Tanudjaja et al. v. Canada (Attorney General) et al., 2014 ONCA 852

• Judge: Feldman, Strathy and Pardu, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: December 01, 2014
• Jurisdiction: Ontario
• Citations: 2014 ONCA 852;(2014), 326 O.A.C. 257 (CA)

Tanudjaja v. Can. (A.G.) (2014), 326 O.A.C. 257 (CA)

MLB headnote and full text

Temp. Cite: [2014] O.A.C. TBEd. DE.009

Jennifer Tanudjaja, Janice Arsenault, Ansat Mahmood, Brian DuBourdieu, and Centre for Equality Rights in Accommodation (appellants) v. The Attorney General of Canada and the Attorney General of Ontario (respondents)

(C57714; 2014 ONCA 852)

Indexed As: Tanudjaja et al. v. Canada (Attorney General) et al.

Ontario Court of Appeal

Feldman, Strathy and Pardu, JJ.A.

December 1, 2014.

Summary:

The plaintiffs alleged that actions and inaction by Canada and Ontario (the defendants) had resulted in homelessness and inadequate housing, contrary to ss. 7 and 15 of the Charter. They sought declaratory relief and an order requiring the defendants to implement effective national and provincial strategies to reduce and eliminate homelessness and inadequate housing. The defendants moved to strike the action as disclosing no viable cause of action and having no reasonable prospect of success.

The Ontario Superior Court, in a decision reported at [2013] O.T.C. Uned. 5410, granted the motion. The court also found that the claim was not justiciable. The plaintiffs appealed.

The Ontario Court of Appeal, Feldman, J.A., dissenting, dismissed the appeal.

Civil Rights - Topic 209

Life - Rights of homeless persons (incl. temporary or overnight shelter) - [See Courts - Topic 2022 ].

Civil Rights - Topic 788

Liberty - Particular rights - Rights of homeless persons (incl. temporary or overnight shelter) - [See Courts - Topic 2022 ].

Civil Rights - Topic 1203

Security of the person - General - Rights of homeless persons (incl. temporary or overnight shelter) - [See Courts - Topic 2022 ].

Civil Rights - Topic 8311.1

Canadian Charter of Rights and Freedoms - General - Application - Government inaction - [See Courts - Topic 2022 ].

Constitutional Law - Topic 23

General - Raising constitutional issues - Requirement of justiciability - [See Courts - Topic 2022 ].

Courts - Topic 2022

Jurisdiction - Conditions precedent - Requirement of justiciable issue - The plaintiffs alleged that actions and inaction by Canada and Ontario (the defendants) had resulted in homelessness and inadequate housing, contrary to ss. 7 and 15 of the Charter - They sought declaratory relief and an order requiring the defendants to implement effective national and provincial strategies to reduce and eliminate homelessness and inadequate housing - Lederer, J., granted the defendants' motion to strike the action as disclosing no viable cause of action and having no reasonable prospect of success - Lederer, J., also found that the claim was not justiciable - The Ontario Court of Appeal dismissed the plaintiffs' appeal - The claim was not justiciable - As there was no challenge to a specific state action or law, there was no legal component that engaged the court's decision-making capacity - The plaintiffs' assertion that s. 7 conferred a general freestanding right to housing was "a doubtful proposition" - Further, the claim's diffuse and broad nature did not permit an analysis under s. 1 of the Charter - The court was not asked to engage in a court-like function, but "rather to embark on a course more resembling a public inquiry into the adequacy of housing policy" - This would take the court well beyond "the limits of its institutional capacity" - The claim was "demonstrably unsuitable for adjudication" - See paragraphs 19 to 36.

Practice - Topic 2210

Pleadings - Striking out pleadings - Time for objection or application - The plaintiffs alleged that actions and inaction by Canada and Ontario (the defendants) had resulted in homelessness and inadequate housing, contrary to ss. 7 and 15 of the Charter - They sought declaratory relief and an order requiring the defendants to implement effective national and provincial strategies to reduce and eliminate homelessness and inadequate housing - Lederer, J., granted the defendants' motion to strike the action - The Ontario Court of Appeal, in dismissing the plaintiffs' appeal, rejected the plaintiffs' argument that Lederer, J., should have refused to hear the defendants' motion because the defendants had not moved to dismiss until two years after the application was issued and only after the plaintiffs had compiled a voluminous record that was served on the defendants - Lederer, J., found that there was no reason to require the motion to strike to be brought before the record was served - The defendants' six month delay after the record was served was not so long that it justified refusing to hear the motion - There was no basis for interfering with that discretionary decision - See paragraph 38.

Practice - Topic 2230

Pleadings - Striking out pleadings - Grounds - Failure to disclose a cause of action or defence - [See Courts - Topic 2022 ].

