JOURNAL OF LAW AND SOCIAL POLICY
REVUE DES LOIS ET DES POLITIQUES SOCIALES
EDITORs-IN-CHIEF / RÉDACTEUR et Rédactrice EN CHEF
Graham Webb, Advocacy Centre for the Elderly
Ilana Luther
EDITORIAL BOARD / COMITÉ DE RÉDACTION
Stuart Bailey, Nipissing Community Legal Clinic
Patricia Broad, Windsor-Essex Bilingual Legal Clinic
Lisa Cirillo, Family Law Education for Women
Sheila Cuthbertson, Aboriginal Legal Services of Toronto
Brian Eyolfson, Human Rights Tribunal of Ontario
Michelle Mulgrave, Human Rights Legal Support Centre/Centre d’assistance
juridique en matière de droits de la personne de l’Ontario
Laurie Nuttall, Northwest Community Legal Clinic
Sheilagh O’Connell, Legal Aid Ontario
Professor Bruce Ryder, Osgoode Hall Law School, York University
COORDINATOR / COORDONNATRICE
Barbara J. Casson
Clinic Resource Office / Bureau de ressources des cliniques
Legal Aid Ontario / Aide juridique Ontario
VOLUME  22
2009
© Legal Aid Ontario, 2009
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TABLE OF CONTENTS / TABLE DES MATIÈRES
Articles
Don’t Get Enough Credit? The Need for an Impartial Consumer
Credit Report Appeal Tribunal in Ontario
Kent Glowinski
5
A Closer Look at Seemingly Pro-Tenant Provisions in the Residential
Tenancies Act
Mary Truemner
27
“Deference” versus “Security of Tenure”: Eviction of Residents
of Subsidized Housing Co-operatives at the Superior Court of Justice
for Ontario, 1992–2009
Jeff Schlemmer
43
Age Discrimination and Income-Security Benefits: The Long Retreat
from Tétreault-Gadoury?
Mel Cousins
69
A Tale of Marginalization: Comparing Workers with Disabilities
in Canada and the United States
Ravi Malhotra
79
“But Only on a Question of Law”: Examining the Scope of Appellate
Review of the Landlord and Tenant Board
Toby Young
115
Inadequacies of the Humanitarian and Compassionate Procedure
for Abused Immigrant Spouses
Heather Neufeld
177
To Serve Some and Protect Fewer: The Toronto Police Services’ Policy on
Non-Status Victims and Witnesses of Crimes
Abigail Deshman
209
Book Review
The First Women Lawyers: A Comparative Study of Gender, Law
and the Legal Professions by Mary Jane Mossman
The Ursula Franklin Reader: Pacifism as a Map by Ursula M. Franklin
Reviewed by Linda Gehrke
237
Don’t Get Enough Credit? The Need for an Impartial
Consumer Credit Report Appeal Tribunal in Ontario
Kent Glowinski*
Résumé
Au cours des dix dernières années, on a assisté en Ontario à un renforcement du
droit de la consommation et de la protection des renseignements personnels. Avec
l’accroissement du nombre de cas de vol d’identité et de fraude, beaucoup de consommateurs se retrouvent souvent avec des remarques négatives sur leur rapport de solvabilité, avec pour conséquence des difficultés pour obtenir un prêt hypothécaire,
un financement, un rapport de sécurité positif, un logement, et dans le pire de cas,
un emploi. Parfois, de simples erreurs grammaticales ou des informations erronées
sur un rapport de solvabilité peuvent entraîner des préjudices graves et irréparables
à un particulier. Les rapports de solvabilité qui sont fournis par des sociétés privées,
connus sous le nom d’agences d’évaluation du crédit, comme par exemple Equifax
Canada Inc. et Trans Union of Canada Ltd., sont utilisés couramment non seulement
pour vérifier la « solvabilité » d’un individu, mais aussi sa fiabilité. Malheureusement,
les agences d’évaluation du crédit (qu’on appelle communément « bureaux de crédit »), opèrent dans une zone grise du droit de la consommation et de la protection
des renseignements personnels : pas soumises au droit relatif à la protection de la vie
privée, possiblement soumises à la Loi sur la protection des renseignements personnels
et les documents électroniques (LPRPDE), et indirectement affectées et réglementées
grosso modo par les lois sur la protection du consommateur.
Cet article examine où en est, sur les plans juridique et réglementaire, l’évaluation du
crédit pour les consommateurs en Ontario et se concentre sur la nécessité de créer
un tribunal d’appel sur les rapports de solvabilité, un tribunal spécialisé et impartial
devant lequel les consommateurs peuvent interjeter appel pour corriger des informations de fond et des erreurs contenues dans leur rapports de solvabilité.
Introduction
As the John Smiths of Ontario know, it is not easy sharing a name with thousands
of other people. Sometimes it is a simple mistake in receiving another John Smith’s
mail, but other times it is a collection agency hounding him for an unpaid telephone
bill. The problem is, he never used that telephone company’s services and the collection agency is contacting the wrong John Smith. Even worse is when John Smith
applies for a line of credit at the bank and is declined because of an allegedly unpaid
telephone bill he has never heard about.
6
(2009) 22 Journal of Law and Social Policy
The situation may also arise where there is a confusing call from a creditor, a random
Internet company with whom he has never done business. However, the creditor has
John Smith’s address, banking information, and perhaps his social insurance number. “Pay up or we are reporting you to the credit bureau,” threatens the creditor.
Unfortunately, John Smith’s wallet was stolen last week and he is now the victim of
identity fraud. Too bad—John Smith is going to be reported as a delinquent debtor
to Equifax Canada Inc. [Equifax] and Trans Union of Canada Ltd. [Trans Union],
Canada’s two national credit bureaus.1
Equifax and Trans Union are private companies in the business of collecting credit
information about consumers. In their own words, they take no responsibility for the
information about a consumer that appears in their databases. Credit bureaus passively receive information from creditors and add this information to an individual’s
credit report.2 If you have ever applied to own a cellular phone, or if you have ever
applied for a credit card and even if you have a bank account, you have a consumer
credit report with either Equifax or Trans Union. So, don’t blame Equifax or Trans
Union for incorrect information. Don’t shoot the messenger, right?
Equifax and Trans Union receive millions of bytes of information every day regarding
individual consumers. This information comes from banks, utilities companies,
student loan lenders, collection agencies, parking lot operators and even your local
video store (regarding late payments, unpaid accounts and late fees on a DVD rented
last year).
The problem with so much data is that there is bound to be an error. For example, a
John Smith in Toronto is incorrectly blamed for a late mortgage payment expected
from John Smith in Brockville. In the worst case, there may be a nefarious comment
on a credit report that does not even belong to the credit report’s owner, as the result
of a case of fraud or identity theft. What can John Smith do to correct the information on his credit report? He could write to Equifax and Trans Union to dispute the
incorrect information. If Equifax and Trans Union deny John Smith’s request, where
can he turn to appeal this decision in Ontario?
*
1.
2.
B.A. McGill University, 2001; LL.B. University of Victoria, 2005. Barrister and solicitor (Ontario). The
opinions expressed are those of the author alone and do not represent the views held by any other
institution or organization.
For the ease of the reader, “consumer reporting agencies” will be referred to in this paper as “credit bureaus”. While there is a third credit bureau in Canada named Experian, this company began operations
in Canada only in 2006 when it acquired Quebec-based Northern Credit Bureaus Inc. As such, Experian is not yet integrated into Canada enough that its operations have a material impact on Canadian
consumers (see Experian, Press Release, “Experian Expands Operations in Canada” online at <http://
experian.global-pressoffice.com/documents/showdoc.cfm?doc=2345>).
Equifax neither grants nor denies any application for credit. Equifax will provide a factual account of
your credit history to credit grantors. The credit grantor reviews this information and makes an independent decision based on its own policies. “Frequently Asked Questions” online: Equifax <http://
www.equifax.com/EFX_Canada/consumer_information_centre/faqs_e.html>.
Don’t Get Enough Credit? 7
This paper will review the regulatory history of credit bureaus in Ontario, the interplay of privacy and consumer law vis-à-vis consumer credit reporting, case law and
credit bureau liability, and discuss the policy rationale for a Credit Report Appeal
Tribunal.
The Legislative Scheme
Ontario Consumer Reporting Act
Credit bureaus are covered by provincial jurisdiction in Canada. In Ontario, credit
bureaus are regulated by the Consumer Reporting Act [Act].3 Under section 3 of the
Act, credit bureaus have to be registered to operate in Ontario. The Act and its corresponding regulations are administered by the Ministry of Government Services.
Credit bureaus are subject to the regulation and order-making power of the Registrar
of Consumer Reporting Agencies [Registrar]. This order-making power includes the
power to compel credit bureaus to “amend or delete any information, or by order
restrict or prohibit the use of any information, that in the Registrar’s opinion is inaccurate or incomplete or that does not comply with the provisions of this Act or the
regulations.”4
The Act lays out a very low threshold that a credit bureau must meet in addressing
the complaint of a consumer. In particular, the credit bureau must use its “best endeavours” in accordance with good practice to confirm or complete the information
in a credit report. Subsection 13(1) of the Act reads:
Where a consumer disputes the accuracy or completeness of any item of information contained in his or her file, the consumer reporting agency within a reasonable time shall use
its best endeavours to confirm or complete the information and shall correct, supplement
or delete the information in accordance with good practice.
The Act does not provide a definition of “best endeavours” or “good practice”.
The jurisdiction of the Registrar to order amendment or deletion, however, is limited
to actual “technical” errors on a credit report, or to situations where the credit bureau
did not make “best endeavours” in a “reasonable time” to verify the information. The
Registrar does not consider the substantive merit of the information reported on
the credit report. The Registrar has no obligation to “look behind” information on a
credit report and ask the credit bureau or creditor to furnish proof of a debt.
The Act contains offence sections that make it illegal to knowingly report incorrect
or false information on a consumer’s credit report.5 In Richardson v. CIBC World
Markets Inc.,6 Justice Daley reviewed the meaning of sections 22 and 23 of the Act:
3.
4.
5.
6.
R.S.O. 1990, c. C.33.
Ibid. s. 14(1).
Ibid. ss. 22 and 23.
[2008] O.J. No. 3414 (S.C.J.) [Richardson].
8
(2009) 22 Journal of Law and Social Policy
In my view, the defendants are statutorily obligated to report accurate credit information
in accordance with this legislation. As such, in the circumstances of this case, the plaintiffs
would not be entitled to injunctive relief requiring the defendants to withhold the reporting
of their credit information. This issue has recently been considered in the decision Martinek
v. Canadian Imperial Bank of Commerce [2008] O.J. No. 2670.
In that case, the court concluded that in compliance with its reporting obligation under
the legislation, CIBC had a statutory duty under the Consumer Reporting Act to accurately
report its customers’ credit history and such reporting was done in the usual course of its
business.7
The offence sections of the Act were also discussed in Anderson v. Excel Collection
Services Ltd.,8 where Justice Swinton discussed the state of mind required to be convicted under section 22 of the Act:
The Collection Agencies Act, in s. 28(10)(c), makes it an offence for a person to “knowingly”
contravene the Act and regulations. Moreover, the Consumer Reporting Act, R.S.O. 1990, c.
C.33, s. 22 prohibits a person from “knowingly” supplying false or misleading information
to another who is engaged in making a consumer report.9
Consumers who are unhappy with an entry on a credit report can file a complaint
under the Act with the Registrar. If they are unhappy with the response of the Registrar,
they can further appeal that decision to the Licence Appeal Tribunal.10 Since 2000,
not one appeal regarding incorrect information on a credit report has been brought
before the Licence Appeal Tribunal.11 Again, in practice, the Act provides no real
protection to a consumer who disputes information on a credit report.
Although not a case dealing directly with consumer reporting agencies, Balogun v.
Canada12 provides an example of the importance of the information in a credit report. Abdur-Rashid Balogun, the applicant/appellant in the matter, had been refused
enrolment as a primary reserve officer in the Canadian Forces by the minister of national defence when concerns over his creditworthiness arose. The minister obtained
a credit report that indicated that two small consumer debts had been referred for
Ibid. at paras. 27–29.
[2005] O.J. No. 4195 (Div. Court) [Anderson].
Ibid. at para. 15.
Act, supra note 3, s. 14(3).
The lack of appeals is clearly not due to a lack of disputes over information contained in consumer
credit reports, as the section of this paper on “case law” will show. Rather, as the Registrar of Consumer
Reporting Agencies only has the limited legislative authority to order the amendment or deletion of
true errors (i.e. technical), not the jurisdiction to “look behind” the information, an appeal to dispute
the veracity of information in a credit report is pointless. In effect, an appeal to the License Appeal
Tribunal, while in form is an appeal from a decision of the Registrar regarding information on a credit
report, is in substance not going to result in a discussion or challenge of the merits of an alleged negative entry on a credit report. “Introduction to Decisions” online: License Appeal Tribunal <http://www.
lat.gov.on.ca/english/decisions/index.htm>.
12. [2005] F.C.J. No. 728 (FCA) [Balogun].
7.
8.
9.
10.
11.
Don’t Get Enough Credit? 9
collection activity. Dr. Balogun maintained that the credit report was incorrect, but
nonetheless, the minister maintained his refusal.
Despite the significant technological changes over the last thirty years to consumer
credit reporting, the Act has remained essentially unchanged from its original state
when it was passed in the 1970s. At the time the original Consumer Reporting Act
was passed, consumer reporting agencies tended to be decentralized county by
county across Ontario. Reporting agencies received and reported information based
on phone calls and letters from local creditors. Over the past thirty years, an U.S.based credit bureau, Equifax, has bought smaller county credit bureaus. As a result,
credit reporting has become centralized, and credit information is sent by direct, secure electronic transfers from creditors to the credit bureaus. Thus, errors that were
common before automation have decreased significantly, hence the authority of the
Registrar under the Act is rarely exercised.
Personal Information Protection and Electronic Documents Act in Ontario
Ontario lacks provincial private sector privacy legislation. As such, in January 2004,
the Personal Information Protection and Electronic Documents Act [PIPEDA]13 began
to apply to all private companies in Ontario that collect, use or disclose personal
information in the course of commercial activity. “Commercial activity” is defined
in the legislation as being any activity that is of a commercial character and includes
sales and purchases as well as barters and exchanges.14
PIPEDA incorporates ten “principles” regarding the collection and use of personal
information. One of those principles is accuracy—this means not using inaccurate
or out-of-date personal information to make decisions about the individual. The
logical result is that individuals have a right to correct personal information that is
incorrect.15 Unfortunately, the privacy commissioner does not issue reported decisions or orders in relation to complaints regarding the application of PIPEDA. Instead,
she issues “Case Summaries”. These Case Summaries do not name the parties to the
complaint, even when the subject of the complaint is found to be in contravention
of PIPEDA. Further, the Case Summaries have no legally binding effect and are only
morally persuasive on credit bureaus.
Equifax and Trans Union are subject to the authority of PIPEDA.16 In fact, the privacy commissioner of Canada has several Case Summaries that deal exclusively with
information held by consumer credit reporting agencies.17
13.
14.
15.
16.
17.
S.C. 2000, c. 5.
Ibid. at s. 2(1).
Ibid. at Schedule 1, 4.6, Principle 6—Accuracy.
PIPEDA, supra note 13, s. 4(1).
PIPEDA Case Summaries #124 and 157.
10
(2009) 22 Journal of Law and Social Policy
An Overview of the Legislation: Credit Bureaus and Collection Agencies
On the Ontario Ministry of Small Business and Consumer Services website, the
Province of Ontario acknowledges the awkward state of privacy legislation governing
credit bureaus:
Many consumers believe credit reporting is an invasion of their privacy. Remember that
information recorded on the credit files is based on facts and not arbitrary judgments.
Therefore, a trade-off of a certain amount of your privacy is necessary in order to obtain
such benefits as credit.18
In effect, the only legislative duty a credit bureau in Ontario has to a consumer in regards to alleged “incorrect” information is to reasonably verify that the information
provided by a creditor is correct.19 In practical terms, this means calling the creditor
and enquiring if a debt exists. There is no requirement for the credit bureau to ask a
creditor for proof of the debt, since a simple assurance will suffice to meet the duty
legislated by subsection 13(1) of the Act.
Collection agencies and creditors have a carte blanche, with some exceptions, to add
negative credit information to a consumer’s credit report.20 There is no true due
process model to permit the consumer to challenge a creditor on the veracity of the
alleged debt. The consumer who denies responsibility for a debt does not have an
­appeal process available under the Act, but instead, would have to bring the discrepancy to court by way of litigation. Ontarians are thus left with a legislative scheme
regulating credit bureaus that was implemented in the 1970s, that addresses only
technical errors or omissions on credit reports and fails to consider privacy concerns
of citizens. To date, there is no binding legislative or administrative tool for a consumer to challenge or dispute incorrect information on a consumer credit report.
Case Law: Damage to Financial Reputation?
Litigation challenging the accuracy of information on credit reports is a relatively
new phenomenon. This may be due to the economy’s growing reliance on credit
information as an efficient way to verify not only creditworthiness, but reliability. In
Haskett v. Equifax Canada Inc.,21 the Court of Appeal stated:
Credit is an integral part of everyday life in today’s society. Not only people seeking loans,
mortgages, insurance or car leases, but those who wish, for example, to rent an apartment
or even obtain employment may be the subject of a credit report [footnote omitted], and
its contents could well affect whether they are able to obtain the loan, the job or the accom18. “More Information on the Credit Reporting Act” online: Ministry of Government Services <http://
www.sse.gov.on.ca/mcs/en/Pages/Personal_Finance_Credit_Reporting_Act.asp>.
19. Act, supra note 3, s. 13(1). 20. Ibid. Paragraph 9(3) of the Act lays out the information that cannot be included on a person’s consumer
credit report. For example, information regarding “race, creed, colour, sex, ancestry, ethnic origin, or
political affiliation” cannot be included in the report.
21. (2003) 63 O.R. (3d) 577 (C.A.) [Haskett].
Don’t Get Enough Credit? 11
modation. Credit cards are a basic form of payment but their availability is also limited by
one’s creditworthiness. Without credit, one is unable to conduct any financial transactions
over the telephone or on the internet. As credit is so ubiquitous, there is nothing exceptional
about consumer reliance on credit reporters to carry out their function not only honestly,
but accurately, with skill and diligence and in accordance with statutory obligations.22
Litigation regarding information on credit reports takes on two forms. The consumer
will either commence proceedings against the creditor who reported the allegedly
incorrect information to the credit bureau, or the consumer will commence proceedings against the credit bureau directly for failing to correct disputed information on
the credit report. This section of the paper will discuss these two forms of litigation.
Duty of Care of a Credit Bureau / Consumer Reporting Agency
Haskett is the leading case in Ontario on the duty of care owed by a credit bureau to
a consumer regarding reported information. The Haskett decision resulted from an
appeal by Haskett of a successful Rule 2123 motion (striking a claim as disclosing no
reasonable cause of action) by Equifax and Trans Union. Haskett was a representative
plaintiff in two proposed class actions against Equifax and Trans Union, which had
not yet been certified under the Class Proceedings Act, 1992.24
Haskett was a real estate broker in Toronto. In the early 1990s he was obliged to make
a voluntary assignment in bankruptcy when third parties breached their obligations
to him during the recession. After his discharge, he had been consistently denied
credit, despite making uninterrupted earnings in excess of $75,000 annually, having
significant assets and meeting all of his debt obligations. Haskett later discovered
that Equifax and Trans Union had continued reporting pre-bankruptcy debts on his
credit report allegedly in contravention of the Act.
In allowing Haskett’s appeal, a unanimous Court of Appeal considered whether an
action against a credit bureau for reporting incorrect information should proceed
as a claim in negligence. The Court of Appeal reviewed the two-stage negligence
test and considered whether a claim against a credit bureau could fit neatly into the
category of negligent misrepresentation or be a novel cause of action. The court concluded that, regardless of the matter fitting into the established category of negligent
misrepresentation or not, there existed a duty of care between credit bureaus and
individuals about whom credit information is reported. The court held that claim for
negligence is available for incorrect reporting of information.
In Neil v. Equifax Canada Ltd.,25 an appeal to the Saskatchewan Court of Queen’s
Bench, the court upheld the lower court’s decision that the credit bureau had been
22.
23.
24.
25.
Ibid. at para. 29.
Rules of Civil Procedure, R.R.O. 1990, Reg. 194.
S.O. 1992, c. 6.
(2006), 277 Sask. R. 275 (Q.B.) [Neil].
12
(2009) 22 Journal of Law and Social Policy
negligent in failing to correct erroneous information on an individual’s credit report
in a reasonable amount of time. In Neil, the respondent/plaintiff was a lawyer who
had applied for a credit union loan and was declined because of a judgment registered on his credit report. It was revealed upon investigation that the judgment was
against the plaintiff ’s client and was incorrectly added to Mr. Neil’s credit report.
In describing the standard of care of credit bureaus, Justice Krueger stated:
The standard of care contained in s. 19 of The Credit Reporting Agencies Act provides:
Every credit reporting agency shall take reasonable steps to assure the maximum accuracy of any information in a credit report.
As providers of credit information to lending institutions, credit reporting agencies are in
a position to exert considerable influence on the credit rating of individual consumers.
Any error in the information reported to a lending institution has the potential of affecting
the success of individual endeavours. Maximum accuracy is the goal in recording and disseminating credit information. The standard is understandably high.26
In Birchill Home Sales Ltd. v. Equifax Canada Ltd.,27 a Nova Scotia Small Claims
Court decision, Adjudicator Richardson, described the duty of care of credit bureaus
as follows:
For the purposes of what follows, I am prepared to accept that the Defendant owes a duty of
care to people whose credit files are maintained by it to take reasonable steps to ensure that
the files are reasonably accurate.28
In Birchill, the plaintiff claimed that as a result of inaccurate information about three
outstanding lawsuits, all of which had settled, the company was unable to obtain
financing for a housing project. Consequently, the plaintiff was forced to sell homes
before completion at a loss. Adjudicator Richardson dismissed the plaintiff ’s claim,
finding that Equifax corrected the record promptly after being advised of the error
by the plaintiff.
Defamation or Negligence by Reporting Creditor?
Creditors, like credit bureaus, have also been held liable for reporting incorrect information regarding consumers to credit bureaus. Courts have found credit bureaus
liable for reporting incorrect or false information in actions framed as negligence or
defamation, as will be discussed below. On the other hand, courts have refused to
establish a unique cause of action framed as “intrusion on financial integrity”.
In Clark v. Scotiabank,29 for example, the plaintiff commenced an action after continually being declined loans between 1994 and 2000. The plaintiff contacted Equifax
26.
27.
28.
29.
Ibid. at para. 4.
[2001] N.S.J. No. 317 [Birchill].
Ibid. at para. 14.
[2004] O.J. No. 2615 (S.C.J.) [Clark].
Don’t Get Enough Credit? 13
and was told that if an error existed on his credit file, it would be corrected. The plaintiff contacted both Equifax and Scotiabank repeatedly, but did not put his complaint
into writing until 2000. At that point, Equifax discovered the error was a delinquent
loan of a person with the same last name as the plaintiff erroneously reported on the
plaintiff ’s credit report. In awarding damages against both Equifax and Scotiabank,
Justice Day stated:
I further find that Equifax and Scotiabank breached their duty of care to Mr. Clark when
they failed to take reasonable care with his credit rating. Scotiabank has admitted their failure. While Equifax could not be blamed for applying information provided by Scotiabank,
they indeed can be faulted for not responding to the plaintiff ’s repeated requests for clarification over the span of years … 30
However, in overturning the award to Clark and allowing an appeal by Scotiabank,
the Divisional Court stated:
We are of the view that there is no cause of action known to law which corresponds to what
the trial judge labeled as “intrusion on financial integrity”. Although we cannot be certain
what the underlying elements of the award were, it falls under the heading of “other general
damages” in the Reasons and appears to refer to the exposure of the plaintiff to the error
which occurred in the credit records pertaining to the plaintiff in the files maintained by
Equifax. That error occurred because of the confusion of the plaintiff with another person
whose name was similar to the plaintiff ’s that resulted in an unwarranted low credit rating
being attributed to him and reported by Equifax to others. Although the error resulted in
some understandable frustration and inconvenience to the plaintiff, there was no actual
monetary loss proven by him or compensable psychological damage.31
In effect, the Divisional Court’s decision in Clark closed the door to a new cause
of action being established in Ontario that specifically permits a litigant to assert
specific legal rights in regards to the integrity of information reported to a credit
bureau by a reporting creditor. As will be discussed below, litigants are required to fit
their grievance into a pre-existing cause of action, such as negligence or defamation
in order to hold a reporting creditor liable.
Millar v. General Motors of Canada Ltd.32 involved a dispute between a consumer
and General Motors. The plaintiff had leased a new Yukon SLE truck. Immediately
after leasing the truck, the plaintiff began to notice defects. The plaintiff returned the
vehicle and General Motors sold the vehicle, yet charged the plaintiff for the $1000
shortfall and reported the transaction as a “repossession” to credit bureaus. Despite
the plaintiff ’s request, General Motors refused to remove the information from the
plaintiff ’s credit report.
The plaintiff framed his action in defamation, intentional interference with economic relations and breach of obligations under the lease agreement. Regardless of
30. Ibid. at para. 30.
31. Clark v. Scotiabank, [2006] O.J. No. 5581 (Div. Ct.), at para. 4.
32. [2002] O.J. No. 2769 (S.C.J.) [Millar].
14
(2009) 22 Journal of Law and Social Policy
the framing of the cause of action, Justice Seppi found General Motors liable for the
increased interest rate on a personal loan as a result of the negative information on
the plaintiff ’s credit report. Furthermore, Justice Seppi made an order deleting the
information from the plaintiff ’s credit report and found General Motors liable for
damages for breach of its obligation to provide accurate and complete information.
The finding in Millar was consistent with the defamation approach applied to information reported in error by parties on credit reports in the United States. In Dun
& Bradstreet Inc. v. Greenmoss Builders, Inc.,33 the United States Supreme Court
held that Dun & Bradstreet Inc., a company in the business of selling financial and
credit reports about businesses, was liable for defamatory statements made in a credit
report that incorrectly reported that Greenmoss Builders had previously filed for
bankruptcy.
On the other hand, in Houseley v. Global Credit Collection Inc.34 Deputy Judge Kilian
found the defendant collection agency was negligent in reporting an unliquidated
debt to the credit bureau without even investigating the source or reason for the
debt. No damages were awarded to the plaintiff, since he failed to establish that the
negative statement on the credit report caused him harm. No correction of the credit
report could be ordered, as the Small Claims Court in Ontario does not have the
jurisdiction to order equitable relief.35
Current State of Case Law
Despite the relative laxity of provincial consumer protection legislation and federal
private sector privacy legislation in regards to consumer credit agencies, the courts
in Ontario appear open to holding credit bureaus and reporting creditors liable when
they are negligent in reporting information on a consumer’s credit report.
While this is a welcome evolution of consumer protection law, it also raises issues of
access to justice and judicial efficiency. Not all individual consumers have the expertise, nor can they afford litigation against a corporation like Equifax. Furthermore,
litigation involving negative information on a credit report requires the entire judicial process of a civil action, which further backlogs Ontario courts.
An Administrative Tribunal Dedicated to Credit Report Appeals?
An administrative tribunal dedicated to credit report appeals would provide a forum
for individuals to resolve a dispute with a credit bureau expeditiously and inexpen33. 472 U.S. 749 (1985) (U.S. Supreme Court).
34. [2003] O.J. No. 5679 (S.C.J.–Small Claims) [Houseley].
35. Subsection 96(3) of the Courts of Justice Act, R.S.O. 1990, c. C.43 reads, “Only the Court of Appeal and
the Superior Court of Justice, exclusive of the Small Claims Court, may grant equitable relief, unless
otherwise provided.”
Don’t Get Enough Credit? 15
sively. A tribunal can also process a high volume of cases inexpensively, with less
formality and with an emphasis on mediation.36
As stated, in Ontario, there is only one practical way to appeal disputed information
on a consumer credit report: initiating litigation in the Ontario Superior Court of
Justice, including Small Claims Court. Under the Act, the Registrar has the statutory
jurisdiction to order the correction of technical errors without “looking behind” a
debt. Consumer reporting agencies have only a duty to “reasonably investigate” the
veracity of a disputed debt, and the Small Claims Court has no statutory jurisdiction
to order corrections or amendments to a credit report.
This section of the paper provides the reasons and arguments in favour of establishing
an administrative tribunal dedicated exclusively to hearing credit report appeals.
Inadequate Appeal Processes
The current appeal process available to a consumer who disputes information contained in a credit report is less than transparent. Both Equifax and Trans Union
have a “dispute resolution” process, but it requires only that the credit bureaus
“within a reasonable time shall use its best endeavours to confirm or complete the
information”.37
The test inherent in this statutory requirement is “reasonableness”. What does this
mean in practical terms? If a creditor confirms that the debt is real, then it is real.
The credit bureau is not required to “look behind” the debt to confirm such critical
information as a signed contract, a document authorizing a debt or any other proof
legitimizing a debt. As a result, unliquidated debts, such as monies alleged in a demand letter, can often be incorrectly reported on a credit report.
Equifax and Trans Union have very similar internal appeal processes that allow a
consumer to challenge information on a credit report. For the purposes of this paper,
only Equifax’s policy will be reviewed. Equifax describes its “Dispute Resolution”
policy in the following words:
First, we review and consider the information you have sent us about your dispute. If this
initial review does not resolve the problem, we will continue our investigation. This involves contacting the submitter of the disputed information on your behalf to review the
details. They will investigate and report their conclusions to us. Based on their findings, we
may make changes to your credit file. If the disputed information is correct, we will not make
any changes.
36. S. Blake, Administrative Law in Canada, 4th ed. (Markham, ON: LexisNexis Butterworths, 2006) at 3.
37. Act, supra note 3, s. 13(1).
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(2009) 22 Journal of Law and Social Policy
We will send you a revised credit report if changes are made as a result of the Dispute
Resolution process. [Emphasis added.]38
It is of note that the internal “appeal” process involves simply asking a creditor if the
information is correct—based on “their findings”. If a consumer says the debt does
not exist, but the creditor continues to affirm it exists, it is not likely that Equifax will
amend or remove the information since it is impossible for a third party to make
changes in your file if the facts have been correctly reported. Of course, the issue in
question is how “the facts” are established. Under current legislation in Ontario, “the
facts” are what a creditor says they are—period.
The only small condolence available to the consumer, should Equifax refuse to amend
or remove information on the credit file, is the short statement Equifax will permit a
consumer to add to a credit report:
If you still do not agree with an item after it has been verified with the submitter, you can
send us a brief statement explaining that you disagree. We will add this statement to your
credit file and it will be shown every time your credit file is reviewed.39
What Equifax does not mention is the disputed information still has a negative impact on one’s overall credit score. Most credit grantors do not even look at the overall
credit report, instead relying on one’s FICO, Empirica or BEACON score.40 If the
score is high enough, credit will likely be extended. If not, the creditor may look
behind the score and read the credit report. Generally, the accepted practice in the
credit industry is that a prospective credit grantor will treat any information on a
credit report, regardless of a consumer’s comments, as truth. In effect, any disputed
information on a credit report is de facto negative information.
As mentioned earlier in the paper, should a consumer still disagree with the information on a credit report, a complaint can be made to the Registrar of Credit Reporting
Agencies.41 Again, the Registrar will only verify that the credit bureau took “reasonable steps” to investigate the debt with the creditor. No substantive investigation will
be launched by the Registrar.
38. Equifax Canada, “Frequently Asked Questions” supra note 3. http://www.equifax.com/EFX_Canada/
consumer_information_centre/faqs_e.html#ques9 (accessed 4 March 2009).
39. Ibid.
40. FICO stands for Fair, Isaac and Company (credit scoring model). BEACON and Empirica are Credit
Bureau scores. BEACON is calculated from a customer’s Equifax credit file and is used to understand
a customer’s likelihood to repay. The score uses a mathematical equation that evaluates information on
the customer’s credit file compared to information patterns in millions of past credit files. BEACON
scores can range from 300 to 850. The higher the score, the lower the risk to creditors. The Trans Union’s equivalent of the BEACON score is the Empirica score.
41. Act, supra note 3, s. 14(3).
Don’t Get Enough Credit? 17
Access to Justice
Often those with the least income, skills and means will have the most to lose when
it comes to disputing information on a credit report. Not only will this demographic
likely be the least educated about consumer rights and the laws surrounding consumer reporting agencies, they will also be the demographic most likely to be harassed by creditors and collection agencies. Not all creditors and collection agencies
are bad. However, one of the threats available in their collection strategy arsenal is to
threaten to destroy one’s credit history. As was seen in the Houseley case, collection
agencies do report unliquidated debts, which are supposed to vest as true debts only
once ordered by the court. Since credit bureaus have no statutory obligation to “look
behind” a debt, this often leaves the most vulnerable section of society at the mercy
of unscrupulous creditors and collection agencies.
As was discussed above, the Small Claims Court of Ontario, a more accessible court,
lacks the jurisdiction to order corrections to credit reports. The only option available to correct information on credit reports is to proceed to the Superior Court of
Justice. Unfortunately, not having enough to pay a creditor likely means one does not
have enough to pay a lawyer, let alone court fees or a process server to deliver court
documents once an action is commenced.
In Ontario, access to justice issues has been acknowledged and addressed in the creation of administrative bodies such as the Ontario Rental Housing Tribunal, now
the Landlord and Tenant Board. One’s credit is directly linked to the ability to find
shelter and employment and to establish financial security. A credit report contains
information that can have a significant impact on the lives of all Ontarians and an access to justice issue that no realistic recourse exists to remove incorrect information.
The creation of an administrative tribunal to handle credit reporting complaints
would be another way to ensure greater access to justice for Ontarians, particularly
those on a low income.
Judicial Efficiency
Almost all reported litigation in Canada involving challenges to the accuracy of information in credit reports has emerged after 2000. With the establishment of definitive
legal precedents, such as the Haskett case from the Ontario Court of Appeal, more
Ontarians may be willing to bring forward similar cases involving the correction or
deletion of information in credit reports. What is especially concerning is the citation in the Statement of Claim in Haskett of the statistics that approximately 80,000
individuals per year in Canada have debts that are statute-barred by legislation, yet
still appear on credit reports. This means that a potentially innumerable number of
persons have substantively incorrect information on their credit reports and may
have to turn to the courts to amend them. This number does not include errors or inaccuracies as a result of identity theft, fraud or the reporting of unliquidated debts.
18
(2009) 22 Journal of Law and Social Policy
Should Ontario courts, and in effect Ontario taxpayers, have to shoulder the burden
created by a corporation-established consumer credit reporting scheme? As credit
has become an integral part of daily activities, the answer to the question may have to
be yes. On the other hand, rather than burdening the legal system with an issue that
has been recognized already as a consumer protection and privacy issue (through
legislation and case law), a statutorily created, specialized administrative tribunal
would be better suited to deal exclusively with credit report appeals. Considering that
the Ontario courts have now faced a proposed class action on the matter (Haskett),
now may be the time to be proactive and create an alternative method to deal with
these types of disputes, rather than wait until the floodgates open and a plethora of
related litigation appears.
Ineffective Privacy Laws Protecting Personal Information in Credit Reports
Only British Columbia, Alberta and Quebec have provincial private sector privacy
legislation that regulates private companies’ activities in collecting personal information about individuals.42 Private companies in Ontario, on the other hand, except for
healthcare practitioners,43 are subject to PIPEDA. Unfortunately, any orders made by
the federal privacy commissioner of Canada pursuant to PIPEDA have no binding
legal effect on companies and are thus only morally persuasive. Furthermore, only a
handful of such decisions have been made by the federal privacy commissioner.
Policy Grounds
An amended Act and a new Credit Report Appeal Tribunal [Tribunal] would also
give creditors, consumers and credit bureaus an incentive to ensure ongoing accuracy of information on credit reports. As orders would be binding and legally enforceable, it would be good business and good economics to avoid a proceeding before the
Tribunal. The cost and time savings alone would provide enough incentive to ensure
compliance.
While credit bureaus may argue that a Tribunal would be another added level of
regulation, credit bureaus currently operate in a regulation-free environment in
Ontario. The exclusive income source of credit bureaus is information collected
about people, often without their consent. Given this incursion into individuals’ privacy and financial well-being, it is not unreasonable to require that credit bureaus
adhere to a standard of accuracy that permits individuals to effectively challenge
their infor­mation.
42. Personal Information Protection Act, S.B.C. 2003, c. 63; Personal Information Protection Act, S.A. 2003,
c. P-6.5; An Act Respecting the Protection of Personal Information in the Private Sector, R.S.Q. c. P-39.1.
43. See Personal Health Information Protection Act, 2004, S.O. 2004, c. 3, Schedule A.
Don’t Get Enough Credit? 19
The relative difficulty in actually contacting Equifax or Trans Union to challenge
the accuracy of information is another reason to give consumers an appeal process
through a tribunal. In Canada, for example, there is no way to contact a “live representative” of Equifax without first ordering a free credit report, which arrives in the
mail two to three weeks later, or by paying a fee for instant access. The credit report
then comes with a special 1-800 number to speak with a real person. Only if one’s
wallet or ID is stolen is there instant access to an Equifax representative.
Equifax and Trans Union consider all consumers about whom information is collected as their “customers”. Yet it is this purposefully difficult process for “customers”
to contact credit bureaus and correct their personal information that compelled the
Federal Trade Commission in the United States to accuse the three large credit bureaus in the United States (Equifax, Trans Union and Experian) of violating the Fair
Credit Reporting Act.44 In the words of the Federal Trade Commission, the three large
credit bureaus:
have agreed to a total of $2.5 million in payments as part of settlements negotiated by the
Federal Trade Commission to resolve charges that they each violated provisions of the Fair
Credit Reporting Act (FCRA) by failing to maintain a toll-free telephone number at which
personnel are accessible to consumers during normal business hours. According to the
FTC’s complaints, Equifax, Trans Union and Experian (collectively, consumer reporting
agencies or CRAs) blocked millions of calls from consumers who wanted to discuss the
contents and possible errors in their credit reports and kept some of those consumers on
hold for unreasonably long periods of time … 45
If that was not a strong enough message to the credit bureaus, three years later,
Equifax was again accused of the very same tactics of purposely ignoring “customer”
concerns:
Equifax Credit Information Services, Inc. (Equifax) will pay $250,000 to settle Federal
Trade Commission charges that its blocked-call rate and hold times violated provisions of
an FTC consent decree that settled a 2000 lawsuit for violations of the Fair Credit Reporting
Act (FCRA). That lawsuit settled charges that Equifax did not have sufficient personnel
available to answer the toll-free phone number provided on consumers’ credit reports.46
For consumers, the benefit of a Tribunal is self-evident. The development of a
Tribunal would send a message to credit bureaus that consumers are not just an income stream but individuals whose lives can be adversely affected by the so-called
neutral information the credit bureaus passively report. It would also be a strong
signal that credit bureaus must be prudent in ensuring the protection and ­accuracy
44. 15 USC 1681 et seq.
45. U.S. Federal Trade Commission, Press Release, “Nation’s Big Three Consumer Reporting Agencies
Agree to Pay $2.5 Million to Settle FTC Charges of Violating Fair Credit Reporting Act” (13 January
2000), online at <http://www.ftc.gov/opa/2000/01/busysignal.htm>.
46. U.S. Federal Trade Commission, Press Release, “Equifax to Pay $250,000 to Settle Charges, FTC Alleges
Blocked and Delayed Consumer Calls Violated Consent Decree” (30 July 2000) online: <http://www.
ftc.gov/opa/2003/07/equifax.htm>.
20
(2009) 22 Journal of Law and Social Policy
of information. To creditors, the establishment of a Tribunal would signal that empty
threats and punishing a consumer, through incorrect or unjustified additions to
credit reports, would not be tolerated.
Creditors would also benefit from credit reports that contain accurate information
about consumers. As case law indicates, more than a negligible number of consumers are subject to either identity fraud or mistakes on their credit reports. The effective result is these consumers, with overwhelmingly positive credit history, are
now labelled “high risk” prospective customers—thus causing the creditor to lose
business by dismissing a legitimate client. In businesses operating on the evaluation
of risk, such as lenders or mortgage brokers, business is only as good as the reliability
of accurate information. Creditors should welcome a Tribunal that would allow consumers to challenge incorrect credit information on their credit reports.
What Would a Tribunal Look Like?
Statutory Changes
The creation of a new appeal tribunal would require wholesale amendments to the
Act.
The Act would be separated into two distinct parts, with powers clearly delineated. For
example, Part 1 would be specifically dedicated to “registration” of credit ­reporting
agencies. This would not be a difficult task, considering there are currently only two
true national consumer reporting agencies, Equifax and Trans Union.
Part 2 of the Act would be dedicated to the statutory creation of the new Tribunal.
It would establish membership, powers, jurisdiction and order-making power.
References to the “Director” in the current Act would also have to be removed.47
References to the Registrar would be limited to Part 1 of the Act, and powers of
the Registrar constrained to dealing specifically with consumer reporting agencies’
registration issues and concerns.48
The amended Act would include a new section requiring a consumer to write the
credit bureau requesting an amendment or deletion to the credit report. If the credit
bureau denies the request, the credit bureau is required to send a letter to the consumer. The letter would include a statement directing the consumer to file an appeal
with the Tribunal if unsatisfied with the credit bureau’s response. An appeal could
be requested within thirty days of the credit bureau’s response. The fee for the appeal
would be reasonable. Hearings could be written or oral, at the request of any party
to the appeal if permitted by the Tribunal, or on the consent of all parties. A new set
47. Act, supra note 3, ss. 18, 21 and 24.
48. This means ss. 14(1), 14(2), 14(3), 14(4), 15, 16(1), 16(2), 16(3), 17, 18.1 and 18.2 of the Act, would
have to be removed.
Don’t Get Enough Credit? 21
of Regulations would have to be enacted through order-in-council establishing the
Rules of Procedure of the Credit Report Appeal Tribunal. 49
Tribunal Jurisdiction and Powers
It must be kept in mind that the Tribunal would not be a Superior Court. As such,
its jurisdiction and powers would have to be specifically worded and conferred. The
Tribunal would be subject to the Statutory Powers Procedure Act.50 The Tribunal
would operate on a civil burden of proof: balance of probabilities. The Tribunal’s
jurisdiction would be limited to making a decision on whether a debt, judgment,
remark or any other piece of information on an individual or corporate credit report
is, in fact, permitted to be registered on a credit report. This means a negative remark
regarding payment of a debt would have to be supported by documented proof that
the debtor actually authorized the debt. Creditors would have to present proof of a
bona fide belief that the said debtor actually owes the debt named in the credit report.
Further, judgments on a credit report would have to be proved with a certified court
order verifying a judgment, and negative remarks would have to be supported by
reasonable proof.
Unliquidated debts are debts where an amount owing is not specifically ascertained.
An amount “may” be owed, but it is not specifically an agreed-to debt. An example
would be late fees at a video store. Perhaps under a contract a video renter agreed
to pay for “any late fees” incurred, but the amount is not agreed upon. Where the
video rental company then arbitrarily sets a late fee, reasonable or not, and attempts
to collect it, the debt is unliquidated. Unliquidated debts would be prima facie unacceptable to register on a credit report and any reference to them would be struck
without any countervailing proof that the debtor specifically agreed to the said debt.
A reverse onus would apply to the creditor.
Unliquidated debts are especially concerning in current times, as private parking lot
operators and “shoplifting recovery companies” (effectively security guards) regularly register unliquidated debts on credit reports. For example, private parking lot
operators will present persons with “tickets” for trespass if they fail to pay for parking
on the private lot. The damages for trespass stipulated on the tickets are arbitrarily
set by the parking lot operators, despite the matter never having gone before a judge.
Shoplifting recovery companies, on the other hand, will send out demand letters to
individuals they have caught and accused of shoplifting, requesting a specific sum of
money to compensate the store for the cost of the security service. These individuals
may or may not have been convicted of shoplifting. If either the parking ticket or
demand letter is not satisfied, the unliquidated debts are then reported to a credit
bureau. The Millar case involved the reporting of just such an unliquidated debt—an
49. Section 25 of the Act already contains the Regulation-making power.
50. R.S.O. 1990, c. S.22
22
(2009) 22 Journal of Law and Social Policy
alleged “charge” for returning a faulty vehicle that should have been covered by a
manufacturer’s warranty.
On the other hand, the Tribunal’s jurisdiction would not include the ability to decide
the merits of the debt itself. For example, if a cellular phone company provided services and rendered a bill to a customer, and had a copy of that bill that it could present,
that bill would satisfy proof of the debt. If the debtor disputed the quality of the
service, the debtor would have to take the dispute to the Superior Court of Justice.
The Tribunal would have no powers to award damages or compensation for any
corresponding economic loss due to incorrect information on a credit report. The
Superior Court of Justice would still retain exclusive jurisdiction to hear any negligence claims against credit bureaus or creditors. The most the Tribunal could order
would be administrative and application fees for the successful party. The Tribunal
would exist to ensure that credit reports contained not only accurate information,
but that a creditor or collection agency was reporting correct and justified information on credit reports. This is especially important for victims of identity theft
who are often viewed suspiciously when they attempt to clear their credit reports of
fraudulent information.
Order-Making Power
Under the amended Act, the Tribunal would have order-making power, and these orders would have a binding effect on credit bureaus. Order-making power would involve orders to amend, delete or add information to a credit report, orders to change
the credit rating in a credit report (i.e. a creditor reports a debtor as sixty days late
“R3 rating” when, in fact, the debtor is only thirty days late “R2 rating”), and orders
to appoint an investigator (in cases of systemic problems arising in a credit bureau
that affect many people at the same time).
Orders that were not followed by the credit bureau could be registered in the Superior
Court of Justice, and failure to follow the registered order would then be treated as
contempt of court.
Parties to a Tribunal Proceeding
A proceeding would be commenced by a creditor or a consumer. The creditor may
want to register information that the credit bureau refuses to register. The consumer
may want to amend or delete information that the consumer believes should not be
on the credit report. The named credit bureau would always be a party to the proceeding and would have the choice whether or not to make submissions.
Don’t Get Enough Credit? 23
Membership of the Tribunal
The Tribunal would be led by a chairperson, appointed by order-in-council. The
Tribunal would then have a membership body appointed by order-in-council. The
membership would be split evenly into quarters: one-quarter of members appointed
from a list of nominations from creditors, banks or collection agencies; one-quarter
appointed from a list of nominations from Equifax and Trans Union; one-quarter
appointed from a list of nominations from consumer groups; and one-quarter appointed from the general public.
A hearing panel of the Tribunal would consist of four members (one creditor, one
bureau, one consumer and one public member). In the event of a tie, the chairperson would make the final decision, considering the reasoning of all of the panel
members.
Appeals
Appeals from the Tribunal could be brought before the Divisional Court, either by
express wording in the amended Act or pursuant to the Judicial Review Procedure
Act.51
Funding the Tribunal
The Tribunal would be funded by a hybrid user-pay and government-funded model.
For example, a consumer or creditor who initiates a proceeding at the Tribunal would
pay an application fee. This fee would then be matched by the responding credit
bureau. The fee would also help to limit unnecessary or unmeritorious complaints,
which are an inevitable reality in any Tribunal.
The reasoning for this funding model is economics and efficiency. Rather than having another level of taxation or fees levied upon a credit bureau, the bureau would be
responsible only for responding to matters upon which it is challenged. Considering
a credit bureau’s unique and privileged near-monopoly position to hold, sell and
share consumers’ personal information, it is not an unreasonable cost of doing business to require the bureau to defend the legitimacy and correctness of its product.
The hybrid user-pay model would not, however, be enough to offset the necessary
funding from the provincial government to ensure the complete operations of the
Tribunal. There would likely, however, be long-term cost savings since courts would
be unburdened by any matters dealing with credit reports.
51. Ibid. c. J.1
24
(2009) 22 Journal of Law and Social Policy
Alternatives to a Tribunal
Small Claims Court Jurisdiction
Subsection 96(3) of the Courts of Justice Act52 states:
Only the Court of Appeal and the Superior Court of Justice, exclusive of the Small Claims
Court, may grant equitable relief, unless otherwise provided. [Emphasis added.]
In effect, despite the Small Claims Court’s limitation on equitable relief, a section
could be added to the Act permitting the Small Claims Court to make equitable orders
in amending, deleting or adding information on a credit report. The Small Claims
Court already has an established judiciary and accessible fees and procedures.
Second, despite the Court’s lack of equitable relief jurisdiction, judgments of the
Small Claims Court on the merits of a debt could be submitted to the Tribunal as persuasive evidence to remove remarks on the credit report. Going back to the example
of the cellular phone customer, if the Small Claims Court determines that the service
was unsatisfactory and the judge orders that the debt should not exist, this judgment
could be presented to the Tribunal for consideration in ordering the removal of the
debt from a credit report.
Information and Privacy Commissioner/Ontario53
It has been inferentially acknowledged through PIPEDA that information in an individual’s credit report affects the privacy and information rights of the consumer.
A section could be added to the Act or to the Freedom of Information and Protection
of Privacy Act54 permitting any consumer to appeal information on a credit report
to the information and privacy commissioner/Ontario [commissioner]. The commissioner already has an established tribunal with Rules of Procedure and is highly
accessible for the average Ontarian.
Conclusion
In a world where efficiency and speed rule, quick ways to make informed judgments
on business and risk are preferred. Verifying information on a consumer credit report is a logical way of doing this. Unfortunately, there is no practical way for a con52. Ibid. c. C.43
53. Dr. Ann Cavoukian is the information and privacy commissioner of Ontario, and order-in-council
position established pursuant to the Ontario Freedom of Information and Protection of Privacy Act. The
commissioner’s role is to adjudicate access to information requests made to provincial public bodies
in Ontario and investigate privacy violations committed by provincial public bodies and private health
care providers. The commissioner does not yet have jurisdiction over the access to information and privacy activities of the private sector in Ontario. “About the Commissioner” online: Information and Privacy Commissioner/Ontario, <http://www.ipc.on.ca/english/About-Us/About-The-­Commissioner/>.
54. R.S.O. 1990, c. F.31.
Don’t Get Enough Credit? 25
sumer to appeal and correct information on a consumer credit report, resulting in an
unequal and potentially oppressive situation where creditors can unilaterally punish
an alleged debtor simply by sending information to a credit bureau.
Credit bureaus are middlemen that choose to distance themselves from creditor–
debtor disputes, characterizing their operations as reporting agencies that report the
facts alone.
Since 2000, Ontario has seen an unprecedented rise in Superior Court litigation
aimed at credit bureaus and creditors that report allegedly incorrect credit information. There have also been privacy complaints to the federal privacy commissioner
regarding credit information.
The Ontario Court of Appeal has recently recognized the inherent importance that
credit reports play in our lives. Realistically, only well-informed, substantially wealthy
Ontarians have the knowledge, time and money to exercise their rights and challenge
creditors and credit bureaus on information contained in their credit reports. The
average Ontarian is left at the mercy of creditors and collections agencies—some of
which choose to report debts that, in good conscience and at law, should rightfully
not be reported.
A Tribunal would be a public acknowledgement by the Government of Ontario that
consumers have solid rights to control information about themselves—information
that affects the ability to get a mortgage, find accommodation and secure things as
basic as employment. Enough time has passed without the law addressing the need
to treat credit reports as a fundamental piece of personal information that directly affects an individual’s ability to secure housing and employment in Ontario. A Tribunal
would provide a forum where individuals can resolve disputes regarding their personal credit information.
This paper has presented not only an argument for establishing a Tribunal, but also
for realistic alternatives, should the Government of Ontario so choose. Expensive
and time-consuming litigation should not be the only option to protect an individual’s personal information contained in a credit report.
A Closer Look at Seemingly Pro-Tenant Provisions in the
Residential Tenancies Act
Mary Truemner*
Résumé
Écrit dans le sillage de changements législatifs importants apportés au droit du logement, cet article étudie à fond comment certaines modifications dans la Loi sur la
location à usage d’habitation nouvellement promulguée influent sur la dynamique
de pouvoir entre les locataires et les locateurs. D’une façon générale, l’article laisse
entendre que, malgré les nouvelles dispositions, adoptées soi-disant pour la protection des locataires, la Loi sur la location à usage d’habitation n’améliore pas la position du locataire vis-à-vis de son propriétaire ou de la Commission de la location
immobilière.
L’article se penche sur quatre dispositions de la Loi sur la location à usage d’habitation :
l’abolition des ordonnances d’éviction par défaut; une disposition établissant une date
réputée de résiliation; l’interdiction aux propriétaires d’obtenir des augmentations de
loyer alors que l’entretien des lieux est de mauvaise qualité ou même inexistant; et de
nouvelles défenses accessibles aux locataires faisant face à une demande de résiliation
de location avant le terme.
L’auteur présente une argumentation probante pour démontrer que, malgré les apparences, les gains pour les locataires demeurent largement illusoires. Les locataires
dans la province de l’Ontario continuent à se battre à armes inégales, ce qui continue
à les exposer aux expulsions de leurs foyers.
Introduction
On 31 January 2007, the Residential Tenancies Act, 20061 (“RTA”) replaced the
Tenant Protection Act (“TPA”), the legislation governing landlord and tenant relations in the Province of Ontario for almost a decade. Referred to by tenant advocates
as the “Tenant Rejection Act”, the TPA was widely criticized in its decade-long reign
for its misleading title, given that it weakened tenant rights.2 Having anticipated a
*
1.
2.
Mary Truemner is a lawyer who worked for years in the legal aid clinic system of Ontario and recently
commenced duties as a vice-chair at the Human Rights Tribunal of Ontario. This paper reflects the law
as of 1 September 2008.
Residential Tenancies Act, 2006, S.O. 2006, c. 17, proclaimed into force 31 January 2007.
See for example K. Laird, “Re-Constructing the Work of the Ontario Rental Housing Tribunal: First
Steps to a Fairer Process” (2002) 17 J.L. & Soc. Pol’y; E. Mahoney, “The Tenant Protection Act: A Trust
Betrayed” (2001) 16 J.L. & Soc. Pol’y; P. Rapsey, “See No Evil, Hear No Evil, Remedy No Evil: How the
28
(2009) 22 Journal of Law and Social Policy
new law more protective of tenants in the context of a changed political climate,
tenant advocates were initially surprised by how similar the RTA was to the TPA,
and how the Landlord and Tenant Board—the administrative tribunal created under
the RTA—was the same as its predecessor in most respects.3 Particularly devastating
to the tenant movement, the RTA failed to include a section to reverse the TPA’s
elimination of rent controls on units in the private rental market. Rents continue
to increase dramatically across the province after decades of landlord and tenant
legislation that had protected the affordable housing stock.4
It is not the object of this paper, however, to critique the decision to enact legislation that, like the TPA, allows the twenty-first-century private market to determine
rents. Instead, this paper explores how the following changes systemically affect the
power imbalance between landlords and tenants: (1) the abolishment of the default
eviction, (2) the return of orders prohibiting rent increases where the landlord has
not properly maintained the rental premises, (3) the deeming of a termination date
where the tenant has not provided proper notice, and (4) additions to defences to
eviction applications. Do these seemingly significant changes really assist tenants?
The Abolishment of Default Evictions
Without a doubt, the most far-reaching change to the eviction procedure is the elimination of default orders that had been available under the TPA.5 These orders were
routinely issued to evict tenants who had not filed written disputes to landlord applications within five days of receiving the application. Under the TPA, tenants regularly appeared at the Ontario Rental Housing Tribunal (the “Tribunal”) expecting
an opportunity to argue against evictions on the day indicated in their Notices of
Hearing. Having misunderstood the notices, they would instead discover that their
hearings had been cancelled because default orders had already been issued. While
some tenants managed to file and serve set-aside motion documents, 56 per cent of
tenants receiving landlord applications for termination were ordered evicted from
their homes without hearings.6
In his 2003-04 Annual Report, the Ontario ombudsman expressed concern
that the fairness of the eviction process had been compromised by the pursuit of
3.
4.
5.
6.
Ontario Rental Housing Tribunal Is Failing to Protect the Most Fundamental Rights of Residential
Tenants” (2000) 15 J.L. & Soc. Pol’y.
RTA, s. 168(1) continues the Ontario Rental Housing Tribunal as the Landlord and Tenant Board.
The RTA perpetuates the TPA’s system of vacancy decontrol, which allows a landlord to increase rents
without limit once a unit has been vacated. In Toronto, according to the Canadian Mortgage and Housing Corporation’s Toronto CMA Rental Market Survey Reports, the average rent for a two-bedroom
unit climbed from $819 per month in 1996 to $1,085 per month in October 2008.
TPA, ss. 177, 192.
Workload Report of the Ontario Rental Housing Tribunal, 1998-2005.
