Last month, the Ontario Court of Appeal’s decision in Tanudjaja v. Canada (Attorney General) upheld the Superior Court’s dismissal of a novel claim, alleging that the Canadian Charter of Rights and Freedoms confers a positive right to housing. The majority of the Court of Appeal was correct to dismiss the claim. However, the basis of the majority’s decision – that the claims raised injusticiable issues – conflicts with precedent and could create serious problems for the rule of law. Rather, this was an appropriate case to dismiss the applicants’ claim for having no reasonable prospect of success.
The applicants alleged that the provincial and federal governments’ failure to provide for adequate housing violated their rights under ss. 7 and 15 of the Charter. They specifically disclaimed a challenge to any specific government action, contending instead that ss. 7 and 15 confer a positive right to adequate housing, which was breached by the cumulative effect of numerous government policies.
Justice Lederer of the Ontario Superior Court granted the governments’ motion to dismiss the application under Rule 21.01(1)(b) of the Ontario Rules of Civil Procedure. On appeal, a majority of the Court of Appeal upheld his decision, on the sole basis that the applicants’ claim was not justiciable. Justice Feldman dissented, writing that the claims raised were justiciable and that, given open-ended statements from the Supreme Court of Canada in Gosselin v. Quebec, suggesting the Charter could at some point encompass positive rights, it could not be definitively said that the claims disclosed “no reasonable prospect of success”.
The Court of Appeal reached an appropriate result in striking the applicants’ claims, but its reasoning warrants scrutiny. The court’s conclusion that the claims were not justiciable appears flawed and at odds with prior jurisprudence.
As Lorne Sossin, the Dean of Osgoode Hall Law School, has observed, justiciability is easily confused with judicial deference. Justice Wilson noted in Operation Dismantle v. The Queen that, when deciding whether a particular government act violates the rights of citizens, “it is not only appropriate that [a Court] answer the question; it is our obligation underthe Charter to do so.” In this regard, there is no “political question” doctrine in Canada, and non-justiciable questions are rare in Canadian law.
The rare questions accepted to be non-justiciable in Canada are mostly related to exercises of Crown prerogative. An example would be advice that the Prime Minister gives to the Queen or her representatives concerning the bestowing of honours, as seen in Black v. Chrétien. However, even in that case, Justice Laskin suggested that had a Charter claim been present, the result, at least on the question of justiciability, would have been different. Similarly, in the Omar Khadr saga, issues that one might have thought were subject to Crown prerogative over foreign affairs were held to be justiciable when the Charter was in play.
It is true that the applicants in Tanudjaja did not attack any particular legislative provision. That may be relevant for why their claim should be properly struck under Rule 21.01(1)(b) as having no reasonable prospect of success. But that is very different from saying that the Courts are incapable of deciding whether interaction of various government policies could somehow violate the Charter.
The majority of the Court of Appeal in Tanudjaja was particularly concerned that courts are ill-suited to reviewing the setting of government priorities in areas such as housing. That concern is well-founded. However, it is also a concern best addressed by deferring to the government in delineating the content of the “principles of fundamental justice” within the meaning of s. 7 of the Charter.
It must be remembered that a finding of injusticiability eliminates any kind of judicial review over state action. When an individual alleges his or her constitutional rights have been violated, a court has the concomitant obligation to determine whether that is, in fact, the case. There are certainly times when this should entail deferring to the views of the legislature and/or the executive as to the constitution’s meaning. But deference is very different from holding that courts cannot speak on an issue. In this respect, the majority of the Court of Appeal in Tanudjaja appears to have understandably, but unfortunately, conflated judicial deference with injusticiability.
Motion to Strike
Due to its conclusion on the issue of justiciability, the majority of the Court of Appeal never addressed whether Justice Lederer properly struck the applicants’ claim pursuant to Rule 21.01(1)(b) of the Rules of Civil Procedure. This would have been a sounder basis for dismissing the claim.
To begin, Justice Lederer correctly dismissed the applicants’ s.15 claim, as the applicants pleaded no enumerated or analogous ground sufficient to bring their claim within the ambit of s. 15. It is well-established that “poverty”, “homelessness” and similar grounds cannot form the basis of a s. 15 claim. Some interveners argued that the effects of the government (in)action at issue in this case disproportionately affected vulnerable minorities. But even if that were true, there would appear to be no prejudice or stereotyping coming from the government, which is necessary to prove a violation of s. 15 of the Charter.
The s. 7 claim was more difficult to dismiss out of hand, however. Perhaps, due to open-ended statements in Gosselin, the claim in Tanudjaja did not definitively fail to disclose a cause of action. However, the claim was extremely unlikely to achieve traction at trial, due to the multitude of reasons cited by Justice Lederer and the majority of the Court of Appeal, including:
• the applicants had not attacked any particular piece of legislation, which is both problematic in and of itself and leads to a s. 1 analysis being extremely difficult if not impossible;
• courts are ill-suited to reviewing how governments set social priorities;
• it appears unlikely that government action is the cause of the situation in which the applicants have found themselves; and
• though the door has not been definitely closed, Canadian courts have been extremely reluctant to embrace such “positive rights.”
The applicants’ claim, for all intents and purposes, was concerned with the ambit of s. 7 of the Charter. This is a question of law. Despite the open-ended statements in Gosselin that the Charter may one day be interpreted to encompass positive social and economic rights, nothing has changed in the legal or social landscape of Canada to suggest that that day has arrived. Reviewing an extremely voluminous record, and hearing from a great deal of witnesses, to dismiss the applicants’ claim would waste Court resources and fail to promote judicial economy.
Given Justice Feldman’s dissent and the important issues of civil procedure and constitutional law raised in the case more generally, there is a very real chance that leave will be granted to appeal Tanudjaja to the Supreme Court. If that occurs, one hopes that the Supreme Court will recognize that Courts are guardians of the constitution and should not lightly decline to hear a case that raises constitutional issues. At the same time, the Supreme Court should recognize that deference to other branches of government is essential for the proper functioning of Canada’s constitutional order, and governments – like all other litigants – are entitled to efficient access to justice.
*Gerard Kennedy practices commercial and constitutional litigation at Osler, Hoskin & Harcourt LLP. He is also an adjunct professor at the University of Toronto, where he teaches international law