



COURT OF APPEAL FOR ONTARIO

CITATION: Tanudjaja v. Canada (Attorney General), 2014 ONCA
    852

DATE: 20141201

DOCKET: C57714

Feldman, Strathy and Pardu JJ.A.

BETWEEN

Jennifer Tanudjaja, Janice Arsenault, Ansat
    Mahmood, Brian DuBourdieu, Centre for Equality Rights in Accommodation

Appellants

and

The
    Attorney General of Canada and the

Attorney General of
    Ontario

Respondents

Tracy Heffernan, Fay Faraday and Peter Rosenthal, for
    the appellants

Janet E. Minor and Shannon Chace, for the respondent the
    Attorney General of Ontario

Michael H. Morris and Gail Sinclair, for the respondent
    the Attorney General of Canada

Anthony D. Griffin, for the intervener the Ontario Human
    Rights Commission

Avvy Go and Mary Eberts, for the intervener the Colour
    of Poverty/Colour of Change Network

Cheryl Milne, for the intervener the David Asper Centre
    for Constitutional Rights

Marie Chen and Jackie Esmonde, for the intervener the coalition
    of the Income Security and Advocacy Centre, the ODSP Action Coalition and the
    Steering Committee on Social Assistance

Vasuda Sinha, Rahool Agarwal and Lauren Posloski, for
    the intervener the Womens Legal Education and Action Fund

Molly Reynolds and Ryan Lax, for the intervener the
    coalition of Amnesty International Canada and the International Network for
    Economic, Social and Cultural Rights

Laurie Letheren and Renée Lang, for the intervener the
    coalition of ARCH Disability Law Centre, the Dream Team, Canadian HIV/AIDS
    Legal Network and HIV/AIDS Legal Clinic Ontario

Martha Jackman and Benjamin Ries, for the intervener the
    coalition of the Charter Committee on Poverty, Pivot Legal Society and Justice
    for Girls

Heard: May 26, 27 and 29, 2014

On appeal from the judgment of Justice Thomas R. Lederer
    of the Superior Court of Justice dated September 6, 2013, with reasons reported
    at 2013 ONSC 5410, 116 O.R. (3d) 574.

Pardu J.A.:

[1]

The appellants ask this Court to overturn a decision of a motion judge
    dismissing their application for relief pursuant to the
Charter of Rights
    and Freedoms
. The motion judge concluded it was plain and obvious the application
    did not disclose a viable cause of action and the application had no reasonable
    prospect of success. The motion judge also found the appellants claim was not
    justiciable.

The Applicants

[2]

The application was brought by four individuals and an organization
    devoted to human rights and equality rights in housing.

[3]

The individual applicants suffer from homelessness and inadequate
    housing.

[4]

Brian DuBourdieu was diagnosed with cancer. As a result of his illness
    he was unable to work, unable to pay his rent and lost his apartment. He has
    been living on the streets and in shelters and has been on the waiting list for
    subsidized housing for four years.

[5]

Jennifer Tanudjaja is a young single mother in receipt of social
    assistance living in precarious housing with her two sons. Despite extensive
    efforts, Ms. Tanudjaja has been unable to secure housing within the social assistance
    shelter allowance. Her rent is almost double the shelter allowance allotted and
    is more than her total social assistance benefit. She has been on the waiting
    list for subsidized housing for over two years.

[6]

Ansar Mahmood was severely disabled in an industrial accident. Two of
    his children are also disabled, including one son who uses a wheelchair. Mr.
    Mahmood lives with his wife and four children in a two-bedroom apartment that
    is neither accessible nor safe for persons with disabilities. The family survives
    on a fixed income and has been on the waiting list for subsidized accessible
    housing for four years.

[7]

Janice Arsenault and her two young sons became homeless after her spouse
    died suddenly. For several years she lived in shelters and on the streets. She
    was forced to place her children in her parents care. Now housed, she
    currently spends 64% of her small monthly income on rent, placing her in danger
    of becoming homeless again.

[8]

The Centre for Equality Rights in Accommodation (CERA) is an Ontario-based
    non-profit organization which provides direct services to low income tenants
    and the homeless on human rights and housing issues. CERA is membership-based.
    Many of CERAs members have experienced inadequate housing and homelessness.

The Application

[9]

The appellants allege that actions and inaction on the part of Canada
    and Ontario have resulted in homelessness and inadequate housing. They argue
    that the governments have taken an approach that violates their s. 7 and s. 15
    rights under the
Charter
. The core of their application is captured in
    para. 14 of the Amended Notice of Application, which provides:

Canada and Ontario have instituted changes to legislation,
    policies, programs and services which have resulted in homelessness and
    inadequate housing. Canada and Ontario have either taken no measures, and/or
    have taken inadequate measures, to address the impact of these changes on
    groups most vulnerable to, and at risk of, becoming homeless. Canada and
    Ontario have failed to undertake appropriate strategic coordination to ensure
    that government programs effectively protect those who are homeless or most at
    risk of homelessness. As a result, they have created and sustained conditions
    which lead to, support and sustain homelessness and inadequate housing.

[10]

The
    appellants expressly disavow any challenge to any particular legislation, nor
    do they allege that the particular application of any legislation or policy to
    any individual has violated his or her constitutional rights. They do not point
    to a particular law which they say in purpose or effect perpetuates prejudice
    and disadvantage to members of a group on the basis of personal characteristics
    within s. 15(1)
[1]
.
    They do not identify any particular law which violates the s. 7 right to life,
    liberty and security of the person. Rather, they submit that the social
    conditions created by the overall approach of the federal and provincial
    governments violate their rights to adequate housing.

[11]

They
    submit that Canada has eroded access to affordable housing by:

(a)     cancelling
    funding for the construction of new social housing;

(b)     withdrawing
    from administration of affordable rental housing;

(c)     phasing
    out funding for affordable housing projects under cost-sharing agreements with
    the provinces; and

(d)     failing
    to institute a rent supplement program comparable to those in other countries.