A Closer Look at Seemingly Pro-Tenant Provisions 29
greater administrative efficiencies, due in part to the default eviction process.7 A
subsequent decision of the Tribunal showed that these concerns were justified. In
Karoli Investments Ltd. v. Reid8 the member relied extensively on internal policies
and procedures at the Tribunal that placed too much emphasis on efficiency, at the
expense of fair process. The member cited the Tribunal’s statistics, Rules of Practice
and Procedure, internal Procedures Manual, Annual Report and even quotes from
the Tribunal’s director of operations to demonstrate that the Tribunal’s focus was
primarily to move cases through the system, and that its role in ensuring justice was
compromised as a result.9
The RTA corrects the injustice perpetrated by the default order and does not make the
filing of a dispute a prerequisite for an eviction hearing. An eviction order cannot be
made without a hearing by the Landlord and Tenant Board (“the Board”). Under the
TPA, the default orders particularly offended natural justice and procedural fairness
in cases where the tenant did not file a dispute because the tenant had never received
the application before the five-day dispute period expired.10 While the administrative processing of the default order occurred only where landlords had filed affidavits
swearing that the tenants were served, there was ample room for error or unfairness.
Under the Tribunal’s Rules, service was allowed by regular mail. Tenants who were
on holiday, even for an extended long week-end, often opened their mail too late,
given that the dispute period was five calendar—not business—days. Moreover, the
reality for many rural and northern locations is that five-day delivery of mail is very
optimistic. Even in many urban multi-unit buildings, the reality is that mail is not
delivered to individual units, but to unsecured slots, or even to common window
sills or ledges on radiators. The deemed receipt provision of five days after mailing inappropriately assumed that regular mail would take only five days to reach its
destination.
The process has improved under the RTA. Under s. 189, tenants are no longer reliant
on landlords exclusively to inform them of eviction applications and hearings, and
may rely on the Board to notify them directly that applications have been filed:
Ombudsman Ontario, 2003-2004 Annual Report, at 2.
(22 September 2005; Reasons issued 31 January 2006; DeBuono), file no. TNL-68501-SA, [2006]
O.R.H.T.D. No. 8 (QL) (ORHT).
9. Given that the member did not refer to all this documentary information during the hearing, another
member allowed a review on the basis that the landlord had not been given a chance to respond to the
information relied on, and the parties had therefore not been provided with a full opportunity to make
submissions with regard to the internal Tribunal information relied on by the member. The matter was
eventually resolved on consent, with the landlord withdrawing the eviction application.
10. As stated by the ombudsman in the 2003-2004 annual review, the dispute period of five calendar days
is “extraordinarily brief when one considers the severe consequences eviction can have on individuals
and families”.
7.
8.
30
(2009) 22 Journal of Law and Social Policy
189(1) Where an application is made to the Board, the Board shall notify the respondent in
writing that an application has been made and, where possible, shall provide the respondent
with information relating to the hearing and such other information as is prescribed.
Unfortunately, the Board will “notify” tenants only by regular mail. Again, tenants
whose mailboxes are not secure are vulnerable to careless neighbours or even to unscrupulous landlords who are anxious that their tenants not be made aware of the
eviction hearings.
Some landlords illegally evict tenants from their homes to avoid the legal route.11
The temptation for landlords to avoid the proper eviction process at the Board stems
from many factors. First, in addition to the time involved in processing the paperwork over a course of several weeks, an eviction may be expected to entail at least half
the day at the Board. Hearing blocks of over twenty matters per day are not unusual.
All hearings are scheduled to begin at the start of the hearing block, despite the reality that only one hearing may proceed at a time. A Board member will first deal with
matters that appear to be uncontested, given the absence of one of the parties. Where
both parties to an application are in attendance, that particular hearing may not proceed until hours after the scheduled time, if it proceeds that day at all.
The second factor to tempt unscrupulous landlords to evict outside of the law arises
from the provision in the RTA that makes mandatory a consideration of whether
the Board should refuse to grant the eviction application, “having regard to all the
circumstances”.12 This mandate for the Board is an important policy addition to
landlord and tenant legislation and will be discussed more fully below. It means that
landlords may not be entitled to an eviction order, even where otherwise justified,
such as when the tenant admits to being in arrears of rent. Given that this rule opens
the door for the Board to dismiss applications of landlords who have paid fees, have
properly completed the paperwork and have been waiting most of the day for their
hearings, at least some landlords will be motivated to avoid hearings by arranging
that their tenants never receive notices from the Board. This possibility is particularly true in cases where evidence supporting an eviction application is weak, and
where claimed arrears are minimal and may be recovered easily in repayment plans
proposed to the Board by the tenant, because a landlord’s real objective is to charge
higher rents not permitted unless units are vacant.
While the demise of default orders means that tenants are no longer evicted without
a hearing, hearings now will proceed often in the absence of the tenant for many
of the same reasons that a default order would have issued under the TPA. Tenants
will often have good reasons for having missed the hearing that was held in their
11. See for example Briere v. Bigaouette (15 October 2002; Gascoyne), file nos. SWT-03708, SWL-42732
(ORHT); Contosoros v. Laheux (28 January 1999; Gascoyne), file no. SWT-00242 (ORHT); Tenant of
123 King Street, London Ontario N6A 1C3 and Dencev (4 April 2007; Wallace), file no. SWT-08227
(LTB).
12. RTA, s. 83.
A Closer Look at Seemingly Pro-Tenant Provisions 31
absence—they may not have received the documents, they may have had difficulties in reaching the hearing location or may not have understood the documents
received. Unfortunately, the procedure to deal with these scenarios before the Board
is more difficult than it was under the TPA.
Although there was no fee to file a motion and have a hearing on a set aside under
the TPA, under the RTA a review request is the only recourse open to tenants seeking
to challenge an eviction resulting from a hearing that they were unable to attend. To
make the review request, the tenant must pay the Board a fee of $50, an unaffordable
sum for many low-income tenants.13
The legislation does incorporate the test used under the TPA for setting aside default
orders, i.e. that the tenant “was not reasonably able to participate in the proceeding”.14
However, the Board’s Rules of Practice and Interpretation Guidelines make no attempt to distinguish between the very different scenarios of a review request where
a party did not appear, and a review request where both parties were present and the
case was fully argued on the merits. Whereas under the TPA a respondent could file
a set aside motion as of right and have a hearing on the issue, neither the RTA nor
the Board extends this right to a review of an uncontested order. The payment of the
fee does not guarantee an in-person hearing. Rather, the decision is made by means
of a preliminary paper review of the request, where the Board may deny the request
without a hearing.15
In Lamontagne v. Sutherland,16 the eviction hearing was by telephone, as is typical
of hearings in the North. The tenant originally dialled the wrong number to be connected to the hearing at the commencement time. He searched through his documents to find the correct number and minutes later reached the Board member who
told him that he was too late, the order had been made, and he would receive an
eviction order requiring payment of $1,500 in the mail. Insistent that he have an
opportunity to defend the eviction, the tenant was able to come up with the $50
fee. However, his review request was denied without a hearing, despite his written
explanation on the review request form referencing the telephone difficulties, and
despite the documentation attached to his request that indicated the monthly rent
claimed by the landlord was incorrect—an error that if accepted by the Board would
have resulted in the dismissal of the landlord’s application. Despite the five-minute
delay and the evidence directly challenging the entire basis for the application, the
Board refused to grant a hearing on the issue. The review order merely stated:
13. As of 1 December 2008, a single recipient living south of the Fiftieth Parallel receives a maximum of
$572 per month for basic needs and shelter under the Ontario Works Act.
14. Landlord and Tenant Board, Interpretation Guideline 8.
15. LTB, Rule 29.10.
16. (7 August, 2007; Cormier), Sudbury NOL-01079-RV, (LTB) (B. Cormier, LTB Member) (unreported).
Overturned on appeal, Sutherland v. Lamontagne (3 March 2008), Sudbury DV-756-07 (Div. Ct.) (unreported).
32
(2009) 22 Journal of Law and Social Policy
The Tenant did not attend the hearing and offered no reasonable explanation of why he was
prevented from participating in the hearing process.17
Even in cases where tenants know that they will not be available at the scheduled time,
there is no procedure or practice of the Board to reschedule the hearing in advance
unless the tenant has managed to obtain the landlord’s consent to an adjournment.
Given the fast pace of the processing of evictions from the filing of the application
to the hearing, effective communication with the landlord and then with the Board
requires a level of legal sophistication not possessed by many tenants. Tenants whose
first language is neither French nor English, who live without access to transportation to Board offices, who lack literacy skills or who lack the resources to fax the
Board are at a disadvantage as compared to most landlords. Landlords are generally
familiar with Board practices and can often afford the expense of retaining an agent.
Hearings are inevitably missed by tenants who were ill, who were absent from the
rental premises, who never received notice or who could not manage to organize
their affairs in time to attend. Many, if not most, do not deserve to lose their homes.
For disadvantaged tenants floundering in the eviction process despite reasonable
defences to their landlords’ applications, the RTA has failed to correct the system’s
imbalance in favour of landlords who are more likely to find the eviction system
accessible. Unlike the tenant, landlords are operating a business vis-à-vis the property and may be assumed to have familiarized themselves with the processes at the
Board.
The RTA should provide for the Board to hold a hearing where tenant motion documents indicate, even with simple check marks, that the tenants were unable to participate in the process. The merits of the application could then be heard, and the
superficial examination of whether the tenant was reasonably able to participate in
the first hearing would be neither the issue in setting aside the original order nor the
issue in the second hearing scheduled pursuant to the motion being filed.
At the very least, the Board should be encouraged to provide more stringent rules for
the service of documents in the context of a very fast-paced eviction process, given
that the only procedural remedy is the costly and discretionary review process to
correct an unfair termination of a tenancy. For expedited hearings to be heard within
seven days of the application being filed,18 the Regulations state that the Board shall
courier the notice about the eviction application to the tenant or attempt to contact
Ibid. No reasons were provided for why the Board determined that the tenant offered no reasonable
explanation of why he was prevented from participating in the hearing. Even though this decision was
later overturned on appeal to the Divisional Court, the LTB review decision serves as a sharp reminder
of the peril in which tenants may find themselves for even slight procedural default. Not all tenants
would be able to bring a successful Divisional Court appeal in the same circumstances.
18. RTA, ss. 61, 63, 65, 66, 80 and 84.
17
A Closer Look at Seemingly Pro-Tenant Provisions 33
the tenant by telephone and also mail the notice.19 Regulations could require similar
methods of contacting the tenant in all eviction applications.
The Return of Orders Prohibiting Rent Increases
Rent regulation legislation predating the TPA allowed orders prohibiting the landlord from increasing the rent if the landlord had failed to comply with obligations
to properly maintain the residential premises to which the rent attached.20 An order prohibiting a rent increase (an “OPRI”) can be particularly effective at inspiring
a landlord to make repairs to substandard buildings. The OPRI has been restored
under the RTA,21 but given the absence of statistics from the Board on the matter, it
is questionable whether it has been or will be actually used to any significant extent.
Given that the annual allowable increase to a sitting tenant’s rent is currently quite
low,22 the OPRI is a weak tool for the tenant who reported the disrepair. An OPRI
will not necessarily give an irresponsible landlord an incentive to effect repairs unless
the landlord had contemplated an above-guideline increase,23 but even then, given
the 3 per cent per annum cap on such increases, the incentive is small.
Though an OPRI remains in effect even where there is a change of tenants, there is
no means for the new tenant to find out whether an OPRI has been issued against
the building and thus whether the rent being charged is legal. Naively, the system assumes that the landlord against whom there is an outstanding order will admit having ignored a Board order to improve the unit, and that the rent cannot be increased
beyond what was charged to the previous tenant until the ordered repairs are made.
Given that there is no means for a tenant to verify this, it will hardly be surprising if
many landlords choose not to advise prospective tenants of this limitation.
Section 114 of the RTA requires a landlord to give written notice to a new tenant of
what the legal rent is under the OPRI, and what it will be if the OPRI is lifted. This information is not provided by, nor available from, the Board or any other government
agency. Even if a new tenant calls the Board to inquire whether an OPRI is in place,
the Board will not say, citing privacy issues. A breach of s. 114 will be dealt with by
the Board only if a new tenant makes an application under s. 115 for a determination
of the rent and a rebate of any money paid in excess. A new tenant is unlikely to do
so, unless aware of the law and of a significant breach of the landlord’s responsibility
to maintain the premises in a state of good repair.
19.
20.
21.
22.
23.
O.Reg. 516/06, s. 55.
Rent Control Act, 1992, S.O. 1992, c. 11, s. 38.
RTA, ss. 30(1), 114.
The allowable increase is 1.8% for 2009.
RTA, s. 126.
34
(2009) 22 Journal of Law and Social Policy
This problem is compounded by the continuation in the RTA of deeming illegal charges legal after one year.24 Unless there is disclosure, it could well be more than one
year before a new tenant finds out that the rent charged had violated an OPRI, but
it would be too late to challenge that rent.25 True enough, s. 11 of the RTA mandates
that before a tenancy begins, the landlord is to provide the new tenant with information about each party’s rights and responsibilities, and this form will refer to the duty
of landlords to inform in the event of an OPRI; however, again, the system naively
assumes that the offending landlord will provide that information form.26
In the context of vacancy decontrol and the unlikelihood of OPRI enforcement,
the OPRI is also unlikely to encourage the proper maintenance and repair of the
remaining affordable rental housing stock. For most landlords, the real motivation
to upgrade buildings is the market itself. Landlords who upgrade their buildings in
cities like booming Toronto or Ottawa are finding they can charge rents to new tenants that are far higher than those charged to previous tenants. As long as vacancy
rates allow some choice for tenants, OPRIs are barely needed to encourage the proper
maintenance of units in Toronto, where the average rent for a two-bedroom unit
climbed from $819 per month in 1996 to $1,085 per month in 2008.27 It is the lack
of rent control for new tenants and the consequent possibility of greater profits that
motivates landlords to improve those parts of the housing stock that were indeed
falling into serious disrepair but could fetch significantly higher rents if improved
enough to be competitive.
Units at lower rents are often in disrepair. Fixed up, they become unaffordable. By
choosing to introduce vacancy decontrol to encourage repairs and proper building
maintenance instead of introducing another strategy such as legislating landlord licensing and auditing buildings, the Government of Ontario has further shifted the
balance of power towards landlords.
Deemed Termination Dates
Deemed Termination Date When the Tenant Leaves
Prior to the RTA, landlords had been successful in arguing that tenants who gave
their landlord a technically flawed notice of termination could be responsible for
rent long past the day on which they had vacated the unit.28 Landlords could take
24. Ibid. s.136.
25. Failing to comply with s. 114 is an offence under RTA s. 234(i). However, even if a prosecution is pursued, it is not clear that there would be any benefit to the tenant once the one-year period has passed.
26. There are no repercussions and no express remedy for a tenant under the Act if a landlord fails to comply with s. 11.
27. Canadian Mortgage and Housing Corporation, Toronto CMA Rental Market Survey Reports.
28. George V. Apartments Ltd. v. Cobb (6 December 2002), Court file no. 61791/02 (Ont. Div. Ct.); Viscount
Properties (c.o.b. Oxford Square Investments) v. Rock, [2005] O.J. No. 3092 (QL), file no. 86/2005 (Sm.
Cl. Ct.).
A Closer Look at Seemingly Pro-Tenant Provisions 35
advantage of departing tenants’ mistakes and lack of legal sophistication, and keep
them on the hook for rent until the unit was re-rented. This has been addressed by s.
88 of the RTA, which deems termination dates for tenants who vacate without proper
notice, or for tenants who abandon their units:
88(1) If a tenant abandons or vacates a rental unit without giving notice of termination in
accordance with this Act and no agreement to terminate has been made or the landlord has
not given notice to terminate the tenancy, a determination of the amount of arrears of rent
owing by the tenant shall be made in accordance with the following rules:
1. If the tenant vacated the rental unit after giving notice that was not in accordance with
this Act, arrears of rent are owing for the period that ends on the earliest termination
date that could have been specified in the notice, had the notice been given in accordance with section 47, 96 or 145, as the case may be.
2. If the tenant abandoned or vacated the rental unit without giving any notice, arrears of
rent are owing for the period that ends on the earliest termination date that could have
been specified in a notice of termination had the tenant, on the date that the landlord
knew or ought to have known that the tenant had abandoned or vacated the rental unit,
given notice of termination in accordance with section 47, 96 or 145, as the case may
be. 2006, c. 17, s. 88 (1).
The tenant now will owe arrears only up to the date that would have been stipulated
in a valid notice given the same day the invalid notice was given or the unit was
vacated without notice.29 The Board will calculate arrears by determining when the
landlord knew or ought to have known the tenant was gone, and then by determining
the first valid date of termination had notice been properly given. Section 88 also ensures that a landlord cannot collect arrears if the unit is re-rented;30 this is essentially
a clarification of the obligation to mitigate under RTA s. 16.
Another problematic area of landlord and tenant law prior to the RTA was with respect to tenants who vacated pursuant to notices given by landlords seeking to evict
for alleged bad behaviour such as non-payment of rent, overcrowding or interference
with the reasonable enjoyment of the premises for other tenants. Under the TPA, a
tenant receiving a notice of early termination was encouraged to vacate because of
language on the notice form provided by the then Tribunal. The form stated that the
tenant must move out of the unit on or before a specified termination date; however,
there was no provision under the TPA that confirmed that the tenancy would indeed
terminate on the termination date specified in the Notice if the tenant vacated by that
date. The unsophisticated tenant who simply left instead of entering into a formal
29. For example, in a monthly tenancy where the tenancy begins on the first day of the month, if the tenant gives an invalid notice on 8 January of terminating the tenancy on 25 February, the tenant will be
ordered to pay arrears only up until 31 March, the date that would have been the first valid date on any
notice given 8 January. However, in the situation where the tenant is locked into a lease until 30 June
and gives invalid notice 8 January of terminating for 25 February, the tenant will be ordered to pay arrears to 30 June.
30. RTA, s. 88(3).
36
(2009) 22 Journal of Law and Social Policy
agreement to terminate was then in jeopardy of being pursued for arrears for time
after the date on the landlord’s notice, given that the tenancy had indeed not been
terminated.
The RTA corrects the problem for the vacating tenant by simply stating that the tenancy is terminated on the termination date set out in the notice:
37(2) If a notice of termination is given in accordance with this Act and the tenant vacates
the rental unit in accordance with the notice, the tenancy is terminated on the termination
date set out in the notice. 2006, c. 17, s. 37 (2).
With the tenancy terminated, the landlord is prevented from pursuing the tenant at
the Board for arrears, because arrears may be calculated only up to the termination
date. While some landlords may attempt to pursue damages for breach of contract
in court, the RTA’s clarification that the tenancy was terminated on the date in the
landlord’s notice results in the Board’s losing jurisdiction to deal with losses that
the landlord claims arose during the period after the rental unit was vacated. The
RTA has thus corrected a confusing area of landlord and tenant law that historically
allowed sophisticated landlords to claim arrears of rent for rental periods tenants
justifiably understood were no longer their responsibility.
The new provision deeming the termination date according to the notice given by
the landlord may give rise to a more cautious use of notices and applications to
evict, particularly in cases of non-payment of monthly rent. Instead, landlords may
pursue arrears alone and negotiate a repayment plan, leaving the tenancy intact so
as not to jeopardize their potential income from tenants whose financial situations
may improve.31 Certainly, given that the RTA requires a voiding period of fourteen
days between the service of the Notice and the filing of the Application,32 given that
eviction hearings sometimes take several weeks to schedule, and given that a more
healthy vacancy rate in many Ontario municipalities no longer guarantees landlords
new tenants immediately, even the most diligent of litigious landlords are likely to
find themselves without revenue for at least one month. Particularly in cases where
the landlord has been prohibited from collecting a last-month rent deposit in order
not to violate the human rights of social assistance recipients,33 landlords are well
advised to weigh the near certainty of losing several weeks’ income throughout eviction proceedings and the period before a new tenancy begins, with the possibility
of working out a responsible relationship with existing tenants who are temporarily
31. A new section introduced with the RTA, s. 206, sets up a procedure under which a landlord can obtain
an order from the Board without a hearing on consent, with a repayment agreement. Such an order
can be reopened for a full hearing on the merits, with notice, in the case of a breach. As opposed to a
consent order at a hearing, the advantage to a tenant is that a s. 206 order preserves the tenant’s right
to notice and a full hearing on the merits in the case of a breach. The advantage to the landlord is that
the order can be obtained without the time and expense of attending at a hearing.
32. RTA, s. 59.
33. Garbett v. Fisher (1996), 25 C.H.R.R. D/379; [1996] O.H.R.B.I.D. No. 12 (QL) (Ont. Bd. of Inq.).
A Closer Look at Seemingly Pro-Tenant Provisions 37
stressed. Landlords in the business of rental housing will have factored the risk into
their management of the property.
Termination Date When Only One Co-Tenant Leaves
While the new provision deeming a termination date according to the Notice to
Terminate discussed above assists in correcting the power imbalance between landlords and tenants, the RTA does little to address the lack of security for the co-tenant
who does not agree, or want, to leave despite a notice of termination having been
submitted by the other tenant. Case law is confusing with respect to rights and responsibilities of joint tenants versus tenants in common when one tenant abandons
or provides a notice to terminate the tenancy. It is often the case that the parties
involved make no agreements about which tenant remains responsible for rent, and
about the rent amount. In the context of vacancy decontrol, some landlords were
seeking notices of termination from spouses abandoning their families and then approaching the remaining spouses with new leases at significantly higher rents.34 If
the remaining spouses refused to pay higher rents but had not signed the initial lease
or rent cheques so that they did not easily meet the definition of “tenant”, landlords
sought to evict them as “unauthorized occupants”. Landlords argued that despite
having lived for years in their units, the remaining spouses were not tenants and not
entitled to security of tenure.
In the context of co-tenants who were spouses, tenant advocates were particularly
concerned about a narrow interpretation of the definition of tenant that would disproportionately exclude women.35 Most parents who stay at home to care for children are women, and most people who find themselves parenting alone are women.36
Because women are more likely to stay at home to raise the children than men, their
incomes tend to be lower, and the higher-earning husband is more likely to be the
one writing the rent cheque, and therefore the “tenant” under the RTA.37 Being more
likely to take on the responsibility of caring for the children in the case of separation,
women are also more likely than men to require continuity of home in order to care
for the children. The threat that the original tenancy could not be relied upon by the
remaining occupant therefore adversely affected women more than men.
34. See for example Finch Main Gardens (West) Limited v. Morales (1 October 2001; Feldman), file no.
TNL-30809 (ORHT); and Torres v. Minto Management Limited (5 June 2001; Wright), file no. EAT02491 (ORHT).
35. The Legal Education and Action Fund intervened in the Torres appeal, urging an interpretation of the
definition of tenant that would be consistent with the equality provision of the Charter.
36. Women comprise 94% of all stay-at-home parents, supra, at 97 and 110. In 1996, 83% of all one-parent
families were headed by women, a figure that has remained relatively constant since the mid-1970s.
Statistics Canada, Women in Canada: A Gender-Based Statistical Report (Ottawa: Ministry of Industry,
2000).
37. Ibid.
38
(2009) 22 Journal of Law and Social Policy
In a step forward for women, the RTA has amended through regulation the definition
of tenant to include an occupant who was a spouse at the time the tenant vacated.38
However, there are several reasons why this new provision does not go nearly far
enough to protect tenants who landlords claim are merely occupants and therefore
have no protections from rent increases or eviction: (1) the provision does not extend to family members other than spouses and (2) the provision does not extend
to remaining spouses where the vacating tenant provided notice of termination or
entered into an agreement to terminate with the landlord.
The second omission is particularly damaging to women whose abandoning spouses
are abusive and therefore more likely to wish to harm the remaining spouse by terminating the tenancy as they leave, thereby jeopardizing the remaining spouse’s
home.39 The RTA has failed to protect women remaining in these cases. Vacancy
decontrol continues to motivate landlords to argue the tenancy is ended in these
cases so that a new and higher rent may be charged to the remaining spouse who, for
the reasons stated above, will most likely be a woman.
Improved Defences for Tenants Being Evicted
Mandatory Consideration of the Exercise of Discretion
Subsection 83(1) of the RTA, identical to subsection 84(1) of the TPA, provides the
Board with discretion to refuse to grant an application, or to order that the enforcement of an eviction be postponed:
83(1) Upon an application for an order evicting a tenant, the Board may, despite any other
provision of this Act or the tenancy agreement,
(a) refuse to grant the application unless satisfied, having regard to all the circumstances
that it would be unfair to refuse; or
(b) order that the enforcement of the eviction order be postponed for a period of time.
The difference with the RTA legislation, however, is the addition of subsection 83(2),
which makes it mandatory for the Board to consider exercising this discretion in
every case:
83(2) If a hearing is held, the Board shall not grant the application unless it has reviewed the
circumstances and considered whether or not it should exercise its powers under subsection (1).
38. RTA, O. Reg. 516/06, s. 3.
39. Women are eight times more likely than men to be victimized by their spouse. Thirty per cent of
women have been assaulted by their spouse, resulting in physical injury in almost half of those cases:
Robin Fitzgerald, Family Violence in Canada: A Statistical Profile, 1999 (Ottawa: Minister of Industry,
2000) at 5, 12; and Marika Morris, Violence against Women and Girls Fact Sheet (Ottawa: Canadian
Research Institutes for the Advancement of Women, updated March 2002).
A Closer Look at Seemingly Pro-Tenant Provisions 39
At first blush, this is the greatest of the gains for tenants in the RTA. It now includes
mandatory language that the Board shall not grant an eviction unless it has reviewed
the circumstances and considered whether or not it should exercise its powers under
subsection 83(1). Upon closer scrutiny, however, the inclusion of s. 83(2) was not
necessary; rather, it is a clarification of existing jurisprudence. The Courts under the
TPA had already read this requirement into what was then s. 84.
Another reason to only cautiously label the inclusion of s. 83(2) as protection for
tenants is that Board members appear to have been instructed to include in all their
eviction orders a standard “boilerplate” reference to their consideration of s. 83(1).
No meaningful reasons for not granting relief are provided in many cases.
A few Board decisions have neglected to include the standard reference to s. 83(1)
so that the members appear to not have fulfilled the duty to consider exercising discretion. Given the Divisional Court’s criticism in Fisher v. Moir40 of the Tribunal’s
lack of reasons in that case, the absence of a reference in a Board decision to having
considered s. 83(1) allows for the possibility of successful appeals by evicted tenants.41 What may be more difficult to appeal are decisions where reasons refer only
to a consideration of either s. 83(1)(a) or s. 83(1)(b), but not to both. In the eviction
of a tenant whose disabled roommate caused damage, the Board member merely
considered postponing the eviction when a refusal may have been appropriate given
that only the innocent roommate remained.42
The RTA has also made clear the Board’s responsibility to consider exercising discretion to set aside an eviction order obtained ex parte in certain circumstances: (1)
pursuant to a landlord’s claim that a tenant agreed or gave notice to terminate,43 or
(2) pursuant to a landlord’s claim that a tenant breached a mediated settlement, thus
triggering the termination.44
The Board shall set aside these ex parte orders if satisfied, “having regard to all the
circumstances, that it would not be unfair”.45 Given that the Tribunal was not mandated to consider exercising discretion not to evict in set aside motions, and therefore
40. [2005] O.J. No. 4479 (QL), Court file no. D13/04 (Div. Ct.). See also Luray Investments Ltd. v. Recine—
Pynn (1999) 126 O.A.C. 303; Klein v. Cohen (2001), O.J. No. 299 (QL) (Div, Ct.) (O’Driscol, Blair,
MacKenzie).
41. The fact that s. 83(1) is not expressly referred to by the Board may, however, not be fatal. In Partridge
v. Borris-Brown, 2005 CanLII 44172 (Div. Ct.) (Cunningham A.C.J.S.C., McLean and Hambly JJ.), the
Divisional Court held that the Tribunal had implicitly considered the factors related to relief. This and
other cases decided under the TPA may nonetheless be distinguished, given the express requirement to
consider relief under RTA s. 83(2).
42. Rankin v. Micah Homes Non-Profit Housing Corporation 1 March 2007; (Homsi) file no. TNL-82857
(LTB). The decision is under appeal for several reasons, one of which is the failure of the Board to refer
to s. 83(1)(a).
43. RTA, s. 77.
44. Ibid. s. 78.
45. Ibid. ss. 77(8)(b), 78(11)(b).
40
(2009) 22 Journal of Law and Social Policy
could not be relied upon to do so, this clarification in the RTA has indeed improved
the lot of tenants facing eviction.
Having Landlord Breaches Adjudicated in Eviction Hearings
Under the TPA, tenants defending arrears applications before the Tribunal often
raised disrepair or other breaches of responsibility by their landlords. Routinely, the
Tribunal refused to hear evidence on “landlord breach” to set off arrears unless the
tenants made their own applications for an abatement of rent. The exception was the
situation where a tenant requested that the Tribunal not evict because of a landlord’s
serious breach of a responsibility such as the obligation to maintain the premises in
a good state of repair.46
The RTA repeats the language of the TPA in the mandatory refusal of an application
where a serious breach by the landlord has been found:
83(3) Without restricting the generality of subsection (1), the Board shall refuse to grant the
application where satisfied that,
(a) the landlord is in serious breach of the landlord’s responsibilities under this Act or of
any material covenant in the tenancy agreement.
In a series of appeals involving landlord applications to terminate in order to demolish, the Divisional Court recently interpreted the above section in the context of the
TPA. The appeal court overturned the decision of the Tribunal, which had refused to
terminate because of serious disrepair that had worsened gradually over decades of
use. Repair of the old homes would have been at a great cost as compared to the projected demolitions. The Divisional Court distinguished between the disrepair being
serious versus the landlord’s breach being serious.47 The landlord, the Government
of Canada, has seemingly established a precedent that will encourage landlords to
allow properties to fall into ruin in order to obtain evictions for demolition.
While the RTA has failed to address the landlord-friendly interpretation of serious
breach, it has simplified the procedure by allowing tenants to raise disrepair or other
issues as a defence to an arrears application without filing a separate application.
With respect to evidence of serious disrepair being raised to defend applications to
terminate for non-payment of rent, the RTA allows an adjudication of the landlord’s
serious breach at the same hearing:
82(1) At a hearing of an application by a landlord under section 69 for an order terminating a tenancy and evicting a tenant based on a notice of termination under section 59, the
Board shall permit the tenant to raise any issue that could be the subject of an application
made by the tenant under this Act.
46. TPA, s. 84(2)(a).
47. Puterbough v. Canada (Public Works & Government Services), [2007] O.J. No. 748 (QL), 2007 CarswellOnt 2222 (Div. Ct.) at 70, leave to appeal refused.
A Closer Look at Seemingly Pro-Tenant Provisions 41
(2) If a tenant raises an issue under subsection (1), the Board may make any order in
respect of the issue that it could have made had the tenant made an application under
this Act.
The RTA provides the Board with the jurisdiction to make an order in respect of any
issue a tenant raises that could be the subject of an application by the tenant even
though the tenant never made an application, and is raising the issue only in the
context of an eviction application.48 This is a tremendous improvement of the system to ensure both fair and expeditious resolutions to landlord and tenant disputes.
Under the TPA, a tenant could be evicted for arrears despite breaches by the landlord
that, if allowed to be adjudicated, would have justified abatements to set off arrears.
Under the RTA, landlord breaches will lead to an assessment of abatements in eviction hearings. An abatement could either reduce arrears to the point where the Board
will be more inclined to exercise discretion not to evict, or an abatement might even
eliminate arrears completely.
The new streamlined approach to dealing with tenant claims affecting eviction applications may result in rules requiring the tenant to file materials related to the serious
breach prior to the hearing. So far, the only recourse for a landlord who is surprised
by the tenant’s evidence of serious breach is a request for an adjournment. Given that
arrears may be accumulating, the landlord may be reluctant to delay obtaining an
order, and risk proceeding without having prepared a defence. A prudent landlord
will prepare for all hearings by inspecting and photographing the rental unit prior to
filing their application.
Conclusion
The above review of seemingly tenant-friendly amendments demonstrates that some
of them come with mixed blessings. The abolishment of the default eviction prevents
evictions for tenants who were unable to file written disputes within five days of
receiving eviction applications; however, the RTA does not provide a fair process for
tenants who were unable to attend the eviction hearing.
With respect to Orders Prohibiting Rent Increases, the jury is still out. The sitting
tenant can use the order only to prevent relatively minor rent increases. Given the
weaknesses of an honour system for landlords on whom OPRIs would be imposed,
we can expect rent increases on vacant units when they are rented to new tenants not
informed of the OPRIs. We can expect, then, no significant checks on the depletion
of affordable housing.
The RTA’s inclusion of a mandatory consideration of the exercise of discretion to refuse an eviction application is also anti-climactic. The jurisprudence under the TPA
had mandated this despite its absence from that legislation, and it appears that the
Board often merely plays lip service to its duty to consider refusing the termination.
48. RTA, s. 82.
42
(2009) 22 Journal of Law and Social Policy
On the other hand, the deeming of termination dates for tenants who gave improper
notice is particularly helpful to tenants who might have been responsible for rent
indefinitely in a rental market where the landlord is unable to mitigate. As well, the
tenant’s ability to raise significant breaches by the landlord will assist in defending
applications to evict for arrears. The Board may find that the arrears are set off by the
landlord’s breach, or at least that the breach justifies the exercise of discretion not to
evict.
Tenant and landlord advocates will no doubt be arguing different interpretations of
the RTA provisions discussed in this paper, but it might be generally concluded that
those provisions have done little to correct the unbalanced scale on which tenants’
homes are precariously perched—not in the context of continued vacancy decontrol
and newly expedited evictions for certain classes of tenants.49
49. Ibid. s. 63(1)(a), applications based on alleged willful damage; s. 63(1)(b), applications based on a use
inconsistent with residential premises likely to cause excessive undue damage; and s. 65, applications
based on substantial interference in small buildings where the landlord also lives.
“Deference” versus “Security of Tenure”: Eviction of
Residents of Subsidized Housing Co-operatives at the
Superior Court of Justice for Ontario, 1992-2009
Jeff Schlemmer*
Résumé
Les résidents ontariens de logements subventionnés par le gouvernement bénéficient
de différents niveaux de protection contre l’expulsion arbitraire selon qu’on leur a
offert un logement dans une coopérative de logement ou dans un autre type de logement subventionné. Cependant, les lois protégeant le droit au maintien des lieux dans
ces deux types de logement sont écrites de façon très similaire. La différence provient
de la jurisprudence qui a évoluée au cours de la dernière décennie, depuis que toutes
les expulsions de la location résidentielle, à l’exception des coopératives de logement,
ont été enlevées de la juridiction des tribunaux judiciaires. Les juges entendaient
couramment des causes d’expulsion par analogie à des procès sommaires devant les
Cours des petites créances; mais, à présent, ils entendent des causes d’expulsion peu
fréquemment et ont oublié la procédure des « petites créances ». Ces résidents ont des
revenus très bas et ne peuvent observer les exigences des cours quant aux ­mémoires,
affidavits détaillés, et dépens d’indemnisation partielle. Les cours suivent de plus en
plus un courant jurisprudentiel qui en défère aux coopératives requérantes, en se
fondant sur la théorie que les coopératives fonctionnent comme des « démocraties »
et en présumant, sans fondement, que par le fait même d’accepter un logement subventionné dans une coopérative de logement, les résidents perdent volontairement le
droit législatif au maintien, qui protège tous les autres types de locataires.
Ce domaine de la loi est devenu insoutenable. La cour devrait se souvenir des raisons
pour lesquelles elle a traité ces cas d’expulsions différemment et effectuer un retour
à ses anciennes pratiques — qui procuraient des procès justes et accessibles aux plus
démunis des Ontariens que servent les tribunaux judiciaires.
Introduction
Low-income Ontarians who apply for government-subsidized housing generally
wait on a list for years before being offered subsidized housing. When a subsidized
unit is offered, applicants usually feel compelled to take it—regardless of whether
it happens to be in rental housing owned by a non-profit housing corporation [a
non-profit] that is governed by the Residential Tenancies Act [RTA],1 which regulates
*
Jeff Schlemmer is executive director of Neighbourhood Legal Services of London-Middlesex and an
adjunct professor in the Faculty of Law at the University of Western Ontario. The author is deeply
indebted to Paul Rapsey, B.A., LL. B., housing specialty lawyer, Clinic Resource Office, Legal Aid On-
44
(2009) 22 Journal of Law and Social Policy
most other residential tenancies in Ontario, or in housing owned by a co-operative
housing corporation [co-op] that is exempt from the RTA and under Ontario law is
governed by the Co-operative Corporations Act [CCA],2 which is a completely separate legislative scheme.3
Residents of government-subsidized rental housing experience two very different
standards of risk of exposure to arbitrary eviction, depending upon whether they
happen to reside in a co-op or in another type of subsidized housing. Residents
of non-profits enjoy extensive protection from unfair eviction, as provided by the
RTA and administered by a rental housing tribunal, the Landlord and Tenant Board
[LTB]. Under the RTA, the tribunal offers no deference to the will of the landlord.
By contrast, even though the RTA and the CCA are worded very similarly, courts
have increasingly over the past decade paid deference to the will of co-op boards
and significantly emasculated the provisions of the CCA that protect co-op residents
from arbitrary eviction. There is little statutory basis for this dramatic distinction in
security of tenure since the applicable sections of the CCA and the RTA that govern
evictions are similar in language.4
Some courts have characterized co-ops as “participatory democracies”, owed great
deference in eviction decisions.5 Their rationale is that eviction from a housing coop proceeds from a democratic vote of the other residents of the housing complex
or its democratically elected board of directors. Presumably this democracy provides
protection analogous and equivalent to what courts provide to the residents of the
other types of subsidized housing. When a co-op applies for an eviction order, courts
tend to defer to the will of the majority and do not necessarily require the co-op to
fully prove its case for eviction in the same way that would be required of any other
housing provider. This deferential approach stands in stark contrast to the historical
1.
2.
3.
4.
5.
tario, for access to his comprehensive research memoranda on co-operative housing law in Ontario,
from which much of the analysis contained in this paper is drawn.
Residential Tenancies Act, S.O. 2006, c. 17.
Co-operative Corporations Act, R.S.O. 1990, c. C.35, as amended.
Federal housing co-ops incorporated under the Canada Cooperatives Act, s.c. 1998, c. 1, have a corporate structure different from that of provincial housing co-ops incorporated under the CCA, ibid.
However, differences in corporate structure do not affect the issues of eviction under consideration in
this article.
Compare, for example, s. 171.21(1) of the CCA, ibid., which states that upon an application by a co-op
for eviction “a judge may, despite any other provision of this Act or the co-operative’s by-laws, (a) refuse
to grant the application if he or she is satisfied, having regard to all the circumstances, that it would be
unfair to grant it”, with s. 83(1) of the RTA, supra note i, which states that upon an application for eviction of a tenant, “the Board may, despite any other provision of this Act or the tenancy agreement, (a)
refuse to grant the application unless satisfied, having regard to all the circumstances, that it would be
unfair to refuse”.
See, for example, Tamil Co-operative Homes Inc. v. Arulappah [1996] O.J. No. 768; 61 A.C.W.S. (3d) 811,
Ont. Ct. (Gen. Div.), Molloy J. para. 61; and, recently, Alexandra Park Co-operative v. Hamilton [2009]
O.J. No. 2768, Code, J.
“Deference” versus “Security of Tenure” 45
role that the courts have played in preventing the arbitrary termination of other government-funded social services and that housing tribunals have played in protecting
residents of most other rental housing from unfair eviction since taking over this role
from the courts in 1998.6
When co-operative democracies work fairly, they do not need deference. They are
fully able to prove their case, because they come to the court in good faith and with
admissible evidence justifying eviction. But democracies are not always fair, and
courts should not always defer to the majority co-op rule. When the less generous
instincts of human nature take hold, a majority will not be fair to an individual,
and that is precisely why laws protect the rights of an individual from the will of
the majority. The protection of individual rights is, for example, one the most important reasons for the enactment of the Canadian Charter of Rights and Freedoms.7
President James Madison, one of the drafters of the Constitution of the United States
of America, identified the problem in this way: “A pure democracy can admit no cure
for the mischiefs of faction. A common passion or interest will be felt by a majority,
and there is nothing to check the inducements to sacrifice the weaker party.”8
The Ontario legislature modelled the CCA, which is intended to protect security of
tenure for co-op residents, on other laws that protect tenants of most other rental
housing in Ontario. It intended the courts to act as a check where they find a “common passion” to sacrifice the tenancy interests of a particular resident. The legislature
intended the courts to do this by requiring the co-op to prove with admissible evidence that it has lawful grounds to evict a co-op resident—just as any other housing
provider would have to do. If the court does not take on this responsibility, there is a
substantial risk that the rights of an individual co-op resident will not be respected.
A growing line of case law suggests that courts should generally not intervene to protect co-op residents against arbitrary eviction, except by requiring that minimal standards of procedural fairness and compliance with the co-op’s procedural by-laws be
met.9 This type of deference arises most frequently where the credibility of evidence
is in issue, or where the law requires the exercise of discretion based upon “fairness”.
Courts tend to accept findings of credibility made by co-op boards comprising laypersons equipped with none of the expertise or tools, such as cross-examination, that
are employed by courts to discover the truth and ensure a fair result. Co-op residents,
6.
7.
8.
9.
Re: social services see Abrahams v. Canada (Attorney General), [1983] 1 S.C.R. 2; re: removal of residential evictions to housing tribunal, see Tenant Protection Act, 1997, S. O. 1997 c. 24; TPA—which
replaced the Landlord and Tenant Act, R.S.O. 1970, c. 236 Part IV, and gave exclusive jurisdiction to the
ORHT to deal with most residential tenancy evictions.
Canadian Charter of Rights and Freedoms, being Schedule B to the Canada Act 1982 (U.K.), 1982,
c. 11.
Federalist No. 10, 1787, in Kenneth T. Jackson, ed., The Encyclopedia of New York City (New York: The
New York Historical Society, 1995) at 194.
See e.g. Arulappah, supra note v.
46
(2009) 22 Journal of Law and Social Policy
once evicted, are then practically speaking barred for life from living in governmentsubsidized housing.10
There is, however, another line of jurisprudence that has protected security of tenure
for co-op residents.11 While decisions protecting security of tenure are increasingly
the exception, these cases more accurately reflect the legislative intent behind the
CCA—to provide a similar process and protection from unfair eviction to co-op residents as what exists for other residential tenants in Ontario.
A Historical Synopsis of Housing Co-op Evictions
Background and Structure of Housing Co-ops
In Ontario a housing co-op is a form of subsidized rental housing that has unique
legal characteristics but from a consumer’s point of view is entirely equivalent to and
interchangeable with all other forms of subsidized rental housing.
A housing co-op legally comprises a corporation established by the government.12
The corporation owns a residential rental housing complex, generally comprising
family units almost exclusively. The government ultimately owns any equity in the
non-profit corporation13 but permits the residents (referred to as “members” in the
CCA) to manage the complex.14 Residents are contractually entitled to occupy their
units pursuant to leases (called “occupancy agreements” in the CCA), which require
residents to obey the housing co-op’s by-laws and pay rent (which the CCA refers to
as “housing charges”).
Housing co-ops are regulated by and operate with the considerable financial support
of government.15 A significant part of this support is in the form of subsidization of
10. Per Social Housing Reform Act [“SHRA”], S.O. 2000, c. 27, s. 7 (1) (i), (g) and (h).
11. Generally following the reasoning of the Divisional Court in Tamil Co-operative Homes Inc. v. Arulappah, [1999] O.J. No. 1460; 44 O.R. (3d) 120; 122 O.A.C. 280; 25 R.P.R. (3d) 85; 87 A.C.W.S. (3d) 1237,
(Div. Ct.), Rosenberg, Dunnet and Cumming JJ.
12. Federally incorporated co-operatives, unlike provincially incorporated co-operatives, are not governed
by the CCA or the SHRA. Both, however, rely upon CCA, s. 171, for applying to Ontario Superior
Courts for eviction orders, and the author was unable, in the roughly 170 reported cases reviewed for
this article, to find a case where the court found any significance in whether the applicant co-operative
was federally or provincially incorporated.
13. York (Municipality) v. Thornhill Green Co-operative Homes Inc. [2008] O.J. No. 3343; 169 A.C.W.S. (3d)
407; 46 C.B.R. (5th) 237 (Sup. Ct.) Morawetz, J.; Labourview Co-operative Homes Inc. v. Chatham-Kent
(Municipality) [2007] O.J. No. 3166, (Div. Ct.) Lane, Jennings & Brockenshire, JJ.
14. Some deference cases, such as McBride v. Comfort Living Housing Co-op Inc. [1992] O.J. No. 260; 7 O.R.
(3d) 394; 89 D.L.R. (4th) 76; 54 O.A.C. 286; 22 R.P.R. (2d) 126; 31 A.C.W.S. (3d) 663 (Ont. C.A.) Blair,
Finlayson and Arbour JJ.A., para. 49, mistakenly say that the residents share “co-operative ownership”,
but residents have no ownership or equity interest in the co-operative corporation. Rarely, a resident
may not also be a member—in which case his or her rights are governed as a tenant by the RTA.
15. All descriptions of the operation of housing co-operatives attributable to interview with Louise Stevens,
director of housing for the Corporation of the City of London, 16 January 2008. The Ontario Ministry
“Deference” versus “Security of Tenure” 47
rents for rental units, which the co-op is then required to offer to persons of modest
financial means who become eligible for subsidized housing by reaching the top of
the local municipal subsidized housing waiting list.16 The government reserves the
right to dismiss housing co-op boards of directors and take over management if the
board proves incapable of competently operating the co-op.17
Co-ops are only one of several types of subsidized non-profit housing established
and regulated by government. A second type is residential rental accommodation
owned by non-profit corporations, often sponsored by community groups, churches,
or labour organizations, and governed by volunteer boards of directors elected by
“members” (who may or may not also be residents).18 A third type is governmentowned rental housing non-profit corporations governed by volunteer boards of directors appointed by the local municipality.19
The most significant unique features of co-operatives are that (1) some residents do
not receive a housing subsidy—but rather pay “market rent”, (2) most residents are
“members” and thus entitled to vote and to stand for the co-operative corporation’s
board of directors, and (3) all member residents are required to volunteer time to
assist in the operation of the complex, typically by serving on committees for such
matters as maintenance, finance and membership.
Actual day-to-day management, however, is typically delegated to either a propertymanagement company or to an employee, often referred to as a “co-ordinator”.
Housing co-ops are vehicles through which the government provides the social
service of low-cost housing by paying substantial subsidies directly to the co-ops.
In exchange for this subsidization, the co-ops agree to limit themselves to having
the same discretion in deciding whom they permit to rent their subsidized units as
16.
17.
18.
19.
of Housing delegates its powers to local municipal governments. Canada Mortgage and Housing Corporation delegates its powers to the Co-operative Housing Program Administration Agency of Canada. See Co-operative Corporations Act, R.S.O. 1990, c. C.35; SHRA, c. 27; National Housing Act, R.S.C.
1985, c. N-11; Canada Mortgage and Housing Act, R.S.C. 1985, c. C-7. See also Guide to Co-operative
Housing, online at <http://www.cmhc-schl.gc.ca/en/co/buho/gucoho/loader.cfm?url=/­commonspot/
security/getfile.cfm&PageID=27549>; Sylvia Novac, Analysis of Evictions in the City of Toronto Cooperative Housing Sector (Toronto: Shelter, Housing and Support Division, Community and Neighbourhood Services Department, City of Toronto, 2004).
SHRA, s. 68. In Toronto, for example, called “Housing Connections”. In London called “Housing Access Centre”. In federal co-operatives, the subsidy list may be maintained, subject to federal oversight,
by the individual co-operative.
For example York (Municipality) v. Thornhill Green Co-operative Homes Inc., supra note 13; Los Andes
of Hamilton Coop Inc. v. Robles [1994] O.J. No. 799, Ont. Ct. (Gen. Div.), Philp J.; and “Fraud Probed
at Co-op Complex” London Free Press (7 December 2007), re government takeover of two housing
co-operatives. (Presently 10% of London’s housing co-operatives operate under boards installed by the
municipality, according to Louise Stevens, supra note 15.)
For example Interchurch Community Housing Toronto, Rotary Cheshire Homes North York, Lift
Non-Profit Housing of London Inc.
For example London & Middlesex Housing Corporation, Toronto Community Housing Corporation.
48
(2009) 22 Journal of Law and Social Policy
that permitted other non-profit housing providers.20 This is appropriate because the
government is not permitted to discriminate when it provides social services, even
where it subcontracts the provision of these services to a non-profit corporation.
The decision as to whether an Ontarian of modest means ends up living in subsidized
rental housing owned by the government, non-profit rental housing, or a non-profit
housing co-op depends largely upon which housing unit is vacant when the person
reaches the top of waiting lists, which are typically several years long. For example,
in regions where the Social Housing Reform Act21 imposes municipal waiting lists
for subsidized housing, the list serves as a single point of contact. Applicants for
subsidized housing will ultimately be offered housing in whatever housing complex
is available when they reach the top of the list—including provincial co-ops.22 This
fact alone undermines the old view that co-ops are a form of social club that are entitled to deference in their decision-making process.23 In 2009, it would be a fiction
to suggest that everyone living in a provincially subsidized housing co-op has freely
and voluntarily consented to live there rather than in another type of subsidized
housing.
Grounds for Housing Co-op Evictions
Housing co-ops, like all other residential landlords, must be able to require their residents to comply with applicable laws, by threat of eviction proceedings if necessary.
Generally respondents in eviction proceedings enjoy the right to defend themselves
and to succeed if it is found that they did not break the law in a way that would
compromise their security of tenure. This principle has, however, been significantly
eroded in co-op eviction cases by the principle of “deference”—by which courts will
not require a co-op applying for eviction to prove, on balance of probabilities, that
the co-op resident has breached any law or by-law. Rather, the co-op need only show
that it reasonably thought the resident had broken a rule—regardless of whether the
resident had actually done so.24 The test of “reasonableness” that the courts have
applied is whether no reasonable person could have made the same decision.25
20. Louise Stevens, supra note 15: The housing provider may consider financial history and previous rental
history. Thus, for example, the government would not permit the co-operative’s board of directors to
permit friends and relatives to “jump the queue” and be offered a subsidized housing unit without
spending several years on the government’s local subsidized housing waiting list, nor could it refuse to
house a family because it did not think that it would “fit in”.
21. Supra note 10.
22. SHRA, s. 68. The SHRA does not apply to federal co-operatives—which maintain their own, generally
long, waiting lists.
23. McBride, supra note 14.
24. Tamil Co-operative Homes Inc. v. Arulappah [1996] O.J. No. 768; 61 A.C.W.S. (3d) 811, Ont. Ct. (Gen.
Div.), Molloy J. at para. 43; Mimico Co-operative Homes Inc. v. Ward [1995] O.J. No. 2217; [1995] O.J.
No. 2216; 56 A.C.W.S. (3d) 898, Ont. Ct. (Gen. Div.), Ewaschuk J. at para. 18.
25. Tamil Co-operative Homes Inc. v. Arulappah, ibid.
“Deference” versus “Security of Tenure” 49
The principle of deference to the decision-making authority of co-op boards has affected several other aspects of court applications for eviction of housing co-op residents. Some courts have begun to restrict eviction application hearings to affidavit
evidence—no longer permitting residents to call oral evidence in their defence or to
cross-examine their accusers. Courts have refused to hear defences to alleged arrears
where the reason for the “arrears” is the housing co-op’s unlawful cancellation of the
resident’s rent subsidy. Courts have awarded costs against residents who unsuccessfully defend eviction applications on a substantial-indemnity scale—making it prohibitively expensive for a resident of modest means to defend himself or herself from
a wrongful eviction and creating a barrier to access to justice.
The Impetus for Law Reform
Pre-Law-Reform Co-op Housing Evictions
Prior to 1970, residential tenants living in rental housing in Ontario had virtually no
right, at common law, to retain that housing if the landlord decided to evict them.26
This was also the situation for housing co-op residents until 1992,27 when significant
amendments intended to protect the security of tenure of co-op residents were made
to the CCA. Before the 1992 CCA amendments were enacted, co-op residents effectively occupied their homes at the landlord’s pleasure. Most eviction orders, including
those for commercial and residential tenancies, and housing co-ops, were obtained
pursuant to Part III of the Landlord and Tenant Act28 [LTA]—which did not gave a
substantive right of security of tenure in residential tenancies.
In 1968 the Law Reform Commission of Ontario [LRCO] released a report which
stated its concern
to redress the imbalance which existed in the law in favour of landlords, an imbalance
resulting from the law’s preoccupation with the rigid property principles of feudal origin
and the failure of the common law of landlord and tenant over the centuries to develop a
legal philosophy based on a theory of vital interests.29
26. Residential Tenancies in Ontario, 1998, Fleming, J., Butterworths p. 3.
27. There was no consistency, but it was common practice to proceed under Part I-III of the LTA. Some cooperative decisions under these sections were very good, but Part IV of the LTA was more specifically
crafted to protect the tenure rights of residential tenants.
28. Now Commercial Tenancies Act, R.S.O. 1990, c. L.7; Arauco Housing Corporation v. Baron [1991], Toronto Court File No. L14089/91 (Gen. Div.); aff ’d (19 January 1993) Div. Ct. File No. 119/91 (Div. Ct.),
Callaghan, C.J.O.C., Lane & Adams JJ.; Chautauqua Co-operative Homes Inc. v. Wilson [1986] O.J.
No. 2048 (Ont. Dist. Ct.) DCOM No. 1119/86, Clarke D.C.J.; Don Area Coop Homes v. Lee [1979] O.J.
No. 4363; 26 O.R. (2d) 40; [1979] 2 A.C.W.S. 457, (Ont. Co. Ct.) (Conant J.).
29. Supra note 26.
50
(2009) 22 Journal of Law and Social Policy
The LRCO report was implemented in 1969 as Part IV of the LTA,30 which in respect
of residential tenancies has since been succeeded by the RTA.31 Security of tenure,
which is the right to occupy one’s home free from the threat of arbitrary eviction,
has been the central right protected by the Ontario residential tenancy statutes since
then.
The Principle of Deference
McBride v. Comfort Living Housing Co-op Inc. (1992)
In 1992, the Court of Appeal released its decision in McBride v. Comfort Living
Housing Co-op Inc.32 and made a definitive statement of the common law respecting
co-op evictions. Justice Finlayson, for the Court, in obiter, articulated the “deference
theory”:
The material before us reveals in detail the concept of collective ownership which is the
basis for the occupancy rights of members of this co-operative. The co-operative can be
likened to a social club, where membership is by application and acceptance in accordance
with criteria set out in the club’s by-laws or regulations.
In the context of clubs, decisions to expel members must be made according to the rules set
out by the membership. The courts recognize the supremacy, in this setting, of these consensual rules and will not interfere with a bona fide decision to terminate membership made in
accordance with them [emphasis added].33
Justice Finlayson ruled that the LTA did not apply to co-operative housing. In obiter,
he even went so far as to criticize the concept of security of tenure as protected in Part
IV of the LTA, referring to it as “a paternalistic statute”.34
McBride is generally cited as the leading case that established the theory that deference is owed to co-ops in eviction applications—just as the courts would defer to a
decision of a member-owned men’s club that a particular member was no longer its
“sort of people”. All later co-op “deference” cases build from this foundation, despite
30. R.S.O. 1970, c. 236, as amended.
31. “It is clear, therefore, that Part IV of the Act sets up a new regime for landlords and tenants in this Province. Many of the old—even ancient—doctrines of feudal tenure have been swept away and replaced
by statutory rules more consistent with some of the more benevolent aspects of modern contract law.
Equally clear is the fact that, by virtue of the recent amendments in 1975, the Legislature sought to
achieve a more substantial measure of security of tenure for tenants than previously obtained. It is now
clear that no grounds exist for recovery of possession from a tenant during the currency of the lease,
save for non-payment of rent within s. 103 (e) [enacted 1975 (2nd Sess.), c. 13, s. 3] or the enumerated causes within s. 103f and that the whole process is subject to Court supervision.” London Housing
Authority v. Appleton, [1978] O.J. No. 3229; 18 O.R. (2d) 345; 82 D.L.R. (3d) 559; 5 R.P.R. 324; [1978] 1
A.C.W.S. 228, (On. Cty. Ct.) Killeen J.
32. Supra note 14.
33. Ibid. para. 49.
34. Ibid. para. 17. McBride has been cited as current law as recently as St. Charles Co-operative Homes Inc.
v. Henney, [2008] O.J. No. 978; 165 A.C.W.S. (3d) 940 (Sup. Ct.) Matheson J.
“Deference” versus “Security of Tenure” 51
subsequent legislative amendments that were quickly made to ameliorate the devastating effect of this decision on security of tenure in housing co-ops.
Law Reform: 1992 CCA Amendments
In response to McBride, the Ontario government quickly enacted extensive amendments to the CCA, closely modelled on Part IV of the LTA,35 and thereby demonstrated an intention to provide protection from arbitrary eviction to residents of cooperatives similar to that enjoyed by those governed by Ontario’s residential tenancy
legislation. Under these amendments, the CCA protects security of tenure by providing that a co-op resident may only be evicted (1) for contravening a co-op by-law, (2)
with an application made on proper notice, (3) on a ground for eviction set out in the
by-law, and (4) only if that ground is not arbitrary or unreasonable.
