic rights.
[94] See Recommendations 1-4 of the OHRC’s housing consultation report, supra, note 14.
[95] Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R 817 at paras. 70-71 citing R. Sullivan, Driedger on the Construction of Statutes (3rd ed. 1994), at p. 330.
[96] The Concluding Observations of the Committee on Economic, Social and Cultural Rights, supra, note 86 at para. 29 stated: “The Committee notes with particular concern that many evictions occur on account of minimal arrears of rent, without due consideration of the State party’s obligations under the Covenant.”
[97] The text of the resolutions can be found on the OHRC website: www.ohrc.on.ca
[98] Kearney v. Bramalea Ltd. (No. 2), (1998), supra, note 74.
[99] It is not clear what type of evidence is required to make the connection to a prohibited ground of discrimination. However, in both Kearney, ibid. and Dartmouth/Halifax County Regional Housing Authority v. Sparks, (1993) 101 D.L.R. (4th) 224 (N.S.C.A.), statistical evidence was presented and some cases have failed in the absence of empirical evidence (for example, Vander Schaaf v. M & R Property Management Ltd. (2000), supra, note 48, and Symes v. Canada, [1993] 4 S.C.R. 695).
[100] See, for example, Vander Schaaf, ibid, and Birchall v. Guardian Properties Ltd. (2000), 38 C.H.R.R. D/83 (B.C.H.R.T.).
[101] See, for example, M. Jackman and B. Porter, “Women’s Substantive Equality and the Protection of Social and Economic Rights under the Canadian Human Rights Act” (Ottawa: Status of Women Canada, October 1999), available online at www.equalityrights.org/cera/docs/MJ&BP.htm . After the case was heard by the tribunal and before the decision was rendered, the Ontario government passed legislation amending the Code to expressly permit the use of income information, credit checks, credit references, rental history, guarantees or other similar business practices in selecting tenants. (See Tenant Protection Act, S.O. 1997, c. 24 amending sections 21 and 48 of the Code.) O. Reg 290/98 under the Code, enacted on May 13, 1998, permits landlords to request and consider income information from a prospective tenant if credit references, credit checks and rental history information are also requested and considered in the screening process.
[102] Poverty Reduction Act, 2009, S.O. 2009, c.10: www.ontla.on.ca/web/bills/status_of_legislation.do?locale=en#152