[12]

They
    submit that Ontario has also diminished access to affordable housing by:

(a)

terminating the provincial program for constructing new social housing;

(b)

eliminating protection against converting affordable rental housing to
    non-rental uses and eliminating rent regulation;

(c)

downloading the cost and administration of existing social housing to
    municipalities;

(d)

failing to implement a rent supplement program comparable to those in
    other countries;

(e)

downloading responsibility for funding development of new social housing
    to municipalities which lack the tax base to support such construction; and

(f)

heightening insecurity of tenancy by creating administrative procedures
    that facilitate evictions.

[13]

The
    appellants also argue that Canada and Ontario have diminished income support
    programs, and that this has increased the risk of homelessness and inadequate
    housing. In 1996, federal transfer payments were no longer tied to a minimum standard
    for social assistance. Amendments to the
Employment Insurance Act
S.C.
    1996, c. 23, resulted in fewer people being entitled to benefits and Ontario
    has reduced welfare rates.

[14]

Finally,
    the appellants submit that deinstitutionalization of persons afflicted with
    disabilities without adequate community support has resulted in widespread
    homelessness amongst those persons.

[15]

The
    appellants claim wide-ranging remedies in their application:

a)

A declaration that
    decisions, programs, actions and failures to act by the government of Canada
    (Canada) and the government of Ontario (Ontario) have created conditions
    that lead to, support and sustain conditions of homelessness and inadequate
    housing. Canada and Ontario have failed to effectively address the problems of
    homelessness and inadequate housing.

b)

A declaration that
    Canada and Ontario have obligations pursuant to sections 7 and 15 of the
Canadian
    Charter of Rights and Freedoms
(the
Charter
) to implement
    effective national and provincial strategies to reduce and eventually eliminate
    homelessness and inadequate housing.

c)

A declaration that the
    failure of Canada and Ontario to have implemented effective national and
    provincial strategies to reduce and eliminate homelessness and inadequate
    housing violates the applicants and others rights to life, liberty and
    security of the person contrary to s.7 of the
Charter
. These
    violations are not in accordance with the principles of fundamental justice and
    are not demonstrably justifiable under section 1 of the
Charter
.

d)

A declaration that the
    failure of Canada and Ontario to have implemented effective national and
    provincial strategies to reduce and eliminate homelessness and inadequate
    housing violates the applicants and others right to equality contrary to s.
    15(1) of the
Charter
. These violations are not demonstrably
    justifiable under section 1 of the
Charter
.

e)

An order that Canada
    and Ontario must implement effective national and provincial strategies to
    reduce and eliminate homelessness and inadequate housing, and that such
    strategies:

i.

must be developed and implemented in consultation with affected groups;
    and

ii.

must include timetables, reporting and monitoring regimes, outcome
    measurements and complaints mechanisms;

f)

An order
    that [the Superior Court of Justice] shall remain seized of supervisory
    jurisdiction to address concerns regarding implementation of the order in (e).

The motion judges decision

[16]

The
    motion judge struck the appellants application, without leave to amend, on the
    basis that it was plain and obvious that the application could not succeed. He
    found that the application disclosed no reasonable cause of action and was not
    justiciable.

[17]

With
    respect to s. 7 of the
Charter,
the motion judge concluded that there
    was no positive
Charter
obligation which required Canada and Ontario
    to provide for affordable, adequate, accessible housing and that in any
    event, the appellants had not identified any breach of the principles of
    fundamental justice. With respect to s. 15 of the
Charter
, he found
    that the actions and decisions complained of do not deny the homeless a
    benefit Canada and Ontario provide to others or impose a burden not levied on
    others, meaning there can be no breach of s. 15 of the
Charter
. In
    any event he concluded that homelessness and inadequate housing were not
    analogous grounds under s. 15 of the
Charter
. The free standing claim
    that homelessness might disproportionately affect persons such as women,
    single mothers, persons with mental and physical disabilities, aboriginal
    persons, seniors, youth, racialized persons, newcomers and persons in receipt
    of social assistance did not engage s. 15 of the
Charter
, in the
    absence of discriminatory laws, or discriminatory application of those laws.
    Finally he concluded that in any event, the issues raised by the application
    were not justiciable, that the implementation of the relief sought would cross
    institutional boundaries and enter into the area reserved for the Legislature.

The Interveners

[18]

The
    following eight organizations, or groups of organizations, were granted leave
    to intervene in this appeal under Rule 13.02 of the
Rules of Civil
    Procedure
: (1) a coalition of the
Charter
Committee on Poverty,
    Pivot Legal Society and Justice for Girls (the
Charter
Committee
    Coalition); (2) a coalition of Amnesty International Canada and the
    International Network for Economic, Social and Cultural Rights (the Amnesty
    Coalition); (3) the David Asper Centre for Constitutional Rights (the Asper
    Centre); (4) a coalition of ARCH Disability Law Centre, the Dream Team,
    Canadian HIV/AIDS Legal Network and HIV & AIDS Legal Clinic Ontario (the
    ARCH Coalition); (5) a coalition of the Income Security Advocacy Centre, the
    ODSP Action Coalition and the Steering Committee on Social Assistance (the
    Income Security Coalition); (6) the Colour of Poverty/Colour of Change Network
    (COPC); (7) the Ontario Human Rights Commission (OHRC); and (8) the Womens
    Legal Education Action Fund Inc. (LEAF). Each filed a factum and made brief
    oral submissions, generally in support of the appellants.

Analysis

[19]

I
    would uphold the motion judges conclusion that this application is not
    justiciable. In essence, the application asserts that Canada and Ontario have
    given insufficient priority to issues of homelessness and inadequate housing.

[20]

As
    indicated in
Canada (Auditor-General) v. Canada (Minister of Energy, Mines
    &

Resources)
,
[1989] 2 S.C.R. 49 at 90-91, [a]n inquiry into justiciability is, first and
    foremost, a normative inquiry into the appropriateness as a matter of
    constitutional judicial policy of the courts deciding a given issue, or instead
    deferring to other decision making institutions of the polity.

[21]

Having
    analysed the jurisprudence relating to justiciability in Lorne M. Sossin,
Boundaries
    of Judicial Review: The Law of Justiciability in Canada
, 2d ed. (Toronto:
    Carswell, 2012), the author identified several relevant factors, at p. 162:

Political questions, therefore, must demonstrably be unsuitable
    for adjudication. These will typically involve moral, strategic, ideological,
    historical or policy considerations that are not susceptible to resolution
    through adversarial presentation of evidence or the judicial process. Justiciable
    questions and political questions lie at opposing ends of a jurisdiction
    spectrum.



