Reconceptualising Social and Economic Rights: The Right to Housing and Intersecting Legal Regimes

Glenn, Jane Matthews

doi:10.1007/978-94-007-4710-4_9

Jane Matthews Glenn³

Part of the book series: Ius Gentium: Comparative Perspectives on Law and Justice ((IUSGENT,volume 17))

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Abstract

This chapter attempts to reconceptualize how economic and social rights are recognized and enforced in Canada and elsewhere, using the right to housing as an analytical prism. It suggests that economic and social rights, such as the right to housing, should be thought of in a disaggregated way, as consisting of a number of discrete elements (such as a right to a mortgage at affordable terms, a right to salubrious rental accommodation at a fair rent, a right to equal consideration for access to social housing and so on), each of which is recognized and enforced in its own way, rather than conceptualized in an aggregate manner, as a composite whole (e.g. “the right to adequate housing”) to be recognized and enforced as such. A disaggregated approach stresses implementation rather than litigation, prevention rather than cure. It also demonstrates that social and economic rights are grounded in a number of intersecting legal regimes, as a disaggregated analysis cuts vertically though all levels of jurisdiction, involves multiple actors and engages a wide range of forms of normativity.

I am grateful to the Dobson Fund of the Faculty of Law, McGill University, for its financial support while researching this topic, and to the direction and staff of the Netherlands Institute for Advanced Study (NIAS) for their warm hospitality while writing this chapter.

