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Domestic implementation of ecomonic and social rights

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The ICESCR does not stipulate the specific means by which it is to be implemented and the precise method by which Covenant rights are to be given effect in national law is a matter for each State party to decide. However, the means used should be appropriate in the sense of producing results which are consistent with the full discharge of the State party’s obligations.[42] Social and economic rights impose three types of obligations on States: (1) the obligation to respect; (2) the obligation to protect; and (3) the obligation to fulfill.[43]

(1) The obligation to respect

A government must not infringe, or interfere with, the enjoyment of economic, social and cultural rights. For example, the government cannot engage in forced evictions or confiscate land without appropriate compensation.

(2) The obligation to protect

A government must prevent third parties from infringing economic, social and cultural rights. Human rights legislation and human rights commissions have a critical role in fulfilling this obligation.[44] Human rights legislation is designed to prevent private actors and even the government from infringing certain rights and human rights commissions are charged with administering and enforcing the legislation.

(3) The obligation to fulfill

A government has a duty to take appropriate legislative, administrative, budgetary, judicial and other measures to fulfil the rights; i.e. the government must provide food, shelter, health, education or other necessities to individuals without the means to provide for themselves. Canada has responded to these obligations through a variety of social and public policy measures provincially and nationally. A discussion of the broad range of such programs is beyond the scope of this paper; however, examples include social assistance, public health care and public education.

However States parties choose to meet their obligations under the ICESCR, the ICESCR Committee has set out several principles which must be respected. Firstly, the means chosen must be adequate to ensure fulfillment of the obligations. The need to ensure justiciability is relevant in this regard. Secondly, the means which have been most effective in ensuring the protection of other human rights in the country must be considered.[45] Third, while the Covenant does not formally oblige States to incorporate its provisions into domestic law, this approach is desirable.[46] As the Maastricht Guidelines state:

The direct incorporation or application of international instruments recognizing economic, social and cultural rights within the domestic legal order can significantly enhance the scope and effectiveness of remedial measures and should be encouraged in all cases.[47]

General Comment No. 9 notes that States have used a variety of approaches. Some have failed to do anything specific at all. Others have supplemented or amended existing legislation but without invoking the specific terms of the Covenant, or have adopted or incorporated it into domestic law so that its terms are retained intact and given formal validity in the national legal order.[48]

The Experience of Other Countries in Implementing Economic and Social Rights

In recent years, there has been a growing trend around the world toward improved enforcement and adjudication procedures for social and economic rights. For example, the 40-member Council of Europe has recently adopted a revised European Social Charter which came into force on July 1, 1999.[49] The revised European Social Charter provides protection for economic and social rights, for example, through the right to decent housing[50] and protection against poverty and social exclusion.[51] The rights are subject to a complaint procedure which allows employer organizations and NGOs to file complaints against governments which are then considered by a Committee of Independent Experts.[52] The history of social and economic rights under the earlier version of the Social Charter is not unlike that of Canada, namely they assumed the character of ‘policy objectives’ rather than fully justiciable, substantive rights. This is in stark contrast to the civil and political rights, which are outlined in the European Convention on Human Rights, whose protection is carried out in part by the European Court of Human Rights (the “ECHR”).[53]

Traditionally, the enforcement of the European Social Charter has been through a reporting system, similar to that under the ICESCR. In 1995, an Additional Protocol was adopted which allows for a system of collective complaints to be brought to the Committee of Independent Experts by national and international labour and employer’s organizations and NGOs. Nevertheless, there is significant concern that such a mechanism of enforcement is insufficiently robust to entail the full implementation of the Social Charter. Many commentators have argued for an individual petition system and a European Court of Social Rights, or a Social Rights Commission.[54]
Some writers have considered the possibility that the Social Charter may be given effect by courts, not by directly upholding the positive state obligations outlined in the Social Charter, but rather by employing it in the interpretation of other areas of European Community Law. Examples of such developments can be found in both the case law of the European Court of Justice (the “ECJ”) and of the ECHR.[55] For instance, the ECHR found in the Airey[56] case that the provision of free legal aid is a necessary precondition for the efficient exercise of an individual’s civil rights. In the Feldbrugge[57] case and the Deumeland[58] case, the ECHR suggested that decisions concerning social security benefits must satisfy the guarantees of a fair trial. This jurisprudence was affirmed in a more recent decision related to public assistance benefits.[59]

A similar approach can be seen in the case law of the ECJ. In the case of Defrenne v. Sabena [60] the ECJ explicitly referred to the Social Charter as an important source of the fundamental principles of European Community law to support its finding of sexual discrimination arising from the unequal retirement ages of women and men in the Belgian aviation industry. Accordingly, consistent with the interdependence of economic and social rights with civil and political rights, European courts have used the Social Charter when giving effect to civil rights under the European Convention on Human Rights.

It appears there is an increasing willingness by the European courts to uphold positive obligations of member states of the European Community. European developments appear to be moving in the direction of enforcing state action in the provision of entitlements, benefits or social services rather than in constraining state or private action which discriminates against people on the basis of poverty or social condition.

The Indian Supreme Court has tried to give some protection for aspects of social and economic rights by infusing these rights into protections for civil and political rights. The Indian Constitution makes civil and political rights expressly enforceable in the courts. Social and economic rights are set out in a section of the Constitution called “Directive Principles of State Policy” and are made expressly unenforceable in court. Nevertheless, the Indian Supreme Court has given indirect effect to the Directive Principles by interpreting civil and political rights, such as the right to life, to mean the right to an adequate quality of life, including adequate nutrition, clothing and shelter.[61]
The approach adopted in South Africa[62] is worth examining as that country has recently had the opportunity to define a new approach to human rights. South Africa’s final Constitution lists a broad range of social and economic rights such as access to adequate housing, health care services, including reproductive health care, sufficient food and water and social security, including appropriate social assistance. Some components of these rights are subject to limitations related to available resources, but all aspects are subject to judicial review. In come cases, it may also be possible to pursue social and economic rights claims against private entities. In a recent decision, the Constitutional Court confirmed that the Constitution obliges the state to act positively with respect to social and economic rights. These rights and the advancement of race and gender equality were found to be inter-related and mutually supporting. The decision confirmed that in appropriate circumstances, the courts can and must enforce social and economic rights. The Human Rights Commission appears to have played an important role in this case as amicus curiae.[63]

The South African Human Rights Commission has a broad mandate with special responsibilities with respect to social and economic rights. For example, each year it must require “relevant organs of state to provide the Commission with information on the measures that they have taken towards the realization of the rights in the Bill of Rights concerning housing, health care, food, water, social security, education and the environment.”[64]

It is clear that the vast majority of countries already have domestic recognition of social and economic rights, either through the application of international treaties in domestic law or through constitutional or human rights provisions which refer to social and economic rights.[65] A 1991 Comparative Study prepared by the Constitutional Law and Policy Division of the Ontario Ministry of the Attorney General notes that over one-half of the constitutions of the countries of the world contain express provisions regarding social and economic rights or principles. For example, more than 55 constitutions refer to a right or state duty with respect to social assistance, over 30 constitutions refer to the right to a minimum standard of living, more than 30 constitutions enshrine a right or state duty with respect to housing and so forth.[66] Although these provisions are not always enforceable in the courts, their entrenchment serves as an expression of shared values and aspirations and as a guide for national policy-making.[67]

Canada’s Approach to Implementation of Economic and Social Rights

In Canada, international instruments are not part of domestic law unless implemented by statute. Canada’s treaty obligations can bind domestic courts if: (i) international law is specifically incorporated in domestic legislation or is incorporated by necessary implication, and (ii) where such legislation is itself enacted by the legislature with jurisdiction over the subject matter of the treaty.[68] As well, the Supreme Court of Canada has confirmed the interpretive value of international instruments, even where they have not been made part of domestic laws, particularly in the areas of Charter interpretation and the interpretation and application of administrative law.
In 1983, in his dissenting opinion in Reference Re Public Service Employee Relations Act, Chief Justice Dickson said the following about Canada’s international obligations and constitutional interpretation under domestic law:

...Canada is a party to a number of international human rights Conventions which contain provisions similar or identical to those in the Charter. Canada has thus obliged itself internationally to ensure within its border the protection of certain fundamental rights and freedoms which are also contained in the Charter. The general principles of constitutional interpretation require that these international obligations be a relevant and persuasive factor in Charter interpretation.[69]

Shortly afterwards, writing for the majority of the court, Chief Justice Dickson reaffirmed this position in Slaight Communications Inc. v. Davidson[70]. He found that the Charter is to be interpreted in such a way as to give effect to a presumption that the Charter offers at least as much protection as rights Canada is bound to ensure under international human rights law. The right that was being in the decision was the right to work contained in Article 6 of the ICESCR.[71]

In the ten years since Slaight Communications, very few lower courts have considered international law in their decision-making process or applied the approach articulated in the case.[72] Recently, the Supreme Court of Canada had an opportunity to reiterate the Slaight Communications interpretive presumption and to elaborate on the position of international human rights instruments in domestic law. In Baker v. Canada (Minister of Citizenship and Immigration)[73], the Court considered the effect of Canada’s ratification of the Convention on the Rights of the Child in the immigration context. Ms Baker had four Canadian-born dependent children and had been ordered deported. She applied for an exemption, based on humanitarian and compassionate grounds, from the requirement that an application for permanent residence be made from outside Canada. At issue was whether the best interests of the child, as defined in the Convention on the Rights of the Child, had to be taken into account when deciding whether to grant the exemption.