[T]he political nature of a matter raises two related dilemmas
    for courts. The first is the dilemma of institutional capacity. Courts are
    designed to make pronouncements of law. Arguably, they accomplish this goal
    more effectively and efficiently than any other institution could. Where the
    heart of a dispute is political rather than legal, however, courts may have no
    particular advantage over other institutions in their expertise, and may well
    be less effective and efficient than other branches of government in resolving
    such controversies, as the judiciary is neither representative of the political
    spectrum, nor democratically accountable.

[22]

A
    challenge to a particular law or particular application of such a law is an
    archetypal feature of
Charter
challenges under s. 7 and s. 15. As
    observed in
Re Canada Assistance Plan,
[1991] 2 S.C.R. 525, at p. 545:

In considering its appropriate role the Court must determine
    whether the question is purely political in nature, and should therefore be
    determined in another forum or whether it has a sufficient legal component to
    warrant the intervention of the judicial branch.

[23]

The
    Supreme Court discussed the difference between a political issue and a legal
    issue in
Canada (Attorney General) v. PHS Community Services Society
,
    2011 SCC 44, [2011] 2 S.C.R. 134, and
Chaoulli v. Quebec (Attorney General)
,
    2005 SCC 35, [2005] 1 S.C.R. 791. In both cases, the Attorneys General argued
    that the subject matter of the
Charter
challenge was immune from
    scrutiny, and the Supreme Court disagreed. Both cases are distinguishable.

[24]

In
Canada (Attorney General) v. PHS Community Services Society
, the Court
    observed, at para. 105:

The issue of illegal drug use and addiction is a complex one
    which attracts a variety of social, political, scientific and moral reactions.
    There is room for disagreement between reasonable people concerning how
    addiction should be treated. It is for the relevant governments, not the Court,
    to make criminal and health policy. However, when a policy is translated
into law or state action,

those
laws
    and actions
are subject to scrutiny under the
Charter
:
Chaoulli
,

at para. 89, per Deschamps J., at para. 107, per
    McLachlin C.J. and Major J., and at para. 183, per Binnie and LeBel JJ.;
Rodriguez,
at pp. 589-90, per Sopinka J. The issue before the Court at this point is
    not whether harm or abstinence-based programmes are the best approach to
    resolving illegal drug use. It is simply whether Canada has limited the rights
    of the claimants in a manner that does not comply with the
Charter
.
    [Emphasis added]

[25]

In
Chaoulli v. Quebec (Attorney General),
2005 SCC 35, [2005] 1 S.C.R.
    791, the applicant challenged a Quebec law that prohibited private health
    insurance for services that were available in the public sector. At para. 107,
    McLachlin C.J. and Major J. said:

While the decision about the type of health care system Quebec
    should adopt falls to the legislature of the province, the resulting
    legislation, like
all
    laws
, is subject to constitutional limits, including those
    imposed by s. 7 of the
Charter
. [Emphasis added]

[26]

Binnie
    and LeBel JJ. (dissenting on the merits in
Chaoulli
) also rejected the
    argument of the Attorneys General of Canada and Quebec that the claims advanced
    by the appellant were inherently political and therefore not properly
    justiciable by the courts. They pointed, at para. 183, to s. 52 of the
Constitution
    Act, 1982,
which affirms the constitutional power and
obligation
of courts to declare laws of no force or effect to the extent of their
    inconsistency with the Constitution (emphasis in original).

[27]

In
    this case, unlike in
PHS Community Services
(where a specific state
    action was challenged) and
Chaoulli
(where a specific law was
    challenged) there is no sufficient legal component to engage the decision-making
    capacity of the courts.

[28]

In
Chaoulli
,

the
    Supreme Court found that the legislative prohibition against private insurance
    contained in the
Hospital Insurance Act,
R.S.Q. c. A-29, engaged the
    appellants rights to security of the person and was arbitrary in that no link
    was established to tie the need for the prohibition to the goal of maintaining
    quality public health care. That kind of analysis, a comparison between the
    legislative means and purpose, is impossible in this case.

[29]

This
    is not to say that constitutional violations caused by a network of government
    programs can never be addressed, particularly when the issue may otherwise be
    evasive of review.

[30]

There
    are several aspects of this application, however, that make it unsuitable for
Charter
scrutiny. Here the appellants assert that s. 7 confers a general freestanding
    right to adequate housing. This is a doubtful proposition in light of
Chaoulli
,
    where McLachlin C.J. and Major J. made the following unequivocal statement, at
    para. 104:

The
Charter
does not confer a freestanding right to
    health care. However, where the government puts in place a scheme to provide
    health care, that scheme must comply with the
Charter
.

[31]

Further, as this Court noted in
Wynberg v. Ontario
(2006),
    82 O.R. (3d) 561, leave to appeal denied, [2006] S.C.C.A. No. 441, at para.
    225:

[I]n
Gosselin, supra
, the Supreme Court of Canada rejected an argument that s. 7 of
    the
Charter
requires the provision of a
    minimum level of social assistance adequate to meet basic needs.

[32]

Moreover,
    the diffuse and broad nature of the claims here does not permit an analysis
    under s. 1 of the
Charter
. As indicated in
R. v. Oakes
,
    [1986] 1 S.C.R. 103, in the event of a violation of a right guaranteed by the
Charter
,
    the legislation will nonetheless be sustained if the objective of the
    legislation is pressing and substantial, the rights violation is rationally
    connected to the purpose of the legislation, the violation minimally impairs
    the guaranteed right, and the impact of the infringement of the right does not
    outweigh the value of the legislative object. Here, in the absence of any
    impugned law there is no basis to make that comparison.

[33]

Finally,
    there is no judicially discoverable and manageable standard for assessing in
    general whether housing policy is adequate or whether insufficient priority has
    been given in general to the needs of the homeless. This is 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. Here the court is not asked to engage in a court-like
    function but rather to embark on a course more resembling a public inquiry into
    the adequacy of housing policy.