Even if the proper procedure was followed and reasonable grounds exist, the court
may still refuse to evict a co-op resident where, in all the circumstances, it would
be unfair to do so.36 The CCA amendments appeared to grant security of tenure to
co-op residents, provided they did not breach the co-op’s by-laws.37 In particular, s.
171.8(2) of the amended CCA sets out a right to security of tenure such that
membership and occupancy rights may be terminated only if the member ceases to occupy
a member unit or on a ground set out in the by-laws. Membership and occupancy rights may
not be terminated on a ground in the by-laws that is unreasonable or arbitrary.
Furthermore, s. 171.21 of the amended CCA also protects security of tenure on a
discretionary basis, stating that
upon an application by a co-operative for writ of possession relating to a member unit, a
judge may, despite any provision of this act or the co-operative’s by-laws … refuse to grant
the application if he or she is satisfied, having regard to all the circumstances, that it would
be unfair to grant it. [Emphasis added.]38
If the legislature had intended to continue what had been declared to be the law in
McBride, it could have modelled the CCA amendments on Parts I-III rather than Part
IV of the LTA—which was crafted specifically to protect the right of security of tenure
for residential tenants. The 1992 amendments modelled on Part IV appeared to have
rejected the private “social club” theory and to have enshrined something more akin
to the security of tenure provided to other residential residents in Ontario. The CCA
amendments in s. 171 apparently addressed the concern that the “pure democracy” in
35. Bill 166 amending the Co-operative Corporations Act, R.S.O. 1990, c. 35, s. 171; Tamil Co-operative
Homes Inc. v. Arulappah, supra note 11; 44 O.R. (3d) 120; 122 O.A.C. 280; 25 R.P.R. (3d) 85; 87 A.C.W.S.
(3d) 1237, (Div. Ct.), Rosenberg, Dunnet & Cumming JJ., paras. 27-28.
36. S. 171.8 (2) 2 and s. 171.21(1)(a).
37. Tamil Co-operative Homes Inc. v. Arulappah, supra note 35, para. 11: “In my view the court has to determine whether or not there was in fact a breach of the by-law.”
38. CCA.
52
(2009) 22 Journal of Law and Social Policy
co-ops was susceptible to the “mischiefs of faction” referred to by President Madison
and recognized that some sort of “check” was needed to protect the homes of individual residents. The CCA amendments mandated judicial oversight of housing co-op
eviction decisions, to ensure both procedural and substantive fairness.39
When the legislative changes were first introduced in the legislature as Bill 166, the
Honourable Brian Charlton, then minister of finance, stated, “The bill also ensures
members receive similar protection as tenants in privately owned rental accommodations while preserving the distinctive character of co-ops and member control” [emphasis added].40
These sections, virtually identical to the equivalent sections in Part IV of the LTA,
appear to be quite straightforward and clear on their face. On principles of statutory
interpretation,41 there would appear to be no reason to qualify or add to these words.
The CCA has not been amended in any material way since the 1992 amendments.
Post-Law-Reform Housing Co-op Eviction Jurisprudence
The Survival of the Principle of Deference
Since 1992, and particularly since 1998 when Ontario courts stopped hearing residential tenancy eviction applications, a line of jurisprudence has ignored the fact the
CCA was enacted to overcome the effect of the McBride decision. This jurisprudence,
which still defers to McBride, is based on the assumption that co-ops have remained
“participatory democracies” analogous to “social clubs” and that they operate on the
39. When residential tenancies were transferred from the jurisdiction of the courts in 1998, co-operatives
remained under judicial scrutiny.
40. Tamil Co-operative Homes Inc. v. Arulappah, supra note 35, para. 7.
41. “Departure from the ordinary, plain meaning of the word should only be resorted to in the face of an absurdity or inconsistency that is apparent from the very language of the statute (Driedger, Construction
of Statutes (2d ed.) Toronto: Butterworths, 1983 at pp. 47-57).” Ontario (Regional Assessment Commissioner Region No. 3) v. Graham [1993] O.J. No. 2443; 16 O.R. (3d) 83; 106 D.L.R. (4th) 577; 67 O.A.C.
362; 36 R.P.R. (2d) 13; 43 A.C.W.S. (3d) 341 (C.A.), Tarnopolsky, Krever & Arbour JJ.A., p. 8:
(1) Principles of Statutory Interpretation:
In Elmer Driedger’s definitive formulation, found at p. 87 of his Construction of Statutes (2nd ed.
1983):
Today there is only one principle or approach, namely, the words of an Act are to be read in their
entire context and in their grammatical and ordinary sense harmoniously with the scheme of the
Act, the object of the Act, and the intention of Parliament.
“Driedger’s modern approach has been repeatedly cited by this Court as the preferred approach to statutory interpretation …” Bell ExpressVu Limited Partnership v. Rex [2002] S.C.J. No. 43; [2002] A.C.S.
no. 43; 2002 SCC 42; 2002 CSC 42; [2002] 2 S.C.R. 559; [2002] 2 R.C.S. 559; 212 D.L.R. (4th) 1; 287
N.R. 248; [2002] 5 W.W.R. 1; J.E. 2002-775; 166 B.C.A.C. 1; 100 B.C.L.R. (3d) 1; 18 C.P.R. (4th) 289; 93
C.R.R. (2d) 189; 113 A.C.W.S. (3d) 52 (SCC), L’Heureux-Dubé, Iacobucci, Major, Bastarache, Binnie,
Arbour & LeBel JJ., para. 26 (emphasis added).
“Deference” versus “Security of Tenure” 53
basis of “co-operative ownership”.42 Therefore, according to those courts, co-ops
should be given substantial deference in deciding whether to evict a resident.
Within four years of the amendments, several courts had ruled that the CCA amendments were not intended to effect a substantive change in the law and that McBride
effectively remained the law of Ontario—namely that because co-ops were analogous
to private “social clubs”, they were largely free to decide whom they wanted to keep
as members.43 The role of the courts, in co-op eviction cases, was limited to ensuring
that the “club’s” procedural by-laws, and basic procedural fairness, has been honoured when it removed a “member”.
Tamil Co-operative Homes Inc. v. Arulappah
Arulappah: Trial Decision
This approach was articulated in the decision of Justice Molloy in Tamil Co-operative
Homes Inc. v. Arulappah,44 which subsequent courts have generally relied upon as
authority for the continuation of the “deference” theory. While Justice Molloy’s reasoning was later rejected by the Divisional Court,45 the Divisional Court’s decision
was then reversed by the Court of Appeal for reasons of jurisdiction for mootness.46
At trial, Justice Molloy held that:
while I do not consider myself bound to follow the reasoning in Comfort Living [McBride],
there is much in the logic of that reasoning which I find compelling, as more particularly
referred to below … I was referred to only two cases dealing with the standard of review in
these situations since the legislative amendments.47
In Mimico Co-operative Home Inc. v. Ward (unreported, 21 July 1995), Ewaschuk J.
held:
My duty is to ensure that the Board had a reasonable basis to arrive at their decision though
it is not my role to second guess the Board as to the correctness of the decision so long as I
am satisfied that they acted reasonably in the circumstances.
Similarly, in Woburn Village Co-operative Homes Inc. v. Kannundurai, Epstein J. stated
that she agreed with the approach taken by Ewaschuk J. and held:
42. McBride v. Comfort Living Housing Co-op Inc., supra note 32, paras. 20-21.
43. Tamil Co-operative Homes Inc. v. Arulappah, supra note 24; Woburn Village Co-operative Homes Inc. v.
Kannundurai [1995] O.J. No. 2485; 57 A.C.W.S. (3d) 347, Ont. Ct. (Gen. Div.), Epstein J.
44. Tamil Co-operative Homes Inc. v. Arulappah, ibid.
45. Supra note 35.
46. Tamil Co-operative Homes Inc. v. Arulappah [2000] O.J. No. 3372; 49 O.R. (3d) 566; 192 D.L.R. (4th)
177; 162 O.A.C. 356; 48 C.P.C. (4th) 15; 36 R.P.R. (3d) 58; 99 A.C.W.S. (3d) 206, (Ont. C.A.), Labrosse,
Doherty & Austin JJ.A.
47. Supra note 5 at para. 56.
54
(2009) 22 Journal of Law and Social Policy
The Court’s duty in situations such as this is to ensure that the Board acted reasonably in
the circumstances.48
It was argued before me that the decisions of Ewaschuk J. and Epstein J. are not binding on
me (which is true) and that the standard of review applied by them is simply stated without
any extensive supporting legal analysis (which, again, is true) … I find myself in substantial
agreement with the views expressed by Ewaschuk J. and Epstein J. as well as with the observations made by Finlayson J.A. in Comfort Living [McBride].49
… The philosophy underlying co-operative housing would be completely undermined if
the decisions of co-operatives were treated in the same manner by the court as decisions of
private landlords. Some degree of deference to the democratically elected Board is required.
It is not appropriate, in my view, for the court to substitute its own opinion for that of the
co-operative or to second-guess what the co-operative has done.50
Thus, the trial judge found that the substantial amendments to the CCA had resulted
in no substantive change in residents’ security of tenure. The McBride decision, which
had been the impetus for remedial amendments to the CCA, then remained the law
of Ontario.51
Justice Molloy did not articulate what the philosophy underlying co-op housing
was, or why it would be completely undermined if co-ops could not evict residents
who have contravened no by-law. However, in Sequoia Co-operative Homes Inc. v.
Forsyth,52 Justice McKinnon characterized the philosophy of co-ops as “choosing as
a lifestyle to care and support one another”. Under this deference theory, an eviction
application by a co-op will be granted by the court even if the resident had not, in
fact, contravened a by-law, so long as it was not unreasonable for the lay members of
the co-op board to have believed that the resident had done so. Importantly, this was
the outcome in both Arulappah and Mimico53—where the courts found that grounds
did not in fact exist to evict the resident—but out of deference to the co-ops they
evicted them anyway.54
Ibid. at para. 57.
Ibid. at para. 58.
Ibid. at para 59.
Madame Justice Molloy’s interpretation was accepted by the Divisional Court in David B. Archer Cooperative Inc. v. D’Oliveira [2003] O.J. No. 1469 (Div. Ct.) A. Campbell, McNeely & E.M. Macdonald JJ.,
but rejected by another panel of the Divisional Court in Eagleson Co-operative Homes Inc. v. Thebarge
[2006] O.J. No. 4585 (Div. Ct.) Roy, Linhares de Sousa & R.J. Smith JJ.
52. [1999] File no. 99-CV-8896, Ont. Ct. (Gen. Div.).
53. Supra, note xliii
54. Ibid. Arulappah para. 64: “[W]hile on the evidence before me I am satisfied that there was no profiteering, the evidence that was before the Board was quite different. In the circumstances, the Board had a
reasonable basis for its decision to terminate on this ground.”
Mimico para. 18: “I doubt that I would have found that Mr. N’dem’s conduct had reached the level of a
disturbance, given the need for a measure of tolerance on the part of the Co-op.”
48.
49.
50.
51.
“Deference” versus “Security of Tenure” 55
The 2007 decision of John Bruce Village Co-operative v. Goulding 55 is typical of recent
cases that have upheld the principle of deference as articulated in Justice Molloy’s
decision as settled law. There, the court held:
This court’s jurisdiction on an application by a co-op under s. 117.13(1) of the Act is fairly
limited … Judges will usually defer to an eviction decision made by a housing co-operative
because of its democratic and self-governing nature. The court should not interfere with the
eviction decision unless the decision was unreasonable or procedurally unfair … The decision of the housing co-operative may be set aside as unreasonable only when “it is apparent
that the decision was so unreasonable that no reasonable authority could have made it” …
the case law has narrowed the scope and content of this provision and has limited the court’s
discretion under s. 171.21(1)(a) to cases of exceptional and extenuating circumstances.
The “deference” case law since Justice Molloy’s decision has all applied similar
rationales.
Arulappah: Divisional Court
Under a second line of at least twenty cases, courts have preferred to follow the plain
words of the statute, which direct that the court may evict only if the resident has
contravened a by-law and may refuse to evict if in all of the circumstances it would be
unfair to evict.56 This approach is best summarized in the Divisional Court decision
in Arulappah where Justice Rosenberg held that:
Before the amendment the co-operative corporation board was in an entirely different position. Section 66.1 of the CCA provided:
A member may be expelled from membership in a co-operative by resolution passed
by a majority of the board of directors at a meeting duly called for the purpose …
Section 171.8(1) eliminates this right to so expel a member, if the member had occupancy
rights. Under the old regime the decision was made by the board of directors since occupancy rights depended on membership. Once the board had taken away the membership,
the court would issue a writ of possession if the member did not vacate. The court was
not making the decision. While it might review the decision of the board on the grounds
of reasonableness or even procedural fairness or compliance with the procedural by-laws
relating to termination, the decision had been made and the court while reviewing it was
not making the decision. As previously stated, under the new regime s. 171.13(2), the court
55. [2007] O.J. No. 1617; 59 R.P.R. (4th) 173; 157 A.C.W.S. (3d) 193; 2007 CarswellOnt 2570, (Sup. Ct.),
E.P. Belobaba J. paras. 9, 10, 12.
56. For example Eagleson Co-operative Homes, Inc. v. Théberge [2006] O.J. No. 4585; 274 D.L.R. (4th) 359;
218 O.A.C. 321; 151 A.C.W.S. (3d) 137, (Div. Ct.), A.J. Roy, M.T. Linhares de Sousa & R.J. Smith JJ.;
Agincourt Co-operative Homes Inc. v. Edwards [2006] O.J. No. 2294; 149 A.C.W.S. (3d) 157, (Sup. Ct.),
H.E. Sachs J.; Neill-Wycik Co-operative College Inc. v. Swick [2005] O.J. No. 4940; [2005] O.T.C. 996; 38
R.P.R. (4th) 229; 2005 CarswellOnt 6687, (Sup. Ct.), T. Ducharme J.; Forest City Housing Co-operative
Inc. v. Chourbagi [2005] O.J. No. 707; [2005] O.T.C. 141; 137 A.C.W.S. (3d) 642, (Sup. Ct.), W.A. Jenkins
J.; Robert Cooke Co-operative Homes Inc. v. Leo-Mensah [2005] O.J. No. 6264; 154 A.C.W.S. (3d) 1227,
(Sup. Ct.), T.P. Herman J.; Robert Cooke Co-operative Homes Inc. v. Leo-Mensah [2005] O.J. No. 6264;
154 A.C.W.S. (3d) 1227, (Sup. Ct.), T.P. Herman J.; Harmony Haven Housing Co-operative Inc. v. Perrotta [2003] O.J. No. 6251, (Sup. Ct.), R.G.S. Del Frate J.
56
(2009) 22 Journal of Law and Social Policy
was determining the applicant’s claim and was not reviewing a decision of the board. Under
these circumstances I am of the view that the court is in the same position with regard to
residents in the co-operative housing project as the court is with regard to privately owned
projects. The court must determine whether the grounds for eviction have been established.
Since Molloy J. found that the grounds for termination and eviction had not been established, her decision terminating and evicting cannot stand. [Emphasis added.]57
Arulappah: Court of Appeal
The only housing co-op eviction case upon which the Ontario Court of Appeal has
ruled since McBride is Tamil Co-operative Homes Inc. v. Arulappah.58 Unfortunately,
the court ruled that the case was moot, as a settlement had been reached prior to
the Divisional Court decision. However at paragraph 34 Justice Doherty, for court,
wrote, in obiter, that:
Section 171.13(12) does not articulate a standard of review. The determination of the operative standard of review is as much an exercise in judicial self-discipline as it is an exercise
in statutory interpretation. As Campbell J. observed in Ryegate (Tecumseh) Co-operative
Homes Inc. v. Stallard, supra, [2000] O.J. No. 5423. at para. 36, the standard of review will
vary depending upon the issues raised. It is impossible, in my view, to hold that s. 171.13(12)
of the Act creates a single standard of review applicable to each and every challenge made to
a Board of Director’s decision to terminate membership and occupancy rights.
The Court of Appeal’s suggestion, in obiter, that there is no one standard of review of
housing co-op eviction decisions unfortunately gives little guidance on what factors
would determine whether and how much the courts should defer to the co-op’s eviction decision in any given case.
Despite the Court of Appeal’s suggesting a flexible standard of review, it appears that
Justice Molloy’s interpretation that the CCA amendment did not substantively alter
the common law obligation to defer to the “social club” has been gaining ground in
the past several years.59
Comparison to Residential Tenancies Act
Under the RTA, security of tenure in government-owned subsidized housing or
subsidized housing owned by non-profit corporations is virtually identical to that
enjoyed by tenants who rent from landlords in the for-profit private sector. The law
does not distinguish security of tenure rights except that tenants living in subsidized
57. Supra note 35, para. 14.
58. Supra note 6.
59. For example Courtland Mews Co-operative Homes Inc. v. McKay [2007] O.J. No. 360; 154 A.C.W.S. (3d)
973, (Sup. Ct.), D.M. Brown J.; Ujamaa Housing Co-operative Inc. v. McKenzie [2007] O.J. No. 3219; 160
A.C.W.S. (3d) 83, (Sup. Ct.), D.M. Brown J.; Courtland Mews Co-operative Homes Inc. v. Smith [2007]
O.J. No. 1397; 156 A.C.W.S. (3d) 940, (Sup. Ct.), D.M. Brown J.; Windward Co-operative Homes Inc.
v. Shuster [2007] O.J. No. 967; 222 O.A.C. 311; 54 R.P.R. (4th) 55; 155 A.C.W.S. (3d) 1236; 2007 CarswellBC 1549, (Div. Ct.), G.D. Lane, P.T. Matlow & K.E. Swinton JJ.
“Deference” versus “Security of Tenure” 57
housing are required to disclose financial information, and have low incomes, in
order to remain entitled to a rent subsidy.60
Eviction applications for virtually all residential housing, except co-ops, were moved
from the courts to the Ontario Rental Housing Tribunal (now the LTA) in 1998.
There is no deference towards landlords at the LTA. All landlords, including government-subsidized non-profit corporations with democratically elected volunteer
boards of directors, must prove the tenant to be in breach of the law before the LTB
has jurisdiction to evict the tenant.61
An Analysis of the Theory of Deference
Housing Co-ops as “Social Club” or “Government-Funded Social-Service Providers”
Justice Molloy’s analysis, and that in McBride,62 that a co-op should be given significant deference when its board decides to evict a resident, is no longer apt. In 2009,
co-ops are not “co-operatively-owned social clubs”—they are in large part subcontracted providers of government social services. No other social service providers,
including the government, are granted deference when they decide to discontinue
benefits. A housing co-op should be required to prove a substantive case on balance
of probabilities, like any other litigant, that its respondent is not longer entitled to
social housing benefits.
In 1992, when McBride was decided, the common law respecting member-owned
“social clubs” largely entitled private golf and men’s clubs to restrict membership
however they wished, on the grounds that social clubs were in effect an extension of
one’s own private property—and that one could exclude anyone from one’s private
club, just as one could exclude anyone from one’s living room.63 We have evolved
from this position. Men can no longer exclude women from their clubs in Ontario.
The consequences of eviction from any form of social housing are profound. Ontario’s
Social Housing Reform Act provides that any tenant who receives subsidized housing
from which he or she is then evicted will effectively be placed on a blacklist and
barred from ever moving into any other subsidized housing.64
60. RTA, s. 7 and SHRA, O.Reg.298/01 s. 21.
61. The LTB does not, however, have jurisdiction under the RTA to reverse a decision to remove a subsidy
pursuant to the SHRA.
62. Supra note 32.
63. Although the Ontario Human Rights Code existed, courts of the day were not very vigilant in applying
the Code.
64. Supra note 10.
58
(2009) 22 Journal of Law and Social Policy
Liberal Construction of Remedial Legislation
To offer deference to one litigant necessarily tilts the playing field against its opponent. In co-op evictions, the issue is whether a government-mandated and subsidized
social service—subsidized housing provided pursuant to various statutes65—is to be
terminated. The general principle of statutory interpretation in cases of withdrawal
of such social services was established in the leading case of Abrahams v. Canada
(Attorney General),66 and was well articulated by Chief Justice McMurtry (as he then
was) in Gray v. Ontario (Director, Disability Support Program):67
As remedial legislation, the [Ontario Disability Support Program Act] should be interpreted
broadly and liberally and in accordance with its purpose of providing support to persons
with disabilities. Section 10 of the Interpretation Act, R.S.O. 1990, c. I.11 provides:
10. Every Act shall be deemed to be remedial … and shall accordingly receive such fair,
large and liberal construction and interpretation as will best ensure the attainment of
the object of the Act according to its true intent, meaning and spirit.68
In Gray, the court adopted the court’s reasoning from Wedekind v. Ontario (Ministry
of Community and Social Services),69 that “the principle of construction … applicable
to social welfare legislation … is, where there is ambiguity in the meaning of a statute,
the ambiguity should be resolved in favour of the applicant seeking benefits under
the legislation.” It also relied upon the reasoning of the Federal Court of Appeal in
Villani v. Canada (Attorney General): “The liberal approach to remedial legislation
flows from the notion that such legislation has a benevolent purpose which courts
should be careful to respect.”70
To tilt the playing field in favour of the social-service-provider housing co-op, against
the rights of the recipient, is contrary to basic principles of fairness. It also reads into
the statute something that clearly is not there. As such, it would seem inappropriate
to undermine the plain words of s. 171 of the CCA by adding a common law “deemed
deference”. There is no reason to relieve the housing co-op social-service provider
of its onus, as applicant, of proving that the resident clearly did contravene a by-law,
that the proper procedure was followed, and that in all of the circumstances termination of subsidized housing would not be unfair.
65. CCA, SHRA, National Housing Act, CMHC Act, supra note 15.
66. [1983] 1 S.C.R. 2.
67. Gray v. Ontario (Director, Disability Support Program) [2002] O.J. No. 1531; 59 O.R. (3d) 364; 212
D.L.R. (4th) 353; 158 O.A.C. 244; 44 Admin. L.R. (3d) 88; 113 A.C.W.S. (3d) 355 (Ont. C.A.) McMurtry
C.J.O., Catzman & Gillese JJ.A.
68. The Interpretation Act has been replaced by the Legislation Act, S.O. 2006 c. 21, Schedule F.
69. (1994), 21 O.R. (3d) 289 (Ont. C.A.) at 296-97.
70. (2001), 205 D.L.R. (4th) 58 (F.C.A.) at 70.
“Deference” versus “Security of Tenure” 59
Deference to Co-operative Landlord as “Participatory Democracy”
There is no legal precedent for the proposition that courts must defer to corporate litigants, including non-profit corporations, by not requiring them as litigants to
fully meet the onus of proving their case simply because the applicant corporation is
directed by a board of directors who have been democratically elected—as corporate
boards generally are by their shareholders, and non-profit corporation boards are by
their members. Moreover, although a citizen has the right to vote for, or be elected to,
government, there is no suggestion that the court must give deference to the government in litigation with its citizens. Deference is not given to the eviction decisions of
other social housing providers under residential tenancy legislation in Ontario,71 and
there is no reason that similar housing providers under the CCA should be accorded
great deference by the courts. The collective operation of a housing complex does
not mean that the residents should be at constant risk of losing their family’s homes
if they happen to momentarily lose popularity with a majority of neighbours—any
more so than other residents.
Standard of Review Based upon “Reasonableness” Rather Than “Correctness”:
Administrative Law Principles
It is perhaps unfortunate that impartial adjudicative administrative law entities may
be called “boards”, just as boards of directors of corporations are called “boards”. One
is, of course, very different from the other. Impartial adjudicative boards are entitled
to deference if a party to litigation decided by these boards seeks to have the decision judicially reviewed—just as appellate courts defer to trial courts. In such cases
the board itself rarely becomes the applicant at court. It is the parties to the board’s
decision who are generally the litigants. Boards of corporate litigants are not entitled
to deference.
Boards in co-op eviction cases are not impartial adjudicative boards. Rather, their
corporations are the applicants. Their corporations are suing the respondent residents. These cases are not judicial reviews of decisions of an impartial adjudicative
board, and as such any suggestion that they are owed deference under administrative
law principles is misplaced. They are simply party litigants who have commenced
litigation and should have to prove their case like any other litigant—including nonprofit subsidized housing providers under the RTA and, for that matter, governmentowned subsidized housing providers—both of whom, like housing co-ops, generally
provide a right to appeal to their volunteer boards where staff decide to evict a resident.72 In each case the LTB would give no deference to the board of the non-profit
71. In fact, under s. 83(2) of the RTA, the trier of fact is, since 2006, expressly required to make a finding
about the fairness, in all the circumstances, of evicting the tenant.
72. Louise Stevens supra note 17. For example, the government-owned London & Middlesex Housing
Corporation has an Admissions and Evictions Review Committee of its Board of Directors to whom
such appeals may be made.
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landlord should it commence an eviction application—just as it does not give deference to any landlord or tenant litigant.
Board and Members’ Meetings as “Equivalent to Trials”:
One rationale advanced in the context of co-operative eviction cases, for limiting the
procedural protections that courts have traditionally employed to get to the truth
(such as cross-examination) is that the resident at a housing co-op has other equivalent protections. In Arulappah Justice Molloy held that:
Members of co-operatives have many protections and privileges that regular residents do
not. There is a hearing process before the Board (with a right of appeal to the membership)
before a member’s rights can be terminated. There is also a democratic process for removal
of a board of directors in whom the membership has no confidence.73
Despite Justice Molloy’s dictum, the reality is that these meetings are in no sense
hearings. At best, co-op board and member meetings could be compared to town
hall–style settlement meetings. These meetings are particularly ill-suited to get to the
bottom of disputed facts, especially, as is often the case, where credibility is in issue.
Members meetings tend to be factional, personal, and raucous, and emotions often
run high. Inevitably some neighbours do not get along with some other neighbours.
The member/residents are laypersons to whom it is difficult to explain the law, much
less to make submissions about the unreliability of allegations.
The co-op board controls its process, as both prosecutor and judge and typically
asserts that it would be disloyal for the members not to support the co-op board’s
decision. There is no opportunity to lead sworn evidence or test credibility.74 These
meetings are often characterized by the most troubling qualities of unchecked pure
democracy and in no sense are similar to a trial in the ability to determine the complete and accurate facts—much less to determine how the law applies to those facts.
The court hearing constitutes the first realistic opportunity for a co-op resident to
lead evidence and test credibility—before an experienced trier of fact and law. If, as
is generally the case, the facts are disputed, cross-examination is imperative to get to
the truth, particularly where the real reason for the eviction is not apparent.75
73. Arulappah, supra note 43, para. 59.
74. The author has attended many of these board and members’ meetings and recalls one such meeting in
which the board voted to fire their own lawyer mid-meeting when he tried to explain that they were
bound by the law, and another where the board’s lawyer ruled that counsel was not permitted to make
submissions to the members—but rather the client, who did not speak English, was required to make
them. Also see St. Charles Co-operative Homes Inc. v. Henney [2008] O.J. No. 978; 165 A.C.W.S. (sd) 940
(Sup. Ct.) Matheson J.: “I find the Board of Directors presented an unfair and biased impression of the
situation to the full membership. This was done to the detriment of Ms. Henney. The membership was
acting with improper and slanted evidence.”
75. See Westmount Community Housing Co-operative Inc. v. Krajc-Cuprak [2002] Action No. 32301, London, (Sup. Ct.), E. Brown J. The co-operative alleged nine breaches of its by-laws by a former board
“Deference” versus “Security of Tenure” 61
The Problem with Deference
There is no concept of “deference” to any other landlord or government-funded social
service provider under Ontario law. From the standpoint of the individual resident,
subsidized occupancy in a housing co-op is substantially similar to tenancy in other
government-subsidized non-profit housing. The co-op’s “participatory democracy”
does not warrant the court’s deferring to unfair or otherwise unlawful eviction any
more than it would defer, for example, to an arbitrary or unfair “democratic” decision
to expropriate private property. Just as the RTA provides that the trier of fact should
look at the “real substance” of matters under consideration,76 the courts should do so
too, as they had previously done under the since repealed Part IV of the LTA.77
The fact that a housing co-op is managed by a board of directors who reside at the
co-op will not ensure fair-minded decisions. The CCA amendments were designed
to protect residents’ homes when the utopian ideal of communal living occasionally
crashes into the more base reality that sometimes human behaviour falls short of the
ideal. Sometimes the very closeness of the relationship of neighbours holding the
power to evict neighbours, or contending for control of that power, may exacerbate
personal conflict—and bring out the most petty and vindictive qualities of pure democracy. Terminating tenancy by popular vote of neighbours (the “members’ meeting”)
can occasionally be, in essence, a “thumbs up, thumbs down” “unpopularity contest”,
dominated by inflamed tempers and the rhetoric of intolerance—a far cry from the
sober, reasoned respect for law and the search for the truth, found at court.78
The issue of deference is particularly troubling where the “mischiefs of faction” may
be at play, that is, where, beyond the ostensible reason for eviction, the real reason for
the eviction may be retaliation, discrimination or simple mean-spiritedness. This is
sometimes seen, in the context of co-operatives, where the resident is facing eviction
based on alleged misconduct or for arrears resulting from suspension of subsidy, and
the resident happens to be a former board member or long-term resident who has
dared to challenge some action of the co-op board.79
It may also be seen where the resident is in some way an “outsider”, such as a physically or developmentally disabled resident, a single mother with many children, an
76.
77.
78.
79.
member who suspected serious financial irregularities by the current board. Without the five days of
trial and extensive cross-examination of the board members, the court would not have been able to
determine that the eviction was groundless and retaliatory—and the tenant would not have been able
to subsequently get proof that the irregularities were real—which led to the board being replaced. The
result would have been very different if the hearing evidence had been limited to affidavits.
RTA, s. 202.
LTA, s.188.
Co-operative D’Habitation Lafontaine Inc. v. Menard [2003] O.J. 253; [2003] O.T.C. 57; 119 A.C.W.S.
(3d) 1031 (Sup. Ct.), Charbonneau J., at para. 30; La Paz Co-operative Homes Inc. v. Jackson [1996] O.J.
1181; 62 A.C.W.S. (3d) 370, Ont. Ct. (Gen. Div.), Somers J. at para. 84.
Westmount Community Housing Co-operative Inc. v. Krajc-Cuprak, supra note 75.
62
(2009) 22 Journal of Law and Social Policy
immigrant or other residents found in some way to be different, eccentric, irritating
or unpopular.80 To paraphrase President Madison,81 in a democratic co-operative
there is nothing to check the inducement of the majority, here represented by its
duly elected co-op board, to sacrifice the weaker party, in this case the dissenting or
“unpopular” resident. The 1992 amendments to the CCA apparently represented the
legislature’s creation of a “check” on such boards in the form of statutory protection
from arbitrary eviction and meaningful oversight of board eviction decisions by the
courts.
The purpose of the CCA is to provide a check upon those few boards who would
abuse their power, by unfairly evicting a resident. In those cases residents who challenge those boards have only the law and the courts to protect them from arbitrary or
retaliatory eviction. Human nature being what it is, some lay boards react strongly to
any perceived challenge to their authority. The fact that the resident has the right to
challenge the board’s decision to that same board and to appeal to the members who
have elected that board offers no real protection. Absent the protection of the courts,
bona fide dissent by individual subsidized residents may become hazardous—and
chill healthy democracy.
Trend towards Loss of Oral Hearings / Substantial Indemnity
Costs / Refusal to Restore Unlawfully Terminated Rent Subsidy
Housing co-op eviction applications are probably among the smallest cases, in financial terms, that judges of the Superior Court still hear—and they see them only rarely.
The collective memory of the court for the “quick and basic” oral hearings for eviction applications pursuant to the LTA, which the courts routinely heard until 1998,
appears to have faded following the removal of those applications to the OHRT. They
were summary proceedings similar to Small Claims Court trials. Co-op eviction applications used to generally be modelled on these “quick and basic” oral hearings.
Today, eviction hearings at the LTB remain quick and basic. Paperwork is kept to
a minimum. Hearings are based upon oral evidence and usually do not exceed
one hour in length. Landlords are represented generally by inexpensive paralegals.
Community legal-aid clinics are still active in defending tenants—which, because
these procedures are so simple, legal-aid clinics can still manage despite increasingly
limited resources.
As memory of the “quick and basic” eviction hearing has faded, the courts have apparently looked elsewhere, such as the practice for applications commenced pursuant to Rule 38 of the Rules of Civil Procedure, and Rule 72 simplified trial rules, for
80. Forest City Housing Co-operative Inc. v. Chourbagi [2005] O.J. No. 707; [2005] O.T.C. 141; 137 A.C.W.S.
(3d) 642, (Sup. Ct.), W.A. Jenkins J.
81. Supra note 8.
“Deference” versus “Security of Tenure” 63
guidance in determining how applications commenced pursuant to s. 171 of the CCA
should be held.
Non-profit housing co-ops, impoverished residents receiving subsidized housing and
community legal-aid clinics cannot afford to litigate housing co-op eviction cases
where courts now require the filing of extensive pleadings, including comprehensive
affidavit evidence and the delivery of factums.
Loss of Oral Evidence and Cross-examination
The increase in “deference” has led some courts to hold that, since the hearing is not
a full review of whether the resident has breached a by-law, there is no need for oral
evidence and cross-examination82—notwithstanding the fact that virtually every
reported housing co-op eviction case (in which the reasons disclose whether oral or
affidavit evidence was led) until 2003 proceeded with oral evidence, and some still
do.83 One may wonder how a court can exercise its “relief from eviction where unfair
to evict” mandate as required by s. 171.21 (1)(a) of the CCA if it does not assess the
parties’ demeanour and credibility, and how it can do so in a meaningful way if it has
only affidavits.
Traditionally applications under the CCA have been commenced by the housing coop filing an affidavit. This practice is carried over from s. 74 of Part III of the LTA,84
which governed housing co-op evictions until 1992. It provided that “the tenant’s
landlord may apply upon affidavit to a judge of the Superior Court of Justice to make
the inquiry”,85 and “if the tenant appears, the judge shall, in a summary manner, hear
the parties and their witnesses, and examine into the matter, and, if it appears to the
82. These cases do not refer to the practice prior to 2003—except Cordova, which dismisses it as “Toronto
practice”. A trend in many of these cases is that the resident is unrepresented and the case law that is
contrary to the co-operative’s interests is not referred to. Ujamaa Housing Co-operative Inc. v. McKenzie
[2007] O.J. No. 4131, (Sup. Ct.), D.M. Brown J. (require “responding record”); Phoenix Housing Cooperative Inc. v. Amaral [2006] O.J. No. 4714; 153 A.C.W.S. (3d) 229, (Sup. Ct.), P.B. Hockin J.; Lakeshore Gardens Co-operative Homes Inc. v. Bhikram [2006] O.J. No. 2941; 148 A.C.W.S. (3d) 523, (Div.
Ct.), E.M. Macdonald, G.J. Epstein & D.R. Cameron JJ.; Three Streets Housing Co-operative Inc. v. Mizzi
[2005] Ct. file no. 05-CV-288877 (Sup. Ct.), Day J.; Cordova Co-operative Homes v. Duval [2005], Ct.
file no. 27732/03 (Sup. Ct.) Timms J. In Alexandra Park Co-operative v. Hamilton [2009] O.J. No. 2768,
Code J., the resident’s lawyer was all but accused of malpractice for asking the court to use the pre-2003
practice. This may further “chill” the defence of these residents.
83. For example Courtland Mews Co-operative Homes Inc. v. McKay [2007] O.J. No. 360; 154 A.C.W.S. (3d)
973, (Sup. Ct.), D.M. Brown J. (open to oral evidence); Agincourt Co-operative Homes Inc. v. Edwards
[2006] O.J. No. 2294; 149 A.C.W.S. (3d) 157, (Sup. Ct.), H.E. Sachs J.; Woodsworth Housing Co-op v.
Tarling [2006] O.J. No. 624; [2006] O.T.C. 161; 145 A.C.W.S. (3d) 980, (Sup. Ct.), R.E. Mesbur J. (crossexamination); Forest City Housing Co-operative Inc. v. Chourbagi [2005] O.J. No. 707; [2005] O.T.C.
141; 137 A.C.W.S. (3d) 642, (Sup. Ct.), W.A. Jenkins J. (oral evidence).
84. Now the Commercial Tenancies Act, R.S.O. 1990, c. L.7.
85. Ibid. s. 74.
64
(2009) 22 Journal of Law and Social Policy
judge that the tenant wrongfully holds against the right of the landlord, he or she may
order the issue of the writ” [emphasis added].86
It seems perhaps an anachronism that these applications are commenced by filing
an affidavit but proceed based on oral evidence. There is no requirement for the
respondent housing co-op resident to file any pleadings. The CCA requires only that
“the respondent may dispute the applicant’s claim by attending on the return of the
application”.87
It now appears that some courts, perhaps not knowing this procedural history, have
assumed that, since the application is commenced with an affidavit, only affidavit
evidence should be permitted and that, since factums are required for other types
of applications under the Rules of Civil Procedure, the same procedure must also
apply under the CCA. Despite that comparison, the same procedure does not apply.
Paperwork for residential eviction cases had always been kept to a minimum, as
continues to be the case under the present RTA. This recent significant increase in
paperwork has increased the cost of litigating these cases significantly. Fortunately,
some courts continue to permit oral evidence.88
Substantial Indemnity or Substantially Disproportionate Costs
Deference has led some courts to unquestioningly order substantial indemnity costs89
against housing co-op residents,90 sometimes far beyond the financial amounts in
issue.91 Housing co-ops routinely claim these costs where permitted by the co-op bylaws. Some courts, although rejecting substantial indemnity costs, still award partial
indemnity costs that are far beyond the a low-income housing co-op resident’s abil-
86. Ibid. s. 76(2).
87. CCA s. 171.13(6).
88. See for example Kenfinch Co-operative Housing Inc. v. Obermuller [2008] O.J. No. 186; 163 A.C.W.S.
(3d) 344, (Sup. Ct.) Forestell J.; Cornerstone Co-operative Homes Inc. v. Spilchuk [2004] O.J. No. 3219,
(Sup. Ct.), Quinn J., and Lakeshore Village Artist’s Co-operative Inc. v. Leger [2004] O.J. No. 6180, (Sup.
Ct.), Himel J.
89. “Solicitor-client costs are generally awarded only where there has been reprehensible, scandalous or
outrageous conduct on the part of one of the parties.” Young v. Young [1993] S.C.J. No. 112; [1993] 4
S.C.R. 3, McLachlin, CJC.
90. Becker v. City Park Co-operative Apartments Inc. [2006] O.J. No. 2685, (Div. Ct.), G.J. Epstein J.; Bellamy Housing Co-op Inc. v. Koroma [2006] Ct. file no. 06-CV-309144 Toronto, (Sup. Ct.), Somers J.;
Cornerstone Co-operative Homes Inc. v. Spilchuk [2004] O.J. No. 3219; [2004] O.T.C. 677; 132 A.C.W.S.
(3d) 804, (Sup. Ct.), J.W. Quinn J.; David B. Archer Co-operative Inc. v. D’Oliveira [2003] O.J. No. 1469;
171 O.A.C. 45; 28 R.P.R. (4th) 258; 122 A.C.W.S. (3d) 385, (Div. Ct.), A. Campbell, McNeely & E.M.
Macdonald JJ.
91. “Costs must be commensurate with the value of the lawsuit to the parties”, Amherst Crane Rentals Ltd.
v. Perring (2004), 241 D.L.R. (4th) 176, 187 O.A.C. 336 (C.A.) (leave to appeal to the Supreme Court of
Canada denied [2004] S.C.C.A. No. 430.
“Deference” versus “Security of Tenure” 65
ity to pay. For example, in Ujamaa Housing Co-operative Inc., costs of $22,000 were
awarded—equal to several years of the residents’ social benefits.92
Other cases, such as Cornerstone v. Spilchuk,93 have recently been followed by other
courts as authority for awarding substantial indemnity costs.94 In Cornerstone, the
housing co-op residents were unrepresented. The judge referred to no case authority,
much less distinguishing any of the rationale for traditional co-op awards of modest
costs, in his decision. There is no evidence he was referred to it. The learned judge’s
award of costs against the elderly pensioner resident couple of $50,000 (because the
pensioners were inefficient in presenting their defence) is equal to several years of
their pension income. The costs award would apparently bar them from subsidized
housing for life, as they would not be re-eligible until the costs were paid in full.95
Other courts have, however, awarded costs consistent with a Small Claims Court and
LTB scale of $750 or less.96 To award costs on a substantial indemnity scale simply
because the by-law permits this ignores the court’s discretion to award appropriate
and reasonable costs. In Ibrahim v. Kadhim, for example, the court limited costs on
the basis that:
There must be practical and reasonable limits to the amount awarded for costs and those
amounts should bear some reasonable connection to the amount that should reasonably
have been contemplated … The objective of a costs order is to fix an amount that is fair and
reasonable for the unsuccessful party to pay in the particular proceeding, rather than an
amount fixed by the actual costs incurred by the successful party.97
The LTB continues the courts’ pre-1998 practice of holding summary eviction hearings with oral evidence and very little paperwork. The maximum costs award at the
LTB, which is rarely granted, is approximately $500. At Small Claims Court, which
92. Ujamaa Housing Co-operative Inc. v. McKenzie [2007] O.J. No. 4131, (Sup. Ct.), D.M. Brown J.; Courtland Mews Co-operative Homes Inc. v. Smith [2007] O.J. No. 2128; 157 A.C.W.S. (3d) 919, (Sup. Ct.),
D.M. Brown J.; John Bruce Village Co-operative v. Goulding [2007] O.J. No. 2236; 158 A.C.W.S. (3d) 19;
158 A.C.W.S. (3d) 204, (Sup. Ct.), E.P. Belobaba J.; Niagara Neighbourhood Housing Co-operative Inc. v.
Edward [2006] O.J. No. 2924, (Div. Ct.) G.J. Epstein J.
93. Cornerstone Co-operative Homes Inc. v. Spilchuk [2004] O.J. No. 4049; 72 O.R. (3d) 103; [2004] O.T.C.
853; 7 C.P.C. (6th) 383; 134 A.C.W.S. (3d) 438, (Sup. Ct.), J.W. Quinn J.
94. Supra note 89.
95. Supra note 64.
96. Courtland Mews Co-operative Homes Inc. v. Romero [2005] O.J. No. 4326; [2005] O.T.C. 890; 142
A.C.W.S. (3d) 1065, (Sup. Ct.), T. Ducharme J.; Windward Co-operative Homes Inc. v. Shuster [2005]
O.J. No. 5329; [2005] O.T.C. 1007; 39 R.P.R. (4th) 325; 144 A.C.W.S. (3d) 417; 2005 CarswellOnt 7175,
(Sup. Ct.), H.J. Wilton-Siegel J.; Tamil Co-operative Homes Inc. v. Kandiah [2005] O.J. No. 1757; 138
A.C.W.S. (3d) 1023 (Div. Ct.), J.D. Cunningham A.C.J.S.C.J., G.D. Lane & R.W.M. Pitt, JJ.; Eagleson Cooperative Homes Inc. v. Theberge [2005] O.J. No. 73; 136 A.C.W.S. (3d) 380, (Sup. Ct.), M.Z. Charbonneau J.; David B. Archer Co-operative Inc. v. Van Sickle [2002] O.J. No. 3088; [2002] O.T.C. 564, (Sup.
Ct.), McWatt J.; Cordova Co-operative Homes v. Carder [2000] O.J. No. 3803, (Div. Ct.), Hartt, Southey
& McFarland JJ.
97. Ibrahim v. Kadhim (2007) 86 O.R. (3d) 728, (Sup. Ct.), Tulloch J., at para. 8.
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(2009) 22 Journal of Law and Social Policy
has a limit of 15 per cent of the amount claimed,98 cost awards rarely exceed $500.
Costs award of this magnitude would recognize that in order to qualify for subsidized housing the tenant must already be quite poor.99 Yet exorbitant cost awards are
becoming all too common in housing co-op evictions. The risk of such large awards
strongly deters low-income residents from defending themselves in court against
eviction.
Unlawful Termination of Rent Subsidy
Some courts have in recent years held that if a housing co-op unlawfully terminates
a resident’s rent subsidy (pursuant to the SHRA), the court cannot intervene. The
resident is evicted for rent arrears.100 Many other courts, however, have restored the
resident’s subsidy—thus eliminating the “arrears” and refusing eviction.101 This is a
common tactic of boards who may not be acting in good faith. This may been seen, for
example, where a housing co-op does not generally insist upon strict ­compliance with
deadlines for verification of income but decides to with one unpopular resident.
Conclusion
The concept of deference to subsidized non-profit housing co-ops is a creature of
common law rooted in factual assumptions and resultant rationales that are outdated
and not applicable to modern government-subsidized housing co-ops. These are not
98. CJA, s. 29.
99. “[T]he Board does not want to use its power to award costs in a way which would discourage landlords
and tenants from exercising their statutory rights … In most cases, the only costs allowed will be the
application fee [$150.00] … A Member has the discretion to require a party to pay, as costs, any representation or preparation expenses of another party where the conduct of the party was unreasonable.
Conduct is unreasonable if it causes undue expense or delay … the amount allowed in total for the
proceedings cannot exceed $500, including any amount ordered for the hearing”: RTA, s. 204; Landlord
and Tenant Board Rules of Practice r. 27; LTB Interpretation Guideline 3 “Costs”, Ontario Landlord and
Tenant Law Practice, 2007, Fleming J., Lexis/Nexis, pp. 475 and 513; “An award of costs in the Small
Claims Court, other than disbursements, shall not exceed 15 per cent of the amount claimed”: Rules of
the SCC O.Reg. 258/98, r. 19; CJA R.S.O. 1990 c. 43, s. 29.
100. Tamil Co-operative Homes Inc. v. Kandiah [2005] O.J. No. 460; 137 A.C.W.S. (3d) 210, (Div. Ct.). J.D.
Cunningham A.C.J.S.C.J., G.D. Lane & R.W.M. Pitt JJ. (no reasons given); Woburn Village Co-operative
Homes Inc. v. Buck [2001] O.J. No. 1728; [2001] O.T.C. 341; 105 A.C.W.S. (3d) 153, (Sup. Ct.), Dunnet
J.
101. Courtland Mews Co-operative Homes Inc. v. McKay [2007] O.J. No. 360; 154 A.C.W.S. (3d) 973, (Sup.
Ct.), D.M. Brown J.; Agincourt Co-operative Homes Inc. v. Edwards [2006] O.J. No. 2294; 149 A.C.W.S.
(3d) 157, (Sup. Ct.), H.E. Sachs J.; Forest City Housing Co-operative Inc. v. Chourbagi [2005] O.J. No.
707; [2005] O.T.C. 141; 137 A.C.W.S. (3d) 642, (Sup. Ct.), W.A. Jenkins J.; Phoenix Housing Co-operative Inc. v. Viner [2004] O.J. No. 1476; 130 A.C.W.S. (3d) 172, (Sup. Ct.), Rady J.; Ann Marie Hill Housing Co-operative Inc. v. Boahemaa [2002] O.J. No. 3490; [2002] O.T.C. 657; 116 A.C.W.S. (3d) 597, (Sup.
Ct.), Pitt J.; Tolpuddle Housing Co-operative Inc. v. Smieja [2002] O.J. No. 1476, (Sup. Ct.), W. Jenkins
J.
“Deference” versus “Security of Tenure” 67
private social clubs, but rather are contracted government-funded social service
providers.
There is still a line of cases, although that they are fast becoming the exception, that
protect security of tenure on the basis of plain words of the CCA, where oral hearings
are still held, where costs remain within a range that is not ruinous to the low-income
resident, where courts refuse to evict where the housing co-op does not prove its case
upon admissible evidence or where the circumstances warrant relief from eviction
despite grounds for eviction existing.
The recent trend evidences an enormous judge-made discrepancy between the security of tenure rights enjoyed by residents who happen to be offered accommodation in
subsidized non-profit housing corporations versus residents offered accommodation
in subsidized non-profit housing co-ops. It may be that the only hope of remedying
this apparent imbalance at this point is an appellate ruling on sympathetic facts after
a thorough argument and analysis of the law and the legislative history of the nonprofit housing co-op legislation.
Perhaps the simplest solution is for the CCA to be amended so that these matters
are moved from the courts to the LTB, like most other residential eviction applications were in 1998.102 It would be unfortunate if the court lost this last connection
with Ontarians of modest means. However, this alone may not be enough, unless the
legislature also signalled that the transition was intended to remedy the judge-made
imbalance.
Laws and courts exist to regulate behaviour, where necessary, in those rare cases where
people are perhaps not at their best. It is fine to respect co-operative boards and to
recognize that they generally behave fairly towards their residents. But good management by most should not give a free pass for substantive unfairness to the few housing co-ops that would unfairly evict a resident of modest means from governmentsubsidized home notwithstanding that he or she or has contravened no law or by-law.
It is here that the courts’ processes for getting to the truth, such as hearing admissible
oral evidence and cross-examination, are most needed. Families facing the loss of government-funded subsidized housing need their security of tenure protected—perhaps
more than most residents, as they cannot afford market-cost housing.
When a co-operative board fairly wishes to evict a resident family, there is no need
for the court to offer it deference. It can prove its case just like any other applicant.
Neither should courts defer if a board unfairly attempts to evict someone, or if the
true facts weigh against eviction for other reasons. The courts should instead “check”
the unfairness, and protect these families’ homes.
102. The government is considering this. Moving Forward on Co-operative Housing Tenure Disputes Resolution, Consultation Paper, Ontario Ministry of Municipal Affairs and Housing, August 2009 (as endorsed by the Co-operative Housing Federation of Canada by Resolution of Ontario Region at its 2009
AGM).
Age Discrimination and Income-Security Benefits:
The Long Retreat from Tétreault-Gadoury?
Mel Cousins*
Résumé
En 1991, la Cour suprême du Canada a rendu un jugement historique dans l’affaire
Tétreault-Gadoury c. Canada (Commission de l’Emploi et de l’Immigration) en décidant que la cessation statutaire des prestations de l’assurance emploi à l’âge de 65
ans constituait une violation de la garantie d’égalité contenue dans l’article 15 dont
la justification ne peut être démontrée dans le cadre d’une société libre et démocratique, en accord avec l’article 1 de la Charte canadienne des droits et libertés. En 1999,
le support de la garantie a été affaibli lorsque, dans l’affaire Law c. Canada (Ministre
de l’Emploi et de l’Immigration), la Cour suprême importa une analyse contextuelle
de la discrimination dans l’article 15 de la Charte. Depuis lors, la jurisprudence a
commencé à se distancer de Tétreault-Gadoury, au point où, en 2007, la Cour d’appel
du Nouveau-Brunswick a émis des doutes quant au fait de savoir si l’affaire TétreaultGadoury demeurait encore applicable au vu de l’analyse Law.
L’auteur fait une comparaison entre l’analyse de l’article 1 entreprise par la Cour suprême dans Tétreault-Gadoury et l’analyse contextuelle de l’article 15 demandée par
Law, et arrive à la conclusion qu’il existe suffisamment de similarité entre les facteurs
sous-jacents pour donner à penser que Tétreault-Gadoury pourrait bien réussir une
analyse Law si elle était faite aujourd’hui. Cependant, l’auteur ajoute qu’il semble
improbable que les tribunaux canadiens seraient disposés à étendre le verdict de
discrimination à d’autres programmes de sécurité du revenu qui chevauchent l’âge
de retraite normale, et suggère que la disposition des tribunaux à donner de tels verdicts de discrimination relève moins de facteurs contextuels et plus des perspectives
d’ensemble de la Cour suprême du Canada quant au degré de droit de regard qu’elle
devrait exercer sur l’action de l’État.
Introduction
Age discrimination has played a prominent role in equality jurisprudence under the
Canadian Charter of Rights and Freedoms,1 particularly in comparison with other
jurisdictions such as the European Court of Human Rights or the U.S. Supreme
*
1.
Mel Cousins B.L., School of Law and Social Sciences, Glasgow Caledonian University, Scotland.
Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 [Charter].
70
(2009) 22 Journal of Law and Social Policy
Court. In part, at least, this prominence arises because age is an enumerated ground
of discrimination that is prohibited under s. 15 of the Charter.2
Looking specifically at the issue of income-security benefits, there have been some
cases in which courts have struck down particular provisions as inconsistent with the
Charter on age grounds.3 One of the most important decisions on age discrimination in the context of income-security benefits was the case of Tétreault-Gadoury v.
Canada (Employment and Immigration Commission) (1991),4 in which the Supreme
Court struck down an age restriction in the Unemployment Insurance Act5 that
removed persons aged sixty-five and over from normal unemployment insurance
benefits and instead provided them with a small lump-sum retirement benefit. While
Tétreault-Gadoury has never been explicitly called into question by the Supreme
Court, it predates the now standard approach to the application of the equality clause
set out by the Supreme Court of Canada.
In successive cases, the court has dealt with differences in the delivery of incomesecurity programs based on age. Law v. Canada (Minister of Employment and
Immigration)6 (1999) and Gosselin v. Quebec (Attorney General)7 (2002) both upheld
the constitutional validity of income-security programs that differentiated on the
basis of age to the disadvantage of younger persons. These age-based discrimination
decisions are so important to Canadian constitutional litigation that author Peter
Hogg notes, “Since 1999, every case has followed the Law analysis, and looked for an
impairment of human dignity. Law has supplanted Andrews as the leading case on s.
15.”8
2.
3.
4.
5.
6.
7.
8.
In contrast, age is not specifically mentioned in Article 14 (non-discrimination) of the European Convention on Human Rights. (Nevertheless, the European Court of Human Rights does consider arguments on the basis of age discrimination—presumably on the basis that this falls under “other status” in
Article 14). Nor has age been recognized as a suspect ground under U.S. constitutional jurisprudence
(see e.g. Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 96 S. Ct. 2562 (1976)), although
a number of state courts have struck down provisions similar to those discussed in this note (see e.g.
Golden v. Westark Community College, 333 Ark. 41, 969 S.W. 2d 154 (Ark. Sup. Ct. 1998); Pierce v.
Lafourche Parish Council, 762 So.2d 608 (La. Sup. Ct. 2000); and Reesor v. Montana State Fund, 2004
Mont. 1, 103 P.3d 1019 (Mont. Sup. Ct. 2004), although other courts have upheld such provisions).
In addition to Tétreault-Gadoury, [1991] 2 S.C.R. 22, 1991 CanLII 12, which is discussed in more detail
in the text, see also Clemons v. Winnipeg (City) (1994), 93 Man.R. (2d) 287, 114 DLR (4th) 702 (Q.B.),
rev’d (1995), 100 Man.R. (2d) 64, 122 D.L.R. (4th) 676 (C.A.), where the Manitoba Court of Queen’s
Bench held that a policy of refusing social assistance to persons under eighteen was in breach of the
Charter. This decision was reversed on appeal, on grounds that an application for Charter relief was
premature because all administrative remedies had not yet been exhausted.
[1991] 2 S.C.R. 22 , 1991 CanLII 12 [Tétreault-Gadoury].
S.C. 1970-71-72, c. 48 [Act], which has been long since repealed and replaced with the Employment
Insurance Act, S.C. 1996, c. 23.
[1999] 1 SCR 497, 1999 CanLII 675 [Law].
2002SCC84, [2002] 4 S.C.R. 429 [Gosselin]
Peter W. Hogg, Constitutional Law of Canada, 5th ed., looseleaf (Scarborough: Thomson Carswell,
2007), vol. 2 at para. 55.9(b).
Age Discrimination and Income-Security Benefits 71
Every successful equality challenge that predates Law, therefore, invites an enquiry
into whether it would survive the Law analysis. Furthermore, a number of provincial
appellate and superior courts have considered somewhat similar issues concerning
the termination of certain income-security benefits at pension age. These courts
have upheld these cases either on the basis that, though in breach of s. 15, they were
justified by s. 1 of the Charter,9 or, more recently, that there was no breach of s. 15 at
all.10 These developments all call into question the status of Tétreault-Gadoury and
whether it still represents good law as regards age discrimination.
In the following part of this note, we outline the approach adopted by the Supreme
Court in Tétreault-Gadoury and the subsequent moves away from that approach by
provincial appellate and superior courts. Then we look in detail at the more recent
Laronde11 decision and compares the approach adopted therein with the Supreme
Court’s approach in Tétreault-Gadoury.
Age Differentiation as Stigmatization
As outlined above, the Tétreault-Gadoury case involved a provision of the
Unemployment Insurance Act12 (1971) whereby, in the case of a person who had
reached age sixty-five or over, the normal unemployment benefit was not payable and
the person received instead a small lump-sum payment equivalent to three weeks’
benefit. The respondent had lost her job shortly after her sixty-fifth birthday and
applied for unemployment insurance benefits. This application was refused under
the impugned provision of the law. The Federal Court of Appeal subsequently found
that this rule was a breach of s. 15 that was not saved by s. 1 of the Charter, and this
decision was upheld on appeal by the Supreme Court of Canada.13
The decision of the court followed that concerning mandatory retirement in McKinney
v. University of Guelph14 (1990) in which the court had ruled that such rules were in
breach of s. 15 but were justified under s. 1. That case was clearly fresh in the minds
of the judges as they approached the case very much from the standpoint of its impact on Ms. Tétreault-Gadoury’s status in the labour market. The court’s judgment
(delivered by La Forest J.) stated that the provisions of the Act permanently deprived
9.