Writing for the majority, L’Heureux-Dubé J. noted that international treaties and conventions are not part of Canadian law unless they have been implemented by statute. As the Convention on the Rights of the Child has not been implemented by Parliament, its provisions have no direct application within Canadian law. However, an interpretation of domestic laws that reflects the values and principles contained in international law is to be preferred:

...the values reflected in international human rights law may help inform the contextual approach to statutory interpretation and judicial review...[International law] is also a critical influence on the interpretation of the scope of the rights included in the Charter...[74]

Accordingly, this more recent pronouncement from the Supreme Court of Canada confirms the importance of international instruments in the interpretation of domestic law. Some commentators argue that Baker affirms that the interpretation and application of administrative law, whether federal or provincial, must be consistent with international human rights treaties ratified by Canada and that this will have important implications for human rights legislation.[75]

The ‘Problem’ of Justiciability: Litigating Social and Economic Rights

An important aspect of domestic implementation and of each of the obligations to respect, protect and fulfill social and economic rights is the issue of whether these rights are justiciable. Justiciability refers to those matters which are appropriately resolved by the courts. General Comment No. 9 addresses the issue of justiciability and the provision of legal remedies. General Comment No. 9 rejects the commonly held belief that social and economic rights are unsuitable for judicial enforcement:

In relation to civil and political rights, it is generally taken for granted that judicial remedies for violations are essential. Regrettably, the contrary assumption is too often made in relation to economic, social and cultural rights. This discrepancy is not warranted either by the nature of the rights or by the relevant Covenant provisions... The adoption of a rigid classification of economic, social and cultural rights which puts them, by definition, beyond the reach of the courts would thus be arbitrary and incompatible with the principle that the two sets of human rights are indivisible and interdependent. It would also drastically curtail the capacity of the courts to protect the rights of the most vulnerable and disadvantaged groups in society.[76]

General Comment No. 9 asserts that states are to provide for legal remedies in two ways: through consistent interpretation of domestic law and through the adoption of legislative measures to provide legal remedies for violations of social and economic rights. Courts should take Covenant rights into account to ensure that the State’s conduct is consistent with its obligations. Guarantees of equality and non-discrimination should be interpreted, to the greatest extent possible, to facilitate protection of economic and social rights.

The Supreme Court of Canada has refused to rule out an interpretation of section 7 of the Charter that would protect social and economic rights. In the case of Irwin Toy Ltd. v. Quebec (Attorney General)[77], the Supreme Court considered the scope of s. 7 of the Charter[78]. The Court left open the question of whether s. 7 rights can include rights to material assistance and support:

The intentional exclusion of property from s. 7, and the substitution therefor of “security of the person”....leads to a general inference that economic rights as generally encompassed by the term “property” are not within the perimeters of the s. 7 guarantee. This is not to declare, however, that no right with a economic component can fall within “security of the person”.[79]

The Court stated that it would be “precipitous” to limit the scope of s. 7 to rule out “such rights, included in various international covenants, as rights to social security, equal pay for equal work, adequate food, clothing and shelter.”[80]

The ICESCR Committee has interpreted this decision, along with the decision in Slaight Communications, as a statement by the Supreme Court that the Charter can be interpreted to protect an adequate standard of living and other ICESCR rights.[81] However, this is not entirely accurate as the Supreme Court has not yet positively affirmed this interpretation, it has simply refused to rule it out. This perception as to the significance of Slaight Communications and Irwin Toy probably arose from the Government of Canada’s response to a question by the ICESCR Committee:

The Supreme Court of Canada has stated that section 7 of the Charter may be interpreted to include the rights protected under the Covenant (...Slaight Communications...). The Supreme Court has also held section 7 as guaranteeing that people are not to be deprived of basic necessities (...Irwin Toy...). The Government of Canada is bound by these interpretations of section 7 of the Charter.[82]

The Supreme Court’s evolving approach to equality rights under s. 15 of the Charter also appears consistent with the protection of economic and social rights under both the Charter and human rights legislation. The Supreme Court has identified substantive equality as a fundamental societal value against which the objects of all legislation must be measured. It has affirmed that s. 15 of the Charter, which states that every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination, is the broadest of guarantees which applies to and supports all other rights.[83] Equality rights may create positive obligations to address needs related to disadvantage and the right to equality may be breached by an omission or failure to act to address the needs of disadvantaged or vulnerable groups. Such positive obligations are not new but are well established under human rights legislation.[84] As LaForest J. declared in Eldridge:

...the respondents...maintain that s. 15(1) does not oblige governments to implement programs to alleviate disadvantages that exist independently of state action...[and] that governments should be entitled to provide benefits to the general population without ensuring that disadvantaged members of society have the resources to take full advantage of those benefits. In my view, this position bespeaks a thin and impoverished vision of s. 15(1). It is belied, more importantly, by the thrust of this Court’s equality jurisprudence.[85]

In Eldridge, the ground of discrimination was disability. It is a significant case for its approach to substantive equality and its recognition that the purpose of s. 15(1) of the Charter is not just to prevent discrimination by the attribution of stereotypes, but also to ameliorate the position of groups that have suffered disadvantage by exclusion from mainstream society.

It can be argued that a constitutional commitment to the provision of basic needs is contained in s. 36(1) of the Charter:

...the government of Canada and the provincial governments are committed to

  • (a) promoting equal opportunity for the well-being of Canadians;
  • (b) furthering economic development to reduce disparity in opportunities;
  • (c) providing essential public service of reasonable quality to all Canadians.

It is unclear whether this section creates any legally enforceable obligations for federal or provincial governments.[86] Nevertheless, the section does represent an affirmation of Canadian governments’ commitment to certain economic rights and may be used as an interpretative tool under the Charter.

Taken together, the Supreme Court’s decision in Irwin Toy, its evolving equality rights analysis under s. 15 of the Charter, its emerging jurisprudence on the role of international instruments in interpreting the Charter and s. 36(1) of the Charter all appear to support the justiciability of social and economic rights under the Charter.[87] However, lower courts in Canada have consistently preferred narrow interpretations of Charter rights which put economic and social rights beyond their reach. Founded, in part, on concerns for parliamentary sovereignty and the various degrees of expertise of legislatures versus the courts, Canadian courts have declined to play a role in the justiciability of these rights. A discussion of the most significant cases follows.[88]

Social Assistance Cases

In Masse v. Ontario (Ministry of Community and Social Services)[89], an Ontario superior court considered a challenge to a 21 percent cut to provincial social assistance rates. The court accepted uncontroverted evidence that the cuts would have a significant adverse impact on vulnerable groups:

... [the applicants] are single parents who fear losing their existing accommodation, and the deprivations associated with lower income such as less money for food, clothing and educational needs...This brief overview does not sufficiently capture the extent of the effects of the reductions on these applicants and their children. The daily strain of surviving and caring for children on low and inadequate income is unrelenting and debilitating. All recipients of social assistance and their dependents will suffer in some way from the reduction in assistance. Many will be forced to find other accommodation or make other living arrangements. If cheaper accommodation is not available...many may soon become homeless.[90]

Despite this, and the argument that the applicants’ rights to security of the person and equality under the Charter should be interpreted in light of Canada’s international human rights obligations, the Court rejected the claim and relied on the principle that social and economic rights are not justiciable. O’Brien J. commented that “much economic and social policy is simply beyond the institutional competence of the courts”[91] and in a separate concurring judgment, O’Driscoll J. stated that the court has no jurisdiction “to second guess policy/political decisions”.[92]

With respect to the equality analysis, the Court declined to find receipt of social assistance an analogous ground of discrimination under s. 15, citing the fact s. 15 requires a comparison of government treatment of classes of individuals based on personal characteristics. The court reasoned that recipients receive a government benefit not received by others, so there is no valid comparison. As well, the Court found that the group is not defined by any particular personal characteristic and that for receipt of social assistance to be an analogous ground, it must relate to personal characteristics.