[34]

Were
    the court to confine its remedy to a bare declaration that a government was
    required to develop a housing policy, that would be so devoid of content as to
    be effectively meaningless. To embark, as asked, on judicial supervision of the
    adequacy of housing policy developed by Canada and Ontario takes the court well
    beyond the limits of its institutional capacity. All agree that housing policy
    is enormously complex. It is influenced by matters as diverse as zoning bylaws,
    interest rates, procedures governing landlord and tenant matters, income tax
    treatment of rental housing, not to mention the involvement of the private sector
    and the state of the economy generally. Nor can housing policy be treated monolithically.
    The needs of aboriginal communities, northern regions, and urban centres are
    all different, across the country.

[35]

I
    add that complexity alone, sensitivity of political issues, the potential for significant
    ramifications flowing from a court decision and a preference that legislatures
    alone deal with a matter are not sufficient on their own to permit a court to
    decline to hear a matter on the ground of justiciability: see, for example,
Chaoulli
,

at para. 107. Again, the issue
    is one of institutional competence. The question is whether there is a
    sufficient legal component to anchor the analysis.

[36]

The
    application here is demonstrably unsuitable for adjudication, and the motion
    judge was correct to dismiss it on the basis that it was not justiciable.

[37]

Given
    that this application was properly dismissed on the ground that it did not
    raise justiciable issues, it is not necessary to explore the limits, in a
    justiciable context, of the extent to which positive obligations may be imposed
    on government to remedy violations of the
Charter
, a door left
    slightly ajar in
Gosselin v. Quebec
, 2002 SCC 84, [2002] 4 S.C.R. 429.
    Nor is it necessary to determine whether homelessness can be an analogous
    ground of discrimination under s. 15 of the
Charter
in some contexts.

[38]

The
    appellants also argue that the motion judge ought to have refused to hear the respondents
    motions to dismiss because the governments did not move to dismiss the
    application until two years after the application was issued on May 26, 2010,
    and after the appellants had compiled a voluminous record which was served on
    the respondents on November 22, 2012. Six months later the respondents advised
    the appellants that they had reviewed the record, sought instructions, and
    consulted each other and would respond with motions to strike. The motion judge
    found that it was not reasonable to require that the motion to strike be
    brought before the record was served, and that only then would the respondents
    have an appreciation of the case to meet. Given the size of the record and the
    significance of the issues raised, the motion judge did not consider that six
    months was so long as to justify refusal to hear the motions to strike. I see
    no reason to interfere with this discretionary decision.

[39]

I
    would add that although to issue of leave to amend was raised during argument,
    the appellants did not propose any specific amendment and I cannot conceive of any
    amendment that would cure the absence of a justiciable issue. None of the
    parties or interveners thought it necessary to refer to any part of the
    evidentiary record, and I would not speculate that there is anything in that
    record which might alter these conclusions. The appeal is therefore dismissed,
    without costs by agreement of the parties.

G. Pardu J.A.

I agree G. R.
    Strathy J.A.




Feldman J.A. (Dissenting):

Overview

[40]

I
    have had the benefit of reading the reasons of Pardu J.A., but I do not agree
    with her conclusion that the appeal should be dismissed.

[41]

The
    appellants seek constitutional remedies under ss. 7 and 15 of the
Canadian
    Charter of Rights and Freedoms
against the governments of Ontario and
    Canada for the myriad of problems related to homelessness and inadequate
    housing in this province and this country. The application does not attack any
    specific piece or pieces of legislation. Rather, the appellants seek remedies
    for what they say is the unconstitutional effect of the governments withdrawal
    of programs and failure to legislate.

[42]

The
    application for constitutional relief was struck out at the pleadings stage
    before the court had the opportunity to consider the 16-volume evidentiary
    record filed by the appellants.

[43]

In
    my view, it was an error of law to strike this application at the pleadings
    stage. The application raises significant issues of public importance. The
    appellants approach to
Charter
claims is admittedly novel. But given
    the jurisprudential journey of the
Charter
s development to date, it
    is neither plain nor obvious that the appellants claims are doomed to fail.

[44]

I
    would allow the appeal, and allow the application to proceed.

Analysis

(1)

The Rule in
Hunt v. Carey Canada Inc
.

[45]

The
    respondents moved to strike the appellants application under rule 14.09 and
    rule 21.01(1)(b) of the
Rules of Civil Procedure
, R.R.O. 1990, Reg.
    194, on the ground that the application disclosed no reasonable cause of
    action. The leading case on the test for striking a claim as disclosing no
    reasonable cause of action is the Supreme Court of Canadas decision in
Hunt
    v. Carey Canada Inc
., [1990] 2 S.C.R. 959.

[46]

Justice
    Wilson summarized her holding in
Hunt
,

at p. 980:

[A]ssuming that the facts as stated in the statement of claim
    can be proved, is it plain and obvious that the plaintiffs statement of
    claim discloses no reasonable cause of action? As in England, if there is a
    chance that the plaintiff might succeed, then the plaintiff should not be driven
    from the judgment seat. Neither the length and complexity of the issues, the
    novelty of the cause of action, nor the potential for the defendant to present
    a strong defence should prevent the plaintiff from proceeding with his or her
    case. Only if the action is certain to fail because it contains a radical
    defectshould the relevant portions of a plaintiffs statement of claim be
    struck out.

