TANUDJAJA V. CANADA AND ONTARIO
Amnesty International was represented in this case by Molly M. Reynolds, Ryan Lax, and John Terry.
WHAT IS THIS CASE ABOUT?
This case was brought by a number of individuals who have experienced homelessness and inadequate housing in Ontario and Canada. They argued that the provincial and federal governments’ failure to devise and implement a strategy to reduce homelessness and inadequate housing violated their rights to life, to security of the person, and to equality under the Canadian Charter of Rights and Freedoms.
Before the case could make it to trial, the governments of Ontario and Canada brought a motion to dismiss the case, arguing that the challenge did not have a basis in Canadian law, and that it therefore had no reasonable prospect of succeeding. The basis of the governments’ claims was that the Charter only protects individuals against state actions that violate rights, not against state inaction – i.e. failure to proactively address homelessness and inadequate housing. This reflects a longstanding position advanced in the courts by governments across Canada; that economic, social and cultural rights such as the right to housing are not justiciable.
AMNESTY INTERNATIONAL’S INTERVENTIONS
Amnesty International co-intervened with ESCR-Net at both the Ontario Superior Court and the Court of Appeal in this case. In our interventions, Amnesty International and ESCR-Net argued that under international law, Canada has an obligation to ensure access to courts and effective remedies for violations of human rights guaranteed by the international treaties it has ratified. Homelessness and inadequate housing is recognized in international law as a violation of human rights. Therefore, rights claims against governments for failing to reduce and eliminate homelessness have a proper place in the Canadian courtroom. We argued that the application should not be dismissed and that the homeless and inadequately housed should be provided their day in court.
STATUS OF THE CASE
The Ontario Superior Court agreed with the governments of Ontario and Canada that the case should be dismissed before even making it to trial on its merits. In coming to its conclusion the Superior Court found that the right to life under section 7 of the Charter does not contain a fundamental right to affordable, adequate, and accessible housing. The court also held that homelessness and inadequate housing does not form a ground for discrimination under section 15 of the Charter. Finally, the court was of the opinion that it was not its role to order the government to enact particular policies and programs, making the matter not suitable to be heard in a courtroom.
The Court of Appeal for Ontario upheld the Superior Court’s judgment, highlighting that the matter was “not a question that can be resolved by application of law, but rather it engages the accountability of the legislatures. Issues of broad economic policy and priorities are unsuited to judicial review.” In a dissenting opinion, Feldman J.A., asserted that the case “has been brought … on behalf of a large, marginalized, vulnerable and disadvantaged group who face profound barriers to access to justice. It raises issues that are basic to their life and well-being. It is supported by a number of credible intervening institutions with considerable expertise in Charter jurisprudence and analysis.” In her opinion, the case deserved a full hearing, and should not have been dismissed in its early stages.
The applicants sought leave to appeal the Court of Appeal judgment to the Supreme Court of Canada. Amnesty International Canada’s Secretary General, Alex Neve, provided an affidavit in support of the leave application. However, the application was denied by the Supreme Court. Denying this group of marginalized and vulnerable Canadians access to a hearing of their rights claims is a severe denial of access to justice, and runs contrary to the calls of UN bodies that Canada must bring itself in line with international human rights law by implementing a comprehensive strategy to reduce and ultimately eliminate homelessness.
Amnesty International’s application to intervene before the Ontario Superior Court of Justice in the Tanudjaja case
Amnesty International’s written submissions to the Ontario Superior Court of Justice in the Tanudjaja case
Ontario Superior Court of Justice Judgment in the Tanudjaja case
Amnesty International’s application to intervene before the Court of Appeal for Ontario in the Tanudjaja case
Amnesty International’s written submissions to the Court of Appeal for Ontario in the Tanudjaja case
Court of Appeal for Ontario Judgment in the Tanudjaja case
Affidavit in support of applicant’s leave application to the Supreme Court of Canada in the Tanudjaja case