In another Ontario case, Mohamed v. Metropolitan Toronto (Department of Social Services)[93], the social assistance scheme was found discriminatory on the basis of age as it did not provide for direct welfare payments or equivalent benefits for persons under 16. However, it was found to be a justifiable limit on the right under s.1 of the Charter. A different result was reached in Silano v. British Columbia[94], where social assistance regulations which provided $25 per month less to those under 26 were found to be discriminatory. As the distinction based on age was not reasonable or just, the age discrimination could not be saved under s. 1.

In Quebec, a woman challenged the reduction of the social assistance entitlement for single employable persons aged 18 to 30 to one-third of that of single persons over 30.[95] She argued that the payment of $170 per month was so low as to constitute a deprivation of life, liberty and security of the person. She testified that she was hungry, homeless for a time and eventually had to live in an intimate relationship, contrary to her wishes, in exchange for shelter and food. The Quebec Superior Court dismissed the claim, stating that s. 7 did not protect economic rights.

The Court justified its decision in several ways. The Court deferred to the intent of the framers of the Charter to exclude social and economic rights from the ambit of s. 7. The Court declined to interpret the Charter to include positive rights requiring deployment of public resources and noted that “The courts cannot substitute their judgment in social and economic matters for that of legislative bodies...”.[96] Finally, taking the same “impoverished” approach which was rejected by the Supreme Court in Eldridge, the Court noted that poverty was not created by the state but by other conditions or circumstances, and it was the poverty that created the deprivation of life, liberty and security of the person. Hence, the ineffectiveness of government action to eliminate poverty was not itself the cause of the deprivation. The Quebec Court of Appeal recently upheld the view that social and economic rights are not justiciable under the Charter and that courts are not empowered to review the adequacy of provincial social security measures.[97] The Supreme Court of Canada has granted leave to appeal.

A Nova Scotia woman challenged a denial of interim social assistance to cover basic necessities of food and housing for herself and her child while an allegation that she had been living with a man was investigated. The Court of Appeal found that the Charter cannot provide protection for economic interests.[98] However, on a more positive note, a recent Ontario decision found a similar ‘spouse-in-the-house’ rule, which deemed cohabiting persons of the opposite-sex to be spouses whether or not a true spousal relationship existed, discriminatory on the basis of sex and the analogous ground of ‘sole support mothers on social assistance’.[99]

In Fernandes v. Director of Social Services (Winnipeg Central)[100] the plaintiff, who required permanent use of a ventilator, challenged a decision by Manitoba welfare authorities to deny him additional assistance for in-home care. Fernandes argued that this forced him to live in a hospital which infringed his s. 7 rights. The Manitoba Court of Appeal dismissed the claim stating that “[t]he desire to live in a particular setting” and “rights to a particular style of living” were not protected by s. 7.[101] The s. 15 claim was also rejected on the basis that the plaintiff was being treated the same as all social assistance recipients as his basic needs were being met.

Charter arguments made on behalf of social assistance recipients were successful to defeat a motion to strike the plaintiffs’ claim in Federated Anti-Poverty Groups v. British Columbia (A.G.)[102]. As a condition for children and spouses to receive welfare, the impugned legislative provisions transferred any maintenance rights they had to the Crown. The Court refused to find it “plain and obvious” that the plaintiffs’ s. 7 rights were not being violated. With respect to s. 15, the Court stated: “[I]t is clear that persons receiving income assistance constitute a discrete and insular minority within the meaning of s. 15.” This case was a success for advocates of the justiciability of social and economic rights under the Charter, but only a limited one as the decision was not a final adjudication of the rights of the parties.

Health Care Cases

Sections 7 and 15 of the Charter have also been invoked, unsuccessfully, to challenge provincial health care funding decisions. In Ontario Nursing Home Association v. Ontario[103] the plaintiffs argued that the level of funding to nursing homes was inadequate, violating the residents’ s. 7 rights, and that s.15 rights were violated because of a different level of funding than that provided to homes for the aged. The Court noted that the plaintiffs had not argued that the standard of care that existed was unconstitutional or that the residents were not being adequately cared for. The Court held that s. 7 did not guarantee “additional benefits” which might enhance life, liberty or security of the person. The s. 15 claim failed as the funding distinction was based on the type of residence rather than an enumerated or analogous ground under s. 15.

In Brown v. British Columbia Minister of Health[104], a Charter challenge to the provincial government’s decision not to fully subsidize the costs of an AIDS treatment was rejected. The plaintiffs argued that the failure to pay for the drug constituted a deprivation of life, liberty and security of the person. The Court again found that s.7 did not protect against economic deprivations or guarantee benefits which might enhance life, liberty or security of the person. Section 15(1) was not violated because the Pharmacare Plan applied to all residents of the province and everyone receiving similar drug treatment was required to contribute to the cost of needed drugs.

An Ontario court declined to find residency rules for OHIP eligibility discriminatory.[105] The applicants were not covered by OHIP as they either lacked the requisite immigration status or their medical claims arose within a three-month waiting period. Many of the applicants couldn’t achieve the necessary immigration status because of a pre-existing disability. The applicants argued that the rules were discriminatory on the basis of immigration status and had a particularly negative impact on pregnant women, children and persons with disabilities. The decision at first instance was largely based on s. 6 of the Charter (mobility rights) with s. 15 receiving little attention. On appeal, the Court of Appeal focused more on the s. 15 arguments. However, the Court rejected the appellants’ characterization of the distinctions being drawn in the impugned regulation, instead finding that the distinctions were based on factors that could not be considered analogous grounds. While the court agreed that but for their disabilities, three of the appellants would have been granted landed immigrant status and would have been eligible for OHIP, it noted that the federal immigration authorities had decided that their physical disabilities rendered them ineligible. The Court did not consider that the provincial government knew that by relying on immigration status, it would be excluding persons who could not achieve landed immigrant status due to disability.

In contrast to the approach in these decisions, in the Eldridge case, the Supreme Court of Canada held that, under s. 15(1) of the Charter, governments have an obligation to take special measures to ensure that members of disadvantaged groups benefit equally from services offered to the general public. Policy reasons for limiting the government’s responsibility to ameliorate disadvantage in the provision of benefits and services should only be considered in determining whether a violation of s. 15(1) is saved by s. 1 of the Charter. The failure of the British Columbia Medical Services Commission and hospitals to provide sign language interpretation, where necessary for effective communication, was found to be a prima facie violation of the s. 15(1) rights of deaf persons that was not saved by s. 1 of the Charter.

Housing Cases

In a landmark equality rights case, the Nova Scotia Court of Appeal found that public housing tenants constitute a protected class analogous to those enumerated in s. 15 of the Charter. In Dartmouth/Halifax County Regional Housing Authority v. Sparks[106], the Court struck down two sections of the Residential Tenancies Act, which treated public housing tenants differently from other tenants, as being unjustifiable infringements of s. 15 of the Charter. The Court found that the plaintiff, a black sole support mother, had been placed at a disadvantage due to this differential treatment. The Court identified poverty as a characteristic shared by all residents of public housing and noted that single mothers “are now known to be the group in society most likely to experience poverty in the extreme. It is by virtue of being a single mother that this poverty is likely to affect the members of this group. This is no less a personal characteristic of such individuals than non-citizenship was in Andrews.”[107] The Court recognized that discrimination is the combined effect of multiple factors, including poverty:

As a general proposition, persons who qualify for public housing are the economically disadvantaged and are so disadvantaged because of their age and correspondingly low incomes (seniors) or families with low incomes, a majority of whom are disadvantaged because they are single female parents on social assistance, many of whom are black. The public housing tenants group as a whole is historically disadvantaged as a result of the combined effect of several personal characteristics listed in s. 15(1).[108]

It is important to note that the plaintiff had produced empirical evidence as to the typical characteristics of public housing tenants, including sex and racial composition. The Court concluded that the s. 15 violation was not justified under s. 1 of the Charter as the policy objective could have been achieved with a lesser impairment of rights.