10.
11.
12.
13.
14.
See Zaretski v. Saskatchewan (Workers Compensation Board) (1997), 156 Sask.R. 23, 148 DLR (4th) 745
(Q.B.) [Zaretski], aff ’d (1998) 168 Sask. R. 57, 163 DLR (4th) 191, 1998 CanLII 12340 (C.A.), leave to
appeal to S.C.C. refused, 26767 (28 January 1999). The Court of Appeal upheld the trial court’s judgment in an extremely brief decision holding that, even if there were a breach of s. 15, the provision was
justified under s. 1 of the Charter.
See Laronde v. WHSCC and Attorney General of New Brunswick, 2007 NBCA 10 [Laronde].
Ibid.
Supra note 5, s. 31.
A separate aspect of the case—not discussed here—concerned whether an administrative tribunal
might apply the Charter without an express provision in that regard.
[1990] 3 S.C.R. 229, 76 DLR (4th) 545, 1990 CanLII 60 [McKinney].
72
(2009) 22 Journal of Law and Social Policy
her of the status of a socially insured person by making her a pensioner of the state,
even if she were still looking for a new job.15 It held there could be no doubt, following McKinney, that if mandatory retirement provisions violate s. 15 of the Charter,
the denial of unemployment insurance benefits must also do so.16 The court held
that it stigmatized a person, regardless of her personal skills and situation, as belonging to a group of people no longer part of the active population and perpetuated
the “insidious stereotype” that a person who is sixty-five years or older could not be
retrained for the labour market.17
Having found a Charter breach, the court in Tétreault-Gadoury accepted that there
were two valid legislative objectives of the rule: (1) to prevent a person over sixty-five
from receiving a double benefit of both pension and unemployment benefits, and (2)
“to prevent the abuse of the Act by those who had already determined to retire from
the labour force”,18 presumably collecting unemployment insurance benefits without
conducting a viable job search and not having a genuine intention to return to the
work force. The court found that these legislative objectives, “when taken at face
value, are sufficient to meet the ‘objectives test’”19 demanded by s. 1 of the Charter.
However, it doubted that a third legislative objective—to tailor the unemployment
benefit scheme to fit within benefits for people over sixty-five—could, in itself, be
sufficiently important to justify the infringement of a Charter right.20
Furthermore, in considering the proportionality of the Charter breach, the court focused on the principle of minimal impairment. It held that the law had not been carefully designed to achieve its valid legislative objectives and that it certainly did not
meet the “minimum impairment” requirement.21 The objective of preventing double
benefit could, for example, have been achieved by deducting pension receipts from
unemployment insurance benefits. Thus, the Supreme Court ruled that the provision
was in breach of s. 15 and as not saved by s. 1 of the Charter.
Subsequently, in Zaretski v. Saskatchewan (Workers Compensation Board)22 (1997),
another pre-Law decision, the Saskatchewan Court of Queen’s Bench appeared to have
extended somewhat the Supreme Court’s approach to a finding of age discrimination
15.
16.
17.
18.
19.
20.
21.
22
Tétreault-Gadoury, supra note 4 at para. 35.
Ibid.
Ibid.
Ibid. at para. 41.
Ibid.
Ibid. at para. 43.
Ibid. at para. 57.
Zaretski v. Saskatchewan (Workers Compensation Board) (1997), 156 Sask.R. 23, 148 DLR (4th) 745
(Q.B.) [Zaretski], aff ’d (1998) 168 Sask. R. 57, 163 DLR (4th) 191, 1998 CanLII 12340 (C.A.), leave to
appeal to S.C.C. refused, 26767 (28 January 1999).
Age Discrimination and Income-Security Benefits 73
under s. 15 of the Charter.23 The issue concerned a provision of provincial workers
compensation legislation that discontinued benefits at age sixty-five—the benefits
being replaced by much lower annuity benefits. The trial court pointed out that the
Supreme Court had held, in a series of mandatory retirement cases and in TétreaultGadoury, that age distinctions concerning issues such as continued employment and
the right to unemployment benefits were discriminatory under s. 15 of the Charter.24
It held that, having regard to the analysis of the Supreme Court in those cases, one
was “driven to conclude” that the provision in question did violate s. 15 as it denied
benefits to a class of workers identified “solely by virtue of age”.25
The trial court in Zaretski was “unable to distinguish” the circumstances of that case
from those considered in Tétreault-Gadoury.26 However, there arguably is a distinction between the two cases. In failing to identify it, the court effectively extended the
rationale of the Supreme Court’s decision, which turned on denial of access to the
labour market, to a broader rationale involving denial of access to income-security
benefits.
Nevertheless, the trial court in Zaretski did consider that the impugned rule constituted a reasonable limit under s. 1. In particular, it found that providing a uniform
retirement age that corresponded with other programs, and that limited financial
demands on the workers compensation fund, were important legislative objectives.
It held that the legislation was rationally connected with these objectives, and a proportionate limit on the right of injured workers. In its s. 1 analysis, the trial court was
able to distinguish Tétreault-Gadoury on the basis that the termination of benefits
in that case involved a greater degree of impairment than did the replacement of
income maintenance benefits by an annuity payment in Zaretski.27
Age Differentiation as Discrimination: Laronde v. New Brunswick
(WHSCC)
Laronde v. New Brunswick (Workplace Health, Safety and Compensation Commission)28
(2007) is a recent post-Law case very close in its facts to Zaretski. In Laronde, the
Court of Appeal of New Brunswick, in a carefully reasoned decision, has come to a
conclusion entirely different from that of the Saskatchewan court and has implicitly
23. The judgment was upheld on appeal by the Court of Appeal, which in a very short oral judgment
simply held that, assuming the provision were in breach of s. 15, it was satisfied that the lower court’s
analysis as to s. 1 was correct. Therefore the discussion here focuses on the decision of the Court of
Queen’s Bench.
24. Supra note 9 at para. 42.
25. Ibid. at paras. 44-51.
26. Ibid. at para. 48.
27. Ibid. at pars. 52-82.
28 Laronde v. WHSCC and Attorney General of New Brunswick, 2007 NBCA 10 [Laronde].
74
(2009) 22 Journal of Law and Social Policy
questioned whether Tétreault-Gadoury remains good law in the light of the Law
test.29
Under New Brunswick workers compensation legislation, once a person reaches
sixty-five years of age, long-term workers compensation benefits cease. Prior to
reaching age sixty-five, Mr. Laronde received about $1,500 per month in workers
compensation benefits and Canadian pension payments. On reaching age sixty-five,
the workers compensation benefits ceased, and he was paid a once-off annuity of
$11,437 (intended as compensation for a loss of pension income caused by the inability to contribute to public and private pension plans during the period of incapacity
for work).30 In addition, he received $1,262 monthly in both federal and provincial
old age pension payments. While the exact details are not apparent from the judgment, one can assume that the termination of the workers compensation benefits left
Mr. Laronde worse off.
The Court of Appeal applied the Law test to ascertain if this state of facts amounted
to discrimination. This test requires that (1) the law imposes differential treatment
between a person and others, (2) on one or more of the grounds enumerated in s.
15 (or analogous grounds) and (3) the law in question had a purpose or effect that is
discriminatory in that it denies human dignity.31 It was conceded that the first two
tests were satisfied and the case turned on the assessment of the third factor. The
Law judgment had further specified a number of contextual factors to be taken into
account in assessing whether human dignity had been infringed. These involved (1)
pre-existing disadvantage, (2) correspondence between the grounds of distinction
and the actual needs and circumstances of the affected group, (3) the ameliorative
purpose or effect of the impugned measure and (4) the nature and scope of the interests involved.
Considering these factors in light of the facts of the case, the Court of Appeal accepted that older people were more prone to stereotypical attitudes or assumptions
that were factually unjustified. The court did not consider, however, that this discrimination applied in the present case where the “notion” that the person could not
work was based on the fact that he was disabled, rather than on any stereotype.32 In
29. Ibid. at para. 35, where the court remarked that “the Andrews framework was subsequently displaced
by the one provided for in Law. Fortunately, I do not have to speculate on whether Tétreault-Gadoury
would be decided differently today.”
30. Unfortunately we do not know what this equated to in monthly terms. The calculations are further
complicated by the fact that an overpayment was deducted from this annuity so the amount actual paid
to Mr. Laronde was lower.
31. See R. v. Kapp, 2008 SCC 41 at para 17, where the Supreme Court of Canada recently stated that its case
law had established in essence a two-part test for showing discrimination under s. 15(1): (1) Does the
law create a distinction based on an enumerated or analogous ground? (2) Does the distinction create a
disadvantage by perpetuating prejudice or stereotyping? The Court acknowledged that these tests were
divided, in Law, into three steps, but stated that in its view the test “is, in substance, the same.”
32. Laronde, supra note 10 at para. 11.
Age Discrimination and Income-Security Benefits 75
assessing the correspondence between the impugned distinction and the needs of the
affected group, Robertson J.A. (speaking for the court) noted the statements of the
majority of the Supreme Court in Gosselin.33 In Gosselin, the majority noted (1) perfect correspondence between a program and actual needs and circumstances was not
required, (2) one could not infer disparity between program and needs, based on the
mere failure of the government to prove that the assumptions on which the scheme
was based were justified and (3) an age chosen reasonably reflected the legislative
goal—the fact that some might prefer a different age did not indicate a lack of sufficient correlation.34 Applying this approach to the case, the court concluded that there
was no lack of correlation between the program and the needs and circumstances of
injured workers who reach age sixty-five.35 The court did not find any ameliorative
purpose for the legislation and so found that the third factor was neutral. Finally, the
court (somewhat casually) stated that there was no evidence as to the impact of the
legislation on persons whose compensation was terminated at sixty-five. Therefore,
the court found, no evidence that such termination forces workers to live at or below
the poverty line. Accordingly the court did not find that this factor favoured a finding
of discrimination. Overall, given that only the first factor (pre-existing disadvantage)
did support such a finding, the court was satisfied that the termination of benefits
did not undermine the human dignity of those over sixty-five and did not constitute
discrimination under s. 15 of the Charter.
The Court of Appeal shortly dismissed the value of Tétreault-Gadoury as a precedent,
pointing out that it had been decided long before Law and had been referred to only
in passing in that case and in Gosselin. Robertson J.A. also distinguished the case
on the facts, pointing out that the rules in question provided longer “transitional”
benefits than did those in the older case.36
So where does this leave Tétreault-Gadoury? Clearly it was decided long before Law
and does not specifically apply the four s. 15 factors outlined in that judgment.
However, one can, in fact, ascertain from the judgment clear indications of how
the court would have decided these issues (for ease of comparison, the relevant
factors are set out in table form). First, like the Court of Appeal in Laronde, the
Supreme Court in Tétreault-Gadoury clearly believed that older people were subject to pre-existing disadvantages in access to the labour market. Unlike the Court
of Appeal, the Supreme Court took the view that there was a lack of correspondence between the impugned provisions and the circumstances of the respondent in
that case. Again, the third factor (ameliorative purpose) was neutral. The Supreme
Court differed, however, from the Court of Appeal on the fourth factor (the ­interests
33. Supra note 7.
34. Ibid. at paras. 55-57. See also the rather different approach proposed by Bastarache J. (dissenting) in
that case at paras. 239-49.
35. Laronde, supra note 10 at paras. 13-29.
36. Ibid., at para 35. Robertson J.A., at para 36, similarly disposed of Zaretski, supra note 9.
76
(2009) 22 Journal of Law and Social Policy
a­ ffected), focusing on the loss of status as a socially insured person, rather than a
pure financial loss.
Table 1: Contextual factors in assessing discrimination
Factor
Tétreault-Gadoury
Laronde
Pre-existing disadvantage
Yes
Yes (but questioned relevance to the facts of the
case)
Correspondence
No
Yes (following Gosselin)
Ameliorative purpose
None
None
Interests affected
Loss of status
No evidence of serious impact
It appears that the critical difference between the two decisions arises under the
second and fourth factors—correspondence and interests affected. These are related,
in part, to the factual differences in the two cases in that one involved employment/
unemployment whereas the other involved a person incapable of work. The interest
found by the Supreme Court to be affected in Tétreault-Gadoury (loss of status as a
socially insured person) did not arise (or did not arise in the same way) in Laronde,
where the person was not being forced to become a state pensioner but simply moved
from being a recipient of pension and workers compensation benefits to being a recipient of pension benefits (and a lump-sum provided by the workers compensation scheme).37 However, the second aspect (correspondence) cannot so readily be
disposed of on the facts. In Tétreault-Gadoury the Court applied a very strict test,
holding that the “mandatory retirement” involved in that case constituted age discrimination that was not justified under s. 1 of the Charter—a finding that perhaps
misled the Saskatchewan court in Zaretski into holding that age distinctions in relation to access to another income-security benefit were also discriminatory.
However, the Supreme Court in Gosselin has made in clear that in a s. 15 analysis of
“discrimination”, perfect correspondence is not required. Given the evidence (discussed in Laronde) that 86 per cent of the Canadian workforce retires by age sixtyfive,38 one might wonder whether an assumption that people will retire at sixty-five
is not sufficiently close to present-day societal facts to justify a finding of correspondence. As most income-security programs are designed on the assumption that
workers will have retired at age sixty-five, this may justify such a finding. However,
in specific circumstances the interests involved or other facts may be found to outweigh the factor of correspondence in the overall assessment of whether a measure
infringes human dignity.
37. One might, however, be somewhat critical of this aspect of the Laronde decision in that it must be
assumed that Mr. Laronde was financially worse off to some quantifiable amount as a result of the
termination of benefits and that some data as to the broader issue must surely be available that would
have allowed a clearer assessment of the impact.
38. Supra note 35 at para. 25.
Age Discrimination and Income-Security Benefits 77
Conclusion
As we have seen in this note, the 1991 finding by the Supreme Court that termination
of unemployment benefits at age sixty-five is in breach of the Charter (and not justified under s. 1) has been called into question by more recent developments. In part,
this is because the decision in Tétreault-Gadoury—in the context of cases on mandatory retirement—focused heavily on that aspect of the case and can be distinguished
on the facts from cases involving termination of other income-security benefits that
do not involve withdrawal from the labour force.
However, the rather strict approach to correspondence between a program and the
needs and circumstances of individuals applied in that case is also now called into
question by the Gosselin judgment with its emphasis on a more flexible approach.
Nonetheless, it may still be the case that Tétreault-Gadoury is correctly decided on
its own particular facts. Even if one were to now apply the Law test to those facts
and, following Gosselin, come to a less damning conclusion about the lack of correspondence between the assumption that persons would retire at sixty-five and the
needs and circumstances of the respondent in Tétreault-Gadoury, a court might still
conclude that human dignity was affected. This likelihood is due to the level of preexisting disadvantage on this point, and the nature and scope of the interests affected.
However, it seems unlikely that Canadian courts would now expand the outcome
of Tétreault-Gadoury to cases involving a potential overlap between other incomesecurity benefits and pension age.
A number of authors have been rather critical of the emphasis on human dignity in
equality jurisprudence following Law. Some have argued that the requirement that a
provision must impair human dignity to violate s. 15 is reverting to an idea rejected
in earlier jurisprudence that the equality guarantee applies only to “unreasonable
or unfair” distinctions.39 The Supreme Court of Canada has recently responded to
these criticisms, accepting that
human dignity is an abstract and subjective notion that, even with the guidance of the four
contextual factors, cannot only become confusing and difficult to apply; it also proven to
be an additional burden on equality claimants, rather than the philosophical enhancement
it was intended to be.40
In an apparent move away from a reliance on human dignity, the Court stated that
analysis of discrimination in a particular case focuses more usefully on “perpetuation of disadvantage and stereotyping as the primary indicators of discrimination”.41
However, in Laronde, as in a number of other Canadian cases, it is largely the degree
39. See P.W. Hogg, Constitutional Law of Canada (Scarborough: Thomson Canada, 2006), at 1168. For
a contrary view, see D. Greschner, “Does Law Advance the Cause of Equality” (2001) 27 Queen’s L.J.
299.
40. Kapp, supra note 31 at para 22 (as are subsequent quotations in this paragraph).
41. It is as yet too early to predict how this apparent change will affect equality jurisprudence. For an early
example see Harris v. Minister for Human Resources and Skills Development, 2009 FCA22.
78
(2009) 22 Journal of Law and Social Policy
of correspondence between the impugned distinction and the “needs and circumstances” that a court will require—or conversely the margin of discretion allowed
to the state—that is the critical factor in whether or not a breach of s. 15 is found.
The “correspondence” issue is also found in similar jurisprudence in the United
States Supreme Court or the European Court of Human Rights.42 Therefore, it is
not perhaps only the emphasis on human dignity per se that makes it more difficult
to advance a successful argument under s. 15, but rather the overall view that the
Supreme Court of Canada takes on the degree of oversight that it should apply to
state action.
42. In the case of the U.S. Supreme Court, as is well known, outside limited cases that require heightened
scrutiny, the Court normally requires only a “rational” relationship between the distinction made by
the law and some governmental objective (see, for example, L.M. Seidman, Constitutional Law: Equal
Protection of the Laws [New York: Foundation, 2002]). And, in contrast to the Canadian approach
under s. 1 of the Charter, the U.S. courts’ examination of such “rationality” is normally superficial at
best. Similarly, with the exception of issues (such as nationality or, to a lesser extent, gender) where the
European Court of Human Rights will require “very weighty reasons” to justify a distinction, the Court
normally allows a wide margin of discretion when it comes to general measures of economic or social
strategy (in the context of social security, see M. Cousins, The European Court of Human Rights and
Social Security Law [Antwerp: Intersentia, 2008]).
A Tale of Marginalization: Comparing Workers with
Disabilities in Canada and the United States
Ravi Malhotra*
Résumé
Dans cet article, j’entreprends une analyse comparative de la loi canadienne et américaine sur les droits des personnes handicapées dans le contexte de l’emploi, afin de
mieux comprendre les défis et les succès dans chacun des deux pays. Bien que la loi
canadienne ait fourni beaucoup de protection pour les personnes qui deviennent handicapées alors qu’elles sont déjà sur le marché du travail, des barrières structurelles
dans la communauté, spécialement dans le domaine des transports, présentent des
difficultés importantes pour les personnes handicapées. Cela est plus particulièrement le cas pour les personnes handicapées dont les handicaps se manifestent avant
qu’elles n’entrent sur le marché du travail. À l’inverse, bien que la loi américaine sur le
travail et l’antidiscrimination fournisse des protections relativement marginales pour
les personnes handicapées dans le contexte de l’emploi—vu la réalité du déclin des
syndicats—il y a eu, néanmoins, de nombreuses réussites dans l’élimination de barri­
ères dans la collectivité. Au risque de froisser les sensibilités de nombreux nationalistes
canadiens, je suggère que nous avons beaucoup à apprendre de nos cousins américains en ce qui concerne les droits des personnes handicapées. J’explore quelques unes
des raisons derrière cette divergence, en apparence paradoxale, en examinant de près
deux exemples typiques de barrières dans chaque pays : les transports et les services
auxiliaires pour les personnes handicapées. Poussés par l’activisme politique de la base
syndicale sur le terrain, les américains sont très clairement des pionniers d’enlèvement
de barrières dans le domaine des transports. Cependant, il reste encore beaucoup de
travail à faire dans les deux pays en ce qui concerne la fourniture de services auxili­
aires de qualité pour les personnes handicapées.
T
he tale of marginalization of people with disabilities reoccurs across industrialized countries. Whereas scholars such as Esping-Anderson have eloquently
developed theories that distinguish between types of welfare states,1 relatively little
comparative legal scholarship has explored why people with disabilities remain
impoverished and disenfranchised in so many different countries with a variety of
*
1.
Assistant professor, Faculty of Law, Common Law Section, University of Ottawa.
See generally Gosta Esping-Anderson, The Three Worlds of Welfare Capitalism (Princeton: Princeton
University Press, 1990).
80
(2009) 22 Journal of Law and Social Policy
­ olitical systems and legal frameworks.2 In this article, I compare the socio-economic
p
circumstances of Canadians and Americans with disabilities and discuss some of the
important barriers that they face, in order to tease out some of the reasons there are
both striking similarities and profound differences.
First, I provide an overview of the socio-economic status of Canadians and Americans
with disabilities, including insight into the labour market status and the poverty in
which many in both countries live. I caution at the outset that methodological issues
relating to differences in the definition of disability mean that statistical comparisons
of the performance of the two countries must be undertaken with caution.3 The data
presented are intended to communicate the common marginality of many people
with disabilities in both countries. Next, I provide an overview of systemic barriers
in transportation and attendant care services that assist people with disabilities with
activities of daily living such as bathing, dressing and toileting. These barriers play
a major role in the low levels of education, unemployment and poverty that plague
the disability community. Then I briefly outline the state of disability rights law as
it affects workers with disabilities in the two countries and give the reader a basic
understanding of the jurisprudence. In Canada, I centre my analysis on leading decisions of the Supreme Court of Canada and the relevant arbitral jurisprudence. In
the United States, the focus is on the Americans with Disabilities Act [ADA] and
the jurisprudence that has been generated under Title I of the ADA, dealing with
employment discrimination. Through comparative analysis, I try to crack the puzzle
of why Canada has relatively generous policies toward employees with disabilities yet
has such poor environmental accessibility which inhibits labour market attachment
for many people with disabilities. Finally, I summarize my conclusions.
The Socio-economic Status of People with Disabilities in Canada
and the United States
Canada
One in seven Canadians—or more than 4.4 million people—has a disability.4
Unfortunately, Canadians with disabilities remain marginalized in terms of all the
major indicators commonly used to measure socio-economic status. Labour market
participation is an especially important criterion because employment provides both
2.
3.
4.
An important exception is Brendon D. Pooran & Cara Wilkie, “Failing to Achieve Equality: Disability
Rights in Australia, Canada and the United States” (2005) 20 J.L. & Soc. Pol’y 1.
Personal communication, Aron Spector, senior researcher, Strategic Policy Research Directorate, Human Resources and Skills Development Canada (24 October 2007), observing that labour market statistics relating to disability are defined differently in Canada and the United States.
Canada, Advancing the Inclusion of Persons with Disabilities 2008 (Ottawa: Human Resources and Skills
Development Canada, 2008) at 2, citing data from 2006 Participation and Activity Limitation Survey
(PALS), online: Statistics Canada <http://ww.statcan.gc.ca/daily-quotidien/071203/dq071203a-eng.
htm>.
A Tale of Marginalization 81
a path out of poverty5 and a sense of accomplishment and self-worth for many.6 As
Vicki Schultz observes, “[W]ork has been fundamental to our conception of the good
life. It has been constitutive of citizenship, community, and even personal identity.”7
Yet the new economy that has accompanied globalization presents dramatic new
prospects and perils for workers with disabilities as the very meaning of what constitutes work has been profoundly altered with the decline of long-term full-time
employment and the growth of part-time contingent labour8 trends that have been
exacerbated by the current global recession.
How severe is the economic marginalization of Canadians with disabilities? Statistics
released by the Survey of Labour and Income Dynamics, which uses a relatively
broad definition of disability and therefore understates the marginality of people
with more severe disabilities, suggest that only 46 per cent of people with disabilities
were employed full-time for the full year in 2004, compared to 65 per cent of people
without disabilities. While this reflects an increase from 42 per cent in 1999,9 the
numbers nevertheless indicate the persistent marginal position that many people
with disabilities occupy in the labour market.
Interestingly, even though the federal Employment Equity Act includes people with
disabilities as a designated group,10 little progress has in fact been made in the employment rates of people with disabilities.11 For the most recent available year, 2006,
the representation of people with disabilities in both the federally regulated private
sector and federal public sector remained significantly below market availability of
Canada, Advancing the Inclusion of Persons with Disabilities 2004 (Ottawa: Social Development Canada, 2004) at 38 (noting people with disabilities who rely primarily on employment income earn on
average $22,000 more than people with disabilities who rely primarily on income support programs).
6. See generally Vicki Schultz, “Life’s Work” (2000) 100 Colum. L. Rev. 1881.
7. Ibid. at 1886.
8. For good introductions to the voluminous literature on this topic, see Joanne Conaghan, Richard M.
Fischl & Karl Klare, eds., Labour Law in an Era of Globalization: Transformative Practices and Possibilities (Oxford: Oxford University Press, 2002); Mark P. Thomas, Regulating Flexibility: The Political
Economy of Employment Standards (Montreal & Kingston: McGill-Queen’s University Press, 2009);
Leah Vosko, ed., Precarious Employment: Understanding Labour Market Insecurity in Canada (Montreal & Kingston: McGill-Queen’s University Press, 2006).
9. Canada, Advancing the Inclusion of Persons with Disabilities 2006 (Ottawa: Human Resources and Social Development Canada, 2006) at 48, online: <http://www.hrsdc.gc.ca/eng/disability_issues/reports/
fdr/2006/advancinginclusion.pdf>.
10. S.C. 1995, c. 44, s. 3.
11. Employment Equity Act: Annual Report 2007 (Ottawa: Human Resources Development Canada,
2008) at 17, online: <http://www.hrsdc.gc.ca/eng/labour/publications/equality/annual_reports/2007/
pdf/2007_report.pdf>. The EEA applies to the federally regulated private sector and Crown corporations with 100 or more employees, the federal public service, separate employers in the federal public
service with 100 or more employees (such as the Canada Revenue Agency), other public sector employers with 100 or more employees (such as the Canadian Forces), and federal contractors with 100 or
more employees who bid on or receive contracts valued at more than $200,000. Ibid. at 2.
5.
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(2009) 22 Journal of Law and Social Policy
employees with disabilities.12 However, there were occasional bright spots, including
representation in the more narrowly defined federal public service at above-market
availability of employees with disabilities and increased representation of workers
with disabilities in the banking sector.13
Moreover, the intersection of factors such as gender, age and Aboriginality remain
important. For instance, only 40 per cent of working-age women with disabilities
were employed in 2001, compared with 73 per cent of women without disabilities
(the comparable numbers for men were 48 per cent and 84 per cent respectively).14
Older workers with disabilities, those with more severe disabilities and those with
lower educational levels are also less likely to be employed.15 Aboriginal persons
not only face much higher rates of disability (particularly Aboriginal women)16 but
Aboriginal workers with disabilities also experience heightened marginalization
in the labour market. Only 41 per cent of Aboriginal adults with disabilities were
employed, according to 2001 census data. Aboriginal adults with disabilities were
especially unlikely to be working full-time throughout the year. Only 21 per cent
of Aboriginal adults with disabilities were in this category, according to the 2001
data.17
Comparing income levels also provides some insight into the marginalization of
Canadians with disabilities. Just as Canadians with disabilities are more likely to be
unemployed, Canadians with disabilities also experience higher poverty rates than
their able-bodied counterparts. According to Statistics Canada data, people with disabilities are more than twice as likely to live below the Low-Income Cutoff.18 Given
the relatively weak labour market attachment of Canadians with disabilities and the
extra costs that disability often entails, this figure is hardly surprising. In addition
to unemployment, another cause of poverty for people with disabilities is that they
12. Ibid. at 17.
13. Ibid.
14. Advancing the Inclusion of Persons with Disabilities 2006, supra note 9 at 56 (citing data from Statistics
Canada’s 2001 Participation and Activity Limitations Survey).
15. Advancing the Inclusion of Persons with Disabilities 2004, supra note 5 at 40.
16. Advancing the Inclusion of Persons with Disabilities 2008, supra note 4 at 95: “It is clear that the rates of
disability—particularly associated with various health conditions such as diabetes and ear disease—
are distressingly high among Aboriginal peoples. Depending on the disability and the region under
consideration, estimates range from 20% to 50% greater than those found in the non-Aboriginal population … [a 2002-2003 survey] shows that the rate of disability among First Nations adults is 28.5%
(25.7% among men and 31.5% among women)”.
17. Advancing the Inclusion of Persons with Disabilities 2004, supra note 5 at 45. See also the similar data
reported at Advancing the Inclusion of Persons with Disabilities 2006, supra note 9 at 56: “First Nations
adults with disabilities are less likely to be employed than their non-disabled counterparts (37.3% compared to 52.2%)”.
18. Advancing the Inclusion of Persons with Disabilities 2004, ibid. at 54. See also Christine Dobby, “Whose
Responsibility? Disabled Adult ‘Children of the Marriage’ under the Divorce Act and the Canadian
Social Welfare State” (2005) 20 Windsor Rev. Legal Soc. Issues 41 at 47.
A Tale of Marginalization 83
are more likely to live alone than able-bodied people.19 Unfortunately, studies have
shown that concerns over loss of supplementary health coverage are an important
factor in discouraging people with disabilities from entering the labour market.20
People with disabilities are also twice as likely as able-bodied people to face food
shortages—a statistic that of course directly affects health.21 Primary income earners
with disabilities have also been found to have a net worth that is approximately onethird of those without disabilities.22 Thus, a wide variety of measures of income find
people with disabilities repeatedly scoring poorly.
There is a well-established correlation between educational levels and success in the
labour market. In fact, this may increasingly be the case as a larger proportion of
newly created jobs require higher levels of training.23 Therefore, an examination of
differences among people with disabilities in educational attainment is important.
The data indicate that Canadians with disabilities are less likely to have completed
high school than their able-bodied counterparts. Some 37 per cent of adults with
disabilities have not completed high school, compared with only 25 per cent of ablebodied adults.24 Similarly, people without disabilities are nearly twice as likely to
have completed a university degree as their counterparts with disabilities.25
The United States
Americans with disabilities also face strikingly similar economic marginalization.
According to data released in 2004 by the National Organization on Disability [NOD],
only 35 per cent of working-age Americans with disabilities were in the labour market, full time or part time, compared with 78 per cent of able-bodied Americans.26
Moreover, according to 2000 data from the United States Census Bureau, only
19.
20.
21.
22.
23.
24.
25.
26.
Advancing the Inclusion of Persons with Disabilities 2004, supra note 5 at 55.
Ibid. at 56.
Ibid. at 57.
Ibid. at 57-58. Interestingly, however, people with disabilities who have a post-secondary education
have a greater net worth than their counterparts without disabilities.
Ibid. at 31 (noting more than 70% of new jobs created in Canada in 2004 required a post-secondary
education).
Ibid. at 32.
Ibid.
2004 National Organization on Disability / Harris Survey on Americans with Disabilities (Washington:
National Organization on Disability, 2004), summary available at <http://www.nod.org/Resources/
harris2004/harris2004_summ.pdf>. The latest data from the U.S. Census Bureau’s monthly Current
Population Survey (CPS) indicates that the January 2009 labour participation rates of working-age
persons with and without disabilities remain at levels similar to those reported in the 2004 NOD/Harris Survey. The monthly CPS data can be found at <http://www.bls.gov/cps/cpsdisability.htm>. See also
Armantine M. Smith, “Persons with Disabilities as a Social and Economic Underclass” (2002-2003) 12
Kan. J.L. & Pub. Pol’y 13 at 21 for a summary of the data in the 2000 NOD/Harris Survey and the 2000
CPS.
84
(2009) 22 Journal of Law and Social Policy
22 per cent of working-age men with disabilities were employed ­full-time.27 Not
surprisingly, women with disabilities and people with severe disabilities fared even
worse. In 2000, 27 per cent of working-age women with disabilities participated in
the labour market.28 Only a shockingly low 15 per cent of women with disabilities
were employed full time and only 9 per cent of those classified as severely disabled
were working at all.29 Again, it is important to emphasize that these statistics are
intended to supply only a portrait of the marginalization of American workers with
disabilities, rather than to make direct comparisons with the Canadian data, which
inevitably used different definitions of disability.
While income levels of workers with disabilities, as measured by mean earnings,
increased year after year in the late 1990s, income levels of people with disabilities
remained low. According to the 2007 Disability Status Report, based on census data,
people with disabilities were more than twice as likely as able-bodied people to have
incomes classified as low.30 The likelihood of having a low income was even greater
among people with physical and mental disabilities.31 Eligibility criteria for income
support programs such as disability insurance are highly restrictive, and few people
with disabilities qualify because recipients are required to refrain from participation
in the labour market.32 People with severe disabilities tended to have particularly low
incomes, and the actual effect of this disparity is sharply magnified because people
with severe disabilities frequently have very large expenses related to their disabilities, particularly in the free market health-care environment in the United States.33
Many scholars have justifiably identified the lack of a universal health-care program
as a major factor in keeping Americans with disabilities outside the labour market,34
where they remain eligible for Medicaid health benefits that are provided only to the
27. Smith, ibid. at 22 and 48, table 8 (summarizing data from the U.S. Census Bureau, Current Population
Survey, 2000).
28. Ibid.
29. Ibid. at 22, 48 (table 8) and 54 (table 14).
30. W. Erickson & C. Lee, 2007 Disability Status Report: United States (Ithaca, NY: Cornell University
Rehabilitation Research and Training Center on Disability Demographics and Statistics, 2008) at 34
[Erickson & Lee, Disability Status], available online at <http://www.ilr.cornell.edu/edi/disabilitystatistics/StatusReports/2007-PDF/2007-StatusReport_US.pdf?CFID=9959281&CFTOKEN=63943738
&jsessionid=f03042e2d15af7ab94781b1d76433d255777>. See also ibid. at 22, citing the U.S. Census
Bureau Survey of Income and Program Participation, table 8A (1994-1995). See also Mark C. Weber,
“The Americans with Disabilities Act and Employment: A Non-Retrospective” (2000-2001) 52 Ala. L.
Rev. 375 at 416, n. 301 [Weber, “Americans”], citing data showing that the poverty rate for adults with
disabilities is three times that of the rest of the population.
31. Erickson & Lee, ibid. at 34-35. See also Smith, supra note 26 at 22.
32. Mark C. Weber, “Disability Rights, Disability Discrimination, and Social Insurance” (2009) 25 Ga. St.
U.L. Rev. 575 at 660.
33. Smith, supra note 26.
34. Samuel R. Bagenstos, “The Future of Disability Law” (2004) 114 Yale L.J. 1 at 71-72 (noting universal
entitlement programs are politically more stable than targeted policy interventions).
A Tale of Marginalization 85
extremely poor and are consequently especially vulnerable to cutbacks. According
to the 2007 Disability Status Report, the median earnings of people with disabilities
were significantly less than 80 per cent of people without disabilities.35 Again, like in
the Canadian case, it is hardly surprising that a segment of the population with minimal labour market attachment tends to have systematically low incomes. It is also
not surprising that income levels are directly correlated with educational attainment
levels among Americans with disabilities.36
Again on the issue of educational attainment, Americans with disabilities remain far
behind their able-bodied peers. The NOD/Harris Survey data found that people with
disabilities were more than twice as likely as their able-bodied counterparts to have
not completed high school. More than 20 per cent of people with disabilities reported
that they had not attained a high school diploma.37 One interesting point to bear in
mind, however, is that most people with disabilities acquire their disabilities later in
life. Therefore, one has to consider not only factors such as physical barriers at university and college campuses or the increasing costs of tuition but also the possibility
that disability is simply more common among those with lower levels of education
and income.38 Regardless of the nature of the causal relationship, the fact remains
that people with disabilities in the United States have lower levels of educational attainment, with significant implications for income levels and employment rates.
Barriers Faced by People with Disabilities
Canada
The discussion above made clear that Canadians with disabilities score poorly on key
indicators of socio-economic status. In this subsection, I illustrate major barriers in
Canadian society that collectively cause this profound marginalization. I do the same
in the subsequent subsection for the United States. This commentary is deliberately
selective, as the intent is not to provide a comprehensive discussion of every barrier
affecting Canadians with myriad diverse disabilities but merely to highlight particularly difficult areas.
Transportation Barriers
Clearly, one critical area is transportation because effective public transportation is
essential for many people with disabilities, especially those with lower incomes, to
access employment, recreation and medical services in the community. This area
35. Erickson & Lee, supra note 30 at 31. See also Smith, supra note 26 at 22 (men aged twenty-one to
sixty-four years with no disabilities had a median monthly income of $2,353, while men with severe
disabilities in the same age range had a median monthly income of $1,880; the similar numbers for
women were $1,750 and $1,400 respectively).
36. Ibid. at 21.
37. Ibid. at 21, 58.
38. Susan Schwochau & Peter David Blanck, “The Economics of the Americans with Disabilities Act, Part
III: Does the ADA Disable the Disabled?” (2000) 21 Berkeley J. Emp. & Lab. L. 271 at 285, n. 78.
86
(2009) 22 Journal of Law and Social Policy
encompasses all forms of transportation, including local and intercity buses, taxis,
trains, aircraft, ferries and ships. Barriers range from physical impediments to access
by people with mobility impairments, such as steps, to a failure to make information
on route stops available to blind people in alternative formats and beyond.
One illustration of these extensive barriers is the inaccessible railway cars operated
by VIA Rail that were the subject of an ultimately victorious battle waged by the
Transportation Committee of the Council of Canadians with Disabilities [CCD],
Canada’s leading cross-disability rights-advocacy organization. In Via Rail Canada
Inc. v. Canada (Canadian Transportation Agency),39 the Supreme Court of Canada,
in a landmark opinion written by Justice Abella, upheld a decision of the Canadian
Transportation Agency ruling that features of the newly purchased Renaissance passenger cars constituted undue obstacles to the mobility of people using wheelchairs
and people who require the assistance of service animals in violation of the Canada
Transportation Act [CTA].40 This issue was tremendously important because the
Renaissance cars represented the first addition of new trains to an inaccessible and
aging system in many years.41
The Federal Court of Appeal had overturned the decision of the Agency, finding that
it had failed to analyze whether train users with disabilities could be accommodated
within the general train network as a whole, regardless of the physical barriers on the
Renaissance model.42 Moreover, the Federal Court of Appeal stated that the high cost
of accommodating a small number of passengers with disabilities has to be weighed
against the goal of keeping train fares affordable to the public.43 The Federal Court
of Appeal therefore found the Agency’s decision to be patently unreasonable and
sent the issue back for reconsideration in accordance with its analysis.44 Fortunately
for disability rights activists, a narrow 5-4 majority of the Supreme Court of Canada
overturned the Federal Court of Appeal and restored the Agency’s decision.45
Justice Abella, writing for the majority, held that the CTA must be interpreted in
light of human rights principles,46 including respect for the dignity of travellers with
39. [2007] 1 S.C.R. 650 [Via Rail Canada].
40. S.C. 1996, c. 10.
41. David Baker & Sarah Godwin, “ALL ABOARD!: The Supreme Court of Canada Confirms That Canadians with Disabilities Have Substantive Equality Rights” (2008) 71 Sask. L. Rev. 39 at 48. It should be
noted that David Baker and Sarah Godwin acted as legal counsel for the Council of Canadians with
Disabilities, the key player in this litigation. I also disclose that while this case predates my involvement, I am now a member of the Human Rights Committee of the Council of Canadians with Disabilities.
42. [2005] 4 F.C.R. 473, 2005 FCA 79 (QL) [Via Rail Canada cited to F.C.R.].
43. Ibid. at 512 (noting that only 0.5% of rail passengers in 1995 had disabilities).
44. Ibid. at 505-06.
45. Via Rail Canada, supra note 39.
46. Ibid. at paras. 112-17.
A Tale of Marginalization 87
disabilities. She stated that there is also a duty to prevent new barriers in the design
process and therefore the law does not require one to wait until inaccessible vehicles
are in operation and an individual has experienced discrimination.47 Furthermore,
given the informational disparity between a complainant and a corporate respondent
that has expertise about its own finances, the respondent had a duty to demonstrate
that removing the obstacle identified by the complainant would constitute undue
hardship.48 A finding would be made against a respondent that failed, as in this case,
to cooperate and provide evidence to the Agency.49 The Court also confirmed that
“undue obstacle” had to be interpreted as equivalent to “undue hardship” in Canadian
human rights jurisprudence, indicating that the very high standard imposed before
steps required to rectify a barrier are found to be an undue hardship apply to the
transportation arena as well.50 Undueness would be reached only when all reasonable forms of accommodation were exhausted and rectifying the identified obstacle
would substantially interfere with the enterprise.51 Collectively, these principles mark
an important moment in Canadian jurisprudence.
The dissent, written jointly by Justice Rothstein and Justice Deschamps, placed far
more emphasis on the economic implications of mandating accommodation and held
that the Agency had erred in not giving sufficient weight to the degree of accessibility
offered on the general train network.52 The minority view, had it prevailed, would
have been a disturbing development in the jurisprudence that would have posed difficulties for future claimants alleging discrimination in the area of transportation
that requires a remedy involving capital expenditures.
Although the disability rights community ultimately scored an important if slender
victory in Via Rail Canada, the many years of struggle and activism that led to the
decision exemplify the significant barriers faced by people with disabilities. Indeed,
as David Baker and Sarah Godwin have commented, the lengthy litigation nearly
bankrupted the CCD.53 Moreover, during the many years that the complaint proceeded through the legal system, the inaccessible railway cars were operational, forcing people with mobility impairments to make alternative arrangements. As David
Baker has poignantly commented, “The recent VIA Rail incident is convincing
Ibid. at para. 118.
Ibid. at paras. 142, 226.
Ibid. at para. 226.
Ibid. at paras. 137-39.
Ibid. at paras. 130-31.
Ibid. at para. 351. I discuss the dissent briefly in Ravi Malhotra, “The Law and Economics Tradition
and Workers with Disabilities” (2007-2008) 39 Ottawa L. Rev. 249 at 278-79.
53. Baker & Godwin, supra note 41 at para. 1.
47.
48.
49.
50.
51.
52.
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(2009) 22 Journal of Law and Social Policy
e­ vidence that Canada has become a dumping ground for inaccessible transportation
vehicles that cannot be brought into service in other developed countries.”54
The decision in Via Rail, however, is by no means an isolated example. Although
some attention was paid to making transportation accessible—largely an issue within
federal jurisdiction—after the federal government released the Obstacles report in
1981 detailing systemic failures in the accommodation of people with disabilities in
many areas of life,55 transportation policy in Canada remains filled with many barriers for people with disabilities. Despite progress in the 1980s, a decision to make
accessibility standards voluntary by the Liberal government in 1993 has put Canada
now far behind many industrialized countries, including the United States.56 Despite
promises by private sector entities that voluntary accessibility codes would be effective, VIA Rail’s intransigence in purchasing passenger cars that have significant
accessibility problems for people with mobility impairments is indicative of the barriers that people with disabilities have faced when travelling.57
Two other recent legal developments warrant careful attention. Recently, the Canadian
Transportation Agency ruled that people with disabilities who require an additional
seat for an attendant or because of obesity during flights must not be charged an
additional fare by the leading airlines.58 The Agency adopted the principle known
to disability rights activists as “One Person, One Fare”. The Agency accepted that
the previous policy of the airlines imposed financial burdens that constituted undue
obstacles for people with disabilities who required an extra seat during flights. The
policy made it difficult for people with disabilities to take advantage of the employment, leisure and educational opportunities that were otherwise available to airline
passengers.59 However, the Agency granted the airlines a one-year grace period to
implement a policy that complied with the ruling.60
54. David Baker, Moving Backwards: Canada’s State of Transportation Accessibility in an International Context (Winnipeg: Council of Canadians with Disabilities, 2005) at 12-13 [Baker, Moving], online: Council
of Canadians with Disabilities <http://www.ccdonline.ca/en/transportation/minister/­movingback>.
55. Canada, Parliament, House of Commons, Special Committee on the Disabled and the Handicapped,
Obstacles (Ottawa, 1981). Excerpted in Anne Crichton & Lyn Jongbloed, Disability and Social Policy in
Canada (North York: Captus, 1998) at 274.
56. Baker, Moving, supra note 54 at 2-3.
57. Ibid. at 3. The victory at the Supreme Court of Canada cannot make up for the years of inaccessibility
and barriers imposed on people with disabilities, especially poor people with disabilities who may not
be able to afford more expensive modes of transportation such as airplane flights.
58. Decision No. 6-AT-A-2008 (CTA) (available online at <http://www.otc-cta.gc.ca/decision-ruling/
decision-ruling.php?type=d&no-num=6-AT-A-2008&lang=eng>). The airlines involved included Air
Canada, Air Canada Jazz, and WestJet.
59. Ibid at paras. 22, 163, and 903.
60. Ibid at para. 919. The ruling came into effect on 10 January 2009, after an application by the airlines
for leave to appeal was dismissed by the Federal Court of Appeal ([2008] F.C.J. No. 209) and by the
Supreme Court of Canada ([2008] S.C.C.A. No. 322).
A Tale of Marginalization 89
A second issue of concern is the growing backlash to the Ontario Human Rights
Tribunal’s rulings that municipal bus systems must announce the stops for blind passengers. As a result of successful complaints by prominent disability rights activists
in Toronto and Ottawa against their respective municipal transportation systems,61
the Ontario Human Rights Commission advised municipalities that they must call
out the stops.62 In an unprecedented move, municipal councillors in Sarnia denounced this directive in highly inflammatory language and compared the OHRC to
Nazis.63 This suggests that enforcement of the OHRC’s commitment to calling out
the stops across Ontario in coming years will be challenging. The OHRC announced
in October 2008 that all thirty-eight of Ontario’s public transit providers had committed to abiding by the stop announcement policy and that it would “continue to
monitor the situation … to ensure that this important accessibility measure is available province-wide”.64
Numerous other examples of transportation barriers are easily catalogued. If one focuses on a single city, Toronto, Canada’s largest metropolis, the problems that plague
the local transportation system with respect to wheelchair accessibility are manifold.
They include the inaccessibility to wheelchair users and others with mobility impairments of the major portion of the subway system—the main artery of Toronto’s
transportation system.65 Even stations supposedly identified as wheelchair accessible
often experience broken elevators. On one random day when an accessibility audit
was conducted, more than a quarter of subway elevators were out of service and none
of the accessible subway stations even had accessible washrooms.66 Only one in four
buses in the conventional fixed-route bus fleet is wheelchair accessible.67 The streetcar system is also completely inaccessible, even though accessible streetcar systems
61. Lepofsky v. TTC, 2007 HRTO 23; Green v. OC Transpo, Decision No. 200-AT-MV-2007 (CTA) (available online at <http://www.otc-cta.gc.ca/decision-ruling/decision-ruling.php?type=d&no-num=200AT-MV-2007&lang=eng>). The complaint against Ottawa’s OC Transpo system, which regularly
crosses into Quebec, was heard by the Canadian Transportation Agency. Both Lepofsky and Green are
members of the Ontario Bar and disability rights advocates.
62. See Commissioner Barbara Hall to transit providers, October 2007, online: Ontario Human Rights
Commission <http://www.ohrc.on.ca/en/resources/news/transitletter>. See also Ontario Human
Rights Commission, “Next Stop, Accessiblity”: Report on Public Transit Stop Announcements in Ontario (April 2008), online: Ontario Human Rights Commission <http://www.ohrc.on.ca/en/resources/­
discussion_consultation/transitreport/pdf>.
63. See AODA Alliance, “Our Campaign for Strong, Effective Implementation of the AODA”, online:
<http://www.aodaalliance.org/strong-effective-aoda/03252008.asp>.
64. News Release, “RE: Transit Stop Announcements” (16 October 2008), online: Ontario Human Rights
Commission <http://www.ohrc.on.ca/en/resources/news/transitthank>.
65. Baker, Moving, supra note 54 at 35.
66. Ibid. at 42.
67. Ibid. at 40. In fairness, it should be noted that the Canadian disability rights community was less active
on the issue of making regular buses accessible because of concerns, now seen to be largely unfounded,
that heavy snowfall in most Canadian cities would prevent the use of such lifts.
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(2009) 22 Journal of Law and Social Policy
are in operation in European cities.68 Moreover, as a result of a 1998 decision by the
Conservative provincial government to download funding responsibilities for public
transit to municipalities, the paratransit service in Toronto that provides door-todoor transportation, Wheel-Trans, has become increasingly costly and overwhelmed
by users, leading to a decline in the quality of the service and pressure by the service provider to exclude those with mobility impairments that are deemed minor.69
Lengthy waiting times, limited hours of service, advance booking requirements,
prioritization of trips for medical purposes only, cancellation fees and higher fares
are all growing problems with paratransit systems in Ontario.70 Collectively, these
barriers make employment for people with many disabilities very difficult.
Attendant Care Services
A second area that imposes considerable barriers for many people with disabilities is
the profound shortage of attendant care services, sometimes known as home support
services. Attendant service providers assist, under the direction of the disabled person, with activities of daily living such as bathing, dressing and toileting and are essential for people with disabilities to fully participate in employment, education and
life of the community in general. They allow people with disabilities to exercise full
autonomy in deciding to undertake particular tasks, such as putting on a blue shirt
or blouse on Monday, but leave the physical execution of the task to attendants to
perform.71 Unfortunately, demand for attendant care services in Canada greatly exceeds the supply, particularly in remote and rural communities, and the waiting lists
are often lengthy. Where such services are unavailable, people with disabilities are
expected to rely on demeaning institutional settings or family members or friends—
an untenable situation that undermines the independence of people with disabilities
and leads to friction or even abuse within families.72 Some people with disabilities
are forced to use acute health care services, a system already under extreme stress
and under-funded, because they have no alternative.73
68. Ibid. at 41.
69. Ibid at 37-38; Ena Chadha, “Running on Empty: The ‘Not So Special Status’ of Paratransit Services in
Ontario” (2005) 20 Windsor Rev. Legal & Soc. Issues 1 at 9-10. Indeed, Wheel-Trans actually implements what amounts to a medical exam for new Wheel-Trans applicants to ensure that they are sufficiently disabled. Chadha, ibid. at 10. The policy was unsuccessfully challenged as a violation of the
Charter equality rights of the mentally disabled: see Canella v. T.T.C., (1999) 123 O.A.C. 123 (Ont.
S.C.J.).
70. Chadha, ibid. at 1.
71. See the discussion of the difference between “decisional” and “executional” autonomy in Samuel R.
Bagenstos, “The Americans with Disabilities Act as Welfare Reform” (2003) 44 Wm. & Mary L. Rev. 921
at 992-93 [Bagenstos, “Americans”].
72. See Andrew I. Batavia, “A Right to Personal Assistance Services: ‘Most Integrated Setting Appropriate’
Requirements and the Independent Living Model of Long-Term Care” (2001) 27 Am. J.L. & Med. 17 at
18 [Batavia, “Right”] (discussing implications of lack of attendant services in American context).
73. Roeher Institute, Nothing Personal: The Need for Personal Supports in Canada (North York: Roeher
Institute, 1993) at 64-65 [Roeher Institute, Nothing Personal].
A Tale of Marginalization 91
Moreover, these services are arbitrarily classified as extended health care under the
Canada Health Act and therefore provinces are free to impose user fees for them,
even though they are in fact essential for people with disabilities to thrive in the
community.74 Indeed, many provinces have imposed user fees, forcing many people
with disabilities on limited incomes to make drastic choices, such as bathing less
frequently—decisions that can have very negative health effects, physically and
psychologically.75 The same problems arise in provision of assistive devices such as
customized wheelchairs. There is also an extremely complex and highly bureaucratic
patchwork of services to navigate in order to obtain what is required, which varies
significantly from province to province and even within provinces.76 There are also
concerns that the shift toward a decentralized federalism with greater powers for the
provinces, symbolized by the end of the Canada Assistance Plan, may mean greater
inter-provincial and intra-provincial disparities in the availability of attendant services and assistive devices, as well as greater variation in eligibility requirements
and the degree of coverage.77 This is particularly true as people with disabilities are
expected to rely increasingly on dispersed and local voluntary community organizations to supply services such as attendant services and assistive devices as the federal and provincial governments cede more and more authority to the community
­support sector. There are also deep concerns that, despite federal government verbal
commitments to empowering Canadians, these voluntary organizations are far more
oriented towards satisfying their funders than the disabled clients who seek accountability for the services they obtain.78
In many cases, there are also arbitrary disparities based on the medical diagnosis of
the disabled person, even though the individual may have needs identical to someone with a diagnosis for whom the program is intended.79 People who are born with
disabilities may find they do not meet the eligibility criteria of services designed for
people who are injured later in life and who have established a record of ­employment.80
74. Ibid. at 65.
75. Kari Krogh et al., A National Snapshot of Home Support from the Consumer Perspective: Enabling People
with Disabilities to Participate in Policy Analysis and Community Development (Winnipeg: Council of
Canadians with Disabilities, 2005) at 60, online: Council of Canadians with Disabilities <http://www.
ccdonline.ca/en/socialpolicy/disabilitysupports/homesupports/national-snapshot2005>.
76. Roeher Institute, Nothing Personal, supra note 73 at 70-71.
77. Roy Hanes & Allan Moscovitch, “Disability Supports and Services in the Social Union” in Alan Puttee,
ed., Federalism, Democracy and Disability Policy (Montreal & Kingston: McGill-Queen’s University
Press, 2002) 121 at 131-32.
78. Michael Bach, “Governance Regimes in Disability-Related Policy and Programs: A Focus on Community Support Systems” in ibid., 153 at 160-61; Marcia H. Rioux & Michael J. Prince, “The Canadian
Political Landscape of Disability: Policy Perspectives, Social Status, Interest Groups and the Rights
Movement” in ibid., 11 at 24-25.
79. Roeher Institute, Nothing Personal, supra note 73 at 78-79 (describing Saskatchewan program that
funded wheelchairs only for people with paralysis).
80. Ibid. at 80.
92
(2009) 22 Journal of Law and Social Policy
People with disabilities whose functioning is too great may ironically be at risk of
losing essential services. As the Roeher Institute has noted, “In short, a person has to
be careful about trying too hard for inclusion in the activities of everyday living for
fear of losing the supports that, for many, are essential to daily functioning.”81
Even when people with disabilities qualify for attendant services, there are real problems of rigidity that risk profound marginalization. For instance, services may not
be available on weekends, drastically affecting a disabled person’s quality of life.82
Programs may have strict regulations stipulating only home-based delivery of attendant services, regardless of the fact that they are required in the workplace or at
a university, forcing the disabled person to apply separately to another program, if it
even exists, for the necessary services.83 Even worse, many people with disabilities
may lose their services should they move, even within the same community, because
their attendant services are tied to a particular building.84 This situation obviously
has a direct effect on their labour market opportunities, including their ability to take
employment that requires travel.
Moreover, regulations may prohibit attendants from performing very simple care
routines—such as the insertion of tubes, which are easily learned by anyone—because they have been classified by legislation as funded only when performed by
a medical specialist.85 Many consumers fear that the recent unionization of many
attendants may lead to restrictions that institutionalize their homes and dangerously
reduce flexibility, while destroying relationships between attendants and users.86
Although some programs offer people with disabilities the opportunity to hire and
fire their own attendants under a direct funding model, these are available only on
a limited basis in many parts of Canada.87 Worst of all, funding cutbacks to home
support services in recent years have led to serious barriers that prevent people with
disabilities from achieving their full potential, including having to withdraw from
the labour market.88
Ibid. at 81.
Ibid. at 86.
Ibid. at 87.
Ibid; Krogh et al., supra note 75 at 59.
Roeher Institute, Nothing Personal, supra note 73 at 88-89.
Krogh et al., supra note 75 at 79. See also Cynthia J. Cranford, “From Precarious Workers to Unionized
Employees and Back Again? The Challenges of Organizing Personal-Care Workers in Ontario” in Cynthia J. Cranford et al., Self-Employed Workers Organize: Law, Policy and Unions (Montreal & Kingston:
McGill-Queen’s University Press, 2005) 96 at 122-23 (describing tensions raised by lack of flexibility
and disputes over whether attendants should do basic housekeeping). I address this in Ravi Malhotra,
“Empowering People with Disabilities” (2006) 41 New Politics, online: William Patterson University
<http://www.wpunj.edu/newpol/issue41/Malhotra41.htm>.
87. Krogh et al., ibid. at 75.
88. See generally Kari Krogh & Jon Johnson, “A Life without Living: Challenging Medical and Economic
Reductionism in Home Support Policy for People with Disabilities” in Dianne Pothier & Richard Dev81.
82.
83.
84.
85.
86.
A Tale of Marginalization 93
The United States
Transportation Barriers
It should be acknowledged at the outset that, despite myriad barriers for Americans
with disabilities, transportation accessibility has been a relative success story in the
United States. It remains clear, however, that all the same barriers that largely continue in Canadian transportation systems posed, in the past, the same difficulties for
Americans with disabilities and therefore warrant examination. Canadian disabilityrights advocates can learn much from the American history, and it is only by closely
parsing the interplay between legal doctrine and grassroots movements that one
can decipher what occurred to transform American society so radically in favour of
Americans with disabilities in the transportation sector.