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Notes

1.
E.g. John Pender, “From ‘Structural Adjustment’ to ‘Comprehensive Development Framework’: Conditionality transformed?” (2001) 22 Third World Quarterly 397–411.
2.
Judith Keene, “Claiming the Protection of the Charter: Charter litigation arising from government ‘restraint’” (1998) 9 National J. of Constitutional Law 97–116 at 102.
3.
E.g. Gareth Jones & Peter M. Ward, “The World Bank’s ‘New’ Urban Management Programme: Paradigm shift or policy continuity?” (1994) 18:3 Habitat International 33–51.
4.
E.g. Mary Dowell-Jones, Contextualising the International Covenant on Economic, Social and Cultural Rights: Assessing the economic deficit (Leiden: Nijhoff, 2004); Gail Fawcett & Katherine Scott, A Lost Decade: Urban poverty in Canada, 1990–2000 (Ottawa: Canadian Council on Social Development, 2007); National Council on Welfare, Welfare Incomes 2009 (Ottawa: National Council of Welfare, 2010).
5.
International Covenant on Economic, Social and Cultural Rights (1966), United Nations, Treaty Series, vol. 993, p. 3, art. 11(1). See also e.g. Convention on the Elimination of All Forms of Discrimination against Women (1979), United Nations, Treaty Series, vol. 1249, p. 13, art, 14(2)(h); and Convention on the Rights of the Child (1989), United Nations, Treaty Series, vol. 1577, p. 3, art. 27(3).
6.
European Social Charter (revised) (1996), Council of Europe, European Treaty Series, No. 163, Part I (31) & Part II, art. 31 (although right to housing not included amongst core rights binding on all Parties: see Part III, art. A(1)(b)). See also e.g. Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women (2003), African Union, art. 16.
7.
Realization of the right to adequate housing, U.N. General Assembly Res. A/RES/42/146 of 7 December 1987; Istanbul Declaration on Human Settlements, U.N. General Assembly Res. 51/177 of 16 December 1996 & 53/242 of 28 July 1999; and Adequate housing as a component of the right to an adequate standard of living, U.N. Commission on Human Rights Res. 2004/21.
8.
William A. Schabas, “Freedom from Want: How can we make indivisibility more than a mere slogan?” (2000) 11 National J. of Constitutional Law 187–209 at 205.
9.
Adopted as Convention for the Protection of Human Rights and Fundamental Freedoms, Council of Europe, European Treaty Series No. 5, arts. 4 & 8. See e.g. Connors v. United Kingdom (2004) 40 European Human Rights Report 9 (Eur. Ct. H.R.); Doherty et al. v. Birmingham City Council [2009] A.C. 367 (H.L.).
10.
(1981) Organisation of African Unity [now African Union], OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), arts. 14, 16 & 18(1). See e.g. Social and Economic Rights Action Center (SERAC) v. Nigeria, African Commission on Human and Peoples’ Rights, Communication 155/96, 1996.
11.
Constitution of the Republic of South Africa, Act No. 108 of 1996, art. 26. For other examples, see Christopher Golay & Melik Özden, The Right to Housing: A fundamental human right affirmed by the United Nations and recognized in regional treaties and numerous national constitutions (Human Rights Programme of the Europe-Third World Centre (CETIM)) [http://www.cetim.ch/en/documents/bro7-log-A4-an.pdf].
12.
Loi no. 2007–290 du 5 mars 2007, Journal Officiel de la République française du 6 mars 2007, adding a new art. L. 300–1 to the Code de la construction et de l’habitation; other examples include England and Scotland. See e.g. Marie Loison-Leruste & Deborah Quilgars, “Increasing Access to Housing: Implementing the right to housing in England and France” (2009) 3 European J. of Homelessness 75–100; Eric Tars, “Great Scot! The Scottish plan to end homelessness and the lessons for the housing rights movements in the United States” (2009) XVI Georgetown J. on Poverty Law & Policy 187–216.
13.
Presently House of Commons Bill C-400, 1st Sess., 41st Parl., s. 3(1).
14.
E.g. Human Rights Code, R.S.O. 1990, c. H.19, s. 2 & 4; Charter of Human Rights and Freedoms, R.S.Q. c. C-12, Part I, Chap. I.1.
15.
E.g. S. Muralidhar, “India: The expectations and challenges of judicial enforcement of social rights”, 102–124 in Malcolm Langford, ed., Social Rights Jurisprudence: Emerging trends in international and comparative law (Cambridge: Cambridge University Press, 2008); Human Rights Act 1998, c. 42 (U.K.); and e.g. Doherty, supra note 9.
16.
E.g. Martha Jackman & Bruce Porter, “Canada: Socio-economic rights under the Canadian Charter”, 209–229 in Langford, supra note 15; Jane Matthews Glenn, “Enforceability of Economic and Social Rights in the Wake of Gosselin: Room for cautious optimism” (2004) 83 Can. Bar Rev. 929–957; and A. Wayne MacKay & Margaret Holgate, “Fairness in the Allocation of Housing: Legal and economic perspectives” (1983) 7 Dalhousie Law J. 383–446.
17.