The Sparks Court used a flexible and broad approach to the claim and recognized discrimination based not only on poverty but also on grounds closely related to poverty. The Court considered the disadvantaging effect of the provision on members of enumerated or analogous groups under s. 15.[109] A similar approach was used in Kearney v. Bramalea Ltd. (No. 2),[110] a Board of Inquiry decision under the Ontario Human Rights Code (see the section on the role of human rights commissions).

In another case related to housing, an Ontario Court rejected a claim that charging security deposits for utilities to tenants with unsatisfactory payment histories infringed Charter rights.[111] The applicants relied, in part, on the right to adequate housing under the ICESCR. The Court held that s. 7 did not guarantee housing and utilities as part of a right to life or security of the person, and that these types of matters must be dealt with by the legislature and not the courts. With respect to s. 15, the Court found that there was insufficient evidence that the policy disproportionately affected anyone because they were single mothers, received social assistance or were poor, unlike the situation in Sparks where public tenancy was shown to be closely related to race, sex, age and poverty. The appeal of the decision was decided on the basis of mootness and so the Court of Appeal did not consider the matter on its merits.

Employment Cases

The Ontario Court of Appeal recently considered the repeal of Ontario’s Employment Equity Act[112], a statute that targeted systemic discrimination against Aboriginal persons, persons with disabilities, members of racial minorities and women. The Court stated that if s. 15 of the Charter imposes a positive duty on legislatures to enact legislation to combat systemic discrimination in employment, the Ontario Human Rights Code satisfies that duty. In light of this conclusion, the Court found it unnecessary to determine whether s. 15 imposes this obligation. Nevertheless, after noting that the Supreme Court has left open the possibility, in some cases, that s. 15(1) may oblige the state to take positive actions to ameliorate the symptoms of systemic or general inequality, the court commented that it would seem that no such obligation is imposed in the case of legislation to combat systemic discrimination in employment. The Court noted that courts are not competent to determine the nature or scope of positive obligations: “Legislatures require substantial freedom in designing the substantive content, procedural mechanisms, and enforcement remedies in legislation of this kind. They are the appropriate branch of government to make these decisions, not courts...”.[113] This decision has been interpreted to stand for the proposition that “if there is no constitutional imperative for a policy in the first place, reversing it cannot be unconstitutional”.[114]

Courts have consistently found that occupational status is not an analogous ground for the purposes of s. 15.[115] In a recent decision, confirmed on appeal, an Ontario court found that the classification “agricultural workers” is not an analogous ground and that many causes of economic disadvantage do not attract the scrutiny of s. 15. The Supreme Court has granted leave to appeal.[116]

In Fenton v. British Columbia (Forensic Psychiatric Services Commission)[117] a patient in a psychiatric institution challenged a provincial employment standards regulation which exempted employers from paying minimum wage to disabled employees who were receiving occupational rehabilitation, education or therapy. The B.C. Superior Court found a s. 15 violation. However, the Court of Appeal reversed the decision, without considering the constitutional issue, on the basis that patients were not employees under the legislation.

Other Cases

In several taxation cases, courts have declined to make findings that would promote the economic and social rights of female taxpayers. In Symes v. Canada[118], the Supreme Court held that s. 15 of the Charter was not violated by the exclusion of childcare expenses from business deductions. The exclusion was not found to be adverse effect discrimination against women because, although it was clear that women’s share of the childcare burden in society was disproportionate, the plaintiff had not shown that women bore a disproportionate share of childcare expenses. In Thibaudeau v. Canada[119], the Supreme Court held that provisions of the Income Tax Act requiring persons receiving child support payments to include them in their income for tax purposes, and permitting those making the payments to deduct them from income, did not contravene s. 15 of the Charter. The Court found that the provisions are designed to minimize tax consequences of child support payments and to promote the best interests of the child (by ensuring that more money is available for the child). In the Schaff[120] case, the Tax Court of Canada found that taxation of a poor single mother’s maintenance payments from her estranged husband did not constitute a violation of s. 7. As in the Ontario Nursing Home Association, Brown and Fernandes cases, the Court preferred to characterize the claim as a complaint about quality of life and not about the necessaries of life in the sense of food, clothing and shelter.

There have been several cases related to the now repealed Canada Assistance Plan, a legislative scheme which established minimum benefits for social assistance programs.
Once again, the courts have been deferential to government decisions. In Reference re: Canada Assistance Plan[121], the Supreme Court ruled that the federal government’s unilateral decision to reduce its contribution to the Plan was not reviewable by the courts. In Canada (Minister of Finance) v. Finlay[122] the Supreme Court considered a claim that deductions from the plaintiff’s social assistance payments to recover overpayments previously made by the province resulted in his basic needs not being met, contrary to the Canada Assistance Plan. The Court held that the Manitoba government had fulfilled the requirement that it “take into account the basic requirements” of Mr. Finlay in determining the amounts of the deductions.

Analysis

With respect to claims that government action (or inaction) has resulted in a violation of a s. 7 right to life, liberty or security of the person, the tendency of courts has been to conceptualize the claim as being for the “enhancement” of benefits, and therefore related to purely economic interests. Most lower courts have tended to accept the notion that, as a general rule, s. 7 does not encompass positive “economic” rights, and that social policy is not an appropriate domain for judicial application of the Charter. Other courts have erroneously reasoned that the underlying threat to life or security of the person is a result of some underlying condition of the person (e.g. poverty, disability) that is not causally related to the state action complained of. Section 15 claims tend to fail because of a finding that the group to which the applicant belongs is not an analogous one or because, as in Masse, the applicant is receiving a benefit which others do not receive.

Where governments dispense social programs or benefits to remedy disadvantage, the trend is for the courts to refuse to intervene on behalf of the beneficiaries. Courts will grant governments a wide berth when setting up programs to address complex problems in the face of fiscal constraints. Judges are concerned with the role of courts in considering social welfare programs and are reluctant to usurp what they see as the role of the elected legislatures.[123]

On the other hand, cases like Sparks recognize the interdependence between social and economic rights and the substantive right to equality. There is often a relationship between the vulnerable groups who already receive protection under s. 15 of the Charter and human rights legislation and socio-economic disadvantage. Fundamentally, the concepts of liberty and freedom - positive rights which are universally considered to be justiciable and which are at the centre of the Charter - must include economic equality. As one author writes:

An economic order which denies such goods as [food, housing, the opportunity to work] to some persons, or which systematically distributes them in grossly unequal measure, is as inimical to the equal claim of every person to self-respect as is a political order which represses liberty unduly or distributes it in systematically unequal shares.[124]

Furthermore, these decisions are more consistent with the Supreme Court’s evolving approach to equality analysis and to the role of international law. In fact, as L’Heureux-Dubé J. pointed out in R. v. Ewanchuk, sections 7 and 15 of the Charter will be especially important in giving domestic effect to international human rights obligations[125]: “In particular, s. 15...and s. 7...embody the notion of respect of human dignity and integrity.”[126]

The non-justiciability of social and economic rights has been the trend in Canadian jurisprudence. However, it seems clear that this approach, which has been described by the ICESCR Committee in General Comment No. 9 as relying on an outdated and artificial distinction between positive and negative rights, is not mandated by the Supreme Court or by the Charter. In fact, the more appropriate approach is to permit judicial consideration of these rights. The U.N. has identified the failure of Canadian courts to provide remedies for violations of social and economic rights as a significant concern. Domestically, some commentators have noted that the debate about the justiciability of social and economic rights is not simply academic. It is an issue with real consequences for vulnerable groups.[127]

The Role of Human Rights Commissions and Human Rights Legislation

The judicial reluctance to adjudicate social and economic rights has, in part, led to an increased focus on the role of human rights commissions and human rights legislation in protecting these rights. The ICESCR Committee has made specific reference to the role of human rights institutions in State party efforts to achieve the realization of social and economic rights. The Committee notes that, while national human rights institutions “have a potentially crucial role to play in promoting and ensuring the indivisibility and interdependence of all human rights”, this role has too often been neglected.