For instance, as far back as 1976, when the disability rights movement was in its
relative infancy and more than a decade before the ADA, in Disabled in Action, Inc.
v. Coleman89 a coalition of disability rights activists sought to compel federal transportation authorities to require manufacturers to produce a low-floor wide-door bus
with ramps that would be suitable for wheelchair users in order to meet accessibility
requirements in public transportation.90 Disability rights activists prioritized bus accessibility as a low-cost form of transportation for the many people with disabilities
with minimal incomes.91 Although this litigation was deemed to be moot by the
time a decision was rendered,92 the new Carter Administration, under pressure
from disability rights activists, reacted to the litigation by decreeing in 1977 that
all buses purchased with federal funds after 30 September 1979 must be wheelchair
accessible.93 Unfortunately, Congress, under intense pressure from lobbyists of the
American Public Transit Association [APTA], voted in 1978 to re-evaluate this mandate, leading to delays of many years before Americans with disabilities would enjoy
full access to bus transportation.94
This was by no means the only legal setback in these early days of American transportation activism. In a telling ruling that would anticipate later dubious judicial
analyses of the ADA, a majority of the New York State Supreme Court (Appellate
Division) held that the New York City transit authorities did not discriminate against
people with physical disabilities under the state’s human rights laws, because bus
89.
90.
91.
92.
93.
94.
lin, eds., Critical Disability Theory: Essays in Philosophy, Politics, Policy and Law (Vancouver: University
of British Columbia Press, 2006) 151 at 151-76.
448 F. Supp. 109, 1978 U.S. Dist. LEXIS 18976 (E.D. Pa.1978) [Disabled cited to Lexis]. Although the
decision was released in 1978, the plaintiffs had filed the case in 1976.
Doris Zames Fleischer & Frieda Zames, The Disability Rights Movement: From Charity to Confrontation (Philadelphia: Temple University Press, 2001) at 56.
Ibid. at 85.
Disabled, supra note 89 at 5.
Fleischer & Zames, supra note 90 at 56.
Ibid.
94
(2009) 22 Journal of Law and Social Policy
lifts that enabled wheelchair access were affirmative action and not mandated under
the law.95 Even when disability rights activists convinced authorities to introduce
some accessible buses, poor training for bus drivers meant that many did not know
how to use the wheelchair lifts or were hostile to people with mobility impairments
using the new buses, leading to confrontations between bus drivers and disability
rights activists.96 Poor maintenance of wheelchair lifts caused further difficulties.97
One early grassroots organization, Disabled in Action, organized a sit-in at the offices of the Metropolitan Transportation Authority in Manhattan in 1980 to protest
continued delays in the introduction of wheelchair-accessible buses.98 In part, this
reflects the fact that a generation of radicalized veterans, newly disabled as a result of
combat in Vietnam, played a pivotal role in mobilizing Americans with disabilities
in transportation and other forms of activism.99 Tragically, this kind of grassroots
mobilization has been essentially absent from the Canadian scene.
Sometimes industry lobbyists initiated litigation in an effort to roll back or delay the
advent of disability rights. For instance, the APTA successfully launched litigation
to challenge 1979 Department of Transportation [DOT] regulations that required
accessible buses. APTA was able to convince the D.C. Circuit that accommodation of people with disabilities wrongly constituted unwarranted affirmative action and therefore the Court overturned a lower court’s ruling upholding the DOT
­regulations.100 The New York City government under Mayor Koch was particularly
hostile to accessible transportation, citing the cost implications at a time of fiscal
constraints for municipal governments. Nevertheless, a 1984 agreement between
transit authorities and disability rights activists generated an eight-year plan to make
key subway stations and a large majority of buses wheelchair accessible. Eventually,
transit authorities agreed to make all buses wheelchair accessible.101 Organizations
such as American Disabled for Accessible Public Transportation [ADAPT] battled
on with an array of lawsuits in the courts and political demonstrations in the streets
throughout the 1980s. This action culminated eventually in attainment of nationwide transportation accessibility and the passage of the ADA. The history of this
struggle provides important lessons from which Canadian disability rights activists
can learn.102
95. Eastern Paralyzed Veterans Association v. Metropolitan Transportation Authority, 433 N.Y.S. 2d 461
(App. Div. 1980).
96. Fleischer & Zames, supra note 90 at 60-61.
97. Ibid. at 61.
98. Ibid. at 59.
99. See Ravi Malhotra, “The Politics of the Disability Rights Movement” (2001) 31 New Politics, online:
William Patterson University <http://www.wpunj.edu/newpol/issue31/malhot31.htm>.
100. American Public Transit Association v. Lewis, 655 F.2d 1272 (D.C. Cir. 1981).
101. Fleischer & Zames, supra note 90 at 62.
102. Ibid. at 68.
A Tale of Marginalization 95
What are the specific lessons for Canadian disability rights activists? First and foremost, one should not be choosing between political-consciousness-raising and the
assertion of disability rights as a political issue in every realm of the public sphere,
on the one hand, and a litigation strategy on the other. Rather, the two should be
complementary and go hand in hand.103 This suggests that a disability rights movement led primarily by professionals needs to liaise more aggressively with marginalized segments of the community who have both the time and passion to contribute
in a way that many professionals with disabilities do not. While the Vietnam war was
a unique episode in American history, activism can be replicated, provided that advocacy organizations conduct the proper outreach. The vast majority of people with
disabilities still do not self-identify with the movement in Canada. A second question that remains ambiguous is the role that injured soldiers returning from service
in Afghanistan might play in a future disability rights movement. Very little is known
about such disabled soldiers, and while one cannot equate their experiences with the
explosive political tensions raised by American intervention in Vietnam, it is entirely
possible that newly disabled soldiers will become politicized in a way that has been
sorely lacking among many people with disabilities.
Attendant Services
The historic lack of attendant services has also been an enormous barrier for more
than ten million Americans with disabilities, and success has remained more elusive
than in the field of transportation. A major political issue in the United States has
been the continued warehousing of people with disabilities in nursing homes, despite
the very real potential they have to live independently and contribute to society if appropriate attendant services were made available and despite the fact that attendant
services are actually more cost effective.104 Neglect and abuse in American nursing homes are legendary and the settings are particularly inappropriate for younger
people with disabilities.105 Some people with disabilities have even committed suicide rather than be confined to the bleak regimentation of a nursing home.106
While the Independent Living movement has highlighted this issue and in some
cases has even become a provider of attendant services to disabled people through
disabled-run Independent Living Centres, most Americans with disabilities continue to obtain attendant services through home health agencies with many of the
103. This dovetails with the findings of Sarah Armstrong’s insightful work on the impact of litigation strategies on disability rights movements. See generally Sarah Armstrong, “Disability Advocacy in the Charter Era” (2003) 2 J.L. & Equality 33.
104. Fleischer & Zames, supra note 90 at 84.
105. See generally Nina A. Kohn, “Second Childhood: What Child Protection Systems Can Teach Elder
Protection Systems” (2003) 14 Stan. L. & Pol’y Rev 175; Margo Schlanger, “Beyond the Hero Judge:
Institutional Reform Litigation as Litigation” (1999) 97 Mich. L. Rev. 1994 at 2035, n. 184 (discussing
litigation against nursing homes).
106. Fleischer & Zames, supra note 90 at 34-35.
96
(2009) 22 Journal of Law and Social Policy
same problems and restrictions that I discussed above in the Canadian context.107
Consequently, there are real needs that still have to be addressed and a powerful $90
billion nursing home industry stands much to lose.108 It is telling and indicative of
a fundamental problem that the American activist organization ADAPT eventually
changed the meaning of its acronym to American Disabled for Attendant Programs
Today in 1990 to reflect its continuing struggle for attendant services long after it had
won its battles for accessible public transportation.109
The first significant reform was enactment by Congress of section 1915(c) of the
Social Security Act in 1981. This established an optional service entitled the Home
and Community-Based Care Waiver Program that authorized the provision of services in the community.110 Participating states could apply for a certain number of
waiver slots, provided that the cost of offering services in the community would
be less expensive. Individuals who met the financial eligibility criteria could then
choose whether they obtained community based services, but only until the slots
were filled.111 States retained considerable autonomy to decide whether to offer such
services state-wide, how many slots to request and whether to offer them to people
with specific types of disabilities.112 While the amount spent has risen markedly
since the late 1980s, it still pales in comparison to the tens of billions allocated for
institutional care and primarily serves younger people with physical or intellectual
disabilities.113 Disability rights activists have continued to mobilize on the issue. ADAPT played
a major role in creating awareness of the issue using the same highly creative and
effective methods that it had used to challenge the inaccessibility of the intercity
bus industry. For instance, it has surrounded government buildings as well as offices
of lobbying organizations for the nursing home industry in various cities and then
proclaimed the building to be a nursing home. People were then allowed to enter or
leave the occupied buildings only with ADAPT’s permission.114 Such aggressive tactics likely contributed to public awareness and influenced the outcome of litigation
107. Bob Kafka, “Empowering Service Delivery” (1998) Ragged Edge, online: <http://www.raggededgemagazine.com/0998/b998ft6.htm>. For a discussion of the Independent Living movement, see Marc
A. Rodwin, “Patient Accountability and Quality of Care: Lessons from Medical Consumerism and the
Patients’ Rights, Women’s Health and Disability Rights Movements” (1994) 20 Am. J.L. & Med. 147 at
164-66.
108. Fleischer & Zames, supra note 90 at 83-84.
109. Ibid. at 82, 104-05.
110. Batavia, “Right”, supra note 72 at 24.
111. Ibid.
112. Ibid.
113. Ibid. at 25.
114. Fleischer & Zames, supra note 90 at 84.
A Tale of Marginalization 97
in this area.115 For example, in Olmstead v. L.C.,116 a majority of the Supreme Court
ruled that the unnecessary institutionalization of people with mental health and intellectual disabilities in Georgia could in some circumstances violate the ADA where
reasonable accommodations were not made that permitted such individuals to live in
the most integrated possible setting.117 The majority found that unjustified isolation
may be regarded as discrimination under the ADA. Therefore, the Court held that,
when evaluating such claims by people with disabilities, and arguments by states that
accommodations would constitute a fundamental alteration of the program, courts
must consider both the cost of providing community care by the plaintiffs in question
and the range of services that the state provides to people with mental disabilities and
the need to offer all services equitably.118 In many ways, the Supreme Court’s decision in Olmstead marked a turning point in favour of the Independent Living model
and consumer-directed care where the disabled person selects, manages and fires his
or her attendants.119
Studies in the United States that have compared disabled people’s satisfaction in
using an Independent Living [IL] model with the traditional agencies model have
shown significant advantages with the IL model.120 People with disabilities under the
IL model are generally much more satisfied with their attendants and also rate their
overall quality of life as higher.121 Moreover, evidence supports a positive ­correlation
between the IL model and the health of people with disabilities. Studies have demonstrated a lower hospitalization rate when disabled people use the IL model.122
Disabled people using the IL model also have been able to achieve greater productivity, making it easier for them to participate in the labour market.123 Unfortunately,
attendant services programs that follow the IL model remain limited, undermining
the capacities of many potential workers with disabilities in the United States.
Disability Rights Laws in Canada and the United States
Canada
In this subsection, I provide a brief overview of leading Supreme Court of Canada
cases and arbitral decisions that affect workers with disabilities before discussing
115.
116.
117.
118.
119.
120.
121.
122.
123.
Ibid. at 104-05.
527 U.S. 581 (1999).
Ibid.
Ibid. at 597.
Andrew I. Batavia, “The Growing Prominence of Independent Living and Consumer Direction as
Principles in Long-term Care: A Content Analysis and Implications for Elderly People with Disabilities” (2002) 10 Elder L.J. 263 at 270-71 [Batavia, “Growing”].
Ibid. at 267.
Ibid.
Ibid. at 268.
Ibid. at 269.
98
(2009) 22 Journal of Law and Social Policy
American jurisprudence in the next subsection. In Canada, the duty to accommodate
workers with disabilities has its origins in the duty to accommodate workers with
religious beliefs and the development of jurisprudence under the Canadian Charter
of Rights and Freedoms, which prohibits discrimination on the basis of disability
and was adopted as part of the 1982 patriation of the Canadian Constitution.124
In Ontario Human Rights Commission and O’Malley v. Simpson-Sears, the Supreme
Court of Canada held that a neutral workplace rule requiring a retail clerk to work
on her Sabbath violated the Ontario Human Rights Code’s prohibition of discrimination on the basis of creed.125 The Supreme Court, overruling lower courts, held that
intent was not required to make a claim of discrimination, as the difficulties in demonstrating intent would make it unlikely that a complainant could prove an intent to
discriminate on the part of employers in many cases.126
Moreover, human rights legislation seeks to remove discrimination to assist victims
rather than punish the party that is discriminating.127 The Court also endorsed the
idea, later developed in Andrews v. Law Society of British Columbia128, that equal
treatment did not necessarily require identical treatment. Furthermore, the Court
developed the point that human rights legislation is quasi-constitutional and almost
always takes priority over conflicting statutes. Human rights legislation clearly also
takes precedence over collective agreements and private contracts and must be interpreted in a broad and liberal fashion.129
The Court therefore developed the concept of adverse effect discrimination, which
arises where a neutral rule is not discriminatory on its face but nevertheless has a
disproportionate effect on a group protected by human rights legislation.130 In this
case, the neutral rule of performing work on a standard schedule had an adverse effect on particular religious minorities who could not work on their Sabbath. Once a
complainant had demonstrated prima facie evidence of adverse effect discrimination,
the employer had the onus of showing that the workplace rule constituted a bona fide
124. Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982, c. 11 (U.K.) [Charter
of Rights]. However, disability rights activists had to mobilize to convince the federal government to
amend the original version of the Charter of Rights, which did not bar disability discrimination. For
a discussion of this, see e.g. M. David Lepofsky, “The Charter’s Guarantee of Equality to People with
Disabilities: How Well Is It Working?” (1998) 16 Windsor Y.B. Access Just. 155 at 161-64. Section 15 of
the Charter of Rights did not take effect until 1985, to allow legislatures and others to adjust.
125. [1985] 2 S.C.R. 536, [1985] S.C.J. No. 74 (QL) [O’Malley cited to S.C.R.].
126. Ibid. at 549.
127. Ibid. at 547.
128. Andrews v. The Law Society of British Columbia, [1989] 1 S.C.R. 143 at 164, [1989] S.C.J. No. 6 (QL)
[Andrews cited to S.C.R.].
129. Zurich Insurance Co. v. Ontario Human Rights Commission [1992] 2 S.C.R. 321 at 339, (1992) 93 D.L.R.
(4th) 346 (QL); Michael MacNeil, Michael Lynk & Peter Engelmann, Trade Union Law in Canada,
looseleaf (Aurora: Canada Law Book, 2002) ¶11.210.
130. O’Malley, supra note 125 at 551-52.
A Tale of Marginalization 99
occupational requirement [BFOR] that the employer could not alter or accommodate
without experiencing undue hardship.131 As the employer in this case did not present
any evidence, the Court held that the employer had failed to demonstrate undue hardship and found that its failure to accommodate violated the Ontario Human Rights
Code.132 The development of the concept of adverse effect discrimination allowed
for a more comprehensive understanding of the need to accommodate workers with
disabilities where many barriers relate to neutral rules of general application that
negatively affect workers with disabilities. By the late 1990s, disability discrimination
complaints were the most common ground of discrimination alleged before both the
Ontario and Canadian Human Rights Commissions.133
In Central Alberta Dairy Pool v. Alberta (Human Rights Commission),134 the Supreme
Court of Canada clarified the nature of the duty to accommodate in another case
concerning the accommodation of a worker’s religious beliefs that conflicted with
workplace rules. The complainant worked at a milk processing plant and was denied
time off to celebrate a religious holiday that fell on a Monday, the busiest day at
the plant, and subsequently terminated after refusing to work on his Holy Day.135
Although a human rights Board of Inquiry upheld his discrimination complaint, this
decision was overturned on appeal on the grounds that the work schedule constituted a BFOR.136 The Supreme Court, in a judgment by Justice Wilson, restored the
Commission’s decision and held that the employer had violated the complainant’s
human rights by failing to accommodate his request for time off to commemorate his
Holy Day up to the point of undue hardship.137 There was a duty to accommodate
even where the employer argued that the workplace rule constitutes a BFOR.138 Until
this decision, the case law remained very confused, often making arbitrary distinctions based on the wording of particular human rights statutes, on the question of
whether the duty to accommodate arises only in cases of adverse effect discrimination or whether it applied also to situations of direct discrimination.139
131. Ibid. at 552, 555. This is sometimes known as the bona fide occupational qualification. In unionized
workplaces, the union also has a duty to accommodate.
132. Ibid. at 559-60.
133. Michael Lynk, “Disability and the Duty to Accommodate: An Arbitrator’s Perspective” [2001-02] Lab.
Arb. Y.B. 51 at 56.
134. [1990] 2 S.C.R. 489, [1990] S.C.J. No. 80 (QL) [Dairy Pool cited to S.C.R.].
135. Ibid. at 494-96.
136. Ibid. at 500.
137. Ibid. at 517.
138. Ibid. See also Ravi A. Malhotra, “The Legal Genealogy of the Duty to Accommodate American and
Canadian Workers with Disabilities: A Comparative Perspective” (2007) 23 Wash. U. J.L. & Pol’y 1 at
14 [Malhotra, “Legal Genealogy”].
139. Lepofsky, supra note 124 at 178. See also Bhinder v. CN, [1985] 2 S.C.R. 561, [1985] S.C.J. No. 75 (QL)
(holding workplace rule requiring worker to wear hard hat was a BFOR).
100
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The ruling also clarified what the criteria are in determining the contours of when
an accommodation will be classified as undue hardship. The Court indicated that
while not an exhaustive list, six factors identified by the Board of Inquiry ought to
be adopted: (1) financial cost of the accommodation, (2) disruption of a collective
agreement, (3) problems of morale of other employees, (4) interchangeability of the
workforce and facilities, (5) size of the employer’s operations and (6) safety.140 The
exact weight accorded to each factor varies with the facts of a particular case but
employee morale is generally accorded little weight.141 These principles have been
applied in a number of disability discrimination cases relevant to the workplace in
many different situations.
In British Columbia (Public Service Employee Relations Commission) v. B.C.G.S.E.U.
(Meiorin),142 a case involving a female firefighter’s challenge to aerobic standards
as adverse effect discrimination that disproportionately affected female firefighters, the Supreme Court of Canada restored the arbitrator’s decision ruling that the
grievor had experienced discrimination.143 This landmark decision also established
a new test that transcended the obscure differences between adverse effect and direct
discrimination and confusion over when the relevant tests for the two categories
applied.144 Under the new test, a decision maker has to ask three questions: (1) Did
the employer adopt the challenged standard for a purpose rationally connected to
the performance of the job? (2) Has the employer chosen the standard in an honest
and good faith belief that it is required to fulfil the work-related purpose? (3) Is the
standard reasonably necessary so that it would be impossible to accommodate an
individual employee without imposing undue hardship upon the employer?145 In order to demonstrate undue hardship, the employer must pass all three branches of the
test.146 As Lynk observes, the decision requires employers to reflect on a number of
factors when considering a possible accommodation. These factors include whether
alternative approaches, such as individualized testing, have been attempted or implemented, whether a common standard for all employees is truly necessary, whether
the employer’s business objectives may be met in a way that is not discriminatory,
whether the standard may be designed without placing a burden on those to whom
the standard applies and whether the union and the disabled employee have fully
participated in the process.147
Dairy Pool, supra note 134 at 520-21.
Lynk, supra note 133 at 64-65.
[1999] 3 S.C.R. 3, 176 D.L.R. (4th) 1 (QL) [Meiorin cited to S.C.R.].
Ibid.
See Colleen Sheppard, “Of Forest Fires and Systemic Discrimination: A Review of British Columbia
(Public Service Employee Relations Commission) v. B.C.G.S.E.U.”, Case Comment, (2001) 46 McGill L.J.
533 at 538-39.
145. Meiorin, supra note 142 at 32-33.
146. Ibid.
147. Lynk, supra note 133 at 60.
140.
141.
142.
143.
144.
A Tale of Marginalization 101
Another important case meriting close attention is the Supreme Court of Canada’s
decision in Nova Scotia (Workers’ Compensation Board) v. Martin.148 In Martin, the
Court considered a section 15 Charter challenge to the exclusion of chronic pain
from the regular workers’ compensation system in Nova Scotia. Unlike others with
disabilities who were eligible for workers’ compensation, workers diagnosed with
chronic pain were eligible for only a four-week Functional Restoration Program.149
The Court unanimously held that the exclusion of workers with chronic pain from
the regular workers’ compensation system did in fact violate their equality rights
under the Charter and could not be saved by section 1.150 The Court noted that the
exclusion did not allow for the individual testing of workers who were asserting that
they had chronic pain.151 It determined that the appropriate comparator group—an
important prerequisite for successful section 15 Charter litigation—was all workers
eligible for employment-related injuries who do not have chronic pain.152 The Court
skilfully acknowledged that the widespread perception among many policy-makers
and physicians that chronic fatigue syndrome was at least partly psychosomatic simply increased the stigma of people with the condition and enhanced, rather than
diminished, their legal argument.153 By explicitly stating that the legislation and
associated regulations harmed the dignity of Nova Scotians with chronic pain and
provided them with no services specifically geared toward chronic pain, the Court
contributed to a nuanced understanding of disability discrimination.154
This is not to suggest that there is not considerable room for improvement. Most
certainly there has been greater progress made in the unionized sector covered by
labour law than among the majority of non-unionized workers with disabilities, who
must rely solely on provincial employment standards legislation and the contract of
148. [2003] 2 S.C.R. 504, 2003 SCC 54 [Martin cited to S.C.R.]
149. Ibid. at para. 2.
150. Ibid. at paras. 5-6. Much of the ruling deals with the extent to which administrative tribunals may
consider constitutional issues. That issue is beyond the scope of this paper.
151. Ibid. at para. 71.
152. Ibid.
153. Ibid. at para. 90.
154. Ibid. at para. 101. This contrasts sharply with the Court’s reasoning in Granovsky v. Canada (Minister
of Employment and Immigration), [2000] 1 S.C.R. 703, 2000 SCC 28 (upholding dropout provision in
Canada Pension Plan eligibility requirement that prevented people with temporary disabilities from
obtaining CPP benefits). I write about this elsewhere: see Ravi Malhotra, “Martha Nussbaum’s Capabilities Approach and Equality Rights for People with Disabilities: Rethinking the Granovsky Decision”
in Joseph Magnet & Bernard Adell, eds., The Canadian Charter of Rights and Freedoms at Twenty-Five
(Markham: LexisNexis, 2009) 61 at 61-89.
102
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employment.155 Hence, in the recent decision of Honda Canada Inc. v. Keays,156 the
majority of the Supreme Court of Canada, speaking through Justice Bastarache, held
that aggravated and punitive damages ought not to have been awarded to a man with
chronic fatigue syndrome [CFS] who had worked for his employer for some fourteen years and who was now seeking damages for wrongful dismissal.157 The trial
judge had increased the notice period of fifteen months to twenty-four months in
light of what he concluded was discrimination and harassment on the part of Honda
Canada. Additionally, punitive damages of $500,000 were awarded.158 The majority
of the Ontario Court of Appeal reduced punitive damages to $100,000 because it
concluded that the trial judge had relied on findings of fact that were not supported
by evidence and because the damages were not proportional to the alleged wrong.159
The majority of the Supreme Court of Canada concluded that the trial judge erred
in many of his factual findings and that there had not been discriminatory conduct
in the manner of Mr. Keays’ dismissal. Consequently, they ruled that there was no
justification for either extending the notice period beyond fifteen months160 or for
any punitive damages whatsoever.161
On the one hand, it seems evident that the Supreme Court majority may not have
a sufficiently nuanced understanding of the complexities of an invisible disability
such as CFS, which is widely misunderstood by many policy-makers, including
physicians. It represents a departure from the reasoning in Martin. However, it
should also be acknowledged that a number of factors likely coalesced to produce
this outcome. First, the trial judge’s inflammatory language about a Honda Canada
conspiracy against Mr. Keays likely undermined his reasons and indeed led to very
little ­deference to his findings of fact.162 In that sense, the decision can likely be
distinguished from future litigation of this sort. However, a more troubling aspect
is the fact that the majority seemed unwilling to systematically apply human rights
principles in adjudicating the conduct of the employer.163 By insisting that there was
simply no basis to found a human rights complaint and that it was unnecessary to
155. See, e.g. Michael Lynk, “Disability and Work: The Transformation of the Legal Status of Employees with
Disabilities in Canada” in The Honourable Randall S. Echlin & Chris G. Paliare, eds., Law Society of Upper Canada Special Lectures 2007: Employment Law (Toronto: Irwin Law, 2007) 189 at 193-94, online:
Social Science Research Network <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1068403>.
156. Honda Canada Inc. v. Keays, [2008] 2 S.C.R. 362, 2008 SCC 39 [Keays]. I disclose that I am a member of
the Human Rights Committee of the Council of Canadians with Disabilities that had intervener status
in this litigation.
157. Ibid.
158. Ibid. at paras. 8-11.
159. Ibid. at para. 18.
160. Ibid. at paras. 33-61.
161. Ibid. at paras. 62-78.
162. Ibid. at paras. 36-48. Justice Bastarache concluded, as did the Court of Appeal, that “there simply was
no conspiracy to terminate Keays”. Ibid. at para. 45.
163. Ibid. at para. 67.
A Tale of Marginalization 103
consider whether discrimination constituted an independent actionable wrong, the
Supreme Court missed a golden opportunity to weave human rights principles into
wrongful dismissal jurisprudence.
Overall, the Canadian jurisprudence on disability has had a number of advantages.
First, it has accepted a very broad definition of disability. Whereas the American
ADA jurisprudence is fraught with difficulties, Canadian human rights tribunals and
labour arbitration boards have accepted the fact that disability includes not just the
stereotypical person using a wheelchair or who is blind or deaf but a wide range
of mental health disabilities such as depression, invisible disabilities such as HIV
and colour blindness, addictions such as alcoholism or drug dependency, and much
more.164 A disability may be temporary, long-term or permanent. A person who is
perceived by employers as having a disability also qualifies as a person with a disability. All these conditions must be accommodated up to the point of undue hardship.165
A second advantage is that labour arbitrators have gained the authority to apply human rights codes in arbitration, including of course the duty to accommodate.166
This means that unionized workers are able to win remedies on a far more expedited
basis than would be possible by filing complaints with the backlogged and painfully
slow human rights commissions.167
The scope of the duty to accommodate disabilities in Canadian arbitral and human
rights jurisprudence is broad and may require the employer to act creatively and flexibly to implement the principles enshrined in the Charter of Rights and Freedoms and
in human rights legislation in highly specific and individual circumstances that must
be evaluated on their own merits. It includes the idea that existing positions may have
to be rebundled or modified, to the point of undue hardship, if a particular worker
cannot perform the duties in any existing job.168 An employer may also be required
to offer training, provided that the cost does not amount to undue hardship, for a
disabled employee.169 Employers operating larger workplaces may have a concomitantly broader duty to workers requesting accommodations such as, for instance,
other shifts.170 However, this duty to accommodate disabilities is not unlimited. An
employer retains the right to operate a productive workplace, and an employee must
be able to perform the essential duties of an existing, modified or newly assigned
position. The duty to accommodate does not generally require the creation of an
164. Lynk, supra note 133 at 61-63.
165. Ibid.
166. Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, [2003] 2 S.C.R. 157,
2003 SCC 42 (QL).
167. See e.g. Brian Etherington, “Promises, Promises: Notes on Diversity and Access to Justice” (2000) 26
Queen’s L.J. 43.
168. Calgary District Hospital Group and U.N.A., Local 121-R (1994), 41 L.A.C. (4th) 319 at 326 (Ponak)
(suggesting nursing jobs may have to be rebundled to accommodate disabled grievor).
169. Lynk, supra note 133 at 72-73.
170. Ibid. at 72.
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entirely new position.171 It consists largely of after-the-fact modification to existing
structures that systematically discriminate against people with disabilities.
Nevertheless, the Canadian approach provides for significant modifications of the
workplace to meet the individualized accommodation issues of specific disabled
people and its system of regulations to allow for disabled people to be reasonably
accommodated. In this respect, it contrasts favourably with the American experience
that I will analyze below. For instance, automatic termination clauses in a collective
agreement or in an employment contract have typically been found by arbitrators
and courts to violate human rights statutes. These provisions state that a worker
automatically loses her or his job following a prescribed period of absence, regardless of the reason. Decision makers have generally concluded that since disabilities
are the cause for the absence, termination essentially for having a disability amounts
to discrimination if the employee may be accommodated in another position or is
likely to return to work in the foreseeable future.172 Arbitrators have also held that
an employer is still required to accommodate a worker whose disability is discovered
or identified only after she or he is terminated.173
This is not to suggest that the duty to accommodate is unlimited. There will always
be cases that are extremely difficult to accommodate and where the employer cannot
be expected to do more. For instance, in Hydro‑Québec v. Syndicat des employées de
techniques professionnelles et de bureau d’Hydro-Québec, section locale 2000 (SCFPFTQ)174 the Supreme Court of Canada unanimously held that an arbitrator’s ruling, dismissing the employee’s grievance with respect to her termination, that the
employer had met its duty to accommodate ought to be restored.175 The grievor in
this case had numerous and diverse disabilities including episodes of depression and
personality disorder, physical impairments such as tendonitis, epicondylitis and bursitis and also had undergone various surgeries.176 She had missed 960 days of work
in fewer than eight years and the prognosis was clear that her psychiatric disabilities
would continue indefinitely.177
The Supreme Court of Canada held that the idea, developed in Meiorin, that a workplace rule will be upheld only when it is impossible to accommodate an employee
without undue hardship, did not mean that the employer had to tolerate an employee
171. Ibid. at 76-77.
172. Ibid. at 81-83. But see McGill University Health Centre (Montreal General Hospital) v. Syndicat des employés de l’Hôpital général de Montréal, [2007] 1 S.C.R. 161, 2007 SCC 4 [McGill] (ruling automatic
termination clauses do not necessarily violate an employer’s human rights responsibilities to accommodate employees with disabilities per se where employee had been absent for a period of years).
173. Lynk, supra note 133 at 89.
174. [2008] 2 S.C.R. 561, 2008 SCC 43 [Hydro-Quebec].
175. Ibid.
176. Ibid. at para. 2.
177. Ibid. at paras. 3-5.
A Tale of Marginalization 105
who was hampering the efficient operation of the business. Rather, dismissal would
be seen as appropriate where the employer had made significant efforts to accommodate the employee.178 In this case, the employer had undertaken significant efforts to
accommodate the grievor, including modification of her work station, part time work
and reassignment to a new position.179 The Court also held that one must consider
the accommodations provided over the entire time of employment, not simply at the
time of dismissal.180 While some may see this as a retreat in the application of disability rights law, the fact situation raised here is extreme and it is hardly surprising
that arbitrators and courts would regard any further accommodation as constituting
undue hardship.181
With respect to last chance agreements, where employers and unions typically agree
that a further serious violation of work rules—usually significant absenteeism caused
by alcoholism or drug addiction—will result in automatic termination as an alternative to immediate discharge, the duty to accommodate disabilities contained in human rights law may sometimes override the last chance agreement. Neither employers nor unions are entitled to contract out of the human rights code.182 Arbitrators
and courts have typically insisted that employers demonstrate that they cannot
accommodate the disabled worker, notwithstanding the breach of the last chance
agreement, without undue hardship.183 An employer may, for instance, be expected
to allow a worker with an addiction problem to take a leave of absence in order to
enter drug rehabilitation.184 However, a worker may be dismissed if reasonable accommodation has been made and there is no reasonable likelihood that the worker
will achieve regular attendance in the future.185
Yet there is one telling contradiction that comparative scholarship reveals. Although
Canadian workplaces, particularly those that are unionized, must comply with a
significant duty to accommodate workers with disabilities up to the point of undue
hardship, this does little to address those environmental barriers, such as those
existing in the transportation system. It also does not address barriers in education
faced by the many people with disabilities who acquire disabilities at birth or prior to
entry into the labour market. Similarly, the broad definition of disability is undoubtedly extremely beneficial for those who acquire disabilities either in the workplace
or off-duty while they are employed. However, the broad definition of disability does
178. Ibid. at paras. 12-18. This seems to resolve ambiguity about what precisely the Supreme Court meant
by “impossible” in Meiorin, supra notes 142-145 and accompanying text.
179. Ibid. at para. 17.
180. Ibid. at paras. 21-22.
181. In that sense, it is similar to the fact situation raised in McGill, supra note 172.
182. Lynk, supra note 133 at 98.
183. Ibid. at 94.
184. Ibid. at 95.
185. Ibid. at 98.
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not assist people with disabilities in battling bus systems and subway networks that
are not friendly for wheelchair users or those who require guide dogs and announced
stops.186 The fact that American society has featured more vibrant and successful disability rights activism has meant that more significant gains have been made in areas
such as transportation access. Ranging from academic groups such as the Society
for Disability Studies to more activist oriented organizations such as ADAPT that
flaunt their in-your-face tactics, these dedicated advocates for disability rights activism have altered the discursive policy environment to make it much more difficult
for policy-makers to ignore disability activism.187 Indeed, recent American scholarship has even focused on strategies for cultivating future generations of disability
leaders and identifying ways of obtaining representation of particularly marginalized
subgroups of people with disabilities, such as those with intellectual disabilities.188
Canadians can learn much from these initiatives where their cognate equivalents
remain comparatively timid and where fewer Canadians with disabilities are willing
to publicly devote their time for disability rights causes.
Would such an approach dismiss the tried and true strategies of legal change for the
utopian pastures of political transformation? Not at all. As Orly Lobel has recently
observed, there is a risk of cooptation in both legal and non-legal strategies.189 Legal
strategies may flatten more creative and rich methods of addressing a multifaceted
problem of discrimination. They may serve to legitimate struggling for legal reforms
in a system that is inherently unequal or they may crowd out other potentially more
liberating solutions.190 A purely political strategy runs the risk of itself being coopted by the popular discourses of the day such as privatization, deregulation and the
transfer of government functions to other non-state actors.191 A dialectically interconnected legal and political strategy is necessary so that the day-to-day political
activism of disability rights activists feeds into the legal strategies of disability rights
lawyers and vice versa. Other social movements such as the feminist movement have
186. The recently enacted Accessibility for Ontarians with Disabilities Act, S.O. 2005, c. 11, after about a
decade of tireless lobbying by disability rights activists, mandates improved access in the long term. It
is far too early to tell whether the AODA process will generate improvements in accessibility. This topic
will have to be assessed by future scholarship.
187. See Society for Disability Studies <http://www.disstudies.org> for an overview of the Society for Disability Studies’ history and activities.
188. Pennie Foster-Fishman et al., “Building the Next Generation of Leaders in the Disabilities Movement”
(2007) 22 Disability & Soc. 341 at 347.
189. See generally Orly Lobel, “The Paradox of Extralegal Activism: Critical Legal Consciousness and
Transformative Politics” (2007) 120 Harv. L. Rev. 937.
190. Ibid. at 949-58. The seminal example in the field of labour law is Karl E. Klare, “Judicial Deradicalization of the Wagner Act and the Origins of Modern Legal Consciousness, 1937–1941” (1977) 62 Minn.
L. Rev. 265 (discussing how the passage of labour law legislation in the United States stunted the rankand-file consciousness of union activists). This is a brief summation of a very complex topic.
191. Ibid. at 942, 975.
A Tale of Marginalization 107
demonstrated a capacity for seeking political change and legal reforms. Both are
valuable and necessary.
In Canada, the duty to accommodate has been confined largely to the workplace in
terms of practical realization, as illustrated by the tenacious fight of the railway industry to block basic accessibility to mobility impaired Canadians that was achieved
long ago in the United States.192 Yet without substantive changes in areas such as
transportation and attendant services, people with disabilities will remain outside
the labour market. The relatively high union density rate in Canada, particularly in
the comparatively large and highly regulated public sector,193 facilitates provision of
accommodations at labour arbitration. However, it is completely irrelevant to those
Canadians with disabilities who have either given up the quest for labour market
entry and the dignity of working for a living or never entered the labour market in
the first place. It will require both political strategizing and dramatic legal victories to
achieve the changes that Canadians with disabilities so badly need. I turn in the next
subsection to an overview of American jurisprudence under Title I of the ADA.
The United States
In 1990, the ADA was enacted by Congress with overwhelming support, with a
two-year phase-in period similar to the one granted for section 15 of the Canadian
Charter of Rights and Freedoms, after a protracted social movement raised awareness about the systemic marginalization faced by people with disabilities in the
United States. It followed the earliest attempts to prohibit disability discrimination in employment through the enactment—with no lobbying from the disability
rights community and apparently entirely as an afterthought—of section 504 of the
Rehabilitation Act of 1973.194 Section 504 prohibits discrimination on the basis of
what it termed “handicap”195 by entities in receipt of federal funds, including federal agencies and federal contractors.196 The campaign to have regulations pursuant to the Rehabilitation Act of 1973 released by the appropriate federal authorities
spawned many of the first disability civil rights struggles and culminated in lengthy
and dramatic sit-ins by disability rights activists in many American cities in 1977.197
Disability rights activists also emphasized the importance of maintaining independ192. See generally Baker & Godwin, supra note 41.
193. See e.g. Eric Tucker, “‘Great Expectations Defeated?’ The Trajectory of Collective Bargaining Regimes
in Canada and the United States Post-NAFTA” (2004) 26 Comp. Lab. L. & Pol’y J. 97 at 109.
194. 29 U.S.C. § 794 (2000).
195. For a discussion of the distinctions between impairment, disability, and handicap, see generally Jerome
E. Bickenbach et al., “Models of Disablement, Universalism and the International Classification of
Impairments, Disabilities and Handicaps” (1999) 48 Soc. Sci. & Med. 1173.
196. Linda H. Krieger, “Afterword: Socio-Legal Backlash” (2000) 21 Berkeley J. Emp. & Lab. L. 476 at 489;
Laura L. Rovner, “Disability, Equality and Identity” (2004) 55 Ala. L. Rev. 1043 at 1050.
197. Joseph P. Shapiro, No Pity: People with Disabilities Forging a New Civil Rights Movement (New York:
Random House, 1993) at 64-69.
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ence for people with disabilities to counteract attempts by the Reagan Administration
to roll back progressive regulations drafted to implement section 504.198
The pressing need to expand civil rights for people with disabilities to the private
sector gradually led disability rights advocacy groups to go a step further and lobby
Congress in the 1980s to enact the ADA.199 This measure was, however, an ordinary piece of legislation, unlike Canada’s 1982 adoption of the Charter of Rights and
Freedoms and the accordance of quasi-constitutional status to federal and provincial
human rights statutes.200 American case law is clear that legislative classifications
made on the basis of disability do not receive heightened scrutiny but merely have to
be defended rationally.201
Title I of the ADA prohibits employers with fifteen or more employees from discriminating against qualified people with disabilities.202 The definition of disability
adopted in the ADA is identical to the definition that was used in section 504.203
Specifically, a person is classified as having a disability if he or she has (1) a physical
or mental impairment that substantially limits one or more of that individual’s major
life activities, (2) has a record of such an impairment or (3) is regarded as having such
an impairment.204 A person who meets the definition contained in any one of the
three prongs is entitled to reasonable accommodations, tailored to that individual’s
particular circumstances, which do not amount to undue hardship.205
198. Bagenstos, “Americans”, supra note 71 at 964-65.
199. Chai R. Feldblum, “Definition of Disability under Federal Anti-Discrimination Law: What Happened?
Why? And What Can We Do About It?” (2000) 21 Berkeley J. Emp. & Lab. L. 91 at 126-27. As the duty
to accommodate workers religious with religious beliefs was held to be de minimis in Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 (1977), there was never any cross-fertilization, unlike in Canadian
jurisprudence, between the duty to accommodate workers with religious beliefs and workers with disabilities in the United States. See generally Malhotra, “Legal Genealogy”, supra note 138.
200. See supra note 129, and accompanying text.
201. City of Cleburne v. Cleburne Living Centre, Inc., 473 U.S. 432 (1985).
202. Linda H. Krieger, “Foreword—Backlash against the ADA: Interdisciplinary Perspectives and Implications for Social Justice Strategies” (2000) 21 Berkeley J. Emp. & Lab. L. 1 at 6. Title I contained a twoyear phase-in period, ending in 1994, where only employers with twenty-five or more employees were
subject to the ADA.
203. Bonnie Poitras Tucker, “The Supreme Court’s Definition of Disability under the ADA: A Return to the
Dark Ages” (2000) 52 Ala. L. Rev. 321 at 323 [Tucker, “The Supreme Court’s”].
204. 29 C.F.R. § 1630.2(g)(1) (2004).
205. Vande Zande v. State of Wisconsin Department of Administration, 44 F.3d 538 at 542 (7th Cir.1995). For
a brief outline of how an ADA employment discrimination case proceeds, see Ruth Colker & Bonnie
Poitras Tucker, The Law of Disability Discrimination, 3rd ed. (Cincinnati: Anderson Publishing, 2000)
at 233-34. See also Robert A. Dubault, Note, “The ADA and the NLRA: Balancing Individual and
Collective Rights” (1995) 70 Ind. L.J. 1271 at 1273; Steven L. Willborn, “The Nonevolution of Enforcement under the ADA: Discharge Cases and the Hiring Problem” in Peter D. Blanck, ed., Employment,
Disability and the Americans with Disabilities Act: Issues in Law, Public Policy and Research (Evanston:
Northwestern University Press, 2000) 103 at 104 (noting that ADA enforcement parallels the procedure under Title VII).
A Tale of Marginalization 109
Unfortunately, whereas Canadian jurisprudence on disability discrimination in
employment has moved in a direction that takes more seriously the systemic discrimination faced by people with disabilities, the ADA Title I jurisprudence has been
plagued by a series of setbacks. Indeed, employers win the vast majority of lawsuits
filed under Title I.206 First, in a series of cases known as the Sutton trilogy,207 the
United States Supreme Court has narrowed the definition of disability. In Sutton v.
United Air Lines, a majority of the Supreme Court held that the plaintiffs, who sought
to work as airline pilots and whose uncorrected vision fell far below the standard
required by the employer, could be evaluated only regarding whether they were substantially limited in a major life activity after one had taken into account any mitigating measures.208 These include appliances, pharmaceutical products and even the
body’s own compensating mechanisms.209 The majority also rejected the argument
that the plaintiffs were substantially limited in the major life activity of working because the limitation affected only a narrow class of jobs. The regulations issued by
the Equal Employment Opportunity Commission [EEOC] are clear that a disability
must affect a person’s ability to perform a class of jobs or a broad range of jobs in various classes.210 Therefore, the plaintiffs were held to not be people with disabilities
as defined in the ADA even though, paradoxically, their impairments were the very
reason that the defendant airline refused to hire them.211 Moreover, the EEOC regulations suggesting a much broader definition of disability were ignored.212
In Murphy v. United Parcel Service,213 the United States Supreme Court held that a
mechanic who was fired because his high blood pressure exceeded regulatory standards for commercial drivers was not a person with a disability under the ADA because the evaluation had to take into account the mitigating effects of medication.214
When the plaintiff was medicated, he had virtually no activity limitations with major
life activities and therefore he was not a person with a disability for the purposes of
206. See e.g. Ruth Colker, “The Americans with Disabilities Act: A Windfall for Defendants” (1999) 34 Harv.
C.R.-C.L. L. Rev. 99 at 99-100.
207. Albertsons, Inc. v. Kirkingburg, 119 S. Ct. 2162 (1999) (truck driver’s visual impairment did not constitute a substantial limitation so as to qualify under the ADA) [Albertsons]; Murphy v. United Parcel
Service, 119 S. Ct. 2133 (1999) (petitioner commercial driver with hypertension did not constitute a
substantial limitation so as to qualify under the ADA) [Murphy]; Sutton v. United Air Lines, 119 S. Ct.
2139 (1999) (petitioner airline pilots with severe myopia correctable through use of glasses did not
have substantial limitations so as to qualify under the ADA) [Sutton].
208. Sutton, ibid. at 2146-47.
209. Weber, “The Americans”, supra note 30 at 378.
210. Sutton, supra note 207 at 2151.
211. Tucker, “The Supreme Court’s”, supra note 203 at 331.
212. Sutton, supra note 207 at 2146.
213. Murphy, supra note 207.
214. Ibid. at 2137.
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the ADA.215 The Supreme Court also ruled that the fact that the plaintiff could not
meet regulatory certification standards for commercial driving did not constitute
a substantial limitation in the major life activity of working because the limitation
affected only a narrow class of jobs.216 The combined effect of the two rules means
that many impairments that affect workers but may be imperfectly mitigated or who
work in unusual industries may not be considered disabilities at all under the ADA
yet may be significant enough to warrant dismissal by their employer.217 Even the
factual reasoning in this decision seems dubious. In concluding that Murphy was
wrongly decided, disability scholar Samuel Bagenstos has observed that the plaintiff ’s high blood pressure excluded him from literally millions of jobs.218
Finally, in the third case in the trilogy, Albertsons, Inc. v. Kirkingburg,219 the United
States Supreme Court held that a visually impaired truck driver’s disability status had to
be evaluated by considering the effect of his body’s compensatory system in adjusting
to his visual impairment, just as the Court’s dictates require plaintiffs to mitigate using
other more conventional measures.220 The majority found that, despite the fact there
was a significant difference in the way the plaintiff observed the world, this did not
amount to a substantial limitation for the purposes of the ADA.221 Yet again the plaintiff ’s disability was sufficient to warrant dismissal by the employer but was not sufficient
to be covered by the ADA.222 A more recent decision, Toyota Motor Mfg., Kentucky, Inc.
v. Williams,223 reached the conclusion that the Court of Appeals for the Sixth Circuit
had applied the wrong test in evaluating a disability discrimination claim by a woman
with carpal tunnel syndrome who was unable to perform requirements of her job on an
automobile assembly line because the lower court had wrongly focused on the effects
of the claimant’s disability in her specific workplace rather than on a variety of activities
central to most people’s lives in and out of the workplace.224 Collectively, these cases
represent an ominous narrowing of the definition of disability for the purposes of the
ADA. Insulin-dependent diabetics, for instance, who can mostly but not perfectly con215. Ibid. This was the conclusion drawn by the Court of Appeals but the Petitioner did not seek certiorari
on whether this conclusion was correct.
216. Ibid. at 2138-39.
217. Tucker, “The Supreme Court’s”, supra note 203 at 333.
218. Samuel R. Bagenstos, “Subordination, Stigma and ‘Disability’” (2000) 86 Va. L. Rev. 397 at 402 [Bagenstos, “Subordination”].
219. Albertsons, supra note 207.
220. Ibid. at 2168-69.
221. Ibid. at 2168.
222. Tucker, “The Supreme Court’s”, supra note 203 at 334.
223. Toyota Motor Mfg., Kentucky, Inc. v. Williams, 534 U.S. 184 (2002) (decision on whether woman with
carpal tunnel syndrome working in auto plant is disabled remanded back to lower courts).
224. Ibid. at 200-01. This particular restriction is especially bizarre when evaluating employment discrimination and contrasts fundamentally with the Canadian approach of closely evaluating the accommodation needs in the workplace in question.
A Tale of Marginalization 111
trol their disabilities through medication may no longer be classified as disabled for
the purposes of the ADA and, without reasonable accommodations, may be unable to
work.225 An extensive analysis of the statutory interpretation of the ADA is far beyond
the scope of this article.226 However, these rulings have prevented many people with
genuine disabilities from asserting their rights.
A second major problem is the constitutionality of major parts of the ADA have been
called into question as a result of the United States Supreme Court’s New Federalism
jurisprudence, which more aggressively enforces the power of the states under the
Eleventh Amendment of the United States Constitution vis-à-vis the federal government than has been true in past years. The Eleventh Amendment protects states’
sovereign immunity by prohibiting citizens of another state or of foreign states from
suing a state of the United States in federal courts. However, it has been consistently
interpreted as also prohibiting a state’s own citizens from suing the state in federal
court for damage remedies.227 Under some circumstances, Congress may be empowered under section 5 of the Fourteenth Amendment to pass civil rights laws, such as
the ADA, that abrogate state sovereignty.228 The precise nature and scope of those
circumstances was defined in the Supreme Court decision City of Boerne v. Flores as
requiring the law to demonstrate congruence and proportionality between the injury
and the means sought to remedy it.229
In Board of Trustees of the University of Alabama v. Garrett, the United States Supreme
Court held in a narrow 5–4 decision by Chief Justice Rehnquist, as he then was, that
lawsuits for money damages under Title I of the ADA were barred because it failed
to meet the test of congruence and proportionality that the Court had established
in City of Boerne for constitutionally permissible abrogation of a state’s sovereign
immunity.230 Therefore, in one dramatic stroke, a major class of employers—state
governments and their agencies—was eliminated from coverage of the ADA because
insufficient evidence of a pattern of discrimination against workers with disabilities
had been demonstrated to justify the abrogation of a state’s sovereign immunity
through the Fourteenth Amendment to the United States Constitution. It remains
unclear to what extent other parts of the ADA may similarly fall victim to the New
Federalism.231
225. Tucker, “The Supreme Court’s”, supra note 203 at 346-48.
226. But see generally Bagenstos, “Subordination”, supra note 218 (arguing that stigma ought to be used as
organizing principle for determining what impairments ought to be classified as disabilities for ADA
purposes).
227. Michael E. Waterstone, “Lane, Fundamental Rights and Voting” (2005) 56 Ala. L. Rev. 793 at 798, n. 20.
228. Ibid. at 798.
229. 521 U.S. 507 at 520 (1997) [City of Boerne].
230. 531 U.S. 356 (2001) [Garrett].
231. See e.g. Tennessee v. Lane et al., 541 U.S. 509 (2004) (ruling 5-4 that Congress properly abrogated state
sovereign immunity through the 14th Amendment in requiring wheelchair access to state courts). For
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This brief overview underscores another dimension of the insights that may be
gleaned through comparative scholarship. Whereas the duty to accommodate workers with disabilities is interpreted broadly in Canada and leaves employers to make
their arguments on the grounds of undue hardship, a variety of legal rules are invoked
to restrict the definition of disability in the employment context in the United States.
This is of course compounded by the fact that fewer than one in ten private sector
workers is now unionized as the American union movement continues its terminal
decline.232 Environmental access features do not have the appropriate outcomes, at
least in part because efficacy under the ADA is thwarted by the draconian interpretation given to it by the courts.
Yet political activism again remains central. On 25 September 2008, President Bush
signed the Americans with Disabilities Act Amendments Act of 2008 after years of
lobbying by disability rights advocacy groups.233 The law addresses the concerns of
disability activists by clarifying that the definition of disability encompasses a very
broad spectrum. Therefore, the formalist rulings in the Sutton trilogy and in Toyota
are effectively overruled by statute including the requirement that a person’s disability
be evaluated after taking into account the effect of mitigating measures.234 However,
the legislation does not address the vexing federalism questions that are likely to
continue to plague jurisprudence in this area. Activists will have to remain vigilant to
ensure that future disability discrimination claims are not thwarted by the vagaries of
the federalism jurisprudence.
Conclusions
In this article, I have provided a synopsis of the socio-economic conditions facing
people with disabilities in Canada and the United States. As well, I have shown how
barriers in two particular areas—transportation and attendant care services—have
significant negative effects for workers with disabilities. Finally, I provided a brief
overview of disability rights law as it affects workers in the two countries and why
there are key differences between them. What stands out is the profound marginalization of people with disabilities in both countries. While the United States has
relatively enlightened accessible transportation policies and Canada has relatively
generous labour market policies for those people with disabilities who are already
in the labour market, poverty and unemployment remain the fate for far too many
an analysis, see Anita Silvers & Leslie Pickering Francis, “A New Start on the Road Not Taken: Driving
with Lane to Head Off Disability-Based Denial of Rights” (2007) 23 Wash. U. J.L. & Pol’y 33.
232. Mark Barenberg, “Democracy and Domination in the Law of Workplace Cooperation: From Bureaucratic to Flexible Production” (1994) 94 Colum. L. Rev. 753 at 758.
233. Alex B. Long, “Introducing the New and Improved Americans with Disabilities Act: Assessing the
ADA Amendments Act of 2008”, available online: Social Science Research Network <http://ssrn.com/
abstract=1273922>.
234. Ibid. at 4. A partial exception is made for eyeglasses and contact lenses.
A Tale of Marginalization 113
people with disabilities. This fact suggests each country can learn from the experiences of the other. Canadian disability rights activists have much they can learn from
the experiences of grassroots organizations like ADAPT. The state-centric nature of
lobbying in Canada has undermined the potential for advocates to find their own
voices through creative struggles from below. Without such activism, the relatively
strong union density in Canada will not benefit people with disabilities, particularly
blind and mobility impaired Canadians. On the other hand, American disability
rights activists have accomplished a great deal in making transportation accessible
but have been thwarted by the courts because of the narrow jurisprudence under the
ADA. In 2008, legislation to remedy these rulings was finally enacted into law after
years of pressure by disability rights advocates. Both countries need to develop better
attendant services programs. Policy-makers in both countries will have to carefully
consider a multi-pronged approach to address the systemic discrimination facing
Canadians and Americans with disabilities.
Acknowledgement
I gratefully acknowledge partial funding from the SSHRC Doctoral Fellowship
Program and my supervisor at the University of Toronto, Professor Kerry Rittich,
for her endless support. A special thank you to David Baker, Professor Bruce Ryder,
and an anonymous peer reviewer. Any remaining mistakes are my responsibility. I
dedicate this article to the memory of Frieda Zames (1932-2005).
“But Only on a Question of Law”: Examining the Scope of
Appellate Review of the Landlord and Tenant Board
Toby Young*
Résumé
Selon la Loi sur la location à usage d’habitation, 2006, la compétence d’un tribunal
d’appel en révision de décisions de la Commission de la location immobilière est
limitée aux questions de droit. Cet article a deux objectifs principaux : l’examen des
limites et des contours de ce qui pourrait constituer « une question de droit » aux fins
d’appel de la Commission et l’examen de la norme de contrôle judiciaire applicable.
La norme de contrôle judiciaire applicable dépend en grande partie de la nature de la
« question de droit » soulevée en appel, et dans ce cas la norme est semblable à celle
appliquée aux appels de décisions judiciaires.
Il est généralement admis que la norme est celle de la décision correcte quant aux
questions de droit, et de ce fait, il est de la plus haute importance de préciser ce qui
constitue une question de droit — ce qui n’est pas toujours facile. Cet article étudie
à fond comment extraire des questions de droit à partir de questions de fait ou de
questions mixtes de fait et de droit. De plus, certaines questions de droit — c.-à-d. les
règles de la justice naturelle, le devoir d’équité de la procédure et le pouvoir discrétionnaire conféré par la loi — font appel à une norme différente du fait d’approches
analytiques distinctes appliquées à ces types de questions juridiques.
L’article passe en revue Dunsmuir c. Nouveau-Brunswick, [2008] 1 R.C.S. 190, où la
Cour suprême du Canada a éclairci le fait qu’il n’existe plus à présent que deux normes de révision — celle de la décision correcte et celle de la raisonnabilité — et évalue
l’impact de cet éclaircissement sur la norme en usage à la Commission. L’article fait
valoir que Dunsmuir n’aura pas un impact d’importance à la Commission et cela largement du fait que la Commission ne possède pas d’expertise hautement spécialisée.
*
Toby Young is a Director of Legal Services at the Human Rights Centre Legal Support Centre. He is the
former Provincial Director of the Tenant Duty Counsel Program at the Advocacy Centre for Tenants
Ontario. He specialized in residential tenancy law for over a decade. This article expresses the personal
views of the author and reflects the law as of June 2008.
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(2009) 22 Journal of Law and Social Policy
Introduction
The central purpose of this article is to examine the scope of appellate review1 of the
Landlord and Tenant Board2 under the Residential Tenancies Act, 2006.3 The article
will show, as a very general proposition, that appellate review of the Board is driven
primarily—as are appeals of judicial decisions—by the underlying policy considerations regarding the appropriate role of an appellate court. The determination of the
standard of review to be applied to the Board turns largely on the nature of the question at issue because the main justifications for deference to administrative decisions
by appellate courts—privative clauses and relative expertise—are not factors that
ought to apply in the review of Board decisions. Therefore, despite the fact that an
administrative law standard of review analysis is inapplicable to judicial decisions,4
the standards applied to the appellate review of the Board and the appellate review
of judicial decisions are essentially indistinguishable.5 Moreover, this article suggests
that the express provision in the RTA setting out appellate jurisdiction to “only questions of law” has little, if any, impact and, as a practical matter, does very little to
restrict the scope of appellate review that would occur if review of questions of mixed
fact and law or of fact alone were expressly referenced in the RTA.
More specifically, this article has three other objectives. First, it seeks to identify the
types of questions of law that may be the subject of appeal (e.g. jurisdiction, statutory
interpretation, and natural justice and procedural fairness). Second, it acknowledges
and explores the sometimes contentious task of how questions of law are character1.
2.
3.
4.
5.
In this paper, the term “appellate review” refers to the review of Landlord and Tenant Board [Board]
decisions by way of statutory right of appeal under the Residential Tenancies Act, 2006, S.O. 2006, c. 17
[RTA] and is used in contradistinction to the term “judicial review,” meaning the review of Board decisions by way of application for judicial review. This paper focuses on appellate review although some
reference is made to judicial reviews, a fairly uncommon event in residential tenancy law.