Golay & Özden, supra note 11 at 18; Human Rights Act, supra note 15, Schedule 1.
18.
René Provost, “Judging in Splendid Isolation” (2008) 56 American J. of Comparative Law 125–172.
19.
Quebec Charter, supra note 14, Part I, Chap. IV.
20.
Complaints procedures were adopted for the European Social Charter in 1995 (Additional Protocol to the European Social Charter Providing for a System of Collective Complaints, European Treaty Series No. 158; see now revised Charter, supra note 6, Part IV, art. D) and the ICESCR in 2008 (Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, U.N. General Assembly Res. A/RES/63/117 of 10 December 2008).
21.
Committee of Economic, Social and Cultural Rights (CESCR), Substantive Issues Arising in the Implementation of the International Covenant on Economic, Social and Cultural Rights: NGO participation in the activities of the Committee on Economic, Social and Cultural Rights: Note by the secretariat, ECOSOC Doc. E/C.12/2000/6. On the role of Canadian housing NGOs in this development, see Bruce Porter, “Claiming Adjudicative Space: Social rights, equality and citizenship” in Margot Young, Susan B. Boyd, Gwen Brodsky & Shelagh Day, Poverty: Rights, social citizenship, and legal activism (Vancouver: UBC Press, 2007) 77–95 at 77–78.
22.
CESCR, “Consideration of Reports Submitted by States Parties under Articles 16 and 17 of the Covenant: Concluding observations of the Committee on Economic, Social and Cultural Rights: Canada”, ECOSOC Doc. E/C.12/CAN/CO/4 & 5 (on Canada’s 4th and 5th reports, which were submitted almost simultaneously)
23.
Optional Protocol, supra note 20.
24.
Special Rapporteurs on “adequate housing as a component of the right to an adequate standard of living” have included Rajindar Sachar (1991–1994) (final report: E/CN.4/Sub.2/1995/12), Miloon Kothari (2000–2008) (final report: A/HRC/4/18), and Raquel Rolnik (2008–). Kothari also reported on particular countries, including Canada in 2007 (Preliminary note: A/HRC/7/16/Add.4; Mission report: A/HRC/10/7/Add.3).
25.
E.g. Ida Elisabeth Koch, “Dichotomies, Trichotomies or Waves of Duties?” (2005) 5 Human Rights Law Rev. 81–103.
26.
Victoria (City) v Adams (2009) 313 D.L.R. (4th) 29 (B.C.C.A.); see also Johnston v. Victoria (City) 2010 BCSC 1707 (Adams protects only nighttime shelters as prohibiting daytime shelters constitutes reasonable limit under s. 1 of Charter; burden of proving inadequacy of number of shelter beds rests on homeless). See also R. v. Tanton 2006 BCPC 0226 (Provl Ct) (municipal seizure of homeless person’s shopping cart, his “home”, violates Charter rights to protection against abuse of process (s. 7) and unreasonable seizure (s. 8)).
27.
Kamloops v. Nielsen [1984] 2 S.C.R. 2.
28.
Kimpton v. Canada (Attorney General) (2004) 236 D.L.R. (4th) 324 (B.C.C.A.); see also McMillan v. Canada Mortgage and Housing Corporation [2009] 2 W.W.R. 405 (B.C.C.A.).
29.
E.g. Sauer v Canada (Attorney General) (negligent regulation of animal feed, causing outbreak of “mad cow” disease): motion to strike pleadings (2007) 225 O.A.C. 143 (C.A.), leave to appeal refused [2007] S.C.C.A. No. 454; certification of class action 2008 CanLII 43774 (Ont. S.C.), leave to appeal refused (2009) 246 O.A.C. 256 (Ont. Div. Ct.)
30.
E.g. Crown Liability and Proceedings Act, R.S.C. 1985, c C-50 (adopted as S.C. 1952–53, c. 30). Similar legislation has been adopted by the provinces.
31.
Test set out by House of Lords in Anns v. Merton London Borough Council [1978] A.C. 728 and refined by Supreme Court of Canada in Cooper v Hobart [2001] 3 S.C.R. 537 and Edwards v Law Society of Upper Canada [2001] 3 S.C.R. 562.
32.
Williams v. Canada (Attorney General) et al. (2005) 257 D.L.R. (4th) 704 at para. 72.
33.
See e.g. Jane Matthews Glenn, “‘Government Wrongs’: Civil liability for GMO regulation in Canada” (2008) 18 J. of Environmental Law and Practice 169–193.
34.
Canada Mortgage and Housing Corporation, “2010 Housing Observer” [http://www.cmhc-schl.gc.ca/en/corp/about/cahoob/cahoob_001.cfm]; Federation of Canadian Municipalities, Quality of Life in Canadian Communities: Trends and issues in affordable housing and homelessness, Theme Report #4 (2008) [http://www.fcm.ca/CMFiles/qol20081VVM-3272008-3162.pdf]
35.
Constitution Act, 1867, 30 & 31 Victoria (U.K.), c. 3, s. 91 (15), (16) and (18)–(21)
36.
See generally Virginie Traclet, “Structure of the Canadian Housing Market and Finance System”, background paper for Committee on the Global Financial System, Housing Finance in the Global Financial Market, CGFS Paper No. 26 (Bank for International Settlements, 2006) [http://www.bis.org/publ/wgpapers/cgfs26traclet.pdf]; see also Royal Bank of Canada v. Marjen Investments Limited (1998) 155 D.L.R. (4th) 538 (N.S.C.A.) (right to fair sale price).
37.