In General Comment No. 10[128] the ICESCR Committee recommends a number of actions that human rights institutions may undertake:

  • Promotion of educational and information programs to enhance awareness and understanding of economic, social and cultural rights within the public at large, the public service, the judiciary, the private sector and the labour movement;
  • Review of existing laws and administrative acts, draft bills and other proposals to ensure they are consistent with commitments under the Covenant;
  • Provision of technical advice and undertaking of surveys in relation to the rights;
  • Identification of national level benchmarks against which the realization of ICESCR obligations can be measured;
  • Conducting research and inquiries designed to ascertain the extent to which particular rights are being realized, either within the state or with respect to vulnerable communities;
  • Monitoring compliance with specific rights under the Covenant and providing reports; and
  • Examining complaints alleging infringements.

In addition to this general guidance, the ICESCR Committee has offered specific suggestions with respect to human rights institutions in Canada. The 1998 Concluding Observations state:

The Committee again urges federal, provincial and territorial governments to expand protection in human rights legislation to include social and economic rights and to protect poor people in all jurisdictions from discrimination because of social or economic status. Moreover, enforcement mechanisms provided in human rights legislation need to be reinforced to ensure that all human rights claims not settled through mediation are promptly determined before a competent human rights tribunal, with the provision of legal aid to vulnerable groups.[129]

Under the Ontario Human Rights Code (the “Code”), the Ontario Human Rights Commission has a mandate for the investigation and enforcement of discrimination and harassment complaints. The Code applies to private actors as well as to government, including government actions, policies, programs and legislation. Under the rubric of enforcement, the Code addresses social and economic rights in several ways. Section 2(1) of the Code provides for equal treatment with respect to the occupancy of accommodation, without discrimination because of receipt of public assistance.[130] This provision includes not only the right to enter into an agreement and occupy a residential dwelling, but also the right to be free from discrimination in all matters relating to the accommodation. The protection includes adverse impact on the basis of receipt of public assistance as a result of a neutral rule (s. 11). The Code also protects against harassment in accommodation based on receipt of public assistance.

In the area of accommodation, receipt of public assistance has consistently been the second most cited ground in complaints to the Commission over the past ten years. Most of the complaints deal with either outright denial of accommodation or adverse impact/constructive discrimination. Some examples of Ontario Board of Inquiry decisions where discrimination was found include a 1987 case in which the Board found that when the complainant took occupancy and offered to pay the second month’s rent, she was told by the owner that he did not want to rent to her because she was on welfare[131] and a more recent decision involving a single mother on welfare who was denied an apartment[132].

Socio-economic status may also be a factor in complaints of discrimination in accommodation based on other Code grounds. For example, denial of a one-bedroom apartment to a single working mother with several children - who may not be able to afford a larger apartment - may be discrimination on the basis of family status. Although the ground for the complaint would be family status (receipt of pubic assistance is not applicable as the woman is working), it is the woman’s socio-economic status that forces her to rent a one-bedroom apartment. A British Columbia case provides another example of making a link between socio-economic status and a prohibited ground of discrimination. In Trudeau v. Chung,[133] the complainant was on long-term disability pension owing to his disability. He was refused an apartment on the basis that he was unemployed and on sick leave. The status of being unemployed or on sick leave was not a prohibited ground of discrimination yet the Council found that the policy of refusing unemployed tenants had an adverse impact on the complainant due to his disability.

An important example of the protection of social and economic rights in the human rights context is the decision of an Ontario Board of Inquiry in Kearney v. Bramalea Ltd. (No. 2).[134] 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 demonstrate 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 socio-economic status and grounds that are protected in the Code. The case sets a very important precedent for adjudicating social and economic rights before Boards of Inquiry where evidence exists that discrimination based on socio-economic status disproportionately affects groups that have been traditionally protected under human rights legislation.[135] The case has already been cited in several other decisions involving denial of rental accommodation[136] and has been referred to extensively in papers and articles as an example of a crucial victory for the poor[137].

After the case was heard by the Board of Inquiry 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.[138] O. Reg 290/98 under the Code, made 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.

In Vander Shaaf, an Ontario Board of Inquiry found discrimination on the basis of marital status, as two single women were not permitted to combine their incomes for the purposes of a rent-to-income ratio. However, the Board declined to find that the complainant, a 23 year-old single woman earning $30,000, experienced discrimination by virtue of her age or sex. In this case, there was no evidence adduced regarding the impact of rent-to-income ratios for the 20-24 age group and, although the rent-to-income ratio affected the complainant negatively as a woman, had the rent-to-income ratio been correctly applied, by combining the incomes of the complainant and her prospective room-mate, she would have qualified. The Board went on to comment on the impact of the post-Kearney amendments to the Code and O. Reg. 290/98. While recognizing that this part of the decision is obiter dicta[139], the Board concluded that the Code and regulation do not permit landlords to use income information to apply rent-to-income ratios. However, the decision of the Divisional Court in Kearney would appear to suggest that rent-to-income ratios may be applied if used in accordance with the provisions of O. Reg. 290/98.

Other Code protections for social and economic rights include:

  • Protection of workers who have made a workers compensation claim because of a work-related injury from discrimination on the basis of handicap;
  • Requiring accommodation, up to the point of undue hardship, for various people identified by a ground in the Code, for example persons with disabilities, in relation to services, facilities, accommodation, contracts, employment and membership in vocational associations; and
  • Allowing special programs designed to relieve hardship, economic disadvantage, or to assist disadvantaged persons or groups to achieve equality of opportunity.

This final point is an important one in relation to the promotion of socio-economic rights under the Code. Section 14 of the Code permits employers, landlords, service-providers and others to adopt special measures to help people who experience discrimination, economic hardship and disadvantage. A special program is a program that is (1) designed to relieve hardship or economic disadvantage; (2) designed to assist disadvantaged persons or groups to achieve equal opportunity; or (3) likely to contribute to the elimination of the infringement of rights protected under the Code. In order to assist those who are contemplating adopting special programs and to encourage the voluntary use of special programs, the Commission has developed Guidelines on Special Programs.[140] Examples of special programs include job programs to combat youth unemployment, organizations that only provide services to persons with disabilities to help them fight systemic barriers and housing co-ops that reserve spaces for women who are leaving abusive relationships.

The ICESCR requires that States parties ensure that Covenant rights will be exercised without discrimination. The Ontario Code protects against discrimination on a number of grounds and thus can be used to ensure that social and economic rights will be provided equally to everyone.[141] This helps to fulfill one of the obligations under the ICESCR. The areas protected by the Code also encompass social and economic interests. For example, employment, housing, services (such as health care, social programs and public transportation) and membership in unions and vocational associations are all areas in which economic interests are engaged. Moreover, the Saskatchewan Court of Appeal has held that social assistance is a service to the public and is within the ambit of the Saskatchewan Human Rights Code.[142] This case provides a precedent for the challenge of discrimination, on the basis of a prohibited ground, in the provision of public assistance. Social assistance is one of the key rights recognized in the ICESCR.

In addition to enforcement, the Code grants the Commission a broader mandate to advocate for and promote human rights through policy and education. The Preamble of the Code and its quasi-constitutional status sets the tone for the Commission’s work in this area. Section 29 enumerates some of the specific aspects of the Commission’s mandate. It states that it is the function of the Commission to, among other things, forward the policy that the dignity and worth of every person be recognized and that equal rights and opportunities be provided without discrimination. It is also the function of the Commission to conduct public education, undertake research, examine statutes, regulations, programs and policies and make recommendations on any provision that is inconsistent with the intent of the Code. This aspect of the Commission’s mandate provides opportunities to provide leadership in policy development and to act as an agent of positive change. It also allows integration of international principles of human rights law into the Commission’s daily work.

The Commission has engaged in several policy initiatives that deal directly or indirectly with the rights of persons who are socially and economically disadvantaged. With respect to the Tenant Protection Act, the Commission wrote to the Minister of Housing and Municipal Affairs and Ontario party leaders and also appeared at a legislative hearing to express concerns about the draft legislation which would permit landlords to screen potential tenants based on income information. The Commission cautioned that such a provision would have the effect of allowing discrimination against people on public assistance and people identified by other grounds, thus contravening the Code. Similarly, on the issue of drug testing for welfare recipients, the Commission has written to and met with the Minister of Community and Social Services to express concern about the possible contravention of the Code. The Chief Commissioner has publicly gone on record with concerns about the proposal.