See RTA, sections 168 to 182. The predecessor to the Board was the Ontario Rental Housing Tribunal
[ORHT or Tribunal]. The Tribunal existed from 1998 to 2006.
S.O. 2006, c. 17. The RTA was proclaimed on force on 31 January 2007. Section 210(1) provides that
any person affected by an order of the Board may appeal to the Divisional Court, “but only on a question of law.” The RTA’s predecessor, the Tenant Protection Act, 1997, S.O 1997, c. 24 [TPA], was identical to the RTA in this respect (section 196(1) TPA). In contrast, the TPA’s predecessor, the Landlord and
Tenant Act, R.S.O. 1990, c. L.7 [LTA], at section 116(1) provided that an appeal was available “from a
final order of a judge.”
In Dr. Q. v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226 at para. 33 [Dr.
Q.] McLachlin C.J.C. for the Court observed that the “conceptual foundation of review of administrative decisions is fundamentally different than that of appeals from judicial decisions” and that “in the
context of judicial review of administrative action, the nature of the question is just one of four factors
to consider when determining the standard of review.”
See Zeitoun et al. v. The Economical Insurance Group (2008), 91 O.R. (3d) 131 (Div Ct.), which held that
the same standard of review applies to appeals from masters and from judges. The decision of a master
should be interfered with only if the master made an error of law or exercised his or her discretion
on wrong principles or misapprehended evidence such that there was palpable and overriding error.
These standards of review are, it is argued, equally applicable to most tribunals, including the Board.
“But Only on a Question of Law” 117
ized, with a particular focus on how courts may extract questions of law from what
appears to be other types of questions (i.e. questions of mixed fact and law, questions
of fact and the exercise of statutory discretion). Third, it reviews the appropriate
degree of deference that an appellate court may apply to the particular question of
law before it (i.e. standard of review).
It is understood that statutory appeals are inherently limited exercises. They are not
intended to be a retrial of a case or a hearing de novo. An appellate court’s basic institutional role is to preserve and uphold the rule of law by identifying and correcting
legal error. As noted by Charles Alan Wright:
Everyone agrees, so far as I know, that one function of an appellate court is to discover and
declare—or to make—the law. From the earliest times appellate courts have been empowered to reverse for errors of law, to announce the rules which are to be applied, and to ensure
uniformity in the rules applied by various inferior tribunals.6
The principles that lead to a posture of general deference toward trial courts are, it is
suggested, largely applicable to administrative tribunals. As a matter of broad policy,
appellate courts are concerned about contributing to any undue increase in the
number and length of appeals, recognize the autonomy and integrity of trial courts
(and the legislative delegation of certain matters to tribunals), and are conscious that
increased appellate intervention could make the appellate forum available primarily
to wealthier parties.7 In contrast, the primary role of trial courts and administrative
tribunals, including the Board, is to resolve disputes by making findings of fact and
applying settled law.
Because the RTA expressly permits appeals on questions of law alone, the characterization of the question on appeal is crucial. For instance, are questions of mixed fact
and law immune to the scope of appellate review? Such questions may be capable of
being recast as legitimate questions of law or, perhaps more precisely, questions of
law may be able to be extracted from questions of mixed fact and law. The Supreme
Court of Canada has recognized the challenge in drawing hard and fast distinctions
between the various types of legal errors and, in particular, between a question of
law and a question of mixed fact and law.8 Moreover, errors of fact, if sufficiently
6.
7.
8.
Charles Alan Wright, “The Doubtful Omniscience of Appellate Courts” (1956-57) 41 Minn. L. Rev. 751
at 779.
R.D. Gibbens, “Appellate Review of Findings of Fact” (1991-92) 13 Advocates’ Q. 445 at 447-48.
In Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748 at para. 35
[Southam] the Supreme Court per Iacobucci J., noted:
Briefly stated, questions of law are questions about what the correct legal test is; questions of fact are
questions about what actually took place between the parties; and questions of mixed law and fact
are questions about whether the facts satisfy the legal tests. A simple example will illustrate these
concepts. In the law of tort, the question what negligence means is a question of law. The question
whether the defendant did this or that is a question of fact. And, once it has been decided that the
applicable standard is one of negligence, the question whether the defendant satisfied the appropriate standard of care is a question of mixed law and fact. I recognize, however, that the distinction be-
118
(2009) 22 Journal of Law and Social Policy
serious,9 can amount to questions of law as, for example, findings of fact based on no
evidence or a misapprehension of the evidence. In addition, the exercise of statutory
discretion in a manner that includes factors deemed to be outside the statutory grant
of discretionary jurisdiction may also constitute a question of law.
The standard of review applied by the courts to Board decisions ought to be correctness in virtually every appeal but not because the scope of appellate jurisdiction is
restricted to questions of law. Once a question of law is identified, there is no basis for
any deference by the court due to the lack of any specialized expertise at the Board.
The mere legislative choice of the Board to deal with residential tenancy matters
cannot carry any assumption of expertise. In short, it is argued that the court may
adopt a deferential approach to issues within the special expertise of administrative
tribunals in the face of a strong privative clause but, even in those circumstances, the
tribunal must have expertise on the particular question before it. It is suggested that
there is no question of law upon which the Board can be considered to have greater,
or even equal, expertise than a reviewing court.
This article is divided into seven sections. The first section provides an overview of
the standard of review analysis to be applied in appeals from the Board. Each of the
subsequent five sections also includes a review of the applicable standard of review
to be applied to the types of legal error that are commonly raised at the Board. In
particular, the second section deals with questions of law and the difficult exercise
that delineating a question of law can be. The third section examines questions of
mixed fact and law and, in particular, demonstrates how a question of law may be extracted from an apparent question of mixed fact and law. The fourth section reviews
questions of fact and, once again, examines how questions of law may be extracted
by finding error in the Board’s fact-finding process and its treatment of the evidence.
The fifth section addresses the matter of reviewing the Board’s statutory powers of
discretion. Discretionary decisions are essentially fact-based exercises given wide
latitude, but the courts have wrestled with the issue of the proper scope of the Board’s
discretionary jurisdiction. The sixth section examines questions of natural justice
and procedural fairness and the judicial pressure to be, on the one hand, the ultimate
arbiter of fairness but, on the other hand, to also provide a degree of respect for the
legislature’s choice of procedures in the RTA. In the seventh and final section of the
article, the Board’s duty to provide reasons as a component of the duty of procedural
fairness will be examined. As will be seen, inadequate reasons themselves can pro-
9.
tween law on the one hand and mixed law and fact on the other is difficult. On occasion, what appears
to be mixed law and fact turn out be law, or vice versa. [Emphasis added.]
See Paul Bunyan Trailer Camp Limited v. McCormick, [1999] O.J. No. 5784 at para. 8 (Div. Ct.) [Paul
Bunyan] for an application of the Southam analysis in the residential landlord and tenant context.
See below, Reviewing Questions of Fact.
“But Only on a Question of Law” 119
vide the basis for an appeal as an error of law.10 However, precisely what constitutes
inadequate reasons in a case is a matter of some subjectivity and there is no clear,
bright line distinction that may be relied upon consistently for any guidance.
The Standard of Review
The determination of the operative standard of review is as much an exercise in judicial
self-discipline as it is an exercise in statutory interpretation.11
The standard of review analysis is derived from two distinct adjudicative contexts—
the courts and administrative tribunals—resulting in two distinct approaches to the
standard of review analysis, with some degree of overlap between the two approaches. In some respects, it is misleading to even speak of a “standard of review” analysis
with respect to court decisions because that formal analysis is applicable only to the
appellate and judicial review of administrative decision-making. In the courts, the
analysis has essentially centred on the nature of the question before the court; in
particular, is this a question of law, a question of mixed fact and law, or a question of
fact? Different standards have been articulated by the courts, depending on which
type of question is being reviewed.12 In contrast, in the context of administrative action, the nature of the question is viewed as but one of four factors to be considered
in determining the appropriate standard of review. Nevertheless, both the appellate
review and judicial review of administrative action, recently subjected to substantive
revision by the Supreme Court of Canada in Dunsmuir v. New Brunswick,13 seek
the same objective of determining the proper scope of deference to be given to an
administrative decision.
In the administrative context, Sara Blake notes that the standard of review jurisprudence reflects a tension about the appropriate roles of the courts and the legislature:
Unstated but underpinning the analysis is the separation of powers between the court and
the legislature and executive, of which tribunals form a part. The court may not review the
wisdom of government policy. Its role is to supervise tribunals to ensure that they act lawfully. The court must defer to the intention of the legislature as expressed in the statute. The
court’s constitutional duty is to protect the rule of law.14
10. In Natarelli v. Sheikh, [2007] O.J. No. 604 at para. 5 (Div. Ct.) the court held that “[f]ailing to give reasons in support of the amount of damages and failing to explain why the adjournment was not granted
are errors of law.”
11. Tamil Co-operative Homes Inc. v. Arulappah (2000), 49 O.R. (3d) 566, at para. 34 (C.A.) per Doherty
J.A.
12. The standards applied by the courts also operate on the basis that all of these questions are subject to
review, absent any statutory direction to the contrary.
13. [2008] 1 S.C.R. 190 [Dunsmuir].
14. Sara Blake, Administrative Law in Canada, 4th ed. (Toronto: Butterworths, 2006) at 206. See also Dunsmuir, supra note 13 at para. 27 per Bastarache and LeBel JJ.
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The central question to be decided by a court was succinctly expressed in Pasiechnyk
v. Saskatchewan (Workers’ Compensation Board)15 emphasizing the importance of
legislative intent: “[W]as the question which the provision raises one that was intended by the legislators to be left to the exclusive decision of the Board?”16
Moreover, the jurisprudence has developed in the context of both applications for
judicial review and statutory rights of appeal.17 This has had important implications
in the determination of the appropriate standard. For example, the consideration of
a privative clause does not genuinely arise in the context of the statutory right of appeal from the Board. A privative clause purports to restrict courts from intervening
in tribunal decisions. A statutory right of appeal, in contrast, indicates a legislative
intent to grant greater appellate scrutiny and, in general, the jurisdiction of a court
on appeal is broader than the jurisdiction on judicial review. Moreover, the Board’s
expertise and the principle of the specialization of duties inherent in the delegation
of landlord and tenant disputes to the Board are essential factors to be considered.18
In other words, to particularize the issue of determining legislative intent as set out
in Pasiechnyk19 with respect to the Board: Was the question that the provision raises
one that falls squarely within the Board’s area of expertise?
Pre-Dunsmuir: The Pragmatic and Functional Approach
Until Dunsmuir,20 the standard of review in all cases of appellate and judicial review was
determined by the “pragmatic and functional approach”,21 which created a spectrum
15. [1997] 2 S.C.R. 890 [Pasiechnyk].
16. Ibid. at para. 18 per Sopinka J.
17. It has been noted, however, that the standard of review jurisprudence has developed more so in the
context of judicial review applications: see Paul Rapsey, “Standard of Review from Decisions of the Ontario Rental Housing Tribunal” (2002) 17 J. L. Soc. Pol’y 1 at 2. There are few judicial review decisions
in the residential tenancy context. A notable exception is Metropolitan Toronto Housing Authority v.
Godwin (2002), 161 O.A.C. 57 (C.A.) [Godwin], which found the Tribunal had the jurisdiction to hear
representative evidence. No standard of review analysis was undertaken by the Court of Appeal but
the Divisional Court did so in Metropolitan Toronto Housing Authority v. Godwin (2002), 50 O.R. (3d)
207 at paras. 37 and 38 (Div. Ct.), per O’Driscoll J. and concluded that if the question of law at issue is
within the tribunal’s jurisdiction, it would exceed its jurisdiction only if it errs in a patently unreasonable manner. If, however, the question at issue concerned a legislative provision limiting the tribunal’s
powers, a mere error would cause it to lose jurisdiction and subject the tribunal to judicial review. See
Pezim v. British Columbia (Superintendent of Brokers), [1994] 2 S.C.R. 557 [Pezim], Southam, supra
note 8, and Bell Canada v. Canada (Canadian Radio-Television and Telecommunications Commission),
[1989] 1 S.C.R. 1722 [Bell] for authority on the applicable standard of review in the context of statutory
appeals.
18. See Bell, supra note 17 at 1745-46 per Gonthier J.
19. Supra note 15.
20. Supra note 13.
21. See U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048 at 1088 per Beetz J.; Pushpanathan v. Canada
(Minister of Citizenship & Immigration), [1998] 1 S.C.R. 982 [Pushpanathan], Moreau-Bérubé v. New
“But Only on a Question of Law” 121
of levels of deference: correctness,22 reasonableness simpliciter (reasonableness),23
and patent unreasonableness.24 This approach involved weighing four factors, none
of which was solely dispositive:25
1. the presence or absence of a privative clause or statutory right of appeal;
2. the expertise of the administrative tribunal relative to the reviewing court
regarding the question at issue;
3. the purpose of the legislation, and the statutory provision in particular;
and
4. the nature of the question: law, fact, or mixed law and fact.26
In Law Society of New Brunswick v. Ryan,27 the Supreme Court noted that when
in the process of reviewing a decision for correctness “the court may undertake its
own reasoning process to arrive at the result it judges correct.”28 In reviewing for
reasonableness, a court must not interfere unless the party seeking review has positively shown that the decision, taken as a whole, was unreasonable. The focus is on
the reasons for decision. An unreasonable decision is “one that, in the main, is not
supported by any reasons that can stand up to a somewhat probing examination.”29
Finally, the most deferential standard—patent unreasonableness—involved an error
that was “apparent on the face of the record and was so immediate and obvious that
there was no real possibility of doubting the decision was defective.”30
22.
23.
24.
25.
26.
27.
28.
29.
30.
Brunswick (Judicial Council), [2002] 1 S.C.R. 249 [Moreau-Bérubé]; and Dr. Q., supra note 4, at paras.
22, 26.
Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247 [Ryan] at para. 50.
Ibid. at para. 47. Until 1997 in Southam, supra note 8, and the development of the reasonableness
standard, there were only the correctness and the patent unreasonableness standards available to a
reviewing court.
Ibid. at para. 52.
Re Cartaway Resources Corp., [2004] 1 S.C.R. 672 at para. 44.
Ryan, supra note 22, at para. 27.
Ibid.
Ibid. at para. 50.
Ibid. at para. 48 (citing Southam, supra note 8):
An unreasonable decision is one that, in the main, is not supported by any reasons that can stand up
to a somewhat probing examination. Accordingly, a Court reviewing a conclusion on the reasonableness standard must look to see whether any reasons support it. The defect, if there is one, could
presumably be in the evidentiary foundation itself or in the logical process by which conclusions are
sought to be drawn from it.
Ryan, supra note 22 at para. 52. In Canadian Union of Public Employees, Local 963 v. New Brunswick
Liquor Corp. (1979), 97 D.L.R. (3d) 417 at 425 (S.C.C) Dickson J. described the patently unreasonable
standard as follows: “[W]as the Board’s interpretation so patently unreasonable that its construction
cannot be rationally supported by the relevant legislation and demands intervention by the court upon
review?”
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In residential tenancy jurisprudence there has been a rather reflexive adoption of
the correctness standard of review and an absence of analysis, primarily due to the
statutory provision limiting appeals to questions of law.31 The jurisprudence reveals, however, that all three standards of review have been applied: correctness,32
reasonableness,33 and patent unreasonableness.34
Post-Dunsmuir: The New Standard of Review Analysis
In Dunsmuir,35 the Supreme Court extensively reconsidered the standard of review
jurisprudence and concluded that the two variants of reasonableness review—reasonableness and patent unreasonableness—should be collapsed into a single form
of “reasonableness” review. Thus, there are now only two remaining standards of
correctness and reasonableness,36 and the “pragmatic and functional approach” terminology has been supplanted by a “standard of review analysis”.37 The court clarified that “[a]n exhaustive review is not required in every case” and only where the
existing jurisprudence does not clearly reveal the proper standard to be applied does
31. See Samuel Property Management v. Nicholson (2002), 61 O.R. (3d) 470 (C.A.) at para. 4; North York
General Hospital Foundation v. Armstrong (2004), 69 O.R. (3d) 603 (Div. Ct.) [North York General Hospital] at para. 21; and Chenard v. Foster, [2007] O.J. No. 4671 (Div. Ct.) at para. 5.
32. See Briarlane Property Management Inc. v. Bradt, [2004] O.J. No. 1452 (Div. Ct.); North York General
Hospital, supra note 31; Hung v. C.L.K. Enterprises Inc., [1999] O.J. No. 3559 (Div. Ct.); Belleau v. Victoria Park Community Homes (8 February 2000), Court File No. 99-1867-DV (Div. Ct.); Dollimore v.
Azuria Group Inc., [2001] O.J. No. 4408 (Div. Ct.) at para. 2; and 4750, 4752, 4754 Dundas Street West
(Tenants of) v. Wuebbolt, [2001] O.J. No. 4001 (Div. Ct.) (at least arguably although it is not clearly
stated in these terms).
33. See Paul Bunyan supra note 8; Burt Dozet Management Inc. v. Goharzad, [2001] O.J. No. 550 (Div. Ct.)
(on consent on this issue); and possibly MacKay v. Sanghera, [2001] O.J. No. 2600 (Div. Ct.) (although
the court also held that decision was correct).
34. See Smolcec v. Longhouse Village (Thunder Bay) Inc. (2001), 32 Admin. L.R. (3d) 72 (Div. Ct.) [Smolcec].
35. Supra note 13.
36. Ibid. at paras. 45 to 50. The court went on to define the two standards:
Reasonableness is a deferential standard animated by the principle that underlies the development
of the two previous standards of reasonableness: certain questions that come before administrative
tribunals do not lend themselves to one specific, particular result. Instead, they may give rise to a
number of possible, reasonable conclusions. Tribunals have a margin of appreciation within the
range of acceptable and rational solutions.
…
When applying the correctness standard, a reviewing court will not show deference to the decision
maker’s reasoning process; it will rather undertake its own analysis of the question. The analysis will
bring the court to decide whether it agrees with the determination of the decision maker; if not, the
court will substitute its own view and provide the correct answer. From the outset, the court must
ask whether the tribunal’s decision was correct (at para. 50). [Emphasis added.]
37. Ibid. at para. 63.
“But Only on a Question of Law” 123
a court need to embark on an analysis of the factors to identify the proper standard
of review.38 The joint reasons for judgment stated:
The analysis must be contextual. As mentioned above, it is dependent on the application
of a number of relevant factors, including: (1) the presence or absence of a privative clause;
(2) the purpose of the tribunal as determined by interpretation of enabling legislation; (3)
the nature of the question at issue; and (4) the expertise of the tribunal. In many cases it will
not be necessary to consider all of the factors, as some of them may be determinative in the
application of the reasonableness standard in a specific case.39
With regard to the nature of the question of law at issue, a distinction was made between a question of law that is of central importance to the legal system and outside
the area of expertise of an administrative tribunal (which would always attract a correctness standard)40 and a question of law that does not rise to that level.41
What, if any, impact will this have in the Board context? It is argued that Dunsmuir42
will likely lead to an even less formal application of the standard of review factors
than is already the case and that once a question of law is identified, given the broad
right of appeal, the correctness standard will invariably be applied. The sole exception may be those questions of law that formerly attracted the standard of patent
unreasonableness: discretionary decisions.43 Justice Binnie, in concurring reasons,44
noted that while a court ought generally to respect the exercise of administrative discretion, particularly in the face of a privative clause, this is not the case where there
38. Ibid. at paras. 57, 62, 64.
39. Ibid. at para. 64 [emphasis added] per Bastarache and LeBel JJ. Dunsmuir includes three sets of reasons:
joint reasons for judgment per Bastarache and LeBel JJ. (McLachlin C.J. and Fish and Abella JJ. concurring) and two sets of concurring reasons per Binne J. and per Deschamps J. (Charron and Rothstein JJ.
concurring).
40. Ibid. at para. 55 (citing Toronto (City) v. C.U.P.E. (Local 79), [2003] 3 S.C.R. 77). The court noted that
the following types of questions would attract the correctness standard: constitutional questions such
as those regarding the division of powers between Parliament and the provinces (para. 58); true questions of jurisdiction or vires, i.e. where the tribunal must explicitly determine whether its statutory
grant of power gives it the authority to decide a particular matter (para. 59); where the issue is one of
general law “that is both of central importance to the legal system as a whole and outside the adjudicator’s specialized area of expertise” (para. 60); and questions regarding the jurisdictional lines between
two or more competing specialized tribunals (para. 61).
41. Ibid. at para. 55. Bastarache and LeBel JJ. concluded, at para. 71, that considering the privative clause,
the nature of the regime and the nature of the question of law at issue, the standard was reasonableness.
42. Supra note 13.
43. See below, Reviewing the Exercise of Discretion.
44. Supra note 13 at paras. 119-57. Binnie J. held, at para. 156, that the reasonableness standard applied
because the adjudicator was interpreting his “home turf ” statutory framework and there was a privative clause.
124
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is a full statutory right of appeal.45 Moreover, Justice Deschamps46 emphasized that
the nature of the question before the administrative tribunal needed to be identified
(i.e. question of law, mixed fact and law, or fact) and was of the view that little else
needed to be done in order to determine whether deference needed to be shown.47
Deference, therefore, is not owed on a question of law where there is a statutory right
of appeal.48
In an early post-Dunsmuir49 appeal from the Board, Darragh v. Normar Developments
Inc.,50 the court found that the standard of review remained a correctness standard
and that Dunsmuir51 had no impact in the case.52 The court characterized the issue
on appeal as a “pure question of law”, specifically the issue of retroactivity and retrospectivity of legislation, and determined that the Board had no special expertise,
relative to the court, to determine such an issue.53 Given the issues as framed in
Darragh,54 it is argued that the court applied the proper standard and, moreover,
would have reached an identical result under the former pragmatic and functional
approach.
The Dunsmuir55 standard of review analysis raised objections from Justice Binnie,
who voiced concern that the waters would remain muddy by merely shifting the
debate from choosing between two standards of reasonableness to a debate within
the single reasonableness standard.56 However, early indications from the Ontario
Court of Appeal, at least, are encouraging. In Mills v. Ontario (Workplace Safety
and Insurance Appeals Tribunal),57 the court held that it was inappropriate to assess
45. Ibid. at para. 123. Binnie J. opined, at para. 124, that the correctness standard should be applied to questions concerning the constitution, the common law and the interpretation of a statute other than the
administrator’s “home statute” or a rule or statute closely connected to it.
46. Ibid. per Deschamps J. at paras. 158-73.
47. Ibid. at para. 158. Deschamps J. noted at para. 160: “By focusing on the ‘nature of the question’ … it will
become apparent that all four factors need not be considered in every case and that the judicial review
of administrative action is often not distinguishable from the appellate review of court decisions.” Deschamps J. concluded that, at para. 168, the correctness standard applied because the common law, not
the adjudicator’s enabling statute, was the starting point of the analysis and because the adjudicator did
not have expertise in interpreting the common law there could be no deference.
48. Ibid. at para. 163.
49. Supra note 13.
50. [2008] O.J. No. 2586 (Div. Ct.) [Darragh].
51. Supra note 13.
52. Supra note 50 at paras. 12-15.
53. Ibid. at para. 15.
54. Supra note 50.
55. Supra note 13.
56. Ibid. at paras. 150-55.
57. (2008), 237 O.A.C. 71 (C.A.)
“But Only on a Question of Law” 125
varying degrees of deference within the single reasonableness standard.58 Yet some
commentators have expressed skepticism about whether the new standard of review
analysis has really changed the degrees of deference at all and that the standard of
patent unreasonableness has not been eliminated but only driven underground.59 It
remains to be seen whether it will be appropriate to apply the reasonableness standard more deferentially or less deferentially, depending on the circumstances.
The Standard of Review Applicable to the Board
The respective roles of the courts and the legislature in establishing the standard of
review in statutory appeals has been described by David Mullan as creating “at least
superficially the potential for a clash between the legislative objective in the express
conferral of a right of access to the courts and judicial assessment of the respective
competence of decision-makers and courts.”60 This clash is more apparent than real,
as there is no persuasive basis for judicial deference on any question of law raised on
appeal. The appropriate standard to be applied to the Board is correctness, as all four
factors point to granting the Board little, if any, deference.
Several residential tenancy decisions have applied the pragmatic and functional approach, albeit not usually in a comprehensive manner.61 A notable exception is Sage
v. Corporation of the County of Wellington,62 where the court conducted a relatively
detailed review of the four factors.63 In Sage,64 the issue was whether the Ontario
Rental Housing Tribunal erred in its interpretation of section 84(2)(a) of the Tenant
Protection Act, which required the Tribunal to refuse an eviction application where
the landlord was in serious breach of its responsibilities. In an implicit recognition of
58. Ibid. at para. 18. In Ryan, supra note 22, at para. 20, it was also noted that the standard of reasonableness does not “float” according to the circumstances but always involves asking the same question
about the challenged decision.
59. See Ronald Lunau, “Dunsmuir Preserves ‘Patent Unreasonableness’ but Drives It Underground” The
Lawyers Weekly 28:16 (29 August 2008); and Gerard Chouest, “SCC Reviews Standard of Review” BarEx News (13 May 2008).
60. David J. Mullan, “Establishing the Standard of Review: The Struggle for Complexity?” 17 Can. J. Admin. L. & Prac. 59 at 94-95.
61. In Toronto Community Housing Corporation v. Greaves, [2004] O.J. No. 5112 (Div. Ct. [Greaves] the
court provided an overview of the recent case law on the standard of review in the RTA context but
did not actually determine which standard was applicable. More recently, in Capano v. Smith, [2007]
O.J. No. 5074 (Div. Ct.) [Capano], the Court considered a landlord’s appeal of an order that refused an
eviction and awarded no damages in an eviction application for the tenant’s interference with reasonable enjoyment and undue damage to the premises. In determining the standard of review, the court
observed, at paras. 12-14, that there was authority for different standards of review depending on the
nature of the question, both correctness and patent unreasonableness. No reference was made to Paul
Bunyan, supra note 8, and the standard of reasonableness.
62. [2005] O.J. No. 5727 (Div. Ct.) [Sage].
63. Ibid. at paras. 11-21.
64. Ibid. note 62.
126
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the Tribunal’s lack of expertise, the court applied a correctness standard despite the
issue being a matter of the statutory interpretation of the Tribunal’s enabling statute.
In addition, it is important to note that multiple standards of review may be applied
in an appeal where multiple questions of law are raised. In 626114 Ontario Ltd. v.
Tirado,65 the court held that the question of the interest payable on the tenant’s last
month’s rent deposit involved the interpretation of a statutory provision and was a
question of law. Thus, the standard was correctness.66 However, with respect to the
second issue—the exercise of discretion under section 84(1) of the TPA67—the court
held that this matter involved a question of mixed fact and law and was therefore not
subject to appeal but that, if it was subject to review, then the standard of review was
patent unreasonableness.68 We now turn to a detailed examination of the four factors
in the standard of review analysis.
Right of Appeal
While the RTA contains a privative clause, the clause is applicable only with respect
to applications for judicial review—a rare occurrence in residential tenancy law,69 as
the RTA explicitly mandates judicial supervision by providing for a right of appeal.
In addition, the Divisional Court has broad appellate powers, including the power
to substitute its decision for that of the Board.70 In Sage,71 the court noted that the
TPA provided a statutory right of appeal and granted broad powers in relation to an
error on a question of law.72 This factor clearly points to showing the Board little, if
any, deference.
Nature of the Question
In assessing the appropriate degree of deference, a critical factor to consider is the
nature of the question before the Board and, specifically, whether the issue under
65. [2005] O.J. No. 4350 (Div. Ct.) [Tirado].
66. Ibid. at para. 5.
67. Supra note 3. Section 84(1) provided:
Upon an application for an order evicting a tenant, the Board may, despite any other provision of
this Act or the tenancy agreement,
(a) refuse to grant the application unless satisfied, having regard to all the circumstances, that it
would be unfair to refuse; or
(b) order that the enforcement of the eviction order be postponed for a period of time.
68. Supra note 65, at paras. 14, 15. The issue of relief from eviction and the review of discretionary decisions is dealt with in Review of Exercise of Discretion.
69. Section 209(1) of the RTA provides: Except where this Act provides otherwise, and subject to section 21.2
of the Statutory Powers Procedure Act, an order of the Board is final and binding. See supra note 17.
70. Section 210(4) provides: If an appeal is brought under this section, the Divisional Court shall hear and
determine the appeal and may,
(a) affirm, rescind, amend or replace the decision or order; or
(b) remit the matter to the Board with the opinion of the Divisional Court.
71. Supra note 62.
72. Ibid. at paras. 13-14.
“But Only on a Question of Law” 127
appeal can be classified as a question of law. The nature of the question may be characterized broadly (i.e. question of law, question of mixed fact and law, or question
of fact) but once it is determined that there is a question of law, the next stage is to
determine what species of question of law is under review. For example, is it a question of jurisdiction, statutory interpretation, exercise of discretion, or natural justice
and procedural fairness?73
The nature of the question as one of law demands little deference to the Board. Thus,
the inquiry becomes whether there are types of questions of law where a court might
be inclined to respect the Board’s expertise. Arguably, the exercise of discretion is one
such question of law and, as a general proposition, an unreasonable exercise of discretion should not be permitted to stand. In addition, where the Board is interpreting
its enabling or home statute, the RTA, it could be contended that deference should be
accorded.74 The fundamental issue is whether the Board has a level of specialization
and expertise that ought to be respected by the court and, if so, whether the specific
question of law may be seen as an area where deference should be accorded.75
It is argued here, however, that once a question of law is identified, there are no
grounds for deference by the court. As is discussed below, there is no basis to consider the Board to be an expert tribunal. Moreover, with respect to the review of the
exercise of discretion, this matter is more accurately characterized as a question of
mixed fact and law, unless the court can extract a legal principle as, for example, the
Board’s failure to consider a relevant factor. This factor also points to little deference
being accorded by the court.
Purpose of the RTA
The purposes of the RTA are set out in section 1:76
The purposes of this Act are to provide protection for residential tenants from unlawful rent
increases and unlawful evictions, to establish a framework for the regulation of residential
rents, to balance the rights and responsibilities of residential landlords and tenants and
to provide for the adjudication of disputes and for other processes to informally resolve
disputes.
In Sage,77 with respect to the purpose of the legislation as a whole and the specific
provision under review, the court noted:
73. For a counter to this argument, see Rapsey, supra note 17 at 3.
74. Supra note 13, at para. 54.
75. In Jacob Catalytic Ltd. v. International Brotherhood of Electrical Workers, Local 353 (2008), 91 O.R. (3d)
20 at paras. 36-39 (Div. Ct.) [Jacob Catalytic] the majority of the court found that the Ontario Labour
Relations Board [OLRB] deserved deference on both the interpretation and application of the OLRB’s
enabling statute, the Labour Relations Act 1995, and with respect to the application of the common law
principles of the doctrine of estoppel.
76. No purpose section was included in the TPA or the LTA, supra note 3.
77. Supra note 62.
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The TPA sets out the rights and responsibilities of landlords and tenants and provides a
mechanism for the resolution of disputes. The purpose of s. 84(2) is straightforward and
precludes an order for eviction if the landlord is in serious breach of her or his duties under
the TPA. The section limits the ability of landlords to evict tenants if they are in serious
breach of their obligations under the Act or the lease.78
The general purpose of the RTA is the resolution of disputes and the determination of rights between the parties by the Board. In this respect the Board’s basic role
is similar to that of the courts. In short, the Board is not in the business of policy
development but is essentially an adjudicative body. The Board is not called upon
to determine issues that involve balancing the benefits and costs for many different
parties or what has been described as “polycentric” issues.79 This factor also points
to less deference by the courts.
Area of the Board’s Expertise
Expertise has been described as the most important of the factors used to determine
the standard of review80 and can relate to questions of law, mixed fact and law, or fact
alone.81 Assessing the Board’s expertise involves a judicial inquiry into the Board’s
competence to address the specific issue under review. As noted by the Supreme
Court:
Greater deference will be called for only where the decision-making body is, in some way,
more expert than the Courts and the question under consideration is one that falls within
the scope of this greater expertise.82
There ought to be no presumption that the legislative choice of the Board to deal with
residential tenancy disputes constitutes even an implied recognition of the Board’s
expertise on any question of law.83 In assessing the relative expertise of the Board,
the courts must:
1. characterize the expertise of the tribunal;
2. consider its own expertise relative to that of the tribunal; and
3. identify the nature of the specific issue before the tribunal relative to their
expertise.84
Ibid. at para. 20.
Pushpanathan, supra note 21 at para. 36.
Southam, supra note 8 at para. 50.
Dr. Q., supra note 4 at para. 29.
Ibid. at para. 28.
See Rapsey, supra note 17 at 7 for a critique of Paul Bunyan, supra note 8, where the court suggested
that the ORHT was an expert tribunal because it was established “presumably because the government
of Ontario believed this task could be handled more effectively and efficiently by a panel of lay persons
with expertise in this field.”
84. Dr. Q., supra note 4 at para. 28 [citing Pushpanathan, supra note 21 at para. 33].
78.
79.
80.
81.
82.
83.
“But Only on a Question of Law” 129
In Sage,85 the court found that the Ontario Rental Housing Tribunal was a specialized tribunal but that the ORHT did not have specialized expertise in health or environmental law:
The ORHT is a specialized tribunal concerning landlord tenant matters. The subject-matter
of the appeal is a question of law. The Tribunal did not consider legislative enactments or
provincial standards to determine whether the landlord’s failure to provide potable water
or repair the well was a serious breach of the Act or the tenancy agreement. The governing
standards for potable water are not found in the TPA and the Tribunal does not have the
expertise in the area of health or environmental law. The Court is in as good or better
position than the Tribunal to examine these standards and apply them to correctly interpret
the term serious breach.86
In MacNeil v. 976445 Ontario Ltd.,87 the Court also found the Tribunal to be a “specialized tribunal concerning landlord and tenant matters”.88 However, the court did
not go on to identify whether the Tribunal had greater expertise than the courts on
the issues raised in the case, i.e. the correct legal test to determine the standard of
“serious breach” in section 84(2) of the TPA.
It is suggested, nevertheless, that the Board is not an “expert” tribunal in the sense this
term has been used by the Supreme Court. The Supreme Court has held that a tribunal
similar to the Board, under a statute similar to the RTA, was not an expert tribunal.89
The court found that the former Ontario Residential Tenancies Commission was not
a specialized tribunal and therefore was not entitled to broad curial deference because there was no requirement that its members have legal training or occupational
experience and the process of selection of members was not based on any bipartite
or tripartite principle.90 Moreover, the Board has no specialized expertise, such as
economic, technical, or scientific knowledge that would call upon an expertise not
available to a court. Clearly, the Board is not a highly specialized expert tribunal in
the same sense as a provincial Securities Commission,91 the federal Competition
Tribunal,92 a provincial Labour Relations Board,93 or a provincial Judicial Institute.
94
85. Supra note 62.
86. Ibid. at paras. 18-19.
87. [2005] O.J. No. 6362 (Div. Ct.). Leave to appeal to the Court of Appeal was denied: MacNeil v. 976445
Ontario Ltd. (27 September 2005), Court File No. M32654 (Ont. C.A.)
88. Ibid. at paras. 20, 21.
89. Reference re Residential Tenancies Act 1979, [1981] 1 S.C.R. 714.
90. Ibid. at 748. This remains the case with respect to Board Members.
91. Pezim, supra note 17.
92. Southam, supra note 8.
93. Jacob, supra note 75.
94. Moreau-Bérubé, supra note 21.
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Thus, it is not crucial to determine whether the question of law at issue falls within the
Board’s expertise, as the Board maintains no specialized expertise on any question of
law, including the interpretation of the RTA. As noted in Southam,95 the reasonableness standard is, at root, deference to expertise, and courts should give considerable
weight to tribunals about matters on which they have “significant expertise”.96 It is
difficult to envision where an appellate court might encounter difficulties in understanding the ramifications of a Board decision, in stark contrast to, for example, the
economic and commercial ramifications of the federal Competition Tribunal’s decisions, where the Supreme Court observed that there was a “natural inference” that
the purpose of the Competition Tribunal Act97 would be better served by deference to
the Tribunal’s decisions.98 A court should not, therefore, grant the Board any deference with respect to the final factor of relative expertise in the standard of review
analysis.
Conclusion on Standard of Review at the Board
Given the statutory right of appeal, the broad appellate powers to replace, rescind,
or affirm a Board decision and the Board’s relative lack of specialized expertise on
any question of law, much turns on the characterization of the question on appeal.
A question of law should attract no deference from the court—the standard of correctness should be applied. However, on some questions of law (i.e. the exercise of
statutory discretion) a different “standard of review” or test may be applicable, while
other questions of law (i.e. natural justice and procedural fairness) may require a different approach, one similar to review on the correctness standard, as the courts do
not apply a standard of review analysis to these types of questions of law.
It has been observed that anything less than a correctness standard implies that a
non-expert Board would be permitted to make errors of law99 and that it is only on
applications for judicial review, where questions of fact and questions of mixed fact
and law may be raised, that there may be a consideration of standards of review other
than correctness.100 However, the application of a reasonableness standard is not
contingent on the nature of the question under review, but rather on the application
of the RTA’s privative clause in applications for judicial review. Both appellate and
Supra note 8.
Ibid. at para. 62.
R.S.C. 1985, c. 19 (2nd Supp.)
Supra note 8 at para. 49. See also Flora v. Ontario (Health Insurance Plan, General Manager), (2008)
91 O.R. (3d) 412 at paras. 40-41(Ont. C.A.) where the court, per Cronk J.A., held that the standard of
review was reasonableness on a statutory appeal to the Health Services and Appeal Board. Despite the
existence of a broad right of appeal, the court found that the Board had an “understanding of medicine”, an area in which the court could not claim any greater expertise, and that the Board was engaged
in interpreting its enabling statute and not any matter of general law outside the Board’s specialized
expertise.
99. Rapsey, supra note 17 at 4-5.
100. Ibid. at 10-11.
95.
96.
97.
98.
“But Only on a Question of Law” 131
judicial review exist to correct legal error by inferior tribunals, each is governed by
the same four factors in the standard of review analysis and each applies the same
standards to questions of fact and questions of mixed fact and law. The crucial distinction is that, in judicial review, a court must be cognizant of the privative clause
that signals some deference is to be accorded to the Board. A standard of reasonableness may be more probable in an application for judicial review but much would turn
on the nature of the question of law under review and the characterization of the
legal error—a task that can result in conflicting interpretations from the courts. It is
to this issue that we now turn.
Reviewing Questions of Law
Questions of law are questions about what the correct legal test is.101
Questions before the courts have consistently been identified as either questions of
fact, questions of law, or questions of mixed fact and law. Any appellate review starts
with such an identification process which is, of course, of central importance on appeals from the Board. What, therefore, may be classified as a “question of law”, and is
the category broader than merely delineating the “correct legal test”? As will be seen,
there is debate about what may constitute a question of law and what type of question
of law has been raised.
Classifying a Question of Law
On appellate review from the Board, the characterization of the error is of critical
importance. The right of appeal is permissible “only on a question of law” under
the RTA. The threshold issue for the reviewing court is to determine whether the
grounds of appeal from a decision of the Board identify a question of law in order to
vest the court with its appellate jurisdiction. In many cases, the dispute as to whether
an appeal raises a question of law is raised on motions to quash an appeal where the
moving party portrays the appeal as one devoid of merit and involving questions of
fact or of mixed fact and law rather than of law alone.102
In most appeals from the Board there is no substantive dispute as to the existence
of a question of law as with, for example, issues of statutory interpretation103 and
101. Southam, supra note 8, per Iacobucci J. at para. 35.
102. See O’Regan v. Commvesco Levinson-Viner Group, [2006] O.J. No. 3528 (Div. Ct.) [O’Regan]; Martino
v. Mohammad (2006), 214 O.A.C. 221 (Div. Ct.); and Toronto Community Housing Corporation v. Jilks,
[2008] O.J. No. 2774 (Div. Ct.).
103. Issues of statutory interpretation have been found to be questions of law alone. See Briarlane Property
Management Inc. v. Bradt (2004), 185 O.A.C. 198 (Div. Ct.); Canada Trustco Mortgage Co. v. Park
(2003), 63 O.R. (3d) 789 (Div. Ct.); Luray Investments Ltd. v. Recine-Pynn (1999), 126 O.A.C 303 (Div.
Ct.); and Krafczek v. 1320239 Ontario Ltd., [2002] O.J. No. 2091 (Div. Ct.).
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jurisdiction.104 But questions of law are not confined to simply determining what
the correct legal test may be. Issues of natural justice and procedural fairness105 are
properly characterized as questions of law106 but do not involve the determination
of a legal test. Furthermore, the issue of what constitutes a “question of law” is not always self-evident or straightforward. In Sheldrick v. Ontario (Ministry of Community
and Social Services),107 a case concerning eligibility for disability income support,
two appellate courts comprising six justices differed on whether the Social Benefits
Tribunal [SBT] had erred in law in its treatment of the evidence and its fact-finding
process. The Court of Appeal held that the Divisional Court committed reversible
error by incorrectly characterizing the SBT decision as including an error of law.
In a brief endorsement, it held that the Divisional Court was in substance simply
disagreeing with the SBT’s weighing of the evidence108 and that the SBT had fulfilled
its role in the consideration and weighing of the evidence and provided sufficient
reasons. The Divisional Court, in contrast, found that the SBT had disregarded and
failed to appreciate relevant uncontradicted medical evidence, specifically from two
expert witnesses, without adequate explanation and had thereby erred in law.109
In other words, the Divisional Court was of the view that the SBT had considered
but failed to appreciate the medical evidence, whereas the Court of Appeal was of
the view that that the medical evidence was both considered and appreciated and
that the Divisional Court was essentially not satisfied with the SBT’s treatment of
the evidence and inappropriately substituted its own view of the weight that should
have been accorded to the evidence.110 The Court of Appeal found that there was
no error in the SBT’s fact-finding process and, alternatively, could have analyzed the
SBT decision by applying the “palpable and overriding error” test regularly applied
to findings of fact.111 Using either approach, it is suggested that the Court of Appeal
would have determined that no question of law was raised.
104. Jurisdictional issues have also been found to be errors of law alone. See Duong v. Ratia, [2002] O.J. No.
1758 (Div. Ct.); Humby v. Naccarato, [2001] O.J. No. 362 (Div. Ct.); Ball v. Metro Capital Management
(2002), O.J. No. 1747 (Div. Ct.); Nesha v. Bezrukova, [2003] O.J. No. 3787 (Div. Ct.); and Kissell v. Radak
Milsosevic and VRM Investments Ltd., [2008] O.J. No. 2244 (Div. Ct.).
105. Matters related to natural justice have been found to be questions of law alone. See Kizemchuk v. Kizemchuk, [2000] O.J. No. 2763 (Div. Ct.); 60 Montclair Ltd. v. Kizemchuk, [2002] O.J. No. 2283 (Div. Ct.);
Klein v. Cohen (2001), 143 O.A.C. 342 (Div. Ct.); Kuzyk v. SK Properties, [2001] O.J. No. 5260 (Div. Ct.);
and Montgomery and Turgeon v. 737259 Ontario Limited (15 October 1999), Court File No. 1031 (Ont.
Div. Ct.—London).
106. They are frequently characterized as errors of jurisdiction.
107. [2007] O.J. No. 2504 (C.A.).
108. Ibid. at para. 1.
109. [2007] O.J. No. 1276 (Div. Ct.) at para. 5.
110. The author’s review of the SBT decision, Sheldrick v. Director (Disability Adjudication Unit) (26 August
2004; Foster) File No. 0307-05797 (SBT) at 4-5, indicates that the SBT, in the author’s view, did make
reference to and did consider the expert evidence of the family doctor and the psychologist.
111. See below, Reviewing Questions of Fact.
“But Only on a Question of Law” 133
Furthermore, even where there is agreement that a question of law exists, there may
be disagreement about what type of question of law exists and this can affect the
standard of review analysis. In Dunsmuir,112 all nine justices agreed that a question
of law was raised but six justices applied a reasonableness standard and three justices
applied a correctness standard. While a majority of the court viewed the legal question as one of statutory interpretation of the adjudicator’s statutory framework,113
the minority viewed the issue as one of common law and concluded that, as the
adjudicator did not have specific expertise in interpreting the common law, the applicable standard was correctness.114
Standard of Review on Questions of Law
In Housen v. Nikolaisen,115 the Supreme Court held that the standard of review of
a trial court, on a “pure question of law”, was correctness, primarily because of the
duty of an appellate court to establish legal rules required a broad scope of review.116
An appellate court conducts an identical role with administrative tribunals, including the Board, and there is no basis for the application of a reasonableness standard
to questions of law, even where the tribunal is recognized as a highly specialized
expert body.117 This is so because of, as set out in Housen,118 two related underlying
policy considerations: the principle of universality, which requires appellate courts to
ensure that the same legal rules are applied in similar situations, and the recognized
law-making role of appellate courts.119
A reasonableness standard means that conflicting interpretations of questions of law
may be upheld by the courts where both are reasonable.120 As noted in Dunsmuir,121
the reviewing court must recognize that tribunals have a margin of appreciation
112. Supra note 13.
113. Ibid. at paras. 72-76, per Bastarache and LeBel JJ.; at para. 156 per Binnie J.
114. Ibid. at para. 168, per Deschamps J. Moreover, to further complicate the classification of questions of
law, there is the issue of distinguishing between general questions of law that may have precendential
effect or the potential to apply widely to many cases (“pure questions of law”), subject to a correctness
standard, and those questions of law that are so particular as to not have any precedential value and
within the specialized expertise of the administrative tribunal, subject to a reasonableness standard.
See Mullan, supra note 60 at 74-77, for a discussion of the Supreme Court jurisprudence in this area.
115. [2002] 2 S.C.R. 235.
116. Ibid. at para 9 per Iacobucci and Major JJ.
117. See Jacob Catalytic, supra note 75 at para. 29. With respect to the OLRB and the application of the common law doctrine of estoppel, the court’s view was that the application of the doctrine raised questions
of mixed fact and law but recognized that the “Board and labour arbitrators have a long history of applying this doctrine when adjudicating grievances.”
118. Supra note 115.
119. Ibid. at para. 9.
120. Domtar Inc. v. Quebec (Commission d’appel en matière de lésions professionnelles), [1993] S.C.J. No. 75.
121. Supra note 13.
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within the range of acceptable and rational solutions.122 Certain questions of law
may attract a correctness standard,123 but where the legal question is not one of
central importance to the legal system or is within the specialized expertise of the
tribunal,124 a standard of reasonableness may apply.
The applicability of a reasonableness standard on questions of law at the Board has
been criticized as being unacceptable in housing law, as appeal decisions would have
no binding precedential standing on the interpretation of the RTA.125 It is argued
here, however, that on questions of law the Board must be correct in its decision
on the basis that it is not a highly specialized, expert tribunal to be accorded any
deference as to, for example, its interpretation of the RTA. There is no question of
law, including the statutory interpretation of its “home” statute, on which the Board
can be presumed to possess a greater ability in determining relative to the courts. To
adopt the words of McLachlin C.J.C. in Dr. Q.,126 the Board has no “topical expertise”
and is not “adept in the determination of particular issues”.127 Although the exercise
of assessing expertise has been described as depending on a combination of factors, primarily involving conjecture and not scientific inquiry by the courts,128 it is
equally true that the RTA bestows a statutory right of appeal. As such, an appellate
court should always conduct a correctness review, unless the question of law is one
that is classified as falling within a tribunal’s core expertise.129
We now turn to an examination of the area of questions of mixed fact and law and,
in particular, how a question of law may be extracted where it is determined that an
incorrect legal test or standard has been applied.
Reviewing Questions of Mixed Fact and Law
Questions of mixed law and fact are questions about whether the facts satisfy the legal
tests.130
Where the application of the facts to the law is the alleged error of law, a court is
generally inclined to characterize the question as one of mixed fact and law. Under
the RTA, questions of mixed fact and law are not subject to appeal because they are,
122.
123.
124.
125.
126.
127.
128.
129.
130.
Ibid. at para. 47, per Bastarache and LeBel JJ.
Ibid. at paras. 58-61.
Ibid. at para. 70.
Rapsey, supra note 17 at 9. This comment was made in context of the TPA but is equally applicable to
the RTA.
Supra note 4.
Ibid. at para. 28.
Mullan, supra note 60 at 71.
Ibid. at 72. A reasonableness standard was applied in the context of a statutory appeal in both Southam,
supra note 8 and Pezim, supra note 17. It is suggested that this was because of the Court’s willingness to
show deference to the tribunals’ relative expertise in highly specialized fields.
Supra note 4 at para. 35.
“But Only on a Question of Law” 135
by definition, not questions of law alone. The Board’s duty is to consider and weigh
the evidence, make findings of fact and to apply those facts to the relevant law. The
question becomes whether the “relevant law” has been correctly applied.
Defining a Question of Mixed Fact and Law
A number of appellate decisions have dismissed appeals on the basis that a question
of mixed fact and law has been raised, frequently in the context of eviction applications for own use possession by the landlord.131 In Meredith v. Leboeuf Properties
Inc.,132 the court conducted the question of law threshold inquiry very strictly. The
tenant alleged that the Tribunal erred in failing to exercise its mandatory authority
to refuse the eviction under section 84(2)(a) of the TPA where the landlord was in
serious breach of its obligations. The court denied the appeal as it did not involve
a question of law alone, holding that a determination as to whether there was any
evidence was a question of law, and what inferences could or should be drawn from
some evidence was at best a question of mixed fact and law.133
In Jemiolo v. Firchuk,134 the court similarly found that no question of law was raised
in an appeal challenging the Tribunal’s fact-finding process. The issue was whether
the appellant was a “tenant” within the meaning of the TPA. The court held that the
standard of review for questions of statutory interpretation was correctness and that
“tenant” was a defined term under the TPA.135 The tenant argued that the Tribunal
failed to properly consider the evidence of the appellant and the evidence of the conduct of the landlords’ agents. The court stated:
131. Section 48 RTA, supra note 2. See Liu v. Chen, [2004] O.J. No. 3965 (Div. Ct.), where the court held
that the issue of good faith in a landlord’s own use eviction application was at best a question of mixed
fact and law, and was not subject to appeal; Emerson v. Themer, [2007] O.J. No. 3662 (Div. Ct.) at paras.
1-3 (Div. Ct.) where the court held that the issue regarding bad faith was a question of fact or at best a
question of mixed fact and law and was not reviewable by the court; and Bakardjiev v. MacLean (10 July
2006) Court File No. 244/05 at para. 2 (Div. Ct.) (leave to Court of Appeal refused 15 January 2007 and
leave to appeal to Supreme Court of Canada refused [2007] S.C.C.A. No. 127), in which the court held
that determining good faith for the purpose of residential occupancy was a question of fact and not a
question of law alone.
132. [2000] O.J. No. 209 (Div. Ct.).
133. Ibid. at para. 3.
134. (2005) Court File No. 577/04 (Div. Ct.).
135. Ibid. at para 5. See also North York General Hospital, supra note 31 at para. 23, where the court had
serious reservations about whether a determination that the residents were “owners” of their dwellings
for the purposes of the TPA was a question of law alone, since it required an investigation of the factual
underpinnings of the relationship. However, because of the blurred distinction between questions of
law alone and questions of mixed fact and law, the possibility of error in making that determination,
and the fact that there were other questions of pure law raised in the appeal, the court dealt with the
merits of the appeal.
136
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The factual findings of the Tribunal are not subject to review. Whether or not there is any
evidence is a question of law. What inferences can or should be drawn from some evidence is
at best a question of mixed fact and law … Our jurisdiction is limited to questions of law.136
It would be more accurate, however, to state that factual findings of the Board are
subject to review but these findings will be disturbed only where the error of fact is
sufficiently serious.137 Where there is some evidence to support the factual findings,
the court will not intervene. In Jemiolo,138 the Tribunal’s findings that the appellant
was not a tenant and that there was no tenancy agreement were supported by some
evidence. The Tribunal, in the court’s view, was therefore correct to conclude that
there was no implied tenancy agreement.139
Standard of Review of Questions of Mixed Fact and Law
In Housen,140 it was recognized that determining the applicable standard of review
was a difficult exercise.141 Questions of mixed fact and law (i.e. applying a legal standard to a set of facts) lie along a spectrum. Questions of mixed fact and law are
questions where the legal and factual issues are intertwined and cannot easily be
separated. The court did not therefore articulate a distinct standard for all questions
of mixed fact and law:
Where the trier of fact has considered all of the evidence that the law requires him or her to
consider and still comes to the wrong conclusion, then this amounts to an error of mixed
fact and law and is subject to a more stringent standard of review [than for findings of fact]:
[citation omitted].142
The question for the reviewing court is whether a legal principle is readily extricable
from the factual.143 If it is not, then it is a question of mixed fact and law “subject
to a more stringent standard”.144 If a legal principle may be extracted, then it may
constitute an error in law and be subject to a correctness standard.
136.
137.
138.
139.
140.
141.
142.
143.
144.
Ibid. at para 12 [emphasis added].
Below, Reviewing Questions of Fact.
Supra note 107.
Ibid. at para 13. For a different result, see Bielak v. Clarke, [2003] O.J. No. 4479 (Div. Ct.), where the
Tribunal found that the landlord’s daughter’s desire to occupy the unit was genuine and granted the
eviction application. The court found that the Tribunal erred in finding good faith, having failed to
weigh and address the evidence of bad faith. Although the issue of good faith is regularly characterized as a question of mixed fact and law, the court extricated a question of law: did the Tribunal fail to
consider evidence? In short, the fact-finding process was flawed.
Supra note 115.
Ibid. at para. 27.
Ibid. at para 28.
Ibid. at para 36.
Ibid. at para 36: “The general rule … is that, where the issue on appeal involves the trial judge’s interpretation of the evidence as a whole, it should not be overturned absent palpable and overriding
error”.
“But Only on a Question of Law” 137
Arguably, a question of law may be extracted from both the Board’s characterization
of a legal test or standard and from its factual findings. If no error in law may be extracted from either area, then the question falls into the middle of the spectrum and
may be classified as a question of mixed fact and law and, with respect to the Board,
beyond the scope of appellate review.
Extracting a Question of Law from a Legal Standard
The application of a legal test or standard to a factual situation requires an analysis
of both law and fact and, to that extent, is a question of mixed fact and law. The
exercise of extracting a question of law from a question of mixed fact and law raises
two distinct lines of inquiry: is there a factual dispute (i.e. are the facts as found supported by the evidence?) or is there a dispute about the legal test to be applied (i.e.
what is the content of the legal test?)? In Housen,145 the Supreme Court discussed,
in the context of a negligence action, the task of extricating a question of law from a
question of mixed fact and law:
To summarize, a finding of negligence by a trial judge involves applying a legal standard
to a set of facts, and thus is a question of mixed fact and law. Matters of mixed fact and law
lie along a spectrum. Where, for instance, an error with respect to a finding of negligence
can be attributed to the application of an incorrect standard, a failure to consider a required
element of a legal test, or similar error in principle, such an error can be characterized as an
error of law, subject to a standard of correctness. Appellate courts must be cautious, however,
in finding that a trial judge erred in law in his or her determination of negligence, as it is
often difficult to extricate the legal questions from the factual. It is for this reason that these
matters are referred to as questions of “mixed law and fact.” Where the legal principle is not
readily extricable, then the matter is one of “mixed law and fact” and is subject to a more
stringent standard.146
Thus, whether the facts, once established, satisfy the legal test is a question of mixed
fact and law. But the identification of the content of the legal test itself is a question
of law. As noted in Dunsmuir,147 questions of mixed fact and law vary—is this a
­question of identifying the “contours and the content of a legal rule” or is this a matter of simply applying an established rule to a set of facts?148
In Housen,149 it was observed that both questions of mixed fact and law and factual
findings often involve drawing inferences and that the difference between the two
questions lies in whether the inference drawn is legal or factual.150
145.
146.
147.
148.
149.
150.
Supra note 115.
Ibid. at para. 36 [emphasis added] per Iacobucci and Major JJ.
Supra note 13.
Ibid. at paras. 161-64 per Deschamps J.
Supra note 115.
Ibid. at para. 26.
138
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We are supported in our conclusion by the analogy which can be drawn between inferences
of fact and questions of mixed fact and law. As stated above, both involve drawing inferences from underlying facts. The difference lies in whether the inference drawn relates to
a legal standard or not. Because both processes are intertwined with the weight assigned to
the evidence, the numerous policy reasons which support a deferential stance to the trial
judge’s inferences of fact, also, to a certain extent, support showing deference to the trial
judge’s inferences of mixed fact and law.