E.g. Residential Tenancy Act, S.B.C. 2002, c. 78; Residential Tenancies Act, S.O. 2006, c. 17; Civil Code of Quebec, R.S.Q., c. C-1991, s. 1892 f. and Act respecting the Régie du logement, R.S.Q., c. R-8.1
38.
E.g. Federation of Canadian Municipalities, Theme Report #4, supra note 34 at ii (“construction of new rental housing lagged far behind historical levels. While one-third of all households rent, fewer than 9 % of all housing units completed in Canada’s largest cities between 2001 and 2006 were rental suites.”)
39.
Sparks v. Dartmouth/Halifax County Regional Housing Authority (1993) 119 N.S.R. (2d) 91 (N.S.C.A.) at para. 36.
40.
Reference re Amendments to the Residential Tenancies Act (N.S.) [1996] 1 S.C.R. 186.
41.
Planning Act, R.S.O. 1990, c. P.13, s. 2 & 3.
42.
Ontario, Ministry of Municipal Affairs and Housing, Provincial Policy Statement (Toronto: Queen’s Printer for Ontario, 2005) 9 [emphasis in original].
43.
E.g. Toronto (City) v. R&G Realty Management Inc., 2009 CanLII 42397 (Ont. Sup. Ct.) (holding that OMB erred in law by applying “have regard to” and not stronger “be consistent with” legal test to policy statement and by inadequately considering condominium conversion provisions of City’s Official Plan). See also, re condominium conversion, Toronto (City) v. Goldlist Properties Inc. (2003) 232 D.L.R. (4th) 298 (Ont. C.A.).
44.
E.g. Planning Act (Ont.), supra note 41, s. 37 (authorising height and density bonusing in return for provision of e.g. social housing). See also Nellie Chang, “Inclusionary Zoning for the Provision of Affordable Housing: A comparative analysis of Vancouver and San Francisco”, Proceedings of Symposium on Affordable and Sustainable Housing, University of British Columbia, 2009 [http://www.scarp.ubc.ca/content/symposium-proceedings].
45.
British Columbia, Ministry of Community, Aboriginal and Women’s Services, Secondary Suites: A guide for local government (2005); see also Planning Act (Ont.), s. 16 (3) (“secondary units”) and s. 39.1 (“garden suites”). See also Tenants’ Rights Action Coalition et al. v. Corporation of Delta et al. (1997) 151 D.L.R. (4th) 729 (B.C.C.A.) (by-law limiting secondary suites to “in-law suites” discriminatory under municipal law).
46.
Association des Propriétaires des Jardins Taché Inc. et al. v. Entreprises Dasken Inc. et al. [1974] S.C.R. 2.
47.
Tax advantages are particularly important for the charitable organisations that provide the bulk of shelter accommodation for the homeless. See generally e.g. David G. Duff, “Tax Treatment of Charitable Contributions in Canada: Theory, practice, and reform” (2004) 42 Osgoode Hall Law J. 47–98.
48.
See Jeanne M. Wolfe, “Canadian Housing Policy in the Nineties” (1998) 13 Housing Studies 121–133; see also Yvon Chouinard & Robert Gagnon, Inventaire des programmes provinciaux et territoriaux en habitation au Canada (Québec: Société de habitation du Québec, 2006).
49.
See e.g. Co-operative Housing Federation of Canada, “Critique of the Federal/Provincial Social Housing Agreement” (1997) [http://www.chfcanada.coop/eng/pages2007/docs_002.asp].
50.
Social Housing Reform Act, S.O. 2000, c. 27; Housing Services Act, S.O. 2011, c. 6, Schedule 1. See also e.g. Jason Hackworth & Abigail Moriah, “Neoliberalism, Contingency and Urban Policy: The case of social housing in Ontario” (2006) 30 International J. of Urban and Regional Research 510–527.
51.
Constitution Act, 1867, supra note 35, ss. 91(3) (empowering federal government to raise money “by any Mode or System of Taxation”) & 92(2) (limiting provinces to “Direct Taxation” only); as creatures of the province, municipalities are similarly limited to direct taxation, and rely mainly on property taxes. See e.g. Federation of Canadian Municipalities, Quality of Life in Canadian Communities: Mending Canada’s frayed social safety net: The role of municipal governments, Theme Report #6 (2010) [http://www.fcm.ca//CMFiles/QofL6En_Embargp1KGE-3242010-6436.pdf] at 37 (50 % of Canadian taxes paid to federal government, 42 % to provincial governments and mere 8 % to municipalities; moreover, property taxes regressive as poorest 20 % pay 10 % of income in property taxes and wealthiest 20 % pay 2 %).
52.
Falkiner v. Ontario (Minister of Community and Social Services) (2002) 212 D.L.R. (4th) 633 (Ont. C.A.) (disagreeing with oft-cited Masse v. Ontario (Ministry of Community and Social Services) (1996) 134 D.L.R. (4th) 20 (Ont Div. Ct.), leave to appeal refused without reasons: [1996] O.J. No. 1526 (Ont. C.A.) [1996] S.C.C.A. No. 373 (S.C.C.)); but see Boulter v. Nova Scotia Power Incorporated (2009) 307 D.L.R. (4th) 293 (N.S.C.A.) (“poverty” not analogous ground.). See also Murray Wesson, “Social Condition and Social Rights” (2006) 69 Saskatchewan Law Rev. 100–117; David Wiseman, “Competence Concerns in Charter Adjudication: Countering the anti-poverty competence argument” (2006) 51 McGill Law J. 503–546.
