Simon's Megalomaniacal Legal Resources

Homelessness - General

. Restoule v. Canada (Attorney General)

In Restoule v. Canada (Attorney General) (Ont CA, 2021) the Court of Appeal considered basics of justiciability. In the process it made an odd reference to 'homelessness' (the case itself is about native rights) and how it is a non-justiciable subject, which - on it's face - says that it's a political matter not to be litigated. I would challenge that, as one major basis of homelessness is the fact that our legal system allows massive property concentration (which is by it's nature a monopoly right) for investment and other business purposes. Those rights are based in both common law and statute law - both of which are amenable to Charter law:

The Governing Principles Concerning Justiciability

[209] The doctrine of justiciability imposes limits on judicial review of executive action. It is based on the sense that there are public policy issues that are beyond the jurisdiction of the courts. Stratas J.A. noted:

In rare cases … exercises of executive power are suffused with ideological, political, cultural, social, moral and historical concerns of a sort not at all amenable to the judicial process or suitable for judicial analysis. In those rare cases, assessing whether the executive has acted within a range of acceptability and defensibility is beyond the courts’ ken or capability, taking courts beyond their proper role within the separation of powers.[133]

Examples of such rare cases would include the deployment of military assets, entering into foreign treaties, and addressing homelessness.

[210] The issue of addressing homelessness was raised in Tanudjaja, where the court found that there was “no sufficient legal component to engage the decision-making capacity of the courts”, and that “[i]ssues of broad economic policy and priorities are unsuited to judicial review.”[134] The application in that case asked the court “to embark on a course more resembling a public inquiry into the adequacy of housing policy.”[135] The court noted, “the issue is one of institutional competence [and] whether there is a sufficient legal component to anchor the analysis” and concluded that the application was not justiciable.[136]

. Shortt (Re)

In Shortt (Re) (Ont CA, 2020) the Court of Appeal considered a NCR (non-criminally responsible) case that took a first step at obtaining what can be called a 'housing funding' remedy:

[1] The appellant, Wesley Shortt, has been detained in forensic custody since March 7, 2007 after he was found NCR with respect to one count of uttering threats and one count of failure to comply with probation. He is currently detained at St. Joseph’s Healthcare Hamilton (“Hospital”). Since at least 2014, the Ontario Review Board (“Board”) has repeatedly held that, at the discretion of the Person in Charge of the Hospital, Mr. Shortt is eligible to live in the community of Southern Ontario in accommodation approved by the Person in Charge.

[2] Mr. Shortt is eligible to live in a community residential setting if appropriate supports are provided. If this happens, his detention in forensic custody would not be necessary for public safety, nor would it advance any of the factors in s. 672.54 of the Criminal Code.

[3] Unfortunately, this component of the Board’s dispositions for Mr. Shortt, consistent for the last six years, has not been implemented. While the Hospital continues to support Mr. Shortt’s integration into a community residential setting, he has not been integrated into a community setting because, despite its best efforts, the Hospital has been unable to locate a suitable setting or to obtain meaningful information from the Government of Ontario as to when such a setting might become available.

[4] To break this impasse, Mr. Shortt applied for relief under the Canadian Charter of Rights and Freedoms at his annual review hearing. He argued that his continued detention in forensic custody violated s. 7 of the Charter. If successful on this argument, he sought a prospective remedy under s. 24(1) of the Charter, namely, state funding for suitable supportive housing as described by his treatment team at the Hospital.

....

[76] The remedy sought by Mr. Shortt in his Charter application is: “An order allowing the application, releasing the Applicant from the Hospital, and directing the Attorney General to fund appropriate community housing for the Applicant forthwith.”

[77] At the appeal hearing, in response to a question, the appellant acknowledged that an order that the Government (not necessarily the Attorney General) provide community housing with appropriate supports to Mr. Shortt (without mentioning “funding”) in a timely fashion (not “forthwith”) would be appropriate.

[78] I regard this as a fair response. Accordingly, in the highly unusual circumstances of this case, where for six years the Hospital has deemed Mr. Shortt capable of living in the community yet been unable to obtain any meaningful information about why no community setting has been made available to him, it is time for an order. I am inclined to make an order with two components.

[79] First, it is almost 14 months since the Board’s last evaluation of Mr. Shortt. At the appeal hearing, the court was informed that his next annual review is scheduled for November 24, 2020. In my view, the review should take place. In the Board’s last review, based on “the joint submission of the parties”, the Board “found that Mr. Shortt continues to represent a significant threat to the safety of the public” but also that he was eligible “to live in the community of Southern Ontario in accommodation approved by the person in charge.” This has been the Board’s consistent assessment for several years.

[80] Accordingly, in the interests of public safety and fairness to Mr. Shortt, at this stage it is appropriate for the Board to conduct its next annual review and determine whether this longstanding privilege, to be extended at the direction of the Person in Charge, remains an appropriate aspect of the disposition.