[47]

Justice
    Wilson emphasized that novelty alone is not a reason to strike a claim. Rather,
    the claim must be certain to fail because, as pleaded, it contains a radical
    defect. Chief Justice McLachlin recently discussed these principles in
R.
    v. Imperial Tobacco Canada Ltd
., 2011
    SCC 42, [2011] 3 S.C.R. 45
. On the issue of the proper approach to
    novel claims, she stated, at para. 21:

Valuable as it is, the motion to strike is a tool that must be
    used with care. The law is not static and unchanging. Actions that yesterday
    were deemed hopeless may tomorrow succeed. Before
Donoghue
v. Stevenson
, [1932] A.C. 562
    (H.L.) introduced a general duty of care to ones neighbour premised on
    foreseeability, few would have predicted that, absent a contractual
    relationship, a bottling company could be held liable for physical injury and
    emotional trauma resulting from a snail in a bottle of ginger beer. Before
Hedley
    Byrne & Co. v. Heller & Partners, Ltd.
, [1963] 2 All E.R. 575
    (H.L.),

a tort action for negligent misstatement would have been
    regarded as incapable of success. The history of our law reveals that often new
    developments in the law first surface on motions to strike or similar
    preliminary motions, like the one at issue in
Donoghue v. Stevenson.
Therefore,
    on a motion to strike, it is not determinative that the law has not yet
    recognized the particular claim. The court must rather ask whether, assuming
    the facts pleaded are true, there is a reasonable prospect that the claim will
    succeed. The approach must be generous and err on the side of permitting a
    novel but arguable claim to proceed to trial.

[48]

In
    this passage, the Chief Justice reminds us that some very significant
    innovations in the law have developed from motions to strike or similar
    preliminary motions, including the general duty of care owed to ones
    neighbour, which came from the House of Lords decision on such a motion in
Donoghue
    v. Stevenson
.

[49]

To
    summarize, a claim should not be struck out at the pleadings stage unless it
    has no reasonable prospect of success, taking the facts pleaded to be true. The
    novelty of the claim alone is not a reason to strike the claim. Rather, there
    must be a radical defect in the claim that will be fatal to its success. The
    purpose of a motion to strike is to weed out, at an early stage, claims that
    have no reasonable chance of success, either because the legal issue raised has
    been conclusively decided against the claim or because the facts, taken at
    their highest, cannot support the claim. The motion to strike should not be
    used, however, as a tool to frustrate potential developments in the law.

(2)

The appellants
Charter
claims

[50]

In
    the amended notice of application, the appellants set out the basis for their
Charter
claims, at paras. 34-38:

34. The harm caused by Canadas and Ontarios failure to
    implement effective strategies to address homelessness and inadequate housing
    deprives the applicants and others similarly affected of life, liberty and
    security of the person in violation of section 7 of the
Charter
. This
    deprivation is not in accordance with the principles of fundamental justice.
    The deprivation is arbitrary, disproportionate to any government interest,
    fundamentally unfair to the applicants, and contrary to international human
    rights norms. Further, Canadas and Ontarios failure to effectively address
    homelessness and inadequate housing violate s. 15 of the
Charter
by
    creating and sustaining conditions of inequality.

35. Those who are homeless and inadequately housed are subject
    to widespread discriminatory prejudice and stereotype and have been
    historically disadvantaged in Canadian society. Their rights, needs and
    interests have been frequently ignored or overlooked by governments. People who
    are homeless and inadequately housed are perhaps the most marginalized,
    disempowered, precarious and vulnerable group in Canadian society.

36. Canadas and Ontarios failure to adopt effective
    strategies to address homelessness and inadequate housing, result in the further
    marginalization, exclusion and deprivation of this group. Canada and Ontario
    have failed to take into account the circumstances of people who are homeless
    and have created additional burdens, disadvantage, prejudice and stereotypes,
    in violation of section 15 of the
Charter
.

37. Furthermore the persons affected by homelessness and the
    lack of adequate housing are disproportionately members of other groups
    protected from discrimination under s. 15(1) including: women, single mothers,
    persons with mental and physical disabilities, Aboriginal persons, seniors,
    youth, racialized persons, newcomers and persons in receipt of social
    assistance. Canadas and Ontarios failure to implement effective strategies to
    address homelessness and inadequate housing therefore constitutes adverse
    effects discrimination against these groups under s. 15(1).

38. There is no pressing and substantial objective served by
    these violations and the violations are not demonstrably justifiable under s. 1
    of the
Charter
.

(3)

The appellants s. 7 claim should not be struck

[51]

In
    a lengthy discussion, the motion judge defines the parameters of s. 7 of the
Charter
,

as if those parameters were settled law. He concludes that the appellants
    claim does not fit within those settled parameters, and as a result, it is
    plain and obvious that their claim cannot succeed.

[52]

In
    my view, there are four problems with the motion judges approach: 1) he
    misunderstood the appellants s. 7 claim and stated it in an overly broad
    manner; 2) he erred in stating that the s. 7 jurisprudence on whether positive
    obligations can be imposed on governments to address homelessness is settled;
    3) he erred in purporting to define the law in a critical area of Canadian
    jurisprudence on a motion to strike; and 4) most importantly, he erred in
    concluding that the issue of whether the appellants had a potential claim under
    s. 7 could be decided without considering the full evidentiary record.

[53]

The
    motion judge first erred in misconstruing the appellants claim. At para. 34,
    the motion judge articulated the claim as follows:

The position taken by the applicants asserts that the
Charter
includes a positive obligation, placed on Canada and Ontario, to see that the
    rights included in the
Charter
are provided for. In such
    circumstances, the question of whether there is an accompanying breach of
    fundamental justice would not arise. In this approach, the only issue would be
    whether the rights to life, liberty and security of the person are being
    breached. If they are, the state would be obliged to act. There is a broad
    array of cases which say that this is not so.

[54]

The
    motion judge understood the appellants to be making two assertions. The first
    was that the governments have positive obligations under s. 7. The second was
    that in order to succeed, the appellants need not prove a breach of a principle
    of fundamental justice. The appellants did make the first assertion, based on
    the Supreme Court of Canadas decision in
Gosselin v. Quebec (Attorney
    General)
, 2002 SCC 84, [2002] 4 S.C.R.
    429
, and based on the record they sought to put before a trial
    court. However, they did not make the second assertion, as can be seen clearly
    from para. 34 of the amended notice of application, quoted above.
[2]

[55]

Following
    a lengthy discussion of some case law which both preceded and followed
Gosselin
,
    the motion judge concluded that the governments have no positive obligation
    under s. 7 to sustain life, liberty or security of the person and therefore
    there can be no deprivation under the first step of the s. 7 analysis. He then
    discussed the appellants assertion that the majority judgment in
Gosselin
left open the possibility that, in appropriate circumstances in a future case,
    a court could recognize such an obligation, referring to the following
    significant passages from the majority decision at paras. 82 and 83:

[82]
One
    day s. 7 may be interpreted to include positive obligations
.  To evoke Lord Sankeys celebrated phrase in
Edwards
    v. Attorney-General for Canada
, [1930] A.C. 124 (P.C.), at
    p. 136, the
Canadian Charter
must be viewed as a
    living tree capable of growth and expansion within its natural limits: see
Reference
    re Provincial Electoral Boundaries (Sask.)
, [1991] 2 S.C.R.
    158, at p. 180,
per
McLachlin J. It would be a
    mistake to regard s. 7 as frozen, or its content as having been
    exhaustively defined in previous cases. In this connection, LeBel J.s words in
Blencoe
[
v.
    British Columbia (Human Rights Commission)
, 2000 SCC 44, [2000] 2 S.C.R. 307]
at
    para. 188 are apposite:

We must remember though that s. 7 expresses
    some of the basic values of the
Charter
. It is
    certainly true that we must avoid collapsing the contents of the
Charter
and perhaps of Canadian law into a flexible and complex provision like s.
    7. But its importance is such for the definition of substantive and procedural
    guarantees in Canadian law that it would be dangerous to freeze the development
    of this part of the law. The full impact of s. 7 will remain difficult to
    foresee and assess for a long while yet. Our Court should be alive to the need
    to safeguard a degree of flexibility in the interpretation and evolution of s.
    7 of the
Charter
.

The
    question therefore is not whether s. 7 has ever been  or will ever be 
    recognized as creating positive rights. Rather, the question is whether the
    present circumstances warrant a novel application of s. 7 as the basis for
    a positive state obligation to guarantee adequate living standards.


[83] I conclude that they do not.  With due
    respect for the views of my colleague Arbour J.,
I do not believe that there is sufficient evidence
    in this case to support the proposed interpretation of s. 7.  I leave open
    the possibility that a positive obligation to sustain life, liberty, or
    security of the person may be made out in special circumstances.
However, this is not such a case.  The impugned program
    contained compensatory workfare provisions and the evidence of actual
    hardship is wanting.  The frail platform provided by the facts of this
    case cannot support the weight of a positive state obligation of citizen
    support. [Emphasis added.]

[56]

While
    recognizing that the majority in
Gosselin
did not foreclose the
    possibility that, in special circumstances in a future case, a court could
    find that s. 7 imposes positive obligations on government, the motion judge
    nevertheless concluded the opposite, at para. 59:

The law is established. As it presently stands, there can be no
    positive obligation on Canada and Ontario to act to put in place programs that
    are directed to overcoming concerns for the life, liberty and security of the
    person. In this context, there is no fundamental right to affordable, adequate
    and accessible housing provided through s. 7 of the
Charter
.

[57]

He
    also stated that the appellants had not pled any special circumstances, as
    the majority in
Gosselin
referred to. He then, at para. 67, addressed
    and distinguished each of the cases that the appellants or the interveners
    submitted did recognize positive obligations on the state to act to protect
    rights [the
Charter
] provides for.

[58]

For
    example, the motion judge quoted
Vriend v. Alberta
, [1998] 1 S.C.R. 493
, in which the
    Supreme Court stated at para. 64:

It has not yet been necessary to decide in other
    contexts whether the
Charter

might impose
    positive obligations on the legislatures or on Parliament such that a failure
    to legislate could be challenged under the
Charter
. Nonetheless, the possibility has been considered and left open in
    some cases.  For example, in
McKinney
[
v. University of Guelph
, [1990] 3 S.C.R. 229]
,
    Wilson J. made a comment in
obiter
that [i]t is
    not self‑evident to me that government could not be found to be in breach
    of the
Charter

for failing to act (p. 412).
     In
Haig v. Canada
, [1993] 2 S.C.R. 995, at p. 1038,
    LHeureux‑Dubé J., speaking for the majority and relying on comments made
    by Dickson C.J. in
Reference re Public Service Employee Relations
    Act (Alta.)
, [1987] 1 S.C.R. 313, suggested that in some
    situations, the
Charter
might impose affirmative
    duties on the government to take positive action.  Finally, in
Eldridge
    v. British Columbia (Attorney General)
, [1997] 3 S.C.R. 624,
    La Forest J., speaking for the Court, left open the question whether the
Charter
might oblige the state to take positive actions (at para. 73).
     However, it is neither necessary nor appropriate to consider that broad issue
    in this case.

[59]

The
    motion judge then responded, at para. 71:

Vriend
and each of the cases referred to [in the
    quotation from
Vriend
reproduced above]  pre-date
Gosselin.
Each
    of them did what it did. They acknowledged that it may be that special or
    unforeseen circumstances may cause the application of s. 15(1) or, by analogy,
    s. 7 of the
Charter

to evolve. That possibility does not change
    the law as it is. What is suggested here has been dealt with before. There is
    no positive obligation raised by the
Charter

that requires
    Canada and Ontario to provide for affordable, adequate, accessible housing.

[60]

The
    motion judge determined that other Supreme Court and appellate cases, including
Eldridge v. British Columbia (Attorney General)
, [1997] 3 S.C.R. 624,
Canada
    (Attorney General) v. PHS Community Services Society
, 2011 SCC 44, [2011] 3 S.C.R. 134,
and
Victoria
    (City) v. Adams
, 2009 BCCA 563, 313
    D.L.R. (4th) 29,
where the court considered how the
Charter
may include positive obligations to act, nevertheless have no application to
    this proceeding.

[61]

Finally,
    under his discussion of s. 7, the motion judge rejected the submission of the
    intervener, the David Asper Centre for Constitutional Rights, that the pleaded
Charter
remedies were available in this case, including the possible application of the
    courts supervisory jurisdiction, as discussed in
Doucet-Boudreau v. Nova
    Scotia (Minister of Education)
, 2003 SCC 62, [2003] 3 S.C.R. 3. He
    rejected that submission on the basis of his conclusion that the application
    necessarily requires a complex review of housing policy issues that the court
    is not equipped to supervise.

[62]

In
    my view, the motion judge erred by concluding that it is settled law that the
    government can have no positive obligation under s. 7 to address homelessness.
    To the contrary,
Gosselin
specifically leaves the issue of positive
    obligations under s. 7 open for another day.