Where, however, an erroneous finding of the trial judge can be traced to an error in his or
her characterization of the legal standard, then this encroaches on the law-making role of
an appellate court, and less deference is required, consistent with a “correctness” standard of
review.151
In short, where a question of mixed fact and law can be isolated and attributed to the
application of an incorrect standard, such as the failure to consider a required element of a legal test, it is an error of law subject to a correctness standard.152 Housen153
offers the following example:
In Southam … this Court illustrated how an error on a question of mixed fact and law can
amount to a pure error of law subject to the correctness standard:
… if a decision-maker says that the correct test requires him or her to consider A, B,
C, and D, but in fact the decision-maker considers only A, B, and C, then the outcome
is as if he or she had applied a law that required consideration of only A, B, and C. If
the correct test requires him or her to consider D as well, then the decision-maker has
in effect applied the wrong law, and so has made an error of law.
Therefore, what appears to be a question of mixed fact and law, upon further reflection, can
actually be an error of pure law.154
A review of recent appellate jurisprudence considering section 84(2)(a) of the TPA
illustrates the courts’ analytical approach to extricating a question of law from what
may appear, at first instance, to be a question of mixed fact and law.
Extracting a Question of Law from a Statutory Standard: “Serious Breach” of a
Landlord’s Responsibilities
Section 84(2)(a) of the TPA limits the ability of landlords to evict if they are in
“serious breach” of their responsibilities. In Puterbough v. Canada (Public Works &
Government Services),155 an appeal of eviction orders under the demolition provisions of the TPA,156 the premises were located on the federal government’s site for a
151. Ibid. at paras. 32, 33 [emphasis added].
152. Supra note 8 at paras. 35-42 per Iacobucci J. and supra note 115 at paras. 26-37 per Iacobucci and Major
JJ.
153. Supra note 115.
154. Ibid. at para. 27.
155. [2007] O.J. No. 748 (Div. Ct.) [Puterbough].
156. Section 53 of the TPA, supra note 3.
“But Only on a Question of Law” 139
proposed airport. The government concluded that demolition of the properties was
the lowest-cost option.157 In two of the five cases under appeal,158 the Tribunal held
that the government’s breach of its maintenance responsibilities was serious, contravened section 84(2)(a) of the TPA,159 and refused an eviction order.
With regard to the Beelby appeal, the Tribunal found as fact that:
1. in the past, the landlord had spent less on maintenance then what the landlord acknowledged was reasonable;
2. the premises were in poor condition (mould, rotting kitchen countertop,
deteriorated walkway/driveway and garage); and
3. major expenditures were necessary to be able to continue to use the premises as residential premises.160
Applying these facts to the statutory standard in section 84(2)(a), the Tribunal found
that the landlord breached its section 24(1) obligation161 and the breach was serious.162 On appeal, the court found the Tribunal had engaged in “improper reasoning” in concluding that these facts constituted a serious breach.163
The court characterized the issue as one of statutory interpretation, specifically the
meaning of the term “serious breach” of the landlord’s responsibilities in section 84(2)
(a). Adopting a “pragmatic, balanced and contextual approach”, the court determined
that the focus had to be on the seriousness of the breach as opposed to the seriousness
of the defect or deficiency.164 In short, a serious breach was not established merely by
the premises being in need of significant or extensive repairs.165 The seriousness of
the defect was but one factor to consider. The court adopted the approach taken in
the Tribunal’s Guideline 7:166
157. Supra note 155 at para. 32. Demolition would have cost $12,000 while repairs and upgrades would have
cost $54,300.
158. The appellants Beelby and McKay. There were five appellants consolidated into the appeal: Puterbough, Beelby, McKay, Mogk and Knapp.
159. Section 84(2)(a) of the TPA, supra note 3, provided:
Without restricting the generality of subsection (1), the Board shall refuse to grant the application
where satisfied that,
(a) the landlord is in serious breach of the landlord’s responsibilities under this Act or of any
material covenant in the tenancy agreement;
160. Supra note 155 at para. 84.
161. The landlord’s statutory obligation to maintain and repair the premises.
162. Supra note 155 at para. 91.
163. Ibid. at para. 106.
164. Ibid. at para. 15.
165. Ibid. at para. 22.
166. Supra note 155 at para. 27.
140
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The Tribunal considers a variety of factors, such as whether the breach of the duty to repair
has resulted in a health or safety concern, the impact any repair problem has had on the tenant, what actions the landlord has taken to deal with the repair problem, whether the tenant
complained to the landlord about a longstanding repair problem, whether the landlord
was aware of the problem prior to any application being brought, and whether the tenant
contributed to the problem.167
A similar approach to section 84(2)(a) was applied in Sage,168 but a different result
was reached by the court. The tenants argued the landlord was in serious breach
under section 84(2)(a) because he failed to fix the roof and provide a consistent
source of safe water. In concluding that the landlord was not in serious breach, the
Tribunal found the evidence did not show the water was at all times unsafe and the
tenants had resorted to obtaining their own water, which was a matter that the tenants could pursue in their own application.169 On appeal, the court defined the issue
as whether the Tribunal erred in its interpretation of section 84(2)(a),170 stating:
The term “serious breach” found in s. 84(2) of the TPA is a statutory standard. The seriousness of the breaches by the County is shown by the failure of the water supply to meet the
water quality standards … that apply throughout the province. I find that the breaches were
on-going for several years, there was a causal connection between the breaches and the contaminated well water, the County took no steps to fix the cause of the contamination and
the risk to health and safety were grave. The breaches were serious for the above reasons.
I find that the Tribunal erred in its interpretation of the word “serious” within the meaning
of s. 84(2) of the TPA and in its reasoning that the breach was not serious because the water
was not “at all times unsafe.”171
The court thus considered that (1) the significance of the defect; (2) the length of
time of the defect; (3) the landlord’s lack of action; and (4) the degree of risk to health
and safety together constituted a “serious” breach of the landlord’s maintenance obligations. Arguably, the court applied the correct legal test insofar as various factors
were considered and not merely the significance of the defect. The court did not,
however, embark on an explicit analysis of the proper test to be applied.
Lastly, in MacNeil v. 976445 Ontario Ltd.,172 the tenants of a mobile home park were
evicted because the landlord wanted to convert the park to non-residential use to
avoid the expense of complying with environmental orders relating to sewage. The
tenants also alleged, in addition to the sewage issue, that the roads were not well
167. Interpretation Guideline 7: Relief from Eviction: Refusing or Delaying an Eviction (released 31 January
2007).
168. Supra note 62.
169. Ibid. at para. 9.
170. Ibid. at para. 10.
171. Ibid. at paras. 42, 43.
172. Supra note 87.
“But Only on a Question of Law” 141
maintained and that the Tribunal failed to properly apply section 84(2)(a).173 The
court again characterized the issue as whether the Tribunal had erred in its interpretation of section 84(2)(a)174 and stated that the “correct legal test to determine the
term ‘serious’ breach found in section 84(2)(a) was a question of law.”175
The court held that the landlord was not in serious breach of her obligations under
section 110 of the TPA,176 finding that there was “no evidence to suggest that the
roads were in such poor shape as to be considered a serious breach”.177 The court had
heard no evidence to suggest that the landlord was in serious breach of its obligations
under section 110 regarding the road maintenance. Although there were problems
with the sewage system, the landlord had taken remedial action and a septic system
was currently in place, and remained so except as directed by the municipality. In
addition, the Tribunal determined that the landlord had explored her alternatives to
closure of the park to a reasonable degree,178 that she had made a business decision
rather than a personal one in deciding to evict all the tenants, and that this decision
was made in good faith. In making this determination, the court had to look at the
intent of the landlord at the time of issuing the termination notices. It was unreasonable to conclude, in the court’s view, that there was motive to evict the entire mobile
home park to retaliate for a dysfunctional relationship with one tenant.
MacNeil,179 from one perspective, may be considered as a “no evidence” appeal where
the court was concerned chiefly about the lack of evidence relating to the condition
of the roads. In other words, on the evidence, the defect was not significant and the
Tribunal had made a flawed finding of fact. Moreover, even if the road conditions
were a significant defect, following the analysis set out in Puterbough,180 the defect
would be but one factor to consider in assessing whether there was a serious breach
of the landlord’s maintenance obligations.
Puterbough,181 Sage,182 and MacNeil183 demonstrate how a question of law may be
extracted from an apparent question of mixed fact and law and thus subject to appeal under the RTA. Whether the landlord’s breach of its responsibilities is “serious”
173. Ibid. at para. 12.
174. Ibid. The Court determined, at para. 23, that the standard of review on appeal of a question of law was
correctness.
175. Ibid. at para. 19.
176. Section 110 of the TPA, supra note 3, sets out the landlord’s responsibilities for maintenance and repair
in mobile home parks.
177. Supra note 87 at para. 27.
178. Ibid. at para. 24.
179. Supra note 87.
180. Supra note 155.
181. Ibid.
182. Supra note 62.
183. Supra note 87.
142
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involves applying the facts to a statutory standard, but where the wrong standard is
applied then the issue becomes a question of law.184 On the other hand, if the correct
legal standard is applied to a set of facts, then the question is likely to be characterized as one of mixed fact and law. However, as seen in MacNeil,185 a court may also
review the fact-finding process itself and, for instance, characterize the issue as one
of no evidence or, in other words, as an erroneous finding of fact. It is to that issue
that we now turn.
Reviewing Questions of Fact
Questions of fact … are questions about what actually took place between the
parties.186
Traditionally, appellate courts have applied a principle of deference to the factual
findings of trial courts, emphasizing that courts should not second guess the weight
assigned by the trier of fact to the evidence.187 The same principle is applicable to
administrative tribunals. As a general rule, the Board’s factual determinations will
not be subject to appeal,188 due to an appellate court’s general reluctance to substitute
its own view of the facts for those of the Board.
In order to determine “what actually took place between the parties” the Board must
consider and weigh all of the relevant and admissible evidence before it. Given the
express limitation in the RTA to appeals only on questions of law, it might be contended that all questions of fact are excluded from appellate review. After all, some
statutes do make express reference to the power to appeal or review questions of fact.
For example, the Federal Court Act189 provides that the court may grant relief if the
decision is based “on an erroneous finding of fact that it made in a perverse or capricious manner or without regard to the material before it”.190 However, it is argued
184.
185.
186.
187.
As a question of law, all three decisions found that the applicable standard of review was correctness.
Supra note 87.
Southam, supra note 8 at para. 35.
See Stein v. Kathy K (The Ship), [1976] 2 S.C.R. 802 at 808. In Housen, supra note 115 at para. 24, the
majority stated the “essential point is that making a factual conclusion, of any kind, is inextricably
linked with assigning weight to evidence, and thus attracts a deferential standard of review.” There
remains some debate, however, about the proper approach to reviewing inferences of fact (see the majority decision at paras. 22, 23, and the minority decision at paras. 101-103).
188. In the residential tenancy context see Walls v. Bezarevic, [2001] O.J. No. 2041 (Div. Ct.), where the
Court held that a single illegal act could warrant eviction in law but that the issue of weighing the evidence to determine if it should warrant eviction in a particular case was not a legal question.
189. R.S.C. 1985, c. F-7 [FCA]. See also sections 6(1)(a) and (b) of the Courts of Justice Act, R.S.O. 1990, c.
C.43, which provides for an appeal to the Court of Appeal (a), with leave, from an order of the Divisional Court on a question that is not a question of fact alone and (b) from a final order of a judge of
the Superior Court of Justice.
190. FCA, supra note 189, section 18.1(4)(d). Section 42(3) of the Human Rights Code, R.S.O. 1990, c. H.19
(now repealed), provided that an appeal could be brought “on a question of law or fact or both.”
“But Only on a Question of Law” 143
that the express statutory provision is largely irrelevant in defining the scope of the
court’s jurisdiction. In essence, statutory language, such as exists in the FCA and
elsewhere, merely articulates the applicable standard of review rather than providing
the jurisdictional basis for the power to review. Findings of fact are susceptible to
appellate review because the fact-finding process may be so flawed as to constitute
reviewable error, regardless of the statute’s language.
In order to apply the facts to the law, there must be an accurate determination of the
facts based on the evidence adduced. The law also applies to the fact-finding process
and, as such, may well engage a question of law.191 Questions of fact are reviewable if
they are erroneous findings of fact because those are classified as errors in law. At the
Board, in an appropriate case, what appears to be merely a question of fact (i.e. what
actually took place between the parties) may be transformed into a question of law
as a result of the Board’s flawed treatment of the evidence leading to the finding of
fact. The key preliminary issue, however, is what standard of review a court will apply
to the Board’s fact-finding determinations. As might be anticipated, a great deal of
deference is given to factual findings, largely as a result of the court’s recognition of
the fact-finding function of tribunals and trial courts.
Standard of Review for Findings of Fact
In Housen,192 the Supreme Court, in the context of an appeal from a trial court, set
out the applicable standard of review:
A proposition that should be unnecessary to state is that a court of appeal should not interfere with a trial judge’s reasons unless there is a palpable and overriding error. The same
proposition is sometimes stated as prohibiting an appellate court from reviewing a trial
judge’s decision if there was some evidence upon which he or she could have relied to reach
that conclusion.193
This statement of the law is equally applicable to administrative tribunals, including the Board, albeit the specific language of “palpable and overriding error” is not
­always explicitly referred to as the applicable test. How do we recognize such an error? The Supreme Court stated:
What is palpable error? The New Oxford Dictionary of English (1998) defines “palpable”
as “clear to the mind or plain to see” … The Cambridge International Dictionary of English
(1996) describes it as “so obvious that it can easily be seen or known” … The Random
191. See Vinogradov v. University of Calgary (1990), 74 D.L.R. (4th) 110 at 116 (Alb. C.A.).
192. Supra note 115.
193. Ibid. at para. 1 [emphasis added]. See also St. Jean v. Mercier, [2002] 1 S.C.R. 491 at paras. 37 and 46;
and Honda Canada Inc. v. Keays (2008), 239 O.A.C. 299 (S.C.C.), where the majority, per Bastarache
J., at paras. 19-48, conducted an extensive review of the record and concluded, on the issues of bad
faith and discrimination, that the trial judge made a number of palpable and overriding errors. The
minority, per LeBel J., at paras. 84-113, was of the view that, “despite some flaws”, there was a factual
foundation for the trial judge’s findings that was adequate.
144
(2009) 22 Journal of Law and Social Policy
House Dictionary of the English Language (2nd ed. 1987) defines it as “readily or plainly
seen” …
The common element in each of these definitions is that palpable is plainly seen.194
A palpable error, however, is not necessarily an overriding error. As noted by the
Ontario Court of Appeal in Waxman v. Waxman:195
An “overriding” error is an error that is sufficiently significant to vitiate the challenged finding
of fact. Where the challenged finding of fact is based on a constellation of findings, the
conclusion that one or more of those findings is founded on a “palpable” error does not
automatically mean that the error is also “overriding”. The appellant must demonstrate that
the error goes to the root of the challenged finding of fact such that the fact cannot safely stand
in the face of that error196 [citation omitted].
While the application of the “palpable and overriding error” standard has been repeatedly endorsed and applied by the courts,197 it is to be noted that there is jurisprudence concerning the Board (and elsewhere) referring to the application of an
apparently distinct reasonableness standard to findings of fact.198 In Southam,199
the court equated the standard of reasonableness with the standard to be applied in
reviewing findings of fact and noted that the closeness of the “clearly wrong” test and
the standard of reasonableness were obvious.200 The court also found that “clearly
wrong” did not go so far as patent unreasonableness, as there was some distinction
to be drawn between “clearly” and “patently”, albeit acknowledging that they were
194. Ibid. at paras. 5, 6. The court also went on to note the policy reasons for employing a high level of appellate deference to findings of fact at paras. 10-18.
195. (2004), 186 O.A.C. 201(C.A.) [Waxman] [emphasis added].
196. Ibid. at para. 297 [emphasis added].
197. Despite its longstanding application, the palpable and overriding error standard of review had been
subjected to some intense criticism. R.D. Gibbens, supra note 7 at 452, has written:
The notion that the error must be “palpable and overriding” is more of a ritual incantation used to
justify appellate action rather than to determine when it is appropriate. Short of those cases where
the trial judge just got his proverbial sums wrong, the phrase is merely a tool by which any appellate
court can implement their own particular view of justice on the facts.
198. In Barrett v. Norquay Development Limited, [2003] O.J. No. 6274 at paras. 1, 2 (Div. Ct.) [Barrett], a
post-Housen decision (but without any reference to Housen, supra note 115), the court held that findings of fact that cannot be reasonably supported by the evidence are errors of law. Barrett concerned a
tenants’ claim that the landlord substantially interfered with their quiet enjoyment. The court held that
the finding that the landlord substantially interfered with the reasonable enjoyment of the unit by the
tenants, by failing to address a problem with a window, was reasonable on the evidence. Furthermore,
the abatement of rent and award of damages were justified on the evidence and the hearing officer
could not be said to be “clearly wrong” in such findings [emphasis added]. More recently, in Chadra v.
Kanaan, [2008] O.J. No. 2590 at para. 11 (Div. Ct.), the court, while not applying a standard of review
analysis, held that the Board was owed a “high degree of deference on its review of the facts and findings
of credibility.” [Emphasis added.]
199. Supra note 8.
200. Ibid. at para. 59.
“But Only on a Question of Law” 145
“close synonyms”.201 Furthermore, in Dr. Q.,202 there is authority for the proposition
that, while trial courts’ factual findings would be subject to a palpable and overriding
error standard due to the nature of the question alone, the same could not be said
of administrative tribunals where the nature of the question was just one of the four
factors to consider in determining the applicable standard of review.203 Moreover,
the Supreme Court noted that some administrative bodies may have “relative institutional expertise” in fact-finding.204
However, the same standard of “palpable and overriding error” ought to be applied to
the review of findings of fact of both courts and tribunals. The use of the standard of
reasonableness terminology as applied to factual findings is not particularly helpful.
First, it is conceptually confusing to use a reasonableness standard because, in both
the court and tribunal contexts, an appellate court need not apply a Dunsmuir205
standard of review analysis to questions of fact, as the nature of the question itself
drives the scope of the inquiry.206 Second, the reasonableness standard and the palpable and overriding error standard are virtually indistinguishable standards. Thus,
whatever standard is applied at the Board, the practical result will be the same. In
reviewing questions of fact, the role of a reviewing court is not to posit alternate
interpretations of the evidence but rather to determine whether the interpretation
of the evidence was reasonable or whether it had some basis in the evidence.207
In Waxman,208 the Court of Appeal attempted to reconcile the two standards by
­concluding that the concepts of “unreasonable”, “clearly wrong” and “palpable error”
were, in effect, one and the same standard:
After Housen, appellate courts will not review findings of fact … by asking whether on the
totality of the evidence, those findings are reasonable …
201.
202.
203.
204.
205.
206.
207.
208.
Ibid. at para. 60.
Dr. Q., supra note 4.
Ibid. at para. 33.
The Supreme Court cited Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554 [Mossop] as authority for its position respecting “relative institutional expertise” in the human rights context. In Entrop v. Imperial Oil Ltd. (2000), 50 O.R. (3d) 18 at para. 43 (C.A.), the Ontario Court of Appeal followed
Mossop and found that the standard of review of the Canadian Human Rights Commission’s Board of
Inquiry’s findings of fact (and the application of the law to those findings of fact) was reasonableness.
A year prior to Mossop, the Ontario Divisional Court, in Emrick Plastics v. Ontario (Human Rights
Commission) (1992), 55 O.A.C. 33 (Div. Ct.) [Emrick] found that the standard applied to a trial court’s
findings of fact—i.e. palpable and overriding error—should also apply to findings of fact made by a
human rights tribunal. It is suggested that Emrick is the preferred approach.
Supra note 13.
Supra note 4 at para. 33, where McLachlin C.J.C. observed that the nature of the question almost entirely determined the standard of review and factual findings would be interfered with only if there was
“palpable and overriding error” or where the finding was “clearly wrong”.
Dr. Q., supra note 4 at para. 41.
Supra note 195.
146
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That is not to say that the approach favoured by the majority in Housen will change the
result of many fact-based appeals. A process which yields findings of fact that cannot pass the
reasonableness standard of review will almost always be tainted by at least palpable error …
Similarly, a finding of fact based on speculation and not logical inference will be subject to appellate correction not because the finding is unreasonable, although it clearly is, but because a
process of fact-finding based on speculation is clearly wrong, and therefore constitutes palpable
error: [citation omitted].209
In Dunsmuir,210 moreover, Justice Deschamps noted that questions of fact always
attract deference and that the use of different terminology—“palpable and overriding error” versus “unreasonable decision”—did not change the nature of the review,
where an appeal is based on an erroneous finding of fact:
Indeed, in the context of appellate review of court decisions, this Court has recognized that
these expressions as well as others all encapsulate the same principle of deference with respect
to a trial judge’s findings of fact: [citation omitted]. Therefore, when the issue is limited to
questions of fact, there is no need to enquire into any other factor in order to determine that
deference is owed to an administrative decision maker.211
Fact-finding is the principal function of the first-level decision-maker, whether a
trial judge or Board Member, and a high degree of deference to factual findings is the
operative approach. This is fundamentally so because of the distinct advantages the
trier of fact has. As stated in Housen:212
The trial judge is better situated to make factual findings owing to his or her extensive
exposure to the evidence, the advantage of hearing testimony viva voce and the judge’s
familiarity with the case as a whole. Because the primary role of the trial judge is to weigh
and assess voluminous quantities of evidence, the expertise and insight of the trial judge in
this area should be respected.213
Like most tribunals, the Board need not comply with formal rules of evidence and
has a broad discretion to admit evidence in a hearing.214 The Board may determine
all questions of fact and law with regard to all matters within its jurisdiction.215 The
209. Ibid. at paras. 305, 306 [emphasis added]. See also H.L. v. Canada (A.G.), [2005] 1 S.C.R. 401 at paras. 4,
55 and 56 [H.L.] per Fish J., who noted that the “palpable and overriding error” test should not be allowed
to displace “alternative formulations of the governing standard” and that the test is also met where a trial
judge’s findings of fact can be characterized as “unreasonable” or “unsupported by the evidence.” H.L. was
recently applied by a unanimous Supreme Court in F.H. v. McDougall 2008 SCC 53 at para. 55.
210. Supra note 13.
211. Ibid. at para. 161 [emphasis added].
212. Supra note 115.
213. Ibid. at para. 18.
214. Section 15(1) of the Statutory Powers Procedure Act, R.S.O. 1990, C. S. 22 [SPPA] provides that a tribunal may admit as evidence at a hearing, whether or not given or proven under oath or affirmation or
admissible as evidence in a court, (a) any oral testimony; and (b) any document or other thing, relevant
to the subject-matter of the proceeding and may act on such evidence, but the tribunal may exclude
anything unduly repetitious.
215. Section 174 of the RTA, supra note 2.
“But Only on a Question of Law” 147
Board, however, has an extremely high caseload and hears many applications in relatively short time frames.216 As a result, the Board may be particularly susceptible to
legal challenges based on its fact-finding process by examining the adequacy of the
reasons provided in support of its findings.217 The objective is to identify flawed
findings of fact that amount to palpable and overriding errors that can be fairly
framed as questions of law. Examples of reviewable findings of fact include findings
made in the absence of evidence, findings made in conflict with accepted evidence,
findings based on a misapprehension of the evidence, findings based on credibility
assessments, or those findings of fact drawn from primary facts that are the result of
speculation rather than inference.218
Extracting a Question of Law from Findings of Fact
Absence of Evidence219
Whether there is any evidence to support a finding of fact is a question of law.220 In
Krafczek v. 1320239 Ontario Ltd.,221 the tenant claimed that he had paid the arrears
216. The Board deals with approximately 60,000 applications a year and members are typically expected to
hear 15-20 cases in a 2½ hour block of time, four times a week. See Richard Feldman, “The Landlord
and Tenant Board, Pressures, Powers and Practices in Ontario’s New Residential Tenancy Regime: A
Year Later” (Law Society of Upper Canada CLE: 6 December 2007).
217. See below, Reviewing the Duty to Provide Reasons.
218. Waxman, supra note 195 at para 296. The issue of findings of fact drawn from primary facts that are
the result of speculation rather than inference is beyond the scope of this paper.
219. Ibid. The court stated (at para 334):
In addition to the all-out attack on the reasonableness of virtually all of the trial judge’s crucial findings on the central factual issues, the appellants also contend that the trial judge made innumerable
processing errors in the course of her reasons. The phrase “processing errors” is borrowed from
Keljanovic Estate v. Sanseverino, supra at 489-90 where O’Connor J.A., for the majority, said:
The second kind of error that may warrant appellate interference is what might be called a “processing error”, that is an error in processing the evidence that leads to a finding of fact. This type of
error arises when a trial judge fails to appreciate the evidence relevant to a factual issue, either by
disregarding or misapprehending that evidence. When the appellate court finds such an error it
must first determine the effect of that error on the trial judge’s reasoning. It may interfere with
the trial judge’s finding if it concludes that the part of the trial judge’s reasoning process that was
tainted by the error was essential to the challenged finding of fact. [Emphasis added.]
In addition, at paras. 343-45, Waxman also noted that a failure to consider relevant evidence is a
type of “processing error” and can amount to a palpable error if the evidence “was potentially significant to a material finding of fact.”
220. See Marcellos v. Woodbridge Management Ltd, [2006] O.J. No. 2540 at 1, 2 (Div. Ct.), where it was argued that the Tribunal erred in law by making findings unsupported by the evidence. The Court held:
An appeal of this nature can only be brought on a question of law, and accordingly, the standard of
review is correctness … While the factual findings of the Tribunal are not subject to review, whether
or not there is any evidence to support a finding is a question of law. [Emphasis added.]
221. [2002] O.J. No. 2091 (Div. Ct.). See also Nepean Housing Corporation v. Kyababenin (2005), Court
File 05-DV-001100 (Div. Ct.), where the Tribunal held that the tenant’s negligence caused a fire in the
rental unit. The court allowed the tenant’s appeal, finding that there was no evidence to support the
148
(2009) 22 Journal of Law and Social Policy
in question to the landlord, but the landlord denied receipt of them. The Tribunal reserved at the end of the hearing and ordered the tenant to pay the following month’s
rent into the Tribunal. The tenant advised the Tribunal that he would do so. The
tenant paid the following month’s rent into the Tribunal’s bank account as directed,
but failed to return to the Tribunal with the receipt of payment.
The Tribunal assumed that the tenant had ignored the direction and used this apparent failure of the tenant in assessing the tenant’s credibility. A request to review, on
the basis that the finding of credibility was based on a clear error of fact, was denied.
On review it was held that the fact that the first Member did not know the tenant had
paid the money was due to the tenant’s mistake of not returning the receipt, despite
this being a “commonly accepted and widely publicized administrative requirement
of the Tribunal”.222 Even if the tenant’s failure to follow the Tribunal procedure was to
blame, the request to review was dismissed on the basis that the first Member had not
stated that the apparent failure to comply with the direction was the sole or deciding
factor in assessing the tenant’s credibility.
The court allowed the tenant’s appeal:
Member Feldman clearly used the tenant’s apparent failure to make the payment of the
August rent into account of the tribunal as one of the factors in his adverse findings as to
the credibility of the tenant.
There is no evidence that the payment has not been made, in fact it had been made. But the
tenant had not filed the receipt from the bank with the tribunal.
Since the credibility finding may well have been influenced by this palpable and overriding
error in appreciating the evidence, it is necessary to send the matter back for a further hearing confined to the issue of what sums are owing by the tenant for rent.223
In contrast, the sufficiency of the evidence is not open to review.224 In Mills,225 the
Court of Appeal determined that the issue on appeal related to a finding of fact,
namely whether the Workplace Safety and Insurance Appeals Tribunal’s [WSIAT]
conclusion that a 1979 workplace accident was the cause of Mills’s back problems.
The Court was satisfied that there was sufficient evidence to make that finding.226
222.
223.
224.
225.
226.
Tribunal’s conclusion that the tenant ought reasonably to have foreseen that the lamp in the bedroom
could present a risk of fire. In Barker v. Park Willow Developments, 2004 CanLII 2545 (Div. Ct.), the
court allowed an appeal from an ORHT decision where the ORHT had made findings on an issue in
the absence of any evidence on that issue.
Ibid. at paras. 2-4.
Ibid. [emphasis added].
See Carbonneau v. Ranger, 2005 CanLII 20804 (ON S.C.) for an example in the residential tenancy
context. The court rejected the argument that the trial judge made a palpable and overriding error of
law in finding that the trailer park owner interfered with the contract of sale negotiated by one of the
tenants. The court, at paras. 5-9, found there was “ample evidence” to support such a finding.
Supra note 57.
Ibid. at paras. 34, 35.
“But Only on a Question of Law” 149
Despite the issue being that of a finding of fact, the Court made no reference to the
test of palpable and overriding error, as might be expected in light of Housen.227
Arguably, Mills228 is, at root, a some evidence decision that warranted deference, as
there were no significant errors in the fact-finding process. As such, the WSIAT’s
reasoning and conclusions were not unreasonable.229
Refusal to Consider, Ignoring or Excluding Evidence
In Manafa v. Rickersby,230 the Tribunal refused to consider documentary evidence at
the hearing and confined submissions to what had been said before the Tribunal. On
appeal, the court held:
In our view this ruling amounts to a judicial error and a denial of natural justice. It is apparent from the transcript that there was some reference by the Tribunal to some of the
documents such as the lease and the mover’s receipt.
In our view, a new hearing is necessary and we wish to say that the relevance of documents
to the issues before the Tribunal ought to be the guiding principle for admission and/or
submissions. A rule to consider only oral submissions runs the risk of excluding relevant documents from the Tribunal’s consideration. In our view the failure to consider possibly relevant
evidence that was part of the record constituted an error.231
Misapprehension of the Evidence
In Waxman,232 the Court of Appeal found that a misapprehension of the evidence
may amount to palpable and overriding error.233 The crucial point with respect to
claims of misapprehension of the evidence is that only essential or material findings
of fact will be reviewable. Thus, a tribunal may err in a finding of fact but if that
fact is not essential to the outcome then it is not reviewable.234 For this reason, a
misapprehension of the evidence must amount to what is commonly referred to as a
“material error”.235
227.
228.
229.
230.
231.
232.
233.
234.
235.
Supra note 115.
Supra note 57.
Ibid. at para. 55.
(2005), 206 O.A.C. 254 (Div. Ct.). See also D’Costa v. Mortakis et al. (2000), 47 O.R. (3d) 417 (C.A.)
at para. 37, for authority that a court may interfere with a finding of fact if the trial judge disregards
evidence relevant to the issue being determined.
Ibid. at paras. 1, 2 [emphasis added]. The refusal to consider evidence may also be characterized as a
denial of natural justice and procedural fairness. See below, Reviewing Questions of Natural Justice and
Procedural Fairness.
Supra note 195.
Ibid. at para. 296.
See Opara v. Cook, [2008] O.J. No. 1934 (Div. Ct.) at paras. 9-11, for an example of the Tribunal misapprehending the evidence in two respects but without having any material impact on the result.
Housen, supra note 115 at para. 72 (citing Van de Perre v. Edwards, [2001] 2 S.C.R. 1014 at para. 15):
[T]his Court has previously held that an omission is only a material error if it gives rise to a reasoned
belief that the trial judge must have forgotten, ignored or misconceived the evidence in a way that
affected his conclusion.
150
(2009) 22 Journal of Law and Social Policy
In Ontario (Director, Disability Support Program) v. Crane,236 the Court of Appeal held
that the SBT erred in finding the recipient had been working part-time for approximately three years whereas, in fact, she had been working for only four months prior
to the hearing. The error was characterized as a misapprehension of the evidence:
In my view, the majority was correct to conclude that this misapprehension of the evidence
amounted to a palpable and overriding error. The Tribunal made the same error twice, so
there can be no suggestion that the error was merely a typographical error. The error relates
to a crucial part of the evidence, namely, Ms. Crane’s work history. The error is a substantial
one—there is a large difference between four months and three years continuous part-time
work.237
In Yusuf v. Ontario (Ministry of Community and Social Services, Director of Income
Maintenance),238 an appeal of a decision of the Social Assistance Review Board
[SARB] denying eligibility for social assistance as a single parent under the Family
Benefits Act,239 the majority held that the court ought not to review findings of fact
unless there was an absence of evidence or a material misapprehension of the evidence. The court declined to interfere with SARB’s findings of fact as it found that
“they appear reasonably based upon the available evidence”.240 In a lengthy dissent,
however, Justice Aitken found, among other errors in its treatment of the evidence,
that SARB misapprehended the evidence of marriage breakdown that was adduced
on behalf of the appellant and erred in concluding that there was nothing in the
respondent’s evidence that supported a finding that the appellant’s spouse had been
violent with the appellant.241
Credibility Assessments
Findings of fact receive the greatest deference and, where they turn on the credibility
of witnesses, it is particularly difficult to disturb them, especially where some reasons
are provided for rejecting the evidence of a witness.242 As noted by the Supreme
Court in R. v. Gagnon:243
Assessing credibility is not a science. It is very difficult for a trial judge to articulate with
precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events. That is why this
236. (2006), 83 O.R. (3d) 321 (C.A.).
237. Ibid. at para. 36 [emphasis added].
238. [2002] O.J. No. 1659 (Div. Ct.) [Yusuf]. Leave to appeal to Court of Appeal granted (18 November
2002), Court File No. M28580 (C.A.). The appeal was later withdrawn.
239. R.S.O. 1990, c. F.2 (repealed).
240. Supra note 238 at para. 2.
241. Ibid. at paras. 55-59.
242. Dr. Q., supra note 4, at para. 38, where McLachlin C.J.C. noted that assessments of credibility were
questions of fact and the relative advantage of the trier of fact must be respected and that the issue is
whether there is some basis in the evidence for the trier of fact’s conclusions.
243. [2006] 1 S.C.R. 621.
“But Only on a Question of Law” 151
Court decided, most recently in H.L., that in the absence of a palpable and overriding error
by the trial judge, his or her perceptions should be respected.244
Moreover, in Waxman,245 the Court of Appeal noted with regard to alleged errors in
credibility assessments:
Although the “palpable and overriding” standard of review applies to all factual findings,
Housen … recognizes that findings of fact grounded in credibility assessments will be particularly difficult to disturb on appeal. Credibility assessments are inherently partly subjective and reflect the life experience of individual judges and their own perception of how
the world works. Credibility assessments are also grounded in numerous, often unstated
considerations which only the trial judge can appreciate and calibrate.
Deference to the findings of credibility includes giving full force and effect to those findings. An allegation that a trial judge has made a palpable and overriding error in assessing a
witness’ credibility can only be evaluated by examining the entirety of the record touching
on that credibility assessment. Where a trial judge advances several reasons for rejecting a
witness’ testimony in its entirety as incredible, a demonstrated error in relation to just one
of those reasons will not necessarily warrant reversal of the credibility assessment.246
Nevertheless, findings of fact based on credibility assessments may constitute reversible error. They are most effectively challenged on the basis that the reasons provided
do not adequately disclose why some evidence was accepted and other evidence rejected.247 There is considerable authority to the effect that a party is entitled to know
why his or her evidence was disbelieved and that adequate reasons are required when
making adverse findings of credibility.248
244. Ibid. at para. 20. There is a long line of Supreme Court jurisprudence establishing that findings of fact
based on credibility of witnesses are not to be reversed on appeal unless there is some palpable and
overriding error: see Lensen v. Lensen [1987] 2 S.C.R. 672 at para. 8.
245. Supra note 195.
246. Ibid. at paras. 359, 360.
247. Ibid. The Court of Appeal also noted that (at para. 364):
Although credibility assessments … are difficult to reverse on appeal, they are not immune from
appellate review. For example, a credibility finding that is arbitrary in that it is based on an irrelevant
consideration or tainted by a processing error can be set aside on appeal.
248. See Re Pitts and Director of Family Benefits Branch of the Ministry of Community & Social Services
(1985), 51 O.R. (2d) 302 at para. 30 (Div. Ct.) per Reid J.:
The task of determining credibility may be a difficult one but it must be faced. If the board sees fit to
reject a claim on the ground of credibility, it owes a duty to the claimant to state clearly its grounds
for disbelief. The board cannot simply say, as the Member did here, “I feel that I have not received
credible evidence to rescind the decision of the Respondent”. Some reason for thinking the evidence
not credible must be given if an appearance of arbitrariness is to be avoided.
See also Dowlut v. Ontario (Commissioner of Social Services) (1985), 11 Admin. L.R. 54 at para. 20
(Div. Ct.). But see Trotter v. College of Nurses of Ontario, [1991] O.J. No. 348 (Div. Ct.) [unreported];
and Devgan v. College of Physicians and Surgeons of Ontario, [2005] O.J. No. 306 at para. 54 (Div. Ct)
[Devgan], where the court held that while it was preferable to give reasons for rejecting the credibility
of a witness, a failure to do so does not constitute reversible error.
152
(2009) 22 Journal of Law and Social Policy
In Bell v. Peel Living,249 the tenant missed her original hearing because she was ill.
A new hearing was granted and the tenant gave her evidence that she was too ill to
attend the original hearing. There was no evidence to the contrary but the Tribunal
did not believe the tenant. On appeal, the court found that the tenant was entitled to
a full hearing on the merits:250
The Member did not make a specific finding that he did not believe the tenant and he did
not make a specific finding that she was not ill at the time of the first hearing … It is not
possible for us to know whether the Member understood that if the tenant was ill nothing
further was required and a rehearing should have been ordered. Further, if the Member did
reject the complainant’s evidence we have no indication of why he did so251 …
It is of course open to a trier of fact to reject evidence he finds lacks credibility. However, in
our view, in circumstances such as this, it is incumbent on the trier of fact to provide some
indication of the basis for that finding. The reasons need not be lengthy. However, the tenant is
entitled to know the reasons her evidence was rejected as untruthful or unreliable.252
Bell 253 highlights that a trier of fact must provide reasons for finding against a party’s
version of events. It is inadequate to simply state that the evidence is disbelieved or
not accepted. The tenant gave uncontradicted evidence that she had been ill and the
Tribunal had no evidence to the contrary. In making an adverse finding of credibility
against the tenant the Tribunal erred in failing to explain why.
Lastly, even where some reasons are provided in making credibility assessments,
those reasons may be subjected to review, albeit it would likely be a rare case when
this would occur. In Yusuf,254 the minority judgment was critical of the findings of
adverse credibility against the appellant. Justice Aitken concluded that “adverse credibility findings cannot be based on the blanket assumption that because a litigant has
something to gain from the litigation, that of necessity puts that witness’ credibility
into doubt.”255
Justice Aitken further observed:
In the case at hand, unlike the Re Pitts Case,256 the SARB did provide some reasons why
it “was not compelled by the Appellant’s evidence”. The chief reason seemed to be that the
Appellant and Mr. Habib “had everything to gain financially” by leading the Respondent to
believe that Mr. Habib was not living with the Appellant or residing in the same dwelling
place with the Appellant. This cannot be the basis upon which the SARB rejects an appellant’s
credibility, as this reason would apply to any appellant challenging the Respondent’s findings
249.
250.
251.
252.
253.
254.
255.
256.
Peel Living v. Bell (17 January 2005), Court File No. DC 03-12624-00 (Div. Ct.) [Bell].
Ibid. at 1, para. 3.
Ibid. at para. 5.
Ibid. at para. 7 [emphasis added].
Supra note 249.
Supra note 238.
Ibid. at para. 67.
Supra note 248.
“But Only on a Question of Law” 153
regarding her status as a single person. Decisions concerning credibility cannot be founded on
a pervasive scepticism about the validity of claims for family benefits. At best this reality should
represent one small factor which may tip the scales against an appellant after those scales are
already weighed down by other cogent evidence.257
Reviewing the Exercise of Discretion
The concept of discretion refers to decisions where the law does not dictate a specific
outcome, or where the decision-maker is given a choice of options within a statutorily
imposed set of boundaries.258
In essence, the exercise of discretion involves the weighing of factors in the context of
balancing competing interests. The Board’s statutory exercises of discretion include
considering requests for relief from eviction,259 imposing conditions in orders,260
and determining claims for abatements of rent or other remedies.261 In general, the
Board’s discretionary decisions, as with those of other tribunals and the courts, will
be accorded a high degree of deference. This is the case not because of any deference
to the Board’s expertise in exercising its discretion but due to the very nature of discretion, which presumes that there is a range of reasonable options and not only one
correct answer. The Board’s discretionary decisions will attract a deferential standard
of review, or review on a reasonableness standard, subject to three main, but not
exhaustive, exceptions where the Board may be said to have erred in law due to the
existence of jurisdictional error, which attracts a correctness standard of review.262
These jurisdictional errors occur where the Board’s discretion is not exercised at all,
where the discretion is exercised outside the scope of the statutory authority (or outside the statutorily imposed set of boundaries), and where the discretion is exercised
in contravention of the duty to be fair.
Failure to Exercise Discretion
In some instances, the Board may fail to exercise its discretion at all and thereby
commit an error of law. In First Homes Society v. Henry,263 the tenants presented new
evidence at a review hearing indicating that depression and other medical problems
caused them to miss rent payments. The court stated:
Supra note 238 at para. 41 [emphasis added].
Baker v. Minister (Citizenship and Immigration), [1999] 2 S.C.R. 817 at para. 52 [Baker].
RTA, supra note 2, section 83(1).
Ibid. section 204(1).
Ibid. sections 30 and 31.
Mullan has noted, supra note 60 at 82, that traditionally the correctness standard is automatic for jurisdiction-conferring issues and, furthermore, questions that need to engage in the balancing analysis of
the standard of review analysis.
263. [2002] O.J. No. 1754 (Div. Ct.).
257.
258.
259.
260.
261.
262.
154
(2009) 22 Journal of Law and Social Policy
The guidelines for reception of new evidence rest in the reviewing Member a discretion
to accept or reject new evidence when proffered. Regrettably, we can only speculate on
whether she accepted or rejected this proffered evidence, for her reasons are silent on it.
We can only conclude that she failed to exercise this discretion at all. This failure to make a
decision which is a necessary part of determining the issues before her was an error of law.264
The failure to exercise discretion may also be characterized as a jurisdictional error
or, more particularly, as an improper refusal of jurisdiction and thus as a question
of law.265 In Gramercy Apartments Ltd. v. Alexander Anthony et al.,266 the Tribunal
failed to address the landlord’s requests to file missing documentation in its application for a rent increase. The court held:
The Adjudicator’s failure to consider these requests amounts to an “unreasonable exercise
of the discretion conferred” by the legislation [citation omitted]267 … This failure to exercise the discretion conferred upon the Adjudicator by the legislation is unreasonable and
amounts to an improper refusal of jurisdiction and therefore, constitutes an error in law268
[citation omitted].
In Capano v. Smith,269 the eviction application claimed the tenant caused substantial
interference and undue damage due to the presence of a fish pool inside the unit.
The Board made no order with respect to the removal of the pool on the basis that it
had no jurisdiction to make such an order. On appeal, the majority held the Board’s
determination that it could not “fashion a common sense remedy, even amounting
to something akin to a mandatory injunction”, would unduly limit the Board and
reduce its mandate significantly.270 The court observed that section 190(1) of the
TPA271 gave the Board a broad discretionary power to make any order it considered
fair in the circumstances. In the majority’s view, the failure to order the removal of
the pool completely ignored this provision and amounted to an error of law.272
Both of the above decisions made no reference to a standard of review analysis. The
jurisprudence is not clear whether such an analysis is applicable or, if so, in what
circumstances. The question of the standard of review to be applied and by what
manner a court may determine the standard is complicated, particularly in those cir264.
265.
266.
267.
268.
269.
270.
271.
272.
Ibid. at para 1 [emphasis added].
Southam, supra notes 8 and 101.
[2008] O.J. No. 673 (Div. Ct.).
Ibid. at para. 33 [citing Baker, supra note 258, at para. 65].
Ibid. [citing Leonelli v. Canada (A.G.), [2003] F.C.J. No. 1756 (F.C.) at para. 44] [emphasis added].
Supra note 61.
Ibid. at para. 22.
Supra note 3. This is now section 204(1) of the RTA, supra note 260.
Supra note 61 at para. 22. The minority, per Swinton J., also found that the Board had discretion to
include in an order any condition that it considered fair in the circumstances. In fashioning an appropriate remedy, the Board ought to have considered whether conditions should have been imposed
pursuant to s. 190(1), given the breach and the risk of further damage. Its failure to consider this provision and this evidence was an error of law.
“But Only on a Question of Law” 155
cumstances where the discretion is argued to have been exercised outside the proper
scope of the statutory authority or in contravention of the principles of procedural
fairness. We now turn to an examination of the issue of the standard of review of the
exercise of discretion.
The Standard of Review of the Exercise of Discretion
It is indisputable that all tribunals are entitled to control their own procedure and will
be accorded deference on matters requiring an exercise of statutory discretion.273
But in what circumstances will a court intervene? What is the standard of review
to be applied to the Board’s discretionary decisions and, more particularly, does the
Dunsmuir274 standard of review analysis apply?
Exercise of Discretion: The Established Rule
The traditional approach to discretionary decisions is that they are reviewable only
on limited and discrete grounds including bad faith, breach of natural justice and
­improper purpose. In Maple Lodge Farms Ltd. v. Canada,275 the Supreme Court
stated that:
It is, as well, a clearly-established rule that the courts should not interfere with the exercise
of discretion by a statutory authority merely because the court might have exercised the
discretion in a different manner had it been charged with that responsibility. Where the
statutory discretion has been exercised in good faith, and, where required, in accordance with
the principles of natural justice, and where reliance has not been placed upon considerations
irrelevant or extraneous to the statutory purpose, the court should not interfere.276
While the rule itself may be clearly established, its application is less clear. As explored in more detail below, what distinguishes an error in law warranting court
intervention from a court simply exercising its discretion in a manner different from
the Board? As the Supreme Court itself has acknowledged, the courts have justifiably received criticism for arrogating to themselves powers to substitute their own
view under such “vague doctrinal terms” as “irrelevant considerations”, “improper
purpose”, “reasonableness” and “bad faith”.277
Exercise of Discretion: The Correctness Standard
As noted, the question of identifying the appropriate standard of review may be
approached solely by classifying the question at issue as being one of jurisdiction.
The Board, as a creature of statute, must be correct in determining the scope of its
delegated mandate, and the scope of discretionary jurisdiction is a question of law
that ultimately must be supervised by the courts. The challenge, therefore, becomes
273.
274.
275.
276.
277.
Kalin v. Ontario College of Teachers (2005), 75 O.R. (3d) 523 at para. 9 (Div. Ct.) [Kalin].
Supra note 13.
Maple Lodge Farms Ltd. v. Government of Canada, [1982] 2 S.C.R. 2.
Ibid. at 5 [emphasis added].
Shell Canada Products Ltd. v. Vancouver (City), [1994] 1 S.C.R. 231 at para. 18 per McLachlin J.
156
(2009) 22 Journal of Law and Social Policy
whether the issue under review is one concerning the scope of discretionary jurisdiction (reviewable) or merely one of the weight given to factors properly within the
scope of the statutory grant of discretionary jurisdiction (not reviewable).
Blake has observed that correctness is never applied as the standard of review to
discretionary decisions,278 which are reviewable only as being unreasonable or patently unreasonable.279 However, this assumes that the issue is framed by the courts
as not involving the scope of the statutory mandate. In Chieu v. Canada (Minister of
Citizenship and Immigration),280 the Supreme Court defined the issue as whether
the phrase “having regard to all the circumstances of the case” in the Immigration
Act281 allowed the Immigration Appeal Division to consider the potential foreign
hardship a permanent resident would face if removed from Canada or whether only
domestic factors could be taken into account. Given that the statutory phrase “all of
the circumstances” is very broad and does not provide any guidelines as to how the
discretion is to be exercised, the question becomes a matter of statutory interpretation—what is or is not a relevant factor to be included in defining the proper scope of
“all of the circumstances”? As an issue of jurisdiction, the court concluded that “little
deference” should be shown and applied a standard of correctness.282
In general, the courts have not applied a jurisdictional analysis to the question of
whether the discretion has been appropriately exercised and, moreover, have not applied the standard of review analysis. In residential tenancy jurisprudence, there is
a longstanding application of an “error in principle” test to questions of statutory
discretion. In particular, the error in principle test has been consistently applied to
discretionary decisions involving the Board’s power to grant relief from eviction.283
This test is one that reflects a high degree of deference. The court’s task is not to
reweigh the factors considered and, in general, a court should intervene only to determine whether the factors considered are properly within the scope of the statutory
278. Blake, Administrative Law in Canada, supra note 14 at 216.
279. Ibid. Of course, in light of Dunsmuir, supra note 13, there can no longer be any reference to the patently
unreasonable standard. Blake supra note 14 at 216 has noted:
A discretionary decision that is patently unreasonable is, essentially, one that is beyond the scope
of the statutory authority or an abuse of the power. However, a statutory discretion to choose from
a variety of options in the adjudication of an individual case may be reviewable on a standard of
reasonableness.
280. [2002] 1 S.C.R. 84 [Chieu].
281. R.S.C. 1985, c. I-2, section 70(1)(b).
282. Supra, note 280 at 100.
283. See also Sidaplex-Plastic Suppliers, Inc. v. Elta Group Inc. (1998), 40 O.R. (3d) 563 at para. 4 (C.A.),
where the Court of Appeal considered a provision of the Business Corporations Act provided the Court
with a broad discretionary power, under section 248(3) to “make any interim or final order it thinks fit”
to rectify the consequences of oppressive conduct. The Court held that:
This gives the Court at first instance a broad discretion and the appellate Court a limited power of
review. The appellate Court is entitled to interfere only where it is established that the Court at first
instance has erred in principle or its decision is otherwise unjust.
“But Only on a Question of Law” 157
discretionary authority or whether factors properly within the scope of discretionary
authority have failed to be considered. In conducting this type of review, it is suggested that a court applies, in effect, a correctness standard. Questions with respect to
the proper scope of the Board’s statutory discretion are questions that do not permit
more than one answer.
Exercise of Discretion: The Reasonableness Standard
In Baker,284 the pragmatic and functional approach was applied to the substantive
aspects of discretionary decisions,285 and given Dunsmuir,286 it might be expected
that the new standard of review analysis will apply to the substantive discretionary
decisions of the Board. If so, and with the demise of the patently unreasonable standard in Dunsmuir,287 substantive discretionary decisions will now, in all likelihood,
be reviewed on a reasonableness standard.288 In Baker,289 it was noted that a general
doctrine of “unreasonableness” has been applied to discretionary decisions and this
incorporated the idea that considerable deference will be given in reviewing the exercise of discretion.290
Under the RTA, the Board has a broad equitable discretion to refuse or delay an
eviction even where the landlord has established that grounds for eviction exist.291
However, it is rare that such a question about the proper exercise of discretionary
relief from eviction is explicitly framed as a question of law.292 The general trend
284. Supra note 258.
285. Ibid. L’Heureux-Dubé J. stated at para. 55:
The “pragmatic and functional” approach recognizes that standards of review for errors of law are
appropriately seen as a spectrum, with certain decisions being entitled to more deference, and others
entitled to less [citations omitted] … In my opinion the standard of review of the substantive aspects of
discretionary decisions is best approached within this framework, especially given the difficulty in making rigid classifications between discretionary and non-discretionary decisions. [Emphasis added.]
See also Dr. Q., supra note 4 at para 22, where the Supreme Court appeared to incorporate the nominate grounds of abuse for discretion within the pragmatic and functional approach. For discussion on
the difficulties with this approach, see Mullan, supra note 60 at 64-68 and 95.
286. Supra note 13. Bastarache and LeBel JJ. noted, at para. 53, that where the question is one of discretion,
“deference will usually apply automatically.” Deschamps J. noted, at para. 165, that “deference was owed
to exercise of discretion, unless the body has exceeded its mandate.”
287. Ibid.
288. In Baker, supra note 258, the court held that the decision about whether to grant a humanitarian and
compassionate exemption involved a considerable appreciation of the facts and did not involve the application or interpretation of legal rules. The court concluded, at paras. 61 and 62, that the appropriate
standard was reasonableness.
289. Ibid.
290. Ibid. at para. 53 (citing Associated Provincial Picture House Ltd. v. Wednesbury Corporation, [1948] 1
K.B. 223 (C.A.)).
291. Supra notes 67 and 259.
292. Hung v. C.L.K. . Enterprises, [1999] O.J. No. 3559 at para. 3 (Div. Ct.) is an exception. The court characterized an exercise of discretion to grant relief from eviction as an error in law.
158
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of pre-Dunsmuir293 jurisprudence on appeals from the Board was that the proper
standard to be applied was patent unreasonableness.294 However, a court has rarely,
if ever, conducted a review of the factors set out in the pragmatic and functional
approach in the context of an appeal from the Board of a discretionary decision.295
In Chieu,296 the Supreme Court did apply the former pragmatic and functional approach in a deportation case to statutory language in the Immigration Act that closely
mirrored the Board’s broad discretion in the RTA to grant relief from eviction, in
particular, to have regard to all of the circumstances of the case. In other words, for
example, failing to consider a factor properly within the ambit of the discretionary
mandate could be viewed as both an error in principle and an error of jurisdiction.
From either perspective, the result is identical as the court accords little deference
and intervenes to correct the legal error.
Exercise of Discretion: The Error in Principle Approach
In Finnermark v. Hum,297 the landlord applied for an eviction as he required possession of the property for himself and his children. The tenant requested relief from
eviction. The court held:
In our view, the Tribunal reviewed all of the evidence and exercised its discretion in a judicial way regarding the issues under s. 84 of the Tenant Protection Act. We cannot say that
the Tribunal has erred in principle or misinterpreted material evidence or that its decision is
in any way unjust [citation omitted].298
293. Supra note 13.
294. Smolcec, supra note 34 at paras. 21, 22 where the court noted:
The referenced authorities hold that the Tribunal has the duty to consider all the relevant issues
under s. 84 and to make findings of fact with respect to those issues. However, once the Tribunal
has made its findings under s. 84 a Court on appeal will afford the Tribunal a great deal of deference
… In my view the standard of review to be applied in this case, given that it involves findings of the
Tribunal under s. 84 of the TPA is that of “patently unreasonable.”
The patent unreasonableness standard was also applied to relief from eviction in Sutherland v. Lamontagne (3 March 2008), Court File No. DV-756-07 (Div. Ct.). See also Price v. Turnbull’s Grove Inc. (18
April 2006), Court File No. 1503 (Div. Ct.) (reversed on other grounds Price v. Turnbull’s Grove Inc.
(2007), 85 O.R. (3d) 641 (C.A.)); and Tirado, supra note 65. In O’Regan, supra note 102 at paras. 44 and
47, the court considered the relief from eviction provisions in the TPA:
The decision in Longhouse Village (Thunder Bay) Inc. v. Smolcec … and s. 84, Tenant Protection Act
1997 have settled the question that the application of s. 84 of the Tenant Protection Act is not strictly
a jurisdictional issue, but falls within the expertise of the Tribunal. Once the Tribunal has made its
findings under s. 84, a Court on appeal will afford the Tribunal a great deal of deference. The standard
of review to be applied when involving findings of the Tribunal under s. 84 of is that of “patently unreasonable.” [Emphasis added.]
295. The author is unaware of any such case.
296. Supra note 280.
297. [2000] O.J. No. 3727 (Div. Ct.).
298. Ibid. at para. 6 [emphasis added].
“But Only on a Question of Law” 159
From one perspective, the error in principle approach reviews the substantive result
and reflects the view that a court will not interfere with an exercise of discretion,
even where it may disagree with the manner in which the discretion has been exercised.299 In other words, a range of reasonable conclusions are open to the Board and
it is only where the decision is unreasonable that a reviewing court will be justified
in intervening.300 The Supreme Court has recognized that a discretionary decision
should not be disturbed unless the decision-maker has made “some error in principle
in exercising its discretion or has exercised its discretion in a capricious or vexatious
manner”.301
In Asbestos Corp., Societe Nationale de l’Amiante and Quebec (Province), Re,302 the
Ontario Court of Appeal held that a reviewing court should interfere with the exercise of discretion only where the tribunal has “erred in principle, acted capriciously
or made a decision that amounts to a miscarriage of justice”. The court provided a
useful, if somewhat expansive, working definition of what constitutes an error in
principle:
Error in principle is a broad term that embraces many different grounds of review. It has
been held to include not only error of law or applying a wrong legal principle, but as well,
failing to take into account a relevant factor, taking into account an irrelevant factor, failing
299. See Peel Non-Profit Housing Corp. v. McNamara (1991), 2 O.R. (3d) 414 (Div. Ct.) at 415 [McNamara
No. 2].
300. In short, applying pre-Dunsmuir, supra note 13, terminology, the decision may have to descend to the
point of patent unreasonableness in order for a discretionary decision to be overturned. In Canadian
Union of Public Employees (C.U.P.E.) v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539 at para. 164
[C.U.P.E.] Binnie J., writing for the majority, stated:
However, applying the more deferential patent unreasonableness standard, a judge should intervene
if persuaded that there is no room for reasonable disagreement as to the decision maker’s failure
to comply with the legislative intent. In a sense, like the correctness standard, the patently unreasonable standard admits only one answer. A correctness approach means there is only one proper
answer. A patently unreasonable one means that there could have been many appropriate answers,
but not the one reached by the decision maker.