[81] Second, the Government must be ready at the next annual review to address the precise location in the community where Mr. Shortt can be placed no later than the end of 2020, provided of course that the Person in Charge of the Hospital deems that setting appropriate. This will require the Attorney General and the MCCSS to work closely together. At this juncture, that is entirely appropriate.

[82] This is an exceptional case. For six years running, the Board has deemed Mr. Shortt capable of living in the community at the discretion of the Person in Charge of the Hospital. For six years running, the Hospital has deemed Mr. Shortt capable of living in the community. The difficulty is that, despite its best efforts, the Hospital has not been able to determine why an appropriate residential setting has not been made available for Mr. Shortt or even when one may be made available. As a result, Mr. Shortt has been languishing in the Hospital and his condition is starting to deteriorate, a development that stands as the antithesis to one of the ultimate purposes of the NCR scheme, to work safely toward the reintegration of NCR accused back into society.

[83] It is against this very unusual backdrop that Mr. Shortt’s liberty has been violated, and not in accordance with the principles of fundamental justice. Provided the Board determines that his condition continues to warrant the possibility of community living with support, the Government must respond immediately and meaningfully to this pressing need for implementation. The Government’s role at the next annual review hearing must be to identify precise implementation, not to contest it.

. Porringa v. Everitt and Lundy

In Porringa v. Everitt and Lundy (Div Ct, 2021) the Divisional Court heard a valiant Charter attempt by an 'unauthorized occupant' to preserve his RTA appeal against the landlord's motion to quash it. The chief tenant had been already ordered terminated and evicted but the appellant 'unauthorized occupant' wanted to preserve his appeal, and the automatic stay on filing an appeal. His case fell on the easiest grounds available to the judge: inadequate evidence to substantiate his Charter grounds. However, but in doing so (IMHO) the judge overstated the law by stating: "His occupancy of the Premises is not covered by the RTA. Mr. Porringa is an “unauthorized occupant” since he did not have a tenancy agreement with the Landlord" [para 28]. Properly, section 104 of the RTA plainly countenances the existence of such unauthorized occupants and gives them 'rights' in some circumstances, essentially a right to become a 'full' tenant if the criteria of s.104(4) are met.

But the case is most compelling for pointing up the reality that older, disabled and otherwise commonly discriminated-again occupants, if they do manage to obtain shelter in this harsh private market, remain perpetually at risk of their 'security of person' in this country:

[26] Lastly, Mr. Porringa argues that he occupied the finished lower level of the house living entirely separate and the Landlord was obligated to include Mr. Porringa in his eviction action along with Mr. Everick and he intentionally chose not to do so, which has certainly had major implications for Mr. Porringa’s occupancy. Furthermore, it is Mr. Porringa’s position that it should not have been permitted by the RTA for the Board to exclude him from Mr. Everick’s eviction proceedings because the latter had already decided to consent to the eviction.

[27] A “tenant” is defined in s. 2(1) of the RTA as:

a person who pays rent in return for the right to occupy a rental unit and includes the tenant’s heirs, assigns and personal representatives, but “tenant” does not include a person who has the right to occupy a rental unit by virtue of being,

(a) a co-owner of the residential complex in which the rental unit is located, or

(b) a shareholder of a corporation that owns the residential complex; (“locataire”).

Mr. Porringa concedes in his Factum and in his evidence that he is not a “tenant” as defined by the RTA. It therefore remains that Mr. Porringa is an “unauthorized occupant” as stated in the Board Order. He adds that he is an elderly man with underlying health conditions and tight finances. Furthermore, he often remarks about the criminality of the Board member, Mr. Lundy, and his colleagues. In his Factum, for example, Mr. Porringa puts forward conspiracy theories that the audio recordings of the hearing have been edited or tampered with, that the Landlord and the Board unethically and illegally interfered with Mr. Porringa’s request for transcripts of the recorded telephone hearing and that there was a disruption of his mail service where one or more local postal employees agreed to assist in the illegal activity. Mr. Porringa states in his Factum that “the [Board] must be stripped of its misused powers in this particular case and a full public inquiry into this rogue government agency is needed by judicial order”. I find that Mr. Porringa has not provided any evidence to support his claims about discrimination due to his age, his health condition and the criminality of the Board and Mr. Lundy. In addition, he has not provided any evidence that the Board misused its powers and is a “rogue government agency”. I find that Mr. Porringa has failed to show that any of his Charter rights or rights in the Code have been breached by the Landlord and/or the Board.

[28] Based on my review of the evidence provided, there is no evidence to support a breach of Mr. Porringa’s rights. His occupancy of the Premises is not covered by the RTA. Mr. Porringa is an “unauthorized occupant” since he did not have a tenancy agreement with the Landlord. It was within the Board’s jurisdiction to make the Order of July 28, 2020. I find that Mr. Porringa’s appeal is devoid of merit and I quash his appeal pursuant to s. 134(3) of the Courts of Justice Act. Given this finding, I need not address the other issues raised by the Landlord.