53.
Broomer v. Ontario (Attorney General) (2004) 187 O.A.C. 192 (Ont. Div. Ct.) (ban had been set out in regulations adopted under neoliberal Ontario Works Act, S.O. 1997, c. 25, Sched. A); see also Rogers v. Sudbury (Administrator of Ontario Works) (2001) 57 O.R. (3d) 460 (Ont. Sup.Ct.) (granting interim relief reinstating benefits pending decision in Charter challenge to regulations; applicant died before trial).
54.
R. v. Rehberg (1994) 127 N.S.R. (2d) 331 (N.S.S.C.) at paras. 61 & 105 (single mother charged under Criminal Code with fraud, an indictable offence carrying up to 10-year sentence, for minor violation of then “man-in-house” rule; rule held discriminatory under Charter). See generally Dorothy E. Chunn & Shelley A.M. Gavigan, “From Welfare Fraud to Welfare as Fraud: The criminalization of poverty”, 217–235 in Gillian Balfour & Elizabeth Cormack, eds. Criminalizing Women: Gender and (in)justice in neo-liberal times (Halifax: Fernwood Publishing, 2006).
55.
Courtland Mews Co-operative Homes Inc. v. McKay 2008 CanLII 5583 (Ont. Sup. Ct.) (amount of arrears overstated in notice of eviction).
56.
Jung v. Toronto Community Housing Corporation (2008) 228 D.L.R. (4th) 225 (Ont. Div. Ct.) at paras. 25 & 26 (see also 2008 CanLII 1538 (Ont. Div. Ct.) (costs)). See also Dubajic v. Regional Municipality of Peel (2008) 240 O.A.C. 199 (Ont. Div. Ct.) (revocation of rent-geared-to-income subsidy; need for fairness).
57.
Iness v. Caroline Co-operative Homes Inc. (2006) 57 Canadian Human Rights Report 1 (Human Rights Tribunal of Ontario); see also Canada Mortgage and Housing Corporation v. Iness (2004) 236 D.L.R. (4th) 241 (Ont. C.A.) (CMHC not subject to provincial human rights codes). Note that s. 4(1)(f) of newly enacted Housing Services Act, supra note 50, provides that it is a matter of provincial interest that the system of housing and homeless services “treats individuals and families with respect and dignity”.
58.
Gosselin v. Québec (Attorney General) [2002] S.C.R.429; Matthews Glenn, supra note 16.
59.
Tanudjaja et al. v. Canada (Attorney General) and Ontario (Attorney General) (Ont. S.C.) (notice of application filed 26 May 2010) [http://www.socialrights.ca/litigation/homelessness/Notice%20of%20Application%20Amended.pdf].
60.
See supra, the text at note 27 f.
61.
Alberta v. Elder Advocates of Alberta Society [2011] 2 S.C.R. 261 at paras. 26, 28 & 36 (alleged overpayment of accommodation charges in long-term care facilities; motion to strike pleadings: breach of fiduciary duty and several others struck; unjust enrichment and s. 15 of Charter not struck).
62.
See supra, the text following note 24.
63.
It is also interesting to note, for example, that the Canada Assistance Plan (CAP) – the federal/provincial framework agreement governing social assistance for some 30 years (1966–1996) – has been before the Supreme Court of Canada on seven different occasions, ranging from Alden v. Gagliardi [i.e. Minister of Rehabilitation and Social Improvement] [1973] S.C.R. 199 through to Québec (Attorney General) v. Canada [2011] 1 S.C.R. 368. One case, Reference re Canada Assistance Plan (B.C.) [1991] 2 S.C.R. 525, specifically addressed the issue of justiciability.
64.
Porter, supra note 21; Alana Klein, “Judging as Nudging: New governance approaches for the enforcement of constitutional social and economic rights” (2007–2008) 39 Columbia Human Rights Law Rev. 351–422.
65.
E.g. Rogers v. Sudbury (Administrator of Ontario Works) (2001) 57 O.R. (3d) 467 (Ont. S.C.); see also supra note 53. See generally British Columbia (Minister of Forests) v. Okanagan Indian Band [2003] 3 S.C.R. 371 (discussing criteria for awarding interim costs in public interest litigation).
66.
Victoria (City) v. Adams, supra note 26.
67.
Tenants’ Rights Action Coalition, supra note 45; see also Finlay v. Canada (Minister of Finance) [1986] 2 S.C.R. 607 (recognising public interest standing to bring CAP challenge).

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Jane Matthews Glenn

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Fac. Law, Centre for Human Rights &, McGill University, Peel Street 3644, Montreal, H3A 1W9, Québec, Canada
René Provost
, Faculty of Law, McGill University, Peel 3644, Montreal, H3A 1W9, Québec, Canada
Colleen Sheppard

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Glenn, J.M. (2013). Reconceptualising Social and Economic Rights: The Right to Housing and Intersecting Legal Regimes. In: Provost, R., Sheppard, C. (eds) Dialogues on Human Rights and Legal Pluralism. Ius Gentium: Comparative Perspectives on Law and Justice, vol 17. Springer, Dordrecht. https://doi.org/10.1007/978-94-007-4710-4_9

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