[63]

Further,
    because a claim can only be struck where the law is clear that the claim cannot
    succeed, the court should not conduct a lengthy analysis of the case law as it
    does when making decisions after a trial, a summary judgment hearing, or an
    appeal, and then draw conclusions that state the law in a new way: see
Spasic
    Estate v. Imperial Tobacco Ltd
. (2000), 49 O.R. (3d) 699 (C.A.), leave to
    appeal refused, [2000] S.C.C.A. No. 547, at paras. 22-23.

[64]

However,
    in my view, the motion judges larger error was to strike the claim without
    allowing a court to review the evidentiary record assembled by the appellants.
    In
Gosselin
, the Supreme Court stated that a positive obligation on
    the part of government to sustain life, liberty or security of the person may
    be established in special circumstances. The motion judge stated that no
    special circumstances were pleaded or alleged.

[65]

Whether
    a party characterizes the circumstances as special is not determinative. What
    matters is whether the court considers them sufficiently special. That can be
    determined only after a consideration of the full record, as well as the
    response from the governments. For example, in
Gosselin
(see para. 83
    quoted above), the court stated that there was not enough evidence to support
    the proposed interpretation of s. 7.

[66]

In
    this case, the appellants assembled a 16-volume record, totalling nearly 10,000
    pages, which contains 19 affidavits, 13 of which were from experts. It is
    premature and not within the intent of
Gosselin
to decide there are no
    special circumstances in such a serious case, at the pleadings stage.

[67]

One
    of the concerns raised by the motion judge was that, if
Gosselin
is
    always read as leaving the door open for the imposition of positive obligations
    on governments under s. 7 in the future, then no case pleading positive
    obligations could ever be struck out at the pleadings stage. In my view, that
    concern is misplaced. There may well be cases where the facts pleaded raise an
    issue that has been clearly decided in another case, or where the facts as
    pleaded do not raise a
Charter
issue, although
Charter
relief
    is requested.

[68]

But
    this is not one of those cases. This application is a serious attempt made on
    behalf of a broad range of disadvantaged individuals and groups. It seeks to
    have the court address whether government action and inaction that results in
    homelessness and inadequate housing is subject to
Charter
scrutiny and
    justifies a
Charter
remedy. I will discuss this issue further at the
    conclusion of these reasons.

(4)

The appellants s. 15 claim should not be struck

[69]

The
    appellants s. 15 claim, while perhaps somewhat weaker than their s. 7
    claim, should not have been struck at this early stage either. Importantly, the
    values underlying s. 15 can inform the s. 7 analysis. In their amended notice
    of application, at para. 37, the appellants observe that those affected by
    homelessness and inadequate housing are often disproportionately members of
    other groups protected from discrimination under s. 15, such as women, persons
    with disabilities, Aboriginal persons, and seniors. In
New Brunswick
    (Minister of Health and Community Services) v. G.(J.)
, [1999] 3 S.C.R. 46,
    at para. 115, LHeureux-Dubé J. (with whom Gonthier and McLachlin JJ. agreed),
    concurring in the result, stated:

[I]n considering the s. 7 rights at issue, and the principles
    of fundamental justice that apply in this situation, it is important to ensure
    that the analysis takes into account the principles and purposes of the
    equality guarantee in promoting the equal benefit of the law and ensuring that
    the law responds to the needs of those disadvantaged individuals and groups
    whose protection is at the heart of s. 15. The rights in s. 7 must be
    interpreted through the lens of ss. 15 and 28, to recognize the importance of
    ensuring that our interpretation of the Constitution responds to the realities
    and needs of all members of society.

[70]

In
    his discussion of whether the claim under s. 15 should be struck as disclosing
    no reasonable cause of action, the motion judge again conducted a lengthy and
    detailed discussion of the merits of the claim, concluding in a number of
    places, that it is not the impugned government conduct that causes homelessness
    or the problems faced by the homeless. The motion judge stated at para. 107
    that the burden of being without adequate housing is not caused by these
    programs. It arises from other wider characteristics of our society and
    approach to economic issues.

[71]

This
    is the very issue that is intended to be addressed by an application judge on a
    full record, including the responses by the respondent governments. It is only
    based on such a record that reliable conclusions regarding causation can be
    drawn. With evidence, it may be that, even if the motion judges statement is
    partly true, the governments conduct is a contributing factor to the burden of
    being without adequate housing. It is not the role of a motion judge on a
    motion to strike to make factual findings that are not in the pleadings.

[72]

The
    fact that the motion judge found it necessary to make such factual findings in
    order to determine the motion further demonstrates that the motion to strike is
    ill-conceived. Such findings are appropriate only where a full record is placed
    before the court.

[73]

Finally,
    in the s. 15 context, the motion judge made a number of significant
    observations, the most important of which was that homelessness and being
    without adequate housing are not analogous grounds of discrimination under s.
    15 of the
Charter
. He stated that the lack of adequate housing is not
    a shared quality, characteristic or trait.

[74]

A
    court could very well decide this issue after considering the full evidentiary
    record and argument. It is an important issue. But it is not open for decision
    when the application is not allowed to proceed.

(5)

Justiciability

[75]

The
    motion judge also added that the issues raised in the application are not
    justiciable. It is for this reason that my colleague would dismiss the appeal.

[76]

I
    would not strike this application at the pleadings stage on the basis that the
    claims raised are not justiciable.

[77]

In
Boundaries of Judicial Review: The Law of Justiciability in Canada
, 2d
    ed. (Toronto: Carswell, 2012), at pp. 242-44, Dean Lorne Sossin addresses the
    justiciability issue in the context of disputes involving social and economic
    rights. Citing the Supreme Court of Canadas decision in
Irwin Toy Ltd. v.
    Quebec (Attorney General)
, [1989] 1 S.C.R. 927, he states at p. 242:

Canadian Courts have shown marked reluctance to invest rights
    and guarantees protected under the
Charter
with social and economic
    content. However, they have shown equal hesitation in foreclosing this
    possibility. The Supreme Court of Canada, for example, has expressly refrained
    from stating whether section 7 of the
Charter
, guaranteeing a right to
    security of the person, protects economic rights fundamental to human life or
    survival. [Footnote omitted.]