Cases Noticed:

Withler v. Canada (Attorney General), [2011] 1 S.C.R. 396; 412 N.R. 149; 300 B.C.A.C. 120; 509 W.A.C. 120; 2011 SCC 12, refd to. [para. 10, footnote 1].

Auditor General of Canada v. Canada (Minister of Energy, Mines and Resources) et al., [1989] 2 S.C.R. 49; 97 N.R. 241, refd to. [para. 20].

Reference Re Canada Assistance Plan (B.C.), [1991] 2 S.C.R. 525; 127 N.R. 161; 1 B.C.A.C. 241; 1 W.A.C. 241, refd to. [para. 22].

PHS Community Services Society et al. v. Canada (Attorney General), [2011] 3 S.C.R. 134; 421 N.R. 1; 310 B.C.A.C. 1; 526 W.A.C. 1; 2011 SCC 44, dist. [para. 23].

Chaoulli v. Quebec (Attorney General), [2005] 1 S.C.R. 791; 335 N.R. 25; 2005 SCC 35, dist. [para. 23].

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335, refd to. [para. 32].

Gosselin v. Quebec (Procureur général), [2002] 4 S.C.R. 429; 298 N.R. 1; 2002 SCC 84, refd to. [para. 37].

Hunt v. T & N plc et al., [1990] 2 S.C.R. 959; 117 N.R. 321, refd to. [para. 45].

Hunt v. Carey Canada Inc. - see Hunt v. T & N plc et al.

British Columbia v. Imperial Tobacco Canada Ltd. et al., [2011] 3 S.C.R. 45; 419 N.R. 1; 308 B.C.A.C. 1; 521 W.A.C. 1; 2011 SCC 42, refd to. [para. 47].

Vriend et al. v. Alberta, [1998] 1 S.C.R. 493; 224 N.R. 1; 212 A.R. 237; 168 W.A.C. 237, refd to. [para. 58].

Eldridge et al. v. British Columbia (Attorney General) et al., [1997] 3 S.C.R. 624; 218 N.R. 161; 96 B.C.A.C. 81; 155 W.A.C. 81, refd to. [para. 60].

Victoria (City) v. Adams et al. (2009), 280 B.C.A.C. 237; 474 W.A.C. 237; 313 D.L.R.(4th) 29; 2009 BCCA 563, refd to. [para. 60].

Doucet-Boudreau et al. v. Nova Scotia (Minister of Education) et al., [2003] 3 S.C.R. 3; 312 N.R. 1; 218 N.S.R.(2d) 311; 687 A.P.R. 311; 2003 SCC 62, refd to. [para. 61].

Spasic Estate v. Imperial Tobacco Ltd. et al. (2000), 135 O.A.C. 26; 49 O.R.(3d) 699 (C.A.), leave to appeal refused (2001), 269 N.R. 394; 149 O.A.C. 400 (S.C.C.), refd to. [para. 63].

New Brunswick (Minister of Health and Community Services) v. J.G. and D.V., [1999] 3 S.C.R. 46; 244 N.R. 276; 216 N.B.R.(2d) 25; 552 A.P.R. 25, refd to. [para. 69].

Irwin Toy Ltd. v. Québec (Procureur général), [1989] 1 S.C.R. 927; 94 N.R. 167; 24 Q.A.C. 2, refd to. [para. 77].

R. v. Marshall (D.J.), Jr., [1999] 3 S.C.R. 456; 246 N.R. 83; 178 N.S.R.(2d) 201; 549 A.P.R. 201, refd to. [para. 80, footnote 3].

Assessment Commissioner of Stouffville (Village) v. Mennonite Home Association of York County et al., [1973] S.C.R. 189, refd to. [para. 80, footnote 3].

Khadr v. Prime Minister (Can.) et al., [2010] 1 S.C.R. 44; 397 N.R. 294; 2010 SCC 3, refd to. [para. 85].

Authors and Works Noticed:

Sossin, Lorne M., Boundaries of Judicial Review: The Law of Justiciability in Canada (2nd Ed. 2012), pp. 162 [para. 21]; 242 to 244 [para. 77].

Wiseman, David, Taking Competence Seriously, in Young, Margot et al., eds., Poverty: Rights, Social Citizenship and Legal Activism (2007), p. 273 [para. 80].

Counsel:

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

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

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

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

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

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

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

Vasuda Sinha, Rahool Agarwal and Lauren Posloski, for the intervener, the Women's Legal Education and Action Fund;

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

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

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

This appeal was heard on May 26, 27 and 29, 2014, by Feldman, Strathy and Pardu, JJ.A., of the Ontario Court of Appeal. On December 1, 2014, the court's decision was released, including the following opinions:

Pardu, J.A. (Strathy, J.A., concurring) - see paragraphs 1 to 39;

Feldman, J.A., dissenting - see paragraphs 40 to 89.