The Commission has also been actively involved in pursuing social and economic rights for individuals in same-sex relationships. Until very recently, same-sex couples in Ontario had not been accorded the same social and economic rights as opposite-sex couples. The list of rights that had been denied is lengthy, but included workplace pension and survivor benefits, the right to monetary support in case of breakdown of the relationship and the right to qualify as a beneficiary under workplace safety and insurance legislation to name just a few. The Commission’s efforts in this regard included intervening in the case of M. v. H.[143] before the Supreme Court of Canada, challenging laws which contained an opposite-sex definition of spouse at Boards of Inquiry and writing numerous letters to Ontario’s Attorney General urging that the laws be changed. Effective March 1, 2000, 67 Ontario statutes have been amended to accord same-sex partners the same rights and responsibilities as opposite-sex couples.

The Commission has conducted an analysis of the accessibility of Ontario's mass transit systems and has taken a policy position that transit services for the disabled are not special programs but rather are an accommodation which allows persons with disabilities to access transportation services.[144] This has the effect of ensuring that the services are provided in accordance with the Commission’s Policy and Guidelines on Disability and the Duty to Accommodate[145], are subject to the undue hardship standard, and are not insulated from careful scrutiny on the basis of being a special program that transit providers are opting, but are not required, to provide. The Commission’s new Policy and Guidelines maintain the high standard for undue hardship and affirm the need to adapt society so that its structures and attitudes include persons with disabilities. The revised Policy and Guidelines recognize the historical disadvantage experienced by persons with disabilities, including exclusion from employment and access to social goods related to an adequate standard of living, and seek to maximize the principles of integration and full participation in society. This is significant as it is only through meaningful equal opportunity and access that the social and economic disadvantages faced by persons with disabilities can begin to be addressed.

The Commission’s recent initiative with respect to age discrimination faced by older persons in Ontario includes a consideration of socio-economic issues, e.g. poverty experienced by single elderly women, and refers to General Comment No. 6: The Economic, Social and Cultural Rights of Older Persons[146] under the ICESCR. The Commission has stated that policy development in relation to age will take into account international work in this area.[147]

Through the efforts of the Commission before Boards of Inquiry and in policy development, the Code has been afforded a broad, liberal and purposive interpretation in order to provide protection in cases where the law was unclear. These efforts provided an impetus for policy changes in Ontario and ultimately for legislative change in some cases.

Beginning in 1996, the Commission began a comprehensive review of its entire policy framework in order to ensure that staff and the general public have up-to-date information about the Code and the Commission’s policy decisions. Much of the new policy work has been informed by international standards. For example, the Commission’s policy on Female Genital Mutilation[148] was introduced to respond to specific provisions under the Convention on the Rights of the Child that prohibit traditional practices that are harmful to girl children. International standards have been incorporated directly into Commission policies that deal with rights that are explicitly protected under the Code. For example, the Convention on the Elimination of All Forms of Discrimination Against Women sets out equality rights of pregnant and lactating women, as well as related rights in the post-natal period. This standard is now being used in the Commission’s Policy on Discrimination Because of Pregnancy.[149]

The forgoing discussion represents some examples of policy and litigation successes. However, one of the goals of this paper is to explore how more can be done, especially within existing mandates.

Other Provinces

Like Ontario, Saskatchewan also protects against discrimination on the basis of “receipt of social assistance”; however, the areas covered are broader and include contracts, education, employment, housing, professional trades and associations, public services (restaurants, stores, hotels, government services, etc.), publications, purchase of property, occupations and trade unions. The other provinces use different variations on this ground. For example, Manitoba, Alberta, Nova Scotia and the Yukon prohibit discrimination based on “source of income”. A 1994 amendment to British Columbia’s Residential Tenancy Act effectively adds protection against discrimination based on source of income in the provision of tenancy. “Source of income” typically includes all lawful sources of income, such as employment earnings, social assistance (welfare), pensions, spousal support, child support, employment insurance, student loans, grants and scholarships, and is broader than “receipt of public assistance”, which does not protect the working poor or those who may be discriminated against because of another source of income such as spousal support or receipt of pension benefits.

In Newfoundland, the human rights statute incorporates the term "national or social origin" as a protected ground. Social origin differs from “social condition” in that it relates more to a person’s birth status than his or her current situation.

It is only in Quebec, within the Quebec Charter of human rights and freedoms (the “Quebec Charter”), that one finds specific provisions protecting people on the basis of "social condition". The Quebec Charter describes the right to equal recognition and exercise of rights as follows:

10. Every person has a right to full and equal recognition and exercise of his human rights and freedoms, without distinction, exclusion or preference based on race, colour, sex, pregnancy, sexual orientation, civil status, age except as provided by law, religion, political convictions, language, ethnic or national origin, social condition, a handicap or the use of any means to palliate a handicap.

Discrimination exists where such a distinction, exclusion or preference has the effect of nullifying or impairing such right.

Chapter IV of the Quebec Charter integrates the social and economic rights that address issues of social condition within the Quebec context. The key rights guaranteed include:

  • The rights of the child to protection, security and attention provided by a parent or guardian (para. 39);
  • The right to free public education (para. 40);
  • The right of a parent to request religious or moral education in conformity with his or her convictions in the context of public education establishments (para. 41);
  • The right of every person and their family to financial and social measures that will ensure an adequate standard of living (para. 45);
  • The right to fair and reasonable conditions of employment (para. 46);
  • The right to protection against exploitation, and the right to protection and security for older persons and persons with disabilities (para. 48).

A review of the Quebec cases on social condition reveals that the majority of successful complaints on this ground relate to rental accommodation. As well, the majority of successful claimants have been persons on social assistance (most cases have involved women with children).[150] In a recent decision, discrimination on the basis of social condition was found to include refusing to rent to a casual worker based on negative stereotypes.[151]

There have also been some Quebec cases alleging discrimination in employment. In Lambert v. Québec (Ministère du tourisme) (No. 3),[152] a Quebec tribunal found a legislatively sanctioned workfare agreement, where the complainant received only his social assistance cheque despite working full-time at the Department of Tourism’s photo library, discriminated on the basis of social condition. The decision is currently under appeal.[153]

With respect to services, a Quebec Tribunal found a refusal by a provincially regulated financial institution to consider a mortgage application from a welfare recipient to be discrimination based on social condition.[154] The complainant was a single mother on social assistance. The Tribunal found that she had sufficient means to qualify for a mortgage loan.

There have also been cases where claims of discrimination based on social condition have failed. For example, in the context of a law which made the complainant, an unmarried student, ineligible for welfare, the Quebec Court of Appeal found that being a full-time college or university student was not a social condition. However, the Court did not rule out that being a student might in certain circumstances be considered a social condition.[155]


