Perspectives On Housing Rights In Canada – Experts Weigh In

Today’s post is about housing rights in Canada, where the United Nations’ right to adequate housing was affirmed in law in 2019¹. In addition to providing a definition of adequate housing, the National Housing Strategy Act directed the creation of a National Housing Council and a National Housing Advocate. The Council and the Advocate are in place to work with governments to achieve the right to housing.

The National Housing Council recently issued advice for the Federal Government. The Council points to areas where the government has done well and to things that need improvement. At 77 pages, there is a lot to digest. Here are two of the findings:

• Currently, the federal government is using five different definitions of ‘affordability’ in its affordable housing programs, which prevents easy assessment of who is being helped. The Council recommends using just one definition.
• The current programs have added affordable housing to Canada’s housing stock, but very little is affordable for people who have very low incomes. This is contrary to the right to adequate housing, which states that the people in greatest need should be the priority for receiving assistance when allocating available resources². The Council identifies groups that are over-represented in the country’s homeless population as being in greatest need. This includes indigenous people, women, and LGBTQ2S people.

Some of the Council’s report is taken up with discussing the bi-lateral agreements between the federal and provincial and territorial governments. The agreements commit provincial and territorial governments to implementing housing support programs, which include providing financial assistance to help households with high housing costs to pay their rent.

Bi-lateral agreements are a foundation of Canada’s federal government structure. Matters of social policy (health care, social support and housing) are the responsibility of provincial and territorial governments. The bi-lateral agreements flow money from the federal government to help to pay for social programs. The federal government implements many of its social policy objectives by prescribing conditions for providing its funding.

If the federal government is generous in its funding, it stands to reason that the provincial and territorial governments would be willing to go along with country-wide social objectives. If the federal government is stingy, provinces and territories would be less interested in taking part, even though they need the money to deliver their programs. This makes negotiating bi-lateral agreements challenging.

Alison Smith is based at the University of Toronto. She has studied the history of bi-lateral agreements in Canada. Her book Multiple Barriers: The Multilevel Governance of Homelessness in Canada, was published in 2022. According to Smith’s research, in comparison with other national governments, the Canadian government has been stingy in financing its social objectives and has become more stingy over time. Smith also says that this stinginess makes it particularly hard to end homelessness, which requires concerted action by federal provincial/territorial and local governments.

When a national government is fiscally stingy, it also stands to reason that it can expect legal challenges about its human rights commitments. This is certainly true in Canada, where there has been a steady stream of court cases.

A group of people with disabilities applied to the Human Rights Tribunal in Nova Scotia. The group argued that the income they received through public disability programs was not enough to be able to live independently in the community. The Human Rights Tribunal agreed that this was the case for the people who applied. The Tribunal did not agree that its finding also extended to include everyone else who receives public disability income in Nova Scotia.

The group who brought the case appealed the Tribunal’s decision to the provincial courts. The group argued that the Tribunal’s decision should include everyone receiving public disability assistance. The provincial court agreed. Through a negotiated settlement, Nova Scotia’s funding for its disability incomes and support programs is currently being revised.

Bruce Porter is a lawyer with a long history of human rights law as it relates to housing in Canada³. With respect to the right to adequate housing, Porter thinks that the decision by the Nova Scotia court strengthens the position of the National Housing Council and the National Housing Advocate. He says,

“The Nova Scotia case highlights the significant overlap or “indivisibility” between the right to equality and the right to housing as it is affirmed in international human rights law.”

Porter also thinks that the Nova Scotia’s court’s decision means that going forward, courts in Canada could be more open to considering cases that Canada’s housing policies aren’t doing enough to ensure the right to adequate housing. This is significant because in the past, courts have declined to consider rights claims related to homelessness and Canada’s housing programs.

This post will be of particular interest to readers in Canada and internationally to people considering pursuing rights-based approaches to adequate housing.

Here is the link to the report from the National Housing Council: Renewing Canada’s National Housing Strategy

You can listen to an interview with Alison Smith, which was hosted by Policy Options: Inequality and Homelessness

The decision about disability incomes and supports in Nova Scotia is available at CANLII: Disability Rights Coalition v. Nova Scotia (Attorney General), 2021 NSCA 70 (CanLII)

1. Going forward, this means that Canada’s definition of adequate housing follows the United Nations definition. See: Right to Adequate Housing – Fact Sheet 21
2. The UN directs that “[t]here is also an immediate obligation to take steps, which should be concrete, deliberate and targeted, to fulfil the right to adequate housing. Each State should guarantee at least minimum essential levels of this right. For instance, it should ensure that significant numbers are not deprived of basic shelter and housing. (from page 31 of the Fact Sheet)
3. For more about Porter’s work, try: Challenging Canada’s Denial Of Health Care: A Path To Housing Rights?