The right to housing is a subject of increasing concern and discussion in Canadian society. The debate regarding the scope and application of housing rights in Canadian law, and the extent to which Canadians may claim these rights as fundamental legal rights, has become even more contentious in recent decades. The growing awareness of housing rights has been brought on by several factors, including: the housing crisis, gentrification, the general lack of affordable housing and the rise of people experiencing homelessness and living in encampments in Canadian cities (see Homelessness in Canada). The development and ongoing implementation of a federal regulatory and policy framework, the National Housing Strategy Act (2019), has also contributed to discussion about housing as a human right.
Three Levels of Housing Rights in Canada
In Canada there are three overlapping legal systems that define and integrate housing rights: international, federal and provincial/territorial.
International
The international legal order has long been cited as both an inspiration and a potential basis for the exercise of the right to housing by human rights advocates in Canada ( see International Law). This particular form of advocacy is best exemplified by the work of Canadian human rights lawyer and former United Nations Special Rapporteur on the Right to Adequate Housing, Leilani Farha.
Examples of housing rights in international human rights treaties and doctrines are numerous. Among the most referenced by Canadian lawmakers and jurists are the International Covenant on Economic, Social and Cultural Rights (ICESCR) (1966) and the Universal Declaration of Human Rights. (See also Editorial: John Humphrey, Eleanor Roosevelt and the Universal Declaration of Human Rights.) Significantly , the ICESCR has been incorporated into Canadian law through the National Housing Strategy Act, as a legal standard for assessing the right to housing in Canada (i.e., progressive realization).
Federal
The main foundations for housing rights in Canada remain under federal and provincial law. Though property law and housing codes are under provincial jurisdiction, according to the 1867 Constitution, federal institutions have generally exercised their legal authority over access to housing in a variety of indirect and important ways. (See also Constitution Act, 1867.)
In 2019, a groundbreaking federal law was introduced that finally enshrined the right to adequate housing in Canadian law. It also established a new legal framework and federal bodies with specifically defined mandates for the realization of the right to housing. These include the office of the Federal Housing Advocate, since 2019, and the National Housing Council, an advisory body to the Minister of Housing, Infrastructure and Communities. Both of these agencies are responsible for overseeing and advising the government on the development of key components related to housing rights of the federal housing regime. For instance, the creation of an Urban, Rural and Northern National Indigenous Housing Strategy.
Provincial
In constitutional terms, housing rights are mostly the business of provincial statutes and human rights codes, and, to a lesser extent, the decisions of provincial courts and administrative legal bodies tasked with mediating disputes between tenants and landlords. The bulk of these rights consist of protection against discrimination in the housing sector, security of tenure, and preventing unlawful or arbitrary evictions. (See also Landlord and Tenant Law.) Provincial human rights codes provide administrative tribunals (for example, Ontario’s Landlord and Tenant Board) with the authority to hear legal matters relating to housing, and even to impose a settlement on the parties. These examples may touch on human rights concerns such as discriminatory rental policies, harassment of tenants and inadequate living conditions.
In rare cases, like that of Irma Sparks in Nova Scotia (Sparks v. Dartmouth/Halifax County Regional Housing Authority (1993), where a civil court found that provincial regulations on social housing have caused a harm to the claimant’s rights, on the grounds that they were based on racial and gender discrimination, judges may even engage in an intersectional analysis of the right to housing to reach their decision. (See also Intersectionality.)
Contemporary Challenges in Canadian Housing Rights
A host of housing rights are widely accepted in Canada today, though their application remains challenging and the question of whether a right to housing is enforceable through the courts is still undetermined. For example, the case Tanudjaja v. Attorney General (Canada) (2013) granted motions to strike a claim that Canada and Ontario did not meet their Charter of Rights and Freedoms obligations to reduce homelessness by expanding access to housing (see Canadian Charter of Rights and Freedoms). Many human rights violations and obstacles to justice that Canadians face have a crucial access-to-housing element, and housing rights activism (for example the career of housing rights activist François Saillant is as widespread as ever.
Many housing rights champions, civil society organizations, and lawmakers are concerned with those experiencing homelessness, given the marked increase in unhoused Canadians in recent decades. The lack of access to housing remains a key determinant in poor health, unemployment and other undesirable social outcomes. Moreover, it is regarded as a blatant violation of a person’s human right to housing, under international law.
At the same time, major Canadian cities have seen a rise of so-called “squatting” on public lands and the creation of tent cities or encampment communities, caused by a variety of complex factors related to the COVID-19 pandemic, forced evictions due to rent being unpaid, homelessness, and a severe shortage of affordable housing linked to the gentrification of neighbourhoods and subsequent inflation in housing prices. (See also Vancouver Feature: Squatters Settle in Stanley Park)
Other major issues threatening the right to housing in Canada include the financialization of housing through foreign and domestic investment and speculation on housing markets as a way of producing profits, thus contributing to a lack of affordable rental stock and the commodification of housing. The phenomenon of renoviction, which entails real or fake renovations used as a pretext for landlords to evict tenants who are not at fault, is another issue, as it can result in rent increases and homelessness.
Advocacy
Policies and Programs
Housing rights proponents have encouraged governments, as well as private and non-profit housing providers, to adopt several measures to address and mitigate the impacts of the housing crisis on rights holders. These measures include the application of policies, such as rent control (limits on the rent that a landlord may charge a tenant). Rent control would extend to rental regulations like vacancy decontrol (regulations that allow landlords to increase the rent of units well above previous levels, which can reduce access to affordable housing).
Since the late 1970s, Housing First (sometimes called “supportive housing”) programs have emerged across Canada as an accessible, reliable and effective model for communities dealing with populations experiencing homelessness. The model takes the human right to housing as its core principle and creates a system of support to help house people with mental, physical or other difficulties, without preconditions.
In response to structural problems with affordability in the housing market, some city governments, policy-makers and urban planners have sought to apply a housing rights lens to their housing regulations and policies. Among the most famous of these “inclusionary zoning” schemes is Montreal’s Diverse Metropolis bylaw. This 2021 municipal regulation, passed by the administration of Mayor Valérie Plante, promotes access to adequate housing for everyone.
Associations and Committees
Tenants’ rights associations and housing committees, like the Herongate community in Ottawa and Parkdale Neighbourhood Land Trust in Toronto, have also become more popular, in part as a response to mass evictions. These grassroots community organizations, generally formed by local volunteers, are explicitly human rights oriented and sometimes adopt direct action tactics, such as rent strikes, to achieve their goals.
Key Terms: Housing Rights in Canada
Renoviction – Real or fake renovations to a building used as a pretext for a landlord to evict a tenant. Also known as eviction fraud.
Rent Control – Regulations regarding rent increases.
Security of Tenure – Legal protection against forced or faulty eviction, harassment and threats.
The Right to Adequate Housing – Defined under international law as containing seven elements: security of tenure, affordability, habitability, access to basic services, location, accessibility, culturally appropriate.
Progressive Realization of the Right to Housing – In international human rights law, this legal norm creates an obligation for governments to take immediate concrete steps, to use all available resources, and to use all appropriate means, including the adoption of legislation, to create the conditions for everyone to have access to adequate housing.
The Human Rights-Based Approach (HRBA) – HRBA is a conceptual framework for identifying and addressing systemic barriers to the enjoyment of human rights, like the right to adequate housing, and for ensuring that the voices of those affected by housing issues are at the centre of all housing policies, programs and budgetary decisions.