[42] United Nations Committee on Economic, Social and Cultural Rights, General Comment No. 9: The Domestic Application of the Covenant, 3 December 1998, E/C.12/1998/24 at para. 5 [hereinafter General Comment No. 9].
[43] This approach to States’ obligations was first defined by American scholar, Henry Shue; see The Protection of Social and Economic Rights: A Comparative Study, supra, note 21 at 10. It has been adopted by scholars in their writing on the realization of social and economic rights and followed by the United Nations in its work in relation to these rights; see for example A. Eide, “Realization of Social and Economic Rights and the Minimum Threshold Approach” (1989) 10 Human Rights L. J. 35 at 37 and also the Maastricht Guidelines, supra, note 39 at para. 6.
[44] Legislation with respect to the workplace, such as employment standards laws, occupational health and safety laws, labour relations laws and workers compensation laws, provide other examples of steps taken by governments to protect against infringement of rights by third parties.
[45]General Comment No. 9, supra, note 42 at para. 7.
[46]Ibid. at para. 8.
[47]Maastricht Guidelines, supra, note 39 at para. 26.
[48]General Comment No. 9, supra, note 42 at para. 6.
[49]European Social Charter (Revised), 3 May 1996, ETS No. 163 (entered into force 1 July 1999).
[50]Ibid. at Article 31. This provision obliges Parties to take measures in so far as possible aiming to progressively eliminate homelessness, to promote access to housing of an adequate standard and to make the price of housing accessible to those without adequate resources. Housing of an "adequate standard" means housing which is of an acceptable standard with regard to health requirements. It will be for the competent authorities of each State to decide, at national level, on appropriate housing standards.
[51]Ibid at Article 30. The term "poverty" in this context covers persons who find themselves in various situations ranging from severe poverty, which may have been perpetuated for several generations, to temporary situations entailing a risk of poverty. The term "social exclusion" refers to persons who find themselves in a position of extreme poverty through an accumulation of disadvantages, who suffer from degrading situations or events or from exclusion. Social exclusion also strikes, or risks striking, persons who without being poor are denied access to certain rights or services as a result of long periods of illness, the breakdown of their families, violence, release from prison or marginal behaviour, for example, as a result of alcoholism or drug addiction.
[52]Additional Protocol to the European Social Charter Providing for a System of Collective Complaints, 9 November 1995, E.T.S. No. 158 (entered into force July 1, 1998).
[53] A. Eide, “Future Protection of Economic and Social Rights in Europe”, in A. Bloed, L. Leicht, M. Nowak & A. Rosas, eds., Monitoring Human Rights in Europe: Comparing International Procedures and Mechanisms (Dordrecht: Martinus Nijhoff, 1993).
[54] For example, M. Gomez, “Social Economic Rights and Human Rights Commissions” (1995) 17 Human Rights Q. 155.
[55] One author notes that the ECHR has exerted a strong influence on the interpretation of human rights with decisions affirming that a number of positive obligations on the States stem from the European Convention on Human Rights, although the Convention does not contain any specific social rights; G.S. Katrougalos, “The Implementation of Social Rights in Europe” (1996) 2 Columbia Journal of European Law 277 at 303.
[56]Airey v. Ireland, European Court of Human Rights, Judgment of 9 October 1979, Series A, vol. 32.
[57] European Court of Human Rights, Judgment of 29 May 1986, Series A, vol. 99.
[58] European Court of Human Rights, Judgment of 29 May 1986, Series A, vol. 100.
[59]Salesi v. Italy, European Court of Human Rights, Judgment of 26 February 1993, Series A, vol. 257-E. For a discussion of these four ECHR cases, see Katrougalos, supra, note 55 at 303-4.
[60] European Court of Justice, Case 149/77 [1978] ECR 1365.
[61] This discussion of the experience in India is from the 1991 study, The Protection of Social and Economic Rights: A Comparative Study, supra, note 21 at 11. In one case a Bombay municipality tried to forcibly evict street dwellers from their shacks. The Court found this to be an infringement of the dwellers’ right to life which could only be reasonably justified if it were required for the achievement of a necessary state objective. In this case, the Court found a reasonable justification but laid down stringent limitations on the State’s ability to restrict access to housing and, perhaps, other social goods deemed necessary to life; Olga Tellis v. Bombay Municipal Corporation AIR (1987) LRC 351.
[62] The discussion of the South African experience is from Jackman & Porter, supra, note 28 at 65.
[63]Government of RSA and others v. Grootboom and others, (4 October 2000) Constitutional Court – CCT 11/00. The case involved the right of access to adequate housing.
[64]Constitution of the Republic of South Africa 1996, Act 108 of 1996 at section 184(3) as cited in Jackman & Porter, Ibid. at 65.
[65] Ibid. at 66.
[66]The Protection of Social and Economic Rights: A Comparative Study, supra, note 21 at 6-7.
[67]Ibid. at 17.
[68] M. Cohen & A. Bayefsky, The Canadian Charter of Rights and Freedoms and Public International Law (Canadian Bar Review: 1983-6) 265 at 288.
[69]Reference Re Public Service Employee Relations Act, [1987] 1 S.C.R. 313 at 349.
[70] [1989] 1 S.C.R. 1038 [hereinafter Slaight Communications].
[71] The issue was whether a court could order an employer to give a positive reference letter to a former employee or whether such a remedy would infringe the employer’s right to freedom of expression in a way that could not could be justified under s.1 of the Charter.
[72] See Canada’s International Human Rights Obligations, supra note 20.
[73]Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 [hereinafter Baker].
[74]Ibid. at para. 70.
[75] Jackman & Porter, supra, note 28 at 57.
[76]General Comment No. 9, supra, note 42 at para. 10.
[77]Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927 [hereinafter Irwin Toy].
[78] Section 7 guarantees the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
[79]Irwin Toy, supra, note 77 at 1003-1004.
[80]Ibid.
[81]1998 Concluding Observations, supra, note 7 at para. 15.
[82] From Jackman & Porter, supra, note 28 at 57.
[83]Ibid. at 55.
[84] See Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624 [hereinafter Eldridge].
[85]Ibid. at 677-78.
[86] M. Certosimo, “Does Canada Need a Social Charter?” (1992) 15 Dalhousie L.J. 568 at 605-6.
[87] Several noted scholars have argued that the Charter may encompass at least some social rights claims. See for example: R. Howse, “Another Rights Revolution? The Charter and the Reform of Social Regulation in Canada” in P. Grady, R. Howse & J. Maxwell, Redefining Social Security (Kingston: School of Policy Studies, 1995) and M. Jackman, “Poor Rights: Using the Charter to Support Social Welfare Claims” (1993) 19 Queen’s L.J. 65.
[88] The discussion of the cases is drawn mostly from the secondary sources cited in this paper.
[89] (1996), 134 D.L.R. (4th) 20 (Ont. Gen. Div.), leave to appeal to C.A. refused [1996] O. J. No. 1526, leave to appeal to S.C.C. refused [1996] S.C.C.A. No. 373 [QL] [hereinafter Masse].
[90]Ibid. at 69.
[91]Ibid. at 46.
[92]Ibid. at 46-47.
[93] (1996), 133 D.L.R. (4th) 108 (Ont. Div. Ct.).
[94] (1987), 42 D.L.R. (4th) 407 (B.C.S.C.).
[95]Gosselin v. Québec (Procureur Général, [1999] R.J.Q. 1033 (C.A.), [1992] R.J.Q. 1647 (Superior Ct.), leave to appeal to S.C.C. granted [1999] S.C.R. No. 364.
[96]Ibid. at 1670 (Superior Ct.) [translation].
[97]Ibid. at 18 (C.A.) [translation].
[98]Conrad v. Halifax (County) (1994), 130 N.S.R. (2d) 305 (C.A.), affirming (1993), 124 N.S.R. (2d) 251, leave to appeal to S.C.C. denied [1994] S.C.C.A. No. 264.
[99]Falkiner v. Ontario (Ministry of Community and Social Services, Income Maintenance Branch), [2000] O.J. No. 2433 (Div. Ct.) [QL]. The Ontario government is appealing the decision.
[100] (1992), 93 D.L.R. (4th) 402 (Man. C.A.), leave to appeal to the S.C.C. denied [1993] 2 S.C.R. vii [hereinafter Fernandes].
[101]Ibid. at 414.
[102] (1991), 70 B.C.L.R. (2d) 325 (B.C.S.C.).
[103] (1990), 72 D.L.R. (4th) 166 (Ont. H.C.J.) [hereinafter Ontario Nursing Home Association].
[104] (1990), 66 D.L.R. (4th) 444 (B.C.S.C.) [hereinafter Brown].
[105] In Irshad (Litigation guardian of) v. Ontario (Minister of Health) (1999), 60 C.R.R. (2d) 231 (Ont. Gen. Div.); aff’d 197 D.L.R. (4th) 103 (Ont. C.A.).
[106] (1993) 101 D.L.R. (4th) 224 (N.S.C.A.) [hereinafter Sparks].
[107]Ibid. at 233-234.
[108]Ibid. at 234.