[78]

Dean
    Sossin outlines opposing views on whether, if claims for social and economic
    rights under the
Charter
were justiciable, courts would be deciding
    political or policy matters that should be left to the legislature. In
    response, he points out that courts may be accused of doing that very thing
    when they conduct the required analysis under s. 1 of the
Charter
.

[79]

He
    then concludes that the justiciability of social and economic rights under the
Charter
is an open question:

It is striking that, despite the rich jurisprudence which has
    developed under the
Charter
, such uncertainty remains with respect to
    a question of fundamental importance to the scope of judicial review of government
    action. For the moment, the justiciability of social and economic rights under
    the
Charter
remains an open question. [Footnote omitted.]

[80]

In
    his chapter Taking Competence Seriously in Margot Young et al., eds.,
Poverty:
    Rights, Social Citizenship, and Legal Activism
(Vancouver: UBC Press,
    2007), at p. 273, Professor David Wiseman argues that courts are competent to
    adjudicate poverty-related standards, and points to a number of cases outside
    the
Charter
context where courts have been prepared to do just that.
[3]
He also refers to the dissenting reasons of Arbour J. and LHeureux-Dubé J. in
Gosselin
,
    at paras. 141-42 and paras. 330-35, where they acknowledged that, while the
    court may not be able to determine the level of assistance that government
    should provide, that does not mean it cannot determine whether there is a
    constitutional obligation on government to provide some level of assistance.

[81]

In
Gosselin
, the Supreme Court did not hold that claims for social and
    economic rights under the
Charter
were non-justiciable. As a result,
    courts should be extremely cautious before foreclosing any enforcement of these
    rights.

In my view, to strike a serious
Charter
application
    at the pleadings stage on the basis of justiciability is therefore
    inappropriate.

[82]

My
    colleague points to a number of concerns with the format of this application:
    in particular, unlike in many other
Charter
cases, the appellants have
    attacked no particular law. Therefore, there is no direct way to apply the s. 1
    analysis from
R. v. Oakes
, [1986] 1 S.C.R. 103.

[83]

I
    agree that the broad approach taken in this application is novel and a number
    of procedural as well as conceptual difficulties could arise when the court
    addresses whether the
Charter
has been infringed, and if appropriate,
    determines and applies a reasonable and workable remedy.

[84]

However,
    there are two answers to these concerns. First, as Wilson J. observed in
Hunt
,
    at p. 980, and McLachlin C.J. observed in
Imperial Tobacco
, at para.
    21, the novelty of a claim is not a bar to allowing it to proceed. Although the
    development of
Charter
jurisprudence has to date followed a fairly
    consistent procedural path, and has involved challenges to particular laws, we
    are still in the early stages of that development. There is no reason to
    believe that that procedural approach is fixed in stone. This application asks
    the court to view
Charter
claims through a different procedural lens.
    That novelty is not a reason to strike it out.

[85]

Second,
    this court had cogent and helpful submissions from the intervener, the David
    Asper Center for Constitutional Rights, on the ability and authority of the
    court to grant one or more of the remedies requested in the application.
    Although the amended notice of application seeks, as one remedy, an order
    requiring the governments to implement strategies to reduce homelessness and
    inadequate housing and to consult with affected groups, under court
    supervision, the court need not make such a wide-ranging order if it finds a
    breach of the
Charter
. It may limit itself to granting declaratory
    relief only, as was done in
Canada (Prime Minister) v. Khadr
, 2010 SCC
    3, [2010] 1 S.C.R. 44. Four such declarations are requested in the amended
    notice of application.

Conclusion

[86]

In
    my view, it was an error of law to strike this claim at the pleadings stage.
    The claim does not meet the test under rule 21.01(1)(b): while the claim is
    novel, both conceptually and substantively, it cannot be said, based on the
    state of the relevant jurisprudence to date, that the claim has no reasonable
    prospect of success. In
Gosselin
, the Supreme Court of Canada left
    open the issue of both the existence and the extent of positive obligations
    under the
Charter
to give effect to social and economic rights. It is
    therefore premature to decide at the pleadings stage that the issues are not
    justiciable.

[87]

Chief
    Justice McLachlin described the purpose of motions to strike as follows in
Imperial
    Tobacco
, at para. 19:

The power to strike out claims that have no reasonable prospect
    of success is a valuable housekeeping measure essential to effective and fair
    litigation. It unclutters the proceedings, weeding out the hopeless claims and
    ensuring that those that have some chance of success go on to trial.

[88]

This
    application is simply not the type of hopeless claim for which Rule 21 was
    intended. It has been brought by counsel 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. The appellants put
    together a significant record to support their application. That record should
    be put before the court.

[89]

I
    would allow the appeal.

Released: (KF) DEC 1, 2014

K.
    Feldman J.A.





[1]

Withler v. Canada
(Attorney General), 2011 SCC 12, [2011] 1 S.C.R. 396,
    at para. 35.



[2]
Later on in his reasons, at para. 62, the motion judge recognized that the
    appellants had pleaded a breach of the principles of fundamental justice.



[3]
For example, in
Marshall v. Canada
, [1999] 3 S.C.R. 456, at
    paras. 58-59, the Supreme Court interpreted a treaty as providing the right to
    trade for necessaries or a moderate livelihood, which includes such basics
    as food, clothing and housing, supplemented by a few amenities, but not the
    accumulation of wealth. It addresses day-to-day needs (citation omitted). In
Stouffville
    Assessment Commissioner v. Mennonite Home Assn
., [1973] S.C.R. 189, the
    Supreme Court applied a statute that extended a benefit to an incorporated
    charitable institution organized for the relief of the poor, and in so doing,
    considered what constitutes relief of the poor. See
Assessment Act
,
    R.S.O. 1990, c. A.31, s. 3(1)(12)(iii). See also
Criminal Code
, R.S.C.
    1985, c. C-46, s. 215, which creates the offence of failing to provide the
    necessaries of life. In applying this section, courts have to decide what
    constitutes the necessaries of life. See Young, at p. 273.