[109] Although Sparks represents a successful challenge to discrimination against subsidized housing tenants, several other challenges by subsidized tenants to distinctions in provincial residential tenancy laws have been unsuccessful; see for example: Newfoundland and Labrador Housing Corporation v. Williams (1987), 62 Nfld. & P.E.I.R. 269 (Nfld. C.A.), Bernard v. Dartmouth Housing Authority (1988), 53 D.L.R. (4th) 81 (N.S. Sup. Ct. – App. Div.). Unlike Sparks, these cases were decided before Irwin Toy and the Supreme Court’s equality rights decision in Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 43.
[110]Infra, note 134.
[111]Clark v. Peterborough Utilities Commission (1995), 24 O.R. (3d) 7 (Gen. Div.), appeal quashed (1998), 40 O.R. (3d) 409 (C.A.).
[112]Ferrel v. Ontario (Attorney General) (1998), 42 O.R. (3d) 97 (C.A.), leave to appeal to S.C.C. denied [1999] S.C.C.A. No. 79.
[113]Ibid. at 113.
[114]Russell v. Ontario (Health Services Restructuring Commission) (1999), 175 D.L.R. (4th) 185 at para. 23 (C.A.), leave to appeal to S.C.C. denied [1999] S.C.C.A. No. 395.
[115] There are many examples of this; see for example George v. M.N.R.(1990), 116 N.R. 185 (F.C.A.). The plaintiff, who had worked enough weeks to be eligible for unemployment insurance but in three different jobs, was unsuccessful in challenging the exclusion of casual employment from the UI scheme. The Court held that the Unemployment Insurance Act created a distinction between classes of employment and not between classes of people so there was no s. 15 infringement.
[116]Dunmore v. Ontario (Attorney General) (1999), 37 O.R. (3d) 287 (Gen. Div.); (1999), 49 C.C.E.L. (2d) 29 (C.A.); leave to appeal to S.C.C. granted [1999] S.C.C.A. No. 196. The case also involves a claim under s. 2(d) of the Charter, the right to freedom of association.
[117] (1991), 82 D.L.R. (4th) 27 (B.C.C.A.), reversing (1989), 29 C.C.E.L. 168 (B.C.S.C.); leave to appeal to S.C.C. refused [1992] 1 S.C.R. vii.
[118] [1993] 4 S.C.R. 695 [hereinafter Symes].
[119] [1995] 2 S.C.R. 627.
[120]Schaff v. Canada, [1993] 2 C.T.C. 2695 (T.C.C.) [hereinafter Schaff].
[121] (1991), 2 S.C.R. 525.
[122] [1993] 1 S.C.R. 1080. Before this case was considered on the merits, it went all the way up to the Supreme Court on the issue of whether a provincial resident on social assistance had standing to bring the action. The federal government argued that individuals do not have standing to challenge financial arrangements between the federal and provincial governments. The Supreme Court found that Mr. Finlay did have standing.
[123] Poor Rights: Using the Charter to Support Social Welfare Claims, supra, note 87 at 86-87.
[124] N. MacCormick, Legal Rights & Social Democracy: Essays in Legal and Political Philosophy (Oxford: Clarendon Press, 1982) at 43, as quoted in Does Canada Need a Social Charter?, supra, note 86 at 613.
[125] Jackman & Porter, supra, note 28 at 58.
[126]R. v. Ewanchuk, [1999] 1 S.C.R. 330 at 365.
[127] Jackman & Porter, supra, note 28 at 63.
[128] United Nations Committee on Economic, Social and Cultural Rights, General Comment No. 10: The Role of National Human Rights Institutions in the Protection of Economic, Social and Cultural Rights, 3 December 1998, E/C.12/1998/25 [hereinafter General Comment No. 10].
[129]1998 Concluding Observations, supra, note 7 at para. 51.
[130] It is important to note that since human rights commissions are creatures of statute, they are limited by their statutory framework and cannot recognize new grounds of discrimination unless their enabling legislation allows them to do so. Even if the omission of a ground of discrimination is unconstitutional, human rights commissions cannot read the ground in as they are prohibited from considering the constitutionality of their enabling legislation; Cooper v. Canada (Human Rights Commission), [1996] 3 S.C.R. 854.
[131]Willis v. David Anthony Philips Properties (1987), 8 C.H.R.R. D/3847 (Ont. Bd. Inq.).
[132]Kostanowicz v. Zarubin (March 7, 1994), #593 (Ont. Bd. Inq.) [unreported].
[133] (1991), 16 C.H.R.R. D/25 (B.C. Human Rights Council).
[134] (1998), 34 C.H.R.R. D/1 (Ont. Bd. Inq.); aff’d Shelter Corp. v. Ontario (Human Rights Comm.) (2001), 39 C.H.R.R. D/111 (Ont. Sup. Ct.) [hereinafter Kearney].
[135] It is not clear what type of evidence is required to make the connection to a prohibited ground of discrimination. However, in both Sparks and Kearney statistical evidence was presented and some cases have failed in the absence of empirical evidence (for example, Symes and Vander Schaaf).
[136] See Vander Schaaf v. M & R Property Management Ltd. (2000), 38 C.H.R.R. D/251 (Ont. Bd. Inq.) [hereinafter Vander Schaaf] and Birchall v. Guardian Properties Ltd. (2000), 38 C.H.R.R. D/83 (B.C.H.R.T.).
[137] Recognition for the case is not just limited to Canadian publications; see for example, Jackman & Porter, supra note 28. The case has caught the attention of international experts; see for example, International Human Rights Internship Program and Asian Forum for Human Rights and Development, Circle of Rights, Economic, Social & Cultural Rights Activism: A Training Resource (International Human Rights Internship Program, 2000) at 169.
[138]Tenant Protection Act, S.O. 1997, c. 24 amending sections 21 and 48 of the Code.
[139] As the Board concluded that the use of rent-to-income ratios was not causally connected to the complainant’s failure to get the apartment (if the ratio had been applied properly, combining the two incomes, she would have qualified), the analysis of whether the legislative amendments allow income information to be used in rent-to-income ratios was not determinative in the case and, therefore, obiter.
[140] Ontario Human Rights Commission, Guidelines on Special Programs (1997), published in Human Rights Policy in Ontario (Toronto: CCH Canadian Limited, 2001).
[141] By way of example, if an employer paid female employees less than their male counterparts because of a perception that women are supported by male family members, this economic interest would be covered under the Code as discrimination on the basis of sex. This example of the way in which the Code may protect enjoyment of an economic right is not farfetched. In 1984, two Dutch women challenged the denial of unemployment insurance on the basis of a presumption that married women would be maintained by their husbands. The ICCPR Human Rights Committee “expanded the protection of the non-discrimination provision in article 26 of the ICCPR to cover discrimination in the enjoyment of economic and social rights”; from Jackman & Porter, supra, note 28 at 89 citing Communications 182/1984 (Zwaan-de Vries) and 172/1984 (Broeks), Selected Decisions of the Human Rights Committee under the Optional Protocol, vol 2. (1990) at 209 and 196, respectively.
[142]Saskatchewan (Human Rights Commission) v. Saskatchewan (Department of Social Services) (1988), 9 C.H.R.R. D/5181 (Sask. C.A.).
[143] [1999] 2 S.C.R. 3.
[144] Ontario Human Rights Commission, Discussion Paper on Accessible Transit Services in Ontario (16 January 2001), online: Ontario Human Rights Commission homepage <http://www.ohrc.on.ca> (date last accessed: 15 October 2001).
[145] Ontario Human Rights Commission, Policy and Guidelines on Disability and the Duty to Accommodate (2001) published in Human Rights Policy in Ontario, supra note 140 [hereinafter Policy and Guidelines].
[146] United Nations Committee on Economic, Social and Cultural Rights, E/C.12/1995/16/Rev.1 (1995).
[147] See Ontario Human Rights Commission, Discrimination and Age: Human Rights Issues Facing Older Persons in Ontario (Discussion Paper, 31 May 2000) and Ontario Human Rights Commission, Time for Action: Advancing Human Rights of Older Ontarians (Consultation Report, 28 June 2001) online: Ontario Human Rights Commission homepage <http://www.ohrc.on.ca> (date last accessed: 15 October 2001).
[148] Ontario Human Rights Commission, Policy on Female Genital Mutilation (FGM) (1996, revised 2000), published in Human Rights Policy in Ontario, supra note 140.
[149] Ontario Human Rights Commission, Policy on Discrimination Because of Pregnancy (1996, revised 1999) published in Human Rights Policy in Ontario, supra note 140.
[150] S. Day & G. Brodsky, “Women’s Economic Inequality and the Canadian Human Rights Act” (Status of Women Canada: October 1999), online: Status of Women Canada Homepage <http://www.swc-cfc.gc.ca/research>.
[151]Québec (Comm. des droits de la personne et des droits de la jeunesse) c. Sinatra (1999), C.H.R.R. Doc. 99-218f (Trib. Qué.).
[152] (1997), 29 C.H.R.R. D/246 (Que. Trib.).
[153] The discussion of the Lambert decision is from Women’s Economic Inequality and the Canadian Human Rights Act, supra, note 150.
[154]D’Aoust c. Vallières (1993), 19 C.H.R.R. D/322 (Que. Trib.) [hereinafter D’Aoust].
[155]Lévesque v. Québec (A.G.), [1998] R.J.Q. 223 (Que. C.A.).

 

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