301 In Cooke v. Mathur (19 February 2003), Court File No. 02-DV-000662 (Div. Ct.) the tenant brought an
application for harassment, interference and illegal entry. At the hearing, the tenant refused to disclose
the documents upon which she intended to rely. The Tribunal dismissed the application, ordered the
tenant to pay the landlord’s costs of $375 and made it a condition that no further application could be
brought by the tenant until the costs were paid. The court held that section 190(1) of the TPA, supra
note 2, was broad enough to permit the Tribunal to impose such a term on the tenant but that such an
“exceptional order should only be made sparingly.” The court concluded that the discretion was exercised reasonably in the circumstances:
On the record before us, it is not possible to conclude that the order amounts to a denial of natural
justice and procedural fairness or improperly fetters the jurisdiction of another Tribunal Member
on a future application, nor has the tenant demonstrated that Member McInnis exercised his discretion unreasonably in the particular circumstances of this case.
Suresh v. Canada (Minister of Immigration & Citizenship), [2002] 1 S.C.R. 3 at para. 34 [Suresh] [citing
Pezim, supra, note 17].
302. (1999), 43 O.R. (3d) 257 (C.A.), aff ’d [2001] 2 S.C.R. 132.
160
(2009) 22 Journal of Law and Social Policy
to give sufficient weight to a relevant factor, over-emphasizing a relevant factor and misapprehending the evidence.303
The issue therefore becomes to what extent the result may be driven by an appellate
court substituting its own exercise of discretion rather than by the Board’s error in
principle. However, if not giving “sufficient weight to” or “overemphasizing” relevant
factors are legitimate errors in principle, then there would appear to be very little to
prevent a court from interfering where it sees fit to do so. It is suggested, however, that
a court ought not interfere with the weight accorded to particular factors where the
factors have been considered by the Board, even if a reviewing court might have assigned different weights to the relevant factors in the exercise of its own discretion.
Exercise of Discretion: The Application of the Error in Principle Approach
In London & Middlesex Housing Authority v. Graystone,304 the Ontario Court of
Appeal held that intervention should occur on matters of discretion to grant relief
from eviction only “if the trial judge misdirects himself or if his decision is so clearly
wrong as to amount to an injustice”.305 The majority found that two misdirections
were committed by the trial judge. First, the judge erred in taking into account the
possible effects on other tenants in other buildings where the tenant might relocate.
Second, the judge erred in considering the fact that the tenant had already been
convicted and sentenced in relation to the same matter and that an eviction would
constitute a further punishment.306 The majority concluded the trial judge had considered “inappropriate criteria” but, alternatively, could have categorized this as the
consideration of irrelevant factors,307 or as an excess of jurisdiction by considering
factors not within the scope of the trial judge’s discretionary jurisdiction. In contrast,
the minority judgment of Justice Borins found that the trial judge took into con-
303. Ibid. at paras. 33, 34.
304. (22 March 1995), File No. 426 (Div. Ct.) [Graystone]. Rosenberg J. delivered the majority judgment.
305. The majority cited Alsom v. Alsom [sic], [1989] 1 S.C.R. 1367 at 1375. Elsom was also applied in McNamara No. 2, supra note 299.
306. Graystone, supra note 304 at 4.
307. The similarity between the former standard of patent unreasonableness and the traditional discrete
grounds of review for abuse of discretion (see Maple Lodge, supra note 275) was remarked upon in
Suresh, supra note 301 at para. 29. In an unanimous decision, the court noted:
The first question is what standard should be adopted with respect to the Minister’s decision that a
refugee constitutes a danger to the security of Canada. We agree with Robertson J.A. that the reviewing Court should adopt a deferential approach to this question and should set aside the Minister’s
discretionary decision if it is patently unreasonable in the sense that it was made arbitrarily or in bad
faith, it cannot be supported on the evidence, or the Minister failed to consider the appropriate factors.
[Emphasis added.]
See also para. 41 where the court compared a patently unreasonable decision to one that is “unreasonable on its face, unsupported by evidence, or vitiated by the failure to consider the proper factors or
apply the appropriate procedures.”
“But Only on a Question of Law” 161
sideration the correct principles, even though he may have come to a result different
from that of the trial judge.308
A number of cases have considered the issue of relief from eviction in the context of
subsidized housing and misrepresentation as to income or other income eligibility
criteria. The decisions are not easy to reconcile and reflect the difficulty courts may
have in refraining from substituting their own views of how the lower court’s discretion should be exercised. In Peel Non-Profit Housing Corporation v. McNamara,309
the trial judge granted relief from eviction to a disabled tenant after he and his spouse
omitted the spouse’s income from their declaration of income to the social housing provider. The court exercised its discretion not to terminate the tenancy as it
would be a disproportionate penalty for the tenant and an unjustified punishment
for the tenant’s two children.310 On appeal, the court found that while none of the
members of the panel would have disposed of the matter in the same manner as the
trial judge,311 the decision was not so clearly wrong as to amount to an injustice.312
Justice Steele noted:
Conversely, [the trial judge] also considered the special circumstances of this particular
male tenant who had lied. The male tenant has been found to be permanently unemployable, is on welfare assistance, has two infant children and has very limited income … The
judge considered the effects upon the male tenant, the welfare of the children and the whole
concept of public assistance to a person such as the male tenant.313
More recently however, in Greater Sudbury Housing Authority v. Racicot,314 the court
found the Tribunal erred in exercising its discretion not to evict. The tenants had
lied on their application for social housing by failing to report that they owed arrears
of rent to a previous social housing provider. Apart from this misrepresentation,
the tenants qualified for the housing. The Tribunal ordered the tenants to reach an
agreement with the former subsidized housing landlord regarding the payment of
the arrears and that, if this was not done by a specific date, the current landlord could
reopen the application for eviction on notice to the tenant.
On appeal, the court noted that “it is not for this court simply to substitute its own
discretion for that of the Tribunal”315 and held that the granting of relief from eviction in these circumstances was an exercise of discretion on a wrong principle for
two reasons: by condoning the misrepresentation at the expense of honest applicants
and by failing to consider the impact on the integrity of the social housing system of
308.
309.
310.
311.
312.
313.
314.
315.
Supra note 304 at 5.
(1990), 74 O.R. (2d) 450 (Dist. Ct.) [McNamara No. 1].
Ibid. at 457.
Supra note 299 at 415.
Ibid. at 416.
Ibid.
[2003] O.J. No. 816 (Div. Ct.) [Racicot].
Ibid. at 2.
162
(2009) 22 Journal of Law and Social Policy
this condoning of fraud.316 The court noted that there was no evidence of any greater
hardship on this family than the hardship suffered by the unhoused applicants they
had displaced. The court concluded that to withhold eviction in this case was not just
wrong in principle, but was “so clearly wrong as to amount to an injustice, not only to
the housing authority, but also to those honest applicants affected.”317
Racicot318 distinguished McNamara No. 2319 on the basis that in that case the court
had considered the harm to the integrity of the system but decided that it was outweighed by the special circumstances of the tenant.320 Yet the Tribunal decision
clearly identified, albeit briefly, the difficulty of condoning the tenants’ misrepresentation at the expense of other applicants for subsidized housing,321 and nevertheless
decided to grant relief from eviction on terms and conditions despite the tenants’
misrepresentations. It is difficult to avoid the conclusion that the court was simply
dissatisfied with the weight the Tribunal accorded to this factor as opposed to the
Tribunal failing to consider it at all. In short, the Tribunal felt that the tenants’ own
circumstances outweighed the impact on other applicants and the subsidized housing system.
Conclusion: Standard of Review of Exercise of Discretion
It is suggested that the “error in principle” approach is very similar analytically to the
correctness standard if approached from the perspective of jurisdiction, but can also
be considered as a reasonableness standard if approached from the perspective of the
substantive result. A court will not intervene unless the Board’s exercise of discretion
was beyond the range of reasonable outcomes. An unreasonable exercise of discretion
cannot stand.322 It is further suggested that an unreasonable exercise of discretion is
also conceptually related to the traditional discrete grounds for reviewing discretion as articulated in Maple Lodge.323 If a discretionary decision is based upon, for
Ibid. at paras. 12, 13.
Ibid. at para. 13.
Supra note 314.
Supra note 299.
Racicot, supra note 314 at para. 12.
Greater Sudbury Housing Corporation v. Racicot (January 2002; Keleher) File No. NOL-06275 (ORHT)
at para. 6.
322. The Board’s Guidelines support the application of a reasonableness standard with regard to discretion.
Interpretation Guideline #8, Review of an Order, states at 3 of 6:
Discretion refers to decisions such as whether relief from eviction should be granted (see section
83), or what remedies should be ordered in a particular case. The reviewing Member should not interfere with the decision even if they may have exercised the discretion in a somewhat different way. A
review is not for making minor adjustments to the discretion which was reasonable: for example, that
an abatement was within the reasonable range of amounts which could have been ordered. [Emphasis
added.]
323. Supra note 275.
316.
317.
318.
319.
320.
321.
“But Only on a Question of Law” 163
example, the consideration of irrelevant (or inappropriate) factors or upon the failure
to consider relevant factors, then the discretion is exercised unreasonably.
In addition, the standard of review of discretionary decisions might be viewed as
similar to that applied to factual findings—i.e. “palpable and overriding error”, which
is tantamount to being “clearly wrong” or “unreasonable”.324 All of these phrases
point to a form of injustice and Graystone,325 McNamara No. 2,326 and Racicot327 all
referred to the test on discretion as including being so clearly wrong as to amount
to an injustice. But there is no valid distinction between “clearly wrong” and “so
clearly wrong”, just as there was no true distinction between the standards of “unreasonable” and “patently unreasonable”.328 Fundamentally, however, once again, the
judicial terminology employed is not as important as the judicial approach applied to
an area of administrative decision-making where the principle of deference is firmly
entrenched.
Reviewing Questions of Natural Justice and Procedural Fairness
The denial of a right to a fair hearing must always render a decision invalid.329
The principles of natural justice and procedural fairness concern the manner in
which a tribunal makes its decision.330 The Board is required to comply with the requirements of natural justice appropriate to the nature of the hearing, and a failure to
do so will result in its decision being quashed. A fair hearing is an independent and
unqualified right.331 But what level of deference, if any, is appropriate to the Board’s
procedural rulings? Moreover, what test is applied by the courts to assess whether
any deference should be accorded? In this regard, all that can be said with any degree
of certainty is that, while some deference may apply to Board decisions, the concept
of deference is not linked to the standard of review analysis.
H.L., supra note 209.
Supra note 304.
Supra note 299.
Supra note 314.
Dunsmuir, supra note 13 at paras. 41-42 per Bastarache and LeBel JJ.
Cardinal v. Director of Kent Institution [1985] 2 SCR 643 at 661.
These two concepts are used here interchangeably to reflect the basic principles of the right to know
the case against a party and the opportunity to prepare and present a response. There is no discussion
in this paper of the apprehension of bias.
331. Supra note 329. In the residential tenancy context, see Manpel v. Greenwin Property Management
(2005), 200 O.A.C. 301 (Div. Ct.) at para. 16.
324.
325.
326.
327.
328.
329.
330.
164
(2009) 22 Journal of Law and Social Policy
Standard of Review of Procedural Choices
While issues of natural justice and procedural fairness are indisputably questions of
law, the standard of review analysis is not applied.332 In London (City) v. Ayerswood
Development Corporation,333 the Court of Appeal stated, in relation to an alleged
lack of procedural fairness:
[A] court need not engage in an assessment of the appropriate standard of review. Rather,
the court is required to evaluate whether the rules of procedural fairness or the duty of fairness have been adhered to. The court does this by assessing the specific circumstances giving rise to the allegation and by determining what procedures and safeguards were required
in those circumstances in order to comply with the duty to act fairly.334
Nevertheless, there is Supreme Court authority holding that compliance with the
rules of natural justice is a legal issue subject to a correctness standard.335 From one
perspective, this is highly questionable, given that the standard of review analysis is
inapplicable. Where there has been a breach of natural justice or fairness, the standard of review should not enter into consideration and the court must intervene as
the breach renders the decision void.336
A “correctness” standard of review can make sense, nevertheless, from another perspective if the issue is reclassified. A breach of natural justice may also be characterized as a jurisdictional error, or as an excess of jurisdiction, in the sense that, even
though the Board may be acting within the subject matter granted to it by the legislature, its actions may nevertheless be ultra vires if it breaches the principles of natural
justice or the duty to be procedurally fair.337 Issues of jurisdiction are reviewed on a
correctness standard as a tribunal must be right with respect to its jurisdiction. The
332. Baker, supra note 258 at paras. 18-28. See also Davidson v. Bagla (2006), 216 O.A.C. 42 (Div. Ct.) at
paras. 6, 7.
333. London (City) v. Ayerswood [2002] O.J. No. 4859 (C.A.). See also Gismondi v. Ontario (Human Rights
Commission), [2003] 419 C.C.C.L (3d) 84 at para. 16 (Div. Ct.); and Amalgamated Transit Union Local
113 v. Ontario Labour Relations Board and Toronto Transit Commission (2007), 88 O.R. (3d) 361 (Div.
Ct.) at 374.
334. London (City) v. Ayerswood at para. 10. In Jung v. Toronto Community Housing Corporation, [2007] O.J.
No. 4363 (Div. Ct.) [Jung is reported at (2007), 288 D.L.R. (4th) 225] [Jung] the court found the fundamental issue to be procedural fairness and that where a tribunal’s decision is attacked on the basis of a
denial of natural justice it is not necessary for the court to engage in an assessment of the standard of
review.
335. Ellis-Don Limited v. Ontario (Labour Relations Board), [2001] 1 S.C.R. 221 at para. 65 and C.U.P.E.,
supra note 300 at para. 100. See also Erdos v. Canada (Minister of Citizenship & Immigration), [2003]
F.C.J. No. 1218 (F.C.) at para. 14.
336. See Igbinosun v. Law Society of Upper Canada (2007), 239 O.A.C. 178 (Div. Ct.) at para. 10; and MoreauBérubé, supra note 21, para. 74. See also Blake, supra note 14 at 214 [citing Ha v. Canada (Minister of
Citizenship & Immigration) (2004), 236 D.L.R. (4th) 485 (F.C.A.) at 500-502].
337. Jones and de Villars, Principles of Administrative Law, 4th ed. (Toronto: Thomson Canada Ltd., 2004)
at 242-44. Jung, supra note 334, can be viewed from this perspective in that the Tribunal had jurisdiction to hear the applications but stepped outside its jurisdiction in determining that Ms. Jung was an
occupant and had no status to bring her tenants’ rights application.
“But Only on a Question of Law” 165
applicable standard on questions of natural justice and procedural fairness has been
referred to as a kind of “modified form of correctness review” in that the courts are
the ultimate experts on procedures, but there will be occasions on which deference to
the tribunal’s choice of procedures is required.338 This reflects a tension between the
courts as defenders of fair play and the procedural choices made by tribunals. What
level of deference may be accorded to the Board’s procedures cannot be ­predicted with
any degree of certainty. Ultimately, the inquiry may turn on the court’s perception of
whether the Board is in a better position than the court to render a decision. In this
regard, the analysis bears more than a passing resemblance to the most important
factor in the standard of review analysis, i.e. whether the Board has any recognized
expertise in determining the applicable procedural format in a given case.
The Content of the Duty of Fairness
While the Dunsmuir339 standard of review analysis is inapplicable to questions of
natural justice and procedural fairness, the specific content of the duty of procedural
fairness in a given case must be established. It has been observed that the standard
of review analysis and the criteria applied to determine the content of the duty of
procedural fairness are similar yet distinct lines of inquiry. There can be confusion
between the two because many of the factors considered in determining the requirements of procedural fairness are also involved in the standard of review analysis.340
The central distinction is that the content of the duty of procedural fairness goes to
the manner in which the decision is made, whereas the standard of review is applied
to the product of the decision-maker’s deliberations. If it is determined that there
is no breach of procedural fairness or other aspect of natural justice, the court may
embark upon a standard of review analysis.341
338. Mullan, supra note 60 at 13. How much deference a court will give to a tribunal’s choice of procedures
is an open question. In Baker, supra note 258, L’Heureux-Dubé J. found that “important weight must
be given to the procedures made by the tribunal itself and its institutional constraints.”
339. Supra note 13.
340. In C.U.P.E, supra note 300 at para. 103, Binnie J. observed that overlapping factors include the nature
of the decision being made, the statutory scheme and the expertise of the decision maker. Other factors did not overlap. In procedural fairness, the court is concerned with the importance of the decision
to the individual affected, whereas in the standard of review there is consideration of the existence of
a privative clause. Binnie J. concluded: “The point is that, while there are some common ‘factors,’ the
object of the Court’s inquiry in each case is different.”
341. Dunsmuir, supra note 13 at para. 47, states that reasonableness can also apply to the “process of articulating the reasons.” In Clifford v. Ontario (Attorney General) (2008), 90 O.R. (3d) 742 at 753 (Div. Ct.)
[Clifford] the majority judgment concluded that the absence of reasons made it impossible to determine if the decision was a reasonable one and thus the decision was not a reasonable one as well as not
being in accordance with the principles of natural justice and procedural fairness.
166
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Assessing the content of the duty of procedural fairness depends on the context and
all the circumstances of the particular case. In Baker,342 the Supreme Court provided
a non-exhaustive list of five factors to consider:343
1. The nature of the decision being made and the process followed in making it;
2. The nature of the statutory scheme and the role of the particular decision
within that statutory scheme;
3. The importance of the decision to the individual or individuals affected;
4. The legitimate expectations of the person challenging the decision; and
5. A respect for the choices made in procedure by the decision maker.344
The Baker345 factors were applied in Jung v. Toronto Community Housing
Corporation.346 The tenant moved into her grandmother’s social housing unit and
cared for her until her passing twelve years later. The landlord applied to evict the
tenant on the grounds that she was an unauthorized occupant347 and the tenant
applied for a determination of her rights under the TPA. The landlord argued that
the Tribunal had no jurisdiction to hear the tenant’s application.348 Ultimately, the
Tribunal refused to hear the tenant’s application on the grounds of her lack of status
as a tenant, refused an adjournment to consider its jurisdiction and ordered the tenant’s eviction. On appeal, the court determined the content of the duty of fairness in
the circumstances:
The fundamental decisions to be made were whether Ms. Jung had any rights in the unit and
whether the landlord could evict her. The scheme of the legislation is designed to have such
issues dealt with in a straightforward and expeditious manner. The decision is particularly
important to Ms. Jung because she would be deprived of accommodation. It is important
to the landlord but of no immediate consequence to the Corporation. Ms. Jung had lived
with her grandmother for 12 years. She had a legitimate expectation that she would have a
hearing before she was evicted. With respect to the Tribunal’s choice of procedure, the Act
342. Supra note 258.
343. Ibid. at paras. 23-28.
344. The Supreme Court reaffirmed the five factors and applied them in Congregatation des temoins de
Jehovah de St. Jerome-Lafontaine v. Lafontaine (Village), [2004] 2 S.C.R. 650 at para. 5 and 11, although
McLachlin C.J., for the majority judgment, restated the fifth factor in slightly different words:
The fifth factor—the nature of the deference owed due to the decision maker—calls upon the reviewing Court to acknowledge that the public body may be better positioned than the judiciary in
certain matters to render a decision, and to examine whether the decision in question falls within
this realm.
345. Supra note 258.
346. Supra note 334.
347. Supra note 3, TPA section 81(1). RTA, supra note 2, section 100(1) provides a tenant may not make a
transfer of the possession of his or her unit to another person without the consent of the landlord to
sublet or assign the unit.
348. Supra note 334 at 3.
“But Only on a Question of Law” 167
contains different requirements depending on the issue under consideration. For example,
if the Tribunal makes an order under s. 72 and the tenant moves to set it aside, under s.
72(10), the Tribunal “shall hold a hearing.” If the Tribunal sets aside an order made under s.
76, then under s. 76(8), the Tribunal “shall hear the merits of the application.” Under s. 81
(to which Member Taylor referred), the “landlord may apply to the tribunal for an order”
but there are no procedural requirements. In the printed information attached to the Form
A2 and T2 the recipient is told that once the application is filed, “the Tribunal will give the
tenant a Notice of Hearing.” The printed information also refers the recipient to the Rules
and Guidelines from the local Tribunal office that include references to oral hearings, written hearings and electronic hearings.349
The court concluded that the content of the duty of procedural fairness required that
the applicant be given notice of the facts, arguments and considerations upon which
the decision was based, and an opportunity to make submissions at an oral hearing:
Based on the foregoing, Ms. Jung was entitled to have an oral hearing in which evidence
would be led and legal submissions would be heard and considered as to her status. Procedural
fairness dictates that Ms. Jung be given notice of the facts, arguments and considerations upon
which the decision is to be based and an opportunity to make submissions. 350
The court’s conclusion is eminently reasonable, primarily because the TPA itself contemplated an oral hearing where it is alleged there is an unauthorized occupant. The
TPA did not provide any statutory discretion to the Tribunal to decide what type of
hearing should be afforded in these circumstances. In effect, the Tribunal erred by
deciding the application based solely on the landlord’s submissions. The Tribunal
determined the issue of the occupant’s legal status without providing her with the
opportunity to present her evidence and argument and, in so doing, committed a
clear breach of the duty of procedural fairness.
Reviewing the Duty to Give Reasons
The most important person in a lawsuit is not the judge, sitting in elevated dignity on
the dais, nor the lawyers, however eminent they might be; it is the losing party.351
Traditionally, the principles of fairness did not impose a general duty on a tribunal
to provide reasons. However, with the landmark decision in Baker,352 it is now established that the duty to give written reasons exists in the common law, in certain
circumstances, and is a component of the duty of procedural fairness. The failure
to provide meaningful reasons supporting a decision may, in itself, be a breach of
349.
350.
351.
352.
Supra note 334 at paras. 21-23 [emphasis added].
Ibid. at para. 24 [emphasis added].
Sir Robert McGarry, “Temptations of the Bench” [1978] 16 Alta. L. Rev. at 406.
Supra note 258.
168
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natural justice that warrants quashing the decision.353 The importance of full and
complete reasons has been emphasized repeatedly.354
In Baker,355 the Supreme Court dealt with the judicial review of the decision of an
immigration officer who refused an application for permission, on humanitarian
and compassionate grounds, to remain in Canada. Considering the role of reasons in
the duty of fairness analysis, Justice L’Heureux-Dubé concluded:
In my opinion, it is now appropriate to recognize that, in certain circumstances, the duty of
procedural fairness will require the provision of a written explanation for a decision. The
strong arguments demonstrating the advantages of written reasons suggest that, in cases
such as this where the decision has important significance for the individual, when there
is a statutory right of appeal, or in other circumstances, some form of reasons should be
required… . It would be unfair for a person subject to a decision such as this one which is
so critical to their future not to be told why the result was reached.356
It is to be noted that there is no statutory requirement under the RTA for the Board
to provide reasons, and Rule 26 of the Board’s Rules of Practice provides that reasons
will not necessarily be issued in all cases. Where a party wishes reasons it may request
them orally at the hearing or in writing within thirty days after the order is issued.357
However, given that there is a statutory right of appeal and a great volume of Board
353. In Waxman, supra note 195 at paras. 307, 308 the Court of Appeal noted:
The emphasis in Housen on the application of the “palpable and overriding” standard to the process
by which findings of fact are made moves reasons for judgment to the centre of the appellate review
stage. Reasons for judgment can be so cryptic or incomplete as to provide little or no insight into the
fact-finding process. Where reasons for judgment are so deficient that they effectively deny meaningful
appellate review on a “palpable and overriding” standard, the inadequacy of the reasons may in and of
itself justify appellate intervention [citations omitted]. [Emphasis added.]
354. See R. v. Sheppard, [2002] 1 S.C.R. 869 for an example in the criminal law context. See also Lerew v. St.
Lawrence College, [2005] O.J. No. 1436 (Div. Ct.); and Megens v. Ontario Racing Commission (2003), 64
O.R. (3d) 142 (Div. Ct.). The Ontario Court of Appeal in Gray v. Ontario (Director, Disability Support
Program) (2002), 59 O.R. (3d) 364 at para. 22 (C.A) provided a detailed overview of the duty to give
reasons. McMurtry, C.J.O. stated:
Recently, the Federal Court of Appeal considered the nature and extent of a statutory duty to give
reasons in VIA Rail Canada Inc. v. Canada (National Transportation Agency), [2001] 2 F.C. 35:
The duty to give reasons is only fulfilled if the reasons provided are adequate. What constitutes
adequate reasons is a matter to be determined in light of the particular circumstances of each
case. However, as a general rule, adequate reasons are those that serve the functions for which
the duty to provide them was imposed. In the words of my learned colleague Evans J.A., “[a]ny
attempt to formulate a standard of adequacy that must be met before a tribunal can be said to
have discharged its duty to give reasons must ultimately reflect the purposes served by a duty to
give reasons” [citation omitted].
355. Supra note 258.
356. Ibid. at para. 43.
357. The commentary under Rule 26.2 provides:
Subsection 17(1) of the SPPA requires a tribunal to issue written reasons for its orders upon the
request of any party. The Board will exercise its authority to issue reasons on its own initiative in
some cases, and will issue reasons when requested under this Rule. However, in most cases, written
“But Only on a Question of Law” 169
hearings involve eviction applications and thus have very important significance to
tenants, it is argued that the Board has a general common law duty to provide reasons. These reasons are required from the Board in order to be fair to the parties who
are entitled to know why the Board decided as it did, to foster just decisions and to
enable a meaningful right of appeal, if desired.
Standard of Review and the Duty to Give Reasons
The duty to provide adequate or meaningful reasons is an aspect of the duty to act
fairly. Thus, the failure to provide adequate reasons may itself be a breach of the
principles of procedural fairness and, as such, the standard of review analysis is inapplicable. However, in Dunsmuir,358 the Supreme Court defined the reasonableness
standard as including an inquiry “into the qualities that make a decision reasonable,
referring both to the process of articulating the reasons and to outcomes.”359
The standard of review analysis does not apply to the duty to give reasons and, moreover, is unnecessary. The failure to provide adequate reasons constitutes a breach of
procedural fairness and is compatible with a reasonableness standard, to the extent
that “reasonableness” can be equated with “adequate”. By definition, inadequate reasons would constitute an unreasonable decision because a reviewing court is unable
to determine whether the decision is a reasonable one. Reasons must exist to some
extent to allow the reviewing process to be carried out. A decision that fails to provide adequate reasons is not in accordance with principles of procedural fairness and
is de facto unreasonable.360
We now turn to the analysis to be applied with regard to the Board’s duty to provide
reasons. The two essential inquiries are: what can be considered to constitute the
reasons and, if some reasons are provided, what constitutes adequate reasons?361
What Are the Reasons?
As a starting point, any review of the reasons given cannot be done in isolation. The
provision of reasons for a decision must be looked at in the context of the entire
administrative decision-making structure. Where there are administrative procedures, such as an internal review or appeal, the fact that the internal review decision
358.
359.
360.
361.
reasons will not be issued. Parties who intend to request a review of an order or appeal it are encouraged to ask for written reasons as soon as possible after the order is issued.
Supra note 13. See also Ryan, supra note 22.
Supra note 13 at para. 47.
See Clifford, supra note 341.
In Via Rail, supra note 354 at 35, 36. The court held, “The duty to give reasons is only fulfilled if the
reasons are adequate. What constitutes adequate reasons is a matter to be determined in light of the
particular circumstances of each case.”
170
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contains little, if any, reasons may not be determinative. In Baker,362 in an immigration law context, the Supreme Court found that the notes of a subordinate reviewing
officer could be taken, by inference, to be the reasons for the decision made by a
senior officer.363
How does one recognize reasons for a decision and how do they differ from mere
conclusions? In Kalin v. Ontario College of Teachers,364 the applicant, a teacher, requested an adjournment. The College heard submissions from both parties and denied the adjournment, stating only:
The Committee is satisfied that the notice of hearing was properly served and allowed sufficient time for the Member to make arrangements to be present, and therefore, the motion
by the defence for an adjournment is denied.365
On appeal, the court noted:
These are not reasons. It is not sufficient for the Tribunal to merely state that it agrees with
the submissions of one party without stating why. In this case there is no indication that the
Tribunal weighed the various pros and cons in the balance in reaching the conclusions it
did. That is a breach of natural justice.366
In Toronto Community Housing Corporation v. Greaves,367 the landlord argued that
the court ought not to decide the appeal on the basis of absence of reasons because
the tenant failed to request such reasons.368 The court rejected the submission:
The Tribunal’s decision in this case was five pages long. As noted above, the decision culminates with the heading “It is ordered that:” followed by five numbered sub-paragraphs
setting out the Member’s order. In our view, it was reasonable for the tenant to conclude, as
she did, that these five points are the orders of the Member and that the preceding two pages
of the decision are the Member’s reasons for the orders made. Section 23.1 is appropriately
invoked where no reasons whatsoever are provided, but merely an order. It is not appropriately
invoked in a situation in which a Member has given some form of written reasons, but which
the tenant considers to be deficient. We do not fault the tenant in this situation for failing to
Supra note 258.
Ibid. at para 44.
Kalin, supra note 273.
Ibid. at para. 29.
Ibid. at para. 61. See also Knights Village Non-Profit Homes v. Chartier, [2005] O.J. No. 2376 (Div. Ct.)
where the court found that the failure to give reasons for the denial of an extension of time to request
a review of an order was a breach of procedural fairness. The Tribunal failed to explain the decision
reached and merely stated that the tenant had not provided valid reasons for the request.
367. Supra note 61.
368. Rule 23.1 of the Board Rules of Practice and Procedure provides:
23.1 If a party wished the Member to issue written reasons for the order, the party must make the
request:
(a) orally at the hearing; or (b) in writing within 30 days after the order is issued.
362.
363.
364.
365.
366.
“But Only on a Question of Law” 171
request more fulsome reasons in writing and we do not consider her failure to do so to be a
barrier to her raising the inadequacy of the reasons as a ground of appeal.369
When Are the Reasons Inadequate?
In Gray v. Ontario (Director, Disability Support Program),370 the Court of Appeal set
out succinctly the requirements for adequate reasons:
The obligation to provide adequate reasons is not satisfied by merely reciting the submissions and evidence of the parties and stating a conclusion. Rather, the decision maker must
set out its findings of fact and the principal evidence upon which those findings were based.
The reasons must address the major points in issue. The reasoning process followed by
the decision maker must be set out and must reflect consideration of the main relevant
factors.371
The critical point with regard to the adequacy of reasons is that perfection is not
required. Reasons may be less than ideal but still deemed to be adequate,372 but it is
clear that it is insufficient to merely summarize the positions of the parties and then
simply state conclusions.
In Stanoulis v. Lykakim Holdings Ltd.,373 the Board’s reasons were found to be inadequate. The landlord applied to evict on the grounds that he required the residence
for his son, and the tenants countered with an application claiming that there was no
landlord and tenant relationship and that they occupied the premises as licensees.
The court concluded that meaningful appellate review was impossible as the Board’s
reasons were “merely conclusory”.374 Similarly, in Greaves,375 the court noted that
369. Supra note 61 at para. 17 [emphasis added].
370. Supra note 354.
371. Ibid. at para. 22 [citing Via Rail Canada Inc. v. National Transportation Agency, [2001] 2 F.C. 25
(C.A.)].
372. In R. v. Walker, 2008 SCC 34 (Can LII), the Supreme Court recently re-emphasized that reasons do not
confer a “free standing right of appeal” and that the failure to live up to the duty does not necessarily
entitle a party to appellate intervention. Reasons have to be sufficient only to meet their purpose, and
the court concluded that the trial judge’s reasons adequately explained why the accused was acquitted
of second-degree murder despite the fact that the oral reasons “fell well short of the ideal.” The court
held, at para. 20 that “Reasons are sufficient if they are responsive to the case’s live issues and the parties’ key arguments. Their sufficiency should be measured not in the abstract, but as they respond to
the substance of what was in issue.”
373. [2008] O.J. No. 1845 (Div. Ct.).
374. Ibid. at para. 12. The court found that there was no factual analysis, no findings of credibility and no
indication of what evidence was taken into account on any issue. For example, on the issue of the landlord requiring possession the Board stated, at para. 6: “On a balance of probabilities, the Landlord in
good faith requires possession of the rental unit for the purpose of residential accommodation of his
Nick Stanoulis and Nick’s family.”
375. Supra note 61. See also Fisher v. Moir, [2005] O.J. No. 4479 (Div. Ct.) for an example of a court’s dissatisfaction with the Tribunal’s duty to give reasons.
172
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the Tribunal failed to give any reasons for finding that the tenant committed an illegal act:
There are no reasons given for the finding that the tenant committed an illegal act in the
face of a dispute that obviously required credibility findings, as only two eye witnesses (the
parties to the altercation) testified. In fact, the decision is devoid of reasons. It merely recites
the positions of the parties. We are of the view that such a decision given without reasons for
believing one of the two protagonists in an altercation cannot stand [citation omitted].376
The court also criticized the absence of any analysis or reasons as to whether the
tenant should be granted relief from eviction:
[T]he reasons are silent on the undisputed fact that the sole basis for the landlord’s decision
to evict was the laying of the criminal charge against Ms. Greaves and that the landlord
had done no independent investigation of the incident. There is also no mention in the
reasons that the police officer, who laid the charge against the tenant, refused the request
of Ms. Greaves to lay an information against the other tenant involved in the altercation,
with the resulting need for Ms. Greaves to appear before a justice of the peace to lay the
information377 …
It is evident that notwithstanding the above-noted paragraph of the Member’s decision
which is headed “Section 84 Consideration”, there is no analysis of s. 84 contained in that
paragraph. The paragraph seems predicated on the assumption that the only consideration
required in a s. 84 analysis is the need for children to complete the school year.378
In contrast, in Jackson v. Toronto Catholic School Board,379 the court found the school
board’s reasons were very close to being inadequate but that, in the circumstances,
meaningful review was not thwarted. An eleven-year-old boy brought a knife to
school. At recess, he took the knife into the schoolyard where, it was alleged, he
threatened fellow students with the knife. After an inquiry, the school principal imposed a limited expulsion of one year. The principal’s decision was appealed to the
school board. The school board denied the appeal.
It was argued that the school board failed to give reasons for its decision. In dismissing the appeal, the school board merely noted that it was “satisfied that the Principal
… considered all relevant factors in arriving at his decision.”380 The court stated that
these reasons “fall dangerously close to being inadequate”381 and that the proper
course of action would normally be to return the matter to the school board. It concluded, however:
When we examine the rationale for requiring adequate reasons, we are reluctant to return
the matter to the [school board]. Reasons are required to inform the losing party why they
376.
377.
378.
379.
380.
381.
Ibid. note 61 at paras. 14, 15 [emphasis added].
Ibid. at para. 21.
Ibid. at para. 19.
(2006), 214 O.A.C. 39 (Div. Ct.).
Ibid. at para. 53.
Ibid. at para 54.
“But Only on a Question of Law” 173
lost and to equip that party with sufficient information to effectively pursue an appeal, if
desired …
Any suggestion of the inability of Ms. [Jackson] to effectively pursue her appeal is dispelled
by the factum filed on her behalf, containing fifty-three pages comprising one hundred and
seventy paragraphs. The factum attacks the decision of the [school board] on at least sixteen
different fronts. It cannot be said the failure to give more detailed reasons has in any way
impaired Ms. [Jackson]’s ability to mount an effective appeal.382
In the end, all that can be stated with certainty is that there is no clear distinction
between adequate and inadequate reasons. Each case will turn on its particular facts,
the perspective of the particular court, and, in some instances, on the perspective of
the particular judge. In Jacobs Catalytic Ltd. v. International Brotherhood of Electrical
Workers, Local 353,383 the majority and minority judgments disagreed as to whether
the reasons provided were inadequate. The majority found that the reasons were “far
from the thorough and careful reasons” that were generally issued by the Ontario
Labour Relations Board but were nonetheless “adequate for this Court to a carry out
its judicial review function”.384 In contrast, the minority decision, in an extensive
review of the decision, found the Ontario Labour Relations Board did not provide
adequate reasons.385
Conclusion
The role of an appellate court is to correct legal error. Appeals are the exception
rather than the rule and the guiding assumption is that the quasi-judicial system of
tribunal decision making is just and reasonable. There are strong policy reasons for
this approach, and the bases set out in Housen386 for deferring to findings of fact of
trial judges are generally applicable to assist in understanding the general judicial
temperament toward the proper scope of appellate review with respect to the Board.
In particular, the overall scarcity of judicial resources, promoting the integrity of
Board proceedings, and recognizing the advantageous position of the Board in factfinding are all important underlying considerations.387 But a distinction must be
drawn between the Board as being better positioned to make factual findings388 and
its lack of any specialized expertise in making factual findings, applying the facts to
the law, or interpreting the law.
Ibid. at paras. 57, 58 [emphasis added].
Supra note 75.
Ibid. per Cumming and Swinton JJ., at para 51.
Ibid. per Smith J. at 38-46. See, in particular at 39, para. 85. See also Clifford, supra note 341 where there
was a 2-1 split of the Divisional Court panel as to whether adequate reasons had been provided.
386. Supra note 115.
387. Ibid. at paras. 16-18.
388. Primarily because the Board is exposed to the entire case and sees and hears from all the witnesses.
382.
383.
384.
385.
174
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In the vast majority of appeals under the RTA, the applicable standard of review has
been correctness, and the decision in Dunsmuir389 will not alter this result.390 Given
the statutory right of appeal and, most significantly, the lack of any highly specialized
expertise at the Board, a reviewing court will always be in an equal or better position
to decide the question of law before it.
The fact that there is no express reference in the RTA to appeals based on questions of fact or mixed fact and law is not an absolute bar to appellate review of those
questions.
Despite the provision in the RTA regarding appeals “only on questions of law”,391
the central inquiry becomes one of delineating the boundaries of what constitutes
a question of law. Questions of law are a broader category than merely determining
what the “correct legal test” may be. They include breaches of natural justice and
procedural fairness, which are questions of law unrelated to the determination of any
correct legal test or standard.
Questions of mixed fact and law fall along a spectrum, and the closer they come to
the legal end the more likely the error can be identified as a “pure” question of law.392
As observed in Dunsmuir,393 questions of mixed fact and law will vary. The central
determination will be whether this a question of identifying the “contours and the
content of a legal rule” or whether it is a matter of simply applying the rule to a set
of facts. The former is more clearly a question of law. The latter is not, and judicial
deference will be accorded.394 With respect to the review of questions of fact, it will
have to be established that there was some “palpable and overriding error”, such as
no evidence at all, a failure to consider relevant evidence, or a clear misapprehension
of the evidence, before a court will intervene in the Board’s fact-finding process.
In addition, it is possible to also contest the fact-finding process where the reasons
given are inadequate and the reviewing court is unable to determine on what basis
certain facts were found, such as, for instance, those facts based primarily on assessments of credibility.
Finally, there are two major exceptions or, at least, partial conceptual departures
from the appellate review of the Board on questions of law based on the Dunsmuir395
389. Supra note 13.
390. In Darragh, supra note 50 at para. 13, counsel for the landlord unsuccessfully argued that the standard
of review should be reasonableness, relying on Dunsmuir, supra note 13 at para. 54, which stated that
deference would be the usual result where a tribunal was interpreting its own statute or statutes closely
connected, with which it would have particular familiarity. Binnie J. referred to this, at para. 156, as an
adjudicator’s “home turf ” statutory framework.
391. Supra note 2.
392. Supra note 115 at para. 8. The term “pure question of law” is referred to but not defined.
393. Supra note 13.
394. Ibid. at paras. 161-64, per Deschamps J.
395. Supra note 13.
“But Only on a Question of Law” 175
standard of review analysis. First, questions of natural justice and procedural fairness, including the duty to give reasons, do not attract the Dunsmuir396 analysis. A
somewhat similar but clearly distinct test is applied, as set out in Baker,397 which
grants a measure of deference to a tribunal’s procedural choices. What measure of
deference a court would grant to the Board is an open question with little jurisprudential guidance.
Second, discretionary decisions may also constitute reviewable questions of law but
they have not attracted the standard of review analysis. While the Board’s discretionary ­decisions, such as relief from eviction or imposing terms and conditions,
may, at some point in the future, be subjected to a standard of review analysis, it is
more probable that the “error in principle” (or “clearly wrong”) analysis will continue to be the operative standard as it is long established in the residential tenancy
jurisprudence. Absent such error in principle, if the standard of review analysis was
applied to the Board’s discretionary decisions, the standard applied would likely be
reasonableness.
Ultimately, the legal terminology adopted may just be a matter of semantics—a fair
degree of judicial deference is applied to the exercise of discretion, absent error in
principle, regardless of the specific legal label applied to describe the standard of
review. However, it must be recognized that the varying standards of review—the
Maple Lodge398 rule and the discrete grounds standard; the Baker399 reasonableness
standard; and the Graystone400 error in principle standard—that may be applied do
create uncertainty and confusion. These varying standards of review leave considerable scope for reviewing courts to intervene401 in the overall merits of a decision or
to challenge the weight accorded any factors considered in the discretionary decision
making process.402
396.
397.
398.
399.
400.
401.
402.
Ibid.
Supra note 258.
Supra note 275.
Supra note 258.
Supra note 304.
Arguably, such intervention occurred in Racicot, supra note 314.
Mullan, supra note 60 at 95.
Inadequacies of the Humanitarian and Compassionate
Procedure for Abused Immigrant Spouses
Heather Neufeld*
Résumé
Cet article traite des difficultés rencontrées par les femmes immigrantes dont le parrainage conjugal est rompu pour cause de violence familiale. L’auteur se livre plus
particulièrement à une critique des faiblesses du processus de demandes pour des
circonstances d’ordre humanitaire (CH) qui, d’habitude, est le seul recours qui reste
à ces femmes pour obtenir le statut de résident au Canada. Parmi les critères qu’une
personne demandant le statut de résident permanent sur la base de raisons d’ordre
humanitaire doit satisfaire, il y a le fait qu’elle subirait un préjudice indu ou disproportionné si elle était renvoyée dans son pays d’origine, et, d’autre part, qu’elle est
bien établie au Canada et est financièrement autonome. La discussion débute par un
examen du régime de parrainage canadien et son fonctionnement prévu, comparé
à ce qui se passe fréquemment dans les cas de rupture de parrainage pour cause de
violence familiale. Sont ensuite passées en revue, la nature de la violence conjugale
subie par les femmes immigrantes ainsi que les barrières sociétales et juridiques qui
les confrontent souvent. Ces facteurs fournissent le contexte d’une analyse de l’efficacité de la procédure de la demande de résidence permanente pour des raisons
d’ordre humanitaire. Après un examen de cette procédure CH et de ses faiblesses,
l’auteur discute des problèmes que l’on rencontre lors de contestations, par le biais du
contrôle judiciaire, de décisions négatives résultant d’une demande CH.
Étant donné qu’il est peu probable que des amendements soient apportés, dans le
court terme, à la Loi sur l’immigration et la protection des réfugiés, l’article conclut
avec une brève proposition de réforme de la politique sur l’immigration visant à résoudre les problèmes spécifiques confrontant les femmes immigrantes victimes de
violences.
Introduction
For women who suffer domestic violence, the Canadian immigration experience can
be extremely trying, at times brutal. Many of these women seek to attain permanent
resident status through sponsorship by their spouses who are established in Canada.
Although abusive relationships are by no means unique to women in this situation,
*
Heather Neufeld is a staff lawyer in immigration and refugee law at South Ottawa Community Legal
Services, a Legal Aid clinic. This paper reflects the law as of August 2009.
178
(2009) 22 Journal of Law and Social Policy
because of the severity of the problem, attention in this paper is confined to the
hazards of the sponsorship process, both social and legal.
Indisputably, immigrant women who experience domestic violence during the
sponsorship process are highly vulnerable because of their precarious legal status in
a new and unfamiliar country, and because of deficiencies in the Immigration and
Refugee Protection Act [IRPA]1 and policies of Citizenship and Immigration Canada.
Currently, men are most likely to be principal applicants for immigration.2 Although
a woman who has been sponsored by her spouse and obtained her permanent resident status may separate from or divorce her husband without threat of deportation,
the same is not true if her sponsorship is still in process. In abusive relationships, the
intrinsic control extended to sponsors by provisions of immigration law frequently
leads to manipulation. In this context, husbands may threaten to revoke or actually
do withdraw the sponsorship before it is finalized. In fear of deportation, women
often choose to remain in the relationship, no matter how hazardous or unhealthy.3
For women who forgo the possibility of sponsorship by leaving an abusive spouse or
whose sponsorship is withdrawn by their partner, the only means to obtain permanent resident status is almost always to submit a Humanitarian and Compassionate
[H&C] application,4 the positive outcome of which is anything but certain. The lack
of attention in Canadian law to the inequitable status of immigrant women is typified
by that procedure. Success requires abuse survivors to satisfy criteria that account
little for social isolation and financial dependence that are so often the result of oppressive relationships.5
In short, I will argue here that Canada’s immigration system is inadequate and unjust
with respect to abuse survivors whose spousal sponsorship has broken down. Further,
I echo scholars’ claims that challenges immigrant women face are largely ignored
in immigration policy; that both in the home and in Canadian society, immigrant
women are not treated equally when compared with their male counterparts; and
that immigration law fails to consider such systemic inequity when crafting law and
policy.6 I begin with an examination of the Canadian sponsorship regime, how it is
1.
2.
3.
4.
5.
6.
Immigration and Refugee Protection Act, S.C. 2001, c. 27 [IRPA].
Colleen Sheppard, “Women as Wives: Immigration Law and Domestic Violence” (2000) 26 Queen’s L.J.
1 at 8-9 [Sheppard].
Ekuwa Smith, “Nowhere to Turn? Responding to Partner Violence against Immigrant and Visible Minority Women” (Ottawa: Canadian Council on Social Development, 2004) at 25, online: Canadian
Council on Social Development <http://www.ccsd.ca/pubs/2004/nowhere/index.htm>.
IRPA, supra note 1 at s. 25(1).
For examples of criteria that abused immigrant women must satisfy, see Citizenship and Immigration
Canada, Immigration Manual, at c. IP-5, ss. 5.1, 11.2, 13.10 [Immigration Manual].
Andrée Côté, Michèle Kérisit & Marie-Louise Côté, Sponsorship … for Better or for Worse: The Impact
of Sponsorship on the Equality Rights of Immigrant Women (Ottawa: Table féministe francophone de
concertation provinciale de l’Ontario, Status of Women Canada, 2001) at 1-3, online: Government of
Canada Publications <http://publications.gc.ca/pub?id=293775&sl=0> [Côté, Kérisit & Côté].
Inadequacies of the Humanitarian and Compassionate Procedure 179
intended to function versus what frequently occurs in cases of sponsorship breakdown due to domestic violence. By way of background to my analysis of the effectiveness of the humanitarian and compassionate procedure, I consider the nature of
abuse as it pertains to immigrant women, as well as societal and legal barriers they
face. Following an examination of the H&C process and its shortcomings, I discuss
problems encountered when challenging negative H&C decisions through judicial
review. Finally, given the unlikelihood of amendment of the Immigration and Refugee
Protection Act in the short term, I conclude by proposing reforms to immigration
policy that address specific problems confronting abused immigrant women.
In the interest of style and to avoid needless repetition, I sometimes refer to abused
immigrant women as simply women and to the spouses who abuse them as their
husbands, spouses or partners. I emphasize at this point that reference in this paper
to men or women pertain to two specific subgroups of Canadian society and not to
adult males and females in general in this country.
Obtaining Permanent Residence in Canada as a Sponsored Spouse
The Sponsorship Regime
While sponsorship rules apply equally to same-sex and opposite-sex couples,7 the
focus here is scenarios in which the sponsoring partner is male and the sponsored
partner female, chiefly because the majority of cases still follow this pattern. A woman
may be sponsored while still residing in her home country, able to join her partner in
Canada once she has obtained permanent residence.8 However, inland sponsorships
are of greatest interest in this paper, those in which the process is undertaken while
both partners are already present in this country. An immigrant woman may marry
her sponsor in Canada while she resides in the country illegally or while she holds a
temporary form of status such as that of student or visitor. Likewise, inland sponsorship may be pursued when a spouse, already residing in Canada, brings his or her
partner to the country from abroad, and then initiates the process.9
According to the Immigration and Refugee Protection Act and Immigration and Refugee
Protection Regulations, sponsors must be Canadian citizens or permanent residents,
at least eighteen years old and residing in Canada.10 In addition, individuals may not
sponsor a spouse if subject to circumstances such as being under a removal order,
having defaulted on a previous sponsorship or receiving social assistance for a reason
7.
Although not addressed in this paper, same-sex spouses who are sponsored also suffer from domestic
abuse.
8. IRPA, supra note 1 at s. 13(1); Immigration and Refugee Protection Regulations, SOR/2002-227 at ss.
70(1), 72(1), 117(1) [Regulations].
9. Ibid. at ss. 123, 124.
10. Ibid. at s. 130(1); Immigration Manual, supra note 5 at c. IP-8, s. 5.14.
180
(2009) 22 Journal of Law and Social Policy
other than disability.11 Individuals sponsoring a spouse need not satisfy the minimum necessary income criterion normally required for sponsoring a relative.12
Immigrant women who are to be sponsored from within Canada by a spouse or
common-law partner must cohabit with their sponsor,13 demonstrate that their marriage is genuine14 and satisfy admissibility requirements relating to issues such as
criminality.15 Although medical examinations are obligatory, sponsored spouses and
their dependent children are exempt from proving that they will not cause excessive
demand on the Canadian health system.16
In a successful sponsorship scenario, the application is first accepted in principle,
meaning that Citizenship and Immigration Canada has found that the sponsor and
sponsored spouse meet all eligibility requirements. The sponsored spouse subsequently receives permanent resident status, assuming that she is not found inadmissible for criminal or security reasons, because she is a risk to public health, or because she is unable to convince an immigration officer that she will be financially
self-supporting, etc.17 The waiting period for receiving a final grant of permanent
resident status is highly variable.18 Her sponsor must have agreed to be responsible
for all his spouse’s needs during the first three years. If the sponsored spouse resorts
to social assistance during that time, the sponsor is usually obligated to reimburse
the government.19
Sponsorship Breakdown
The term “sponsorship breakdown” refers to situations such as those in which the
sponsorship is withdrawn, was never submitted or the individuals separate prior to
the sponsored partner’s receipt of permanent residence. Even in sponsorships that
do not break down, immigrant women are sometimes subject to abusive tactics of
control and forced isolation, leading to a significant power imbalance between partners. In addition to his influence upon the outcome of his wife’s quest for permanent
status, a sponsor may threaten to have his spouse deported for displeasing him or not
complying with his demands. Women sometimes feel that they owe their sponsor
allegiance because he arranged for their entry into Canada or helped them to obtain
temporary legal status. When a woman has obtained permanent residence, separa11.
12.
13.
14.
15.
16.
17.
18.
19.
Regulations, supra note 8 at s. 133(1).
Ibid. at s. 133(4).
Ibid. at s. 124(a).
Ibid. at ss. 4, 125(1)(c); Immigration Manual, supra note 5 at c. IP-8, s. 5.26.
Immigration Manual, supra note 5 at c. IP-8, s. 5.33.
IRPA, supra note 1 at s. 38(2)(a); Regulations, supra note 8 at s. 24.
IRPA, supra note 1 at ss. 34-41.
Immigration Manual, supra note 5 at c. IP-8, ss. 13, 15.
Regulations, supra note 8 at ss. 132(1), 135.
Inadequacies of the Humanitarian and Compassionate Procedure 181
tion or divorce from her sponsor does not affect her immigration status. However,
lack of knowledge of her rights may induce her to believe that her husband can have
her deported at any time.20
For women whose sponsorship actually breaks down, the situation is more precarious still. Not uncommon are assurances by husbands that they have already filed for
sponsorship or that they will soon do so, even though the application is never submitted. Eventually, persistently misled, these women find themselves with no status
and at risk of removal from the country. Even if husbands actually file sponsorship
documents, there is no guarantee that permanent resident status will be granted.21
For example, Citizenship and Immigration Canada may suspend processing if the
sponsor is deemed ineligible because of criminal activity.22 Women in this situation
will be without approved sponsorship and subject to removal orders because of the
actions of their spouse.23
Or a husband may withdraw his application at any time prior to the sponsored
spouse’s receipt of permanent residence. Acceptance in principle, therefore, offers
no guarantee that a woman is safe from revocation of her sponsorship.24 Finally, if
an abuse survivor does manage to extricate herself from repression by leaving her
husband prior to receiving permanent resident status she is no longer sponsored and
thus at risk of removal from Canada.25
Hence, women often feel they have no option other than to endure abuse to gain
permanent residence. In this context, immigrant women have little choice but to
resort to an H&C application, a discretionary process, the positive results of which
are far from guaranteed. Before looking closely at that procedure, it is important to
define domestic violence and review some of the imposing barriers that immigrant
women face. Without examining these barriers, it is difficult to appreciate the almost
insurmountable obstacles in meeting current H&C requirements.
Obstacles Confronting Domestic Violence Survivors
Defining Domestic Violence
Domestic violence is unfortunately a very widespread phenomenon, within immigrant and non-immigrant families alike. It is found across all socio-economic,
religious and ethnic groups. Factors such as unemployment, altered gender roles
20.
21.
22.
23.
24.
25.
Côté, Kérisit & Côté, supra note 6 at 57 and 60.
Ibid. at 28.
Regulations, supra note 8 at ss. 131(1) (d)-(f), 136(1); Immigration Manual, supra note 5 at c. IP-8, s. 5.8.
Sheppard, supra note 2 at para. 23; Immigration Manual, supra note 5 at c. IP-2 at ss. 5.9, 5.28, 5.36.
Regulations, supra note 8 at s. 126; Immigration Manual, supra note 5 at c. IP-2, s. 5.40.
Regulations, supra note 8 at s. 124(a).
182
(2009) 22 Journal of Law and Social Policy
and financial instability tend to increase the probability of abuse.26 Although recent
Canadian statistics illustrating the prevalence of domestic violence among immigrant
women are not available, data from the United States for the year 2000 indicate that
59.5 per cent of married immigrant women suffer domestic abuse.27 Unfortunately,
this figure likely underestimates the severity of the problem since many women neither file complaints nor apply for health or social services.28 In this paper, I will use
the terms “family violence”, “domestic abuse” and “domestic violence” interchangeably in the context of relationships between spouses or common-law partners.
According to Health Canada, domestic abuse is “an attempt to control the behavior
of a wife, common-law partner or girlfriend. It is a misuse of power which uses the
bond of intimacy, trust and dependency to make the woman unequal, powerless and
unsafe”.29 Domestic violence is not merely physical; it also includes psychological,
emotional, sexual, financial or verbal and spiritual abuse. This more comprehensive definition of domestic abuse underscores that humiliating women or withholding money for food or clothing are as much forms of abuse as are beating and
slapping.30
Women frequently leave and return to their partners numerous times before finally
breaking free, a fact often unappreciated by government officials. According to one
estimate, domestic abuse survivors usually try to leave their abuser as many as seven
times before finally succeeding.31 Women often are unaware of their spouse’s abusive
tendencies at first, acknowledging it only subsequent to marriage or pregnancy. They
remain in the relationships with the belief that it is their responsibility to make the
relationship work or with the hope that their husbands will change with time.32 The
varied forms of domestic violence as well as the obstacles described below must be
carefully considered by immigration officers and judges when reaching decisions
concerning abuse survivors.
26. Anita Raj & Jay Silverman, “Violence against Immigrant Women: The Roles of Culture, Context, and
Legal Immigrant Status on Intimate Partner Violence” (2002) 8:3 Violence against Women 367 at 36974; Sheppard, supra note 2 at 5-6.
27. Karyl Davis, “Unlocking the Door by Giving Her the Key: A Comment on the Adequacy of the U-Visa
as a Remedy” (2005) 56:2 Ala. L. Rev. 557 at 557.
28. Ibid. at 557-59.
29. This definition is cited in Baukje Miedema & Sandra Wachholz, A Complex Web: Access to Justice for
Abused Immigrant Women in New Brunswick (Ottawa: Status of Women Canada, 1998) at 10, online:
Status of Women Canada <http://dsp-psd.pwgsc.gc.ca/Collection/SW21-24-1998E.pdf> [Miedema &
Wachholz].
30. Côté, Kérisit & Côté, supra note 6 at 51-52, 60 and 79.
31. Leila Rothwell, “VAWA 2000’s Retention of the ‘Extreme Hardship’ Standard for Battered Women in
Cancellation of Removal Cases: Not Your Typical Deportation Case” (Summer 2001) 23:2 U. Haw. L.
Rev. 555 at 564.
32. Felicite Stairs & Lori Pope, “No Place like Home: Assaulted Migrant Women’s Claims to Refugee Status
and Landings on Humanitarian and Compassionate Grounds” (1990) 6 J. L. & Soc. Pol’y 148 at 157
[Stairs & Pope].
Inadequacies of the Humanitarian and Compassionate Procedure 183
Language
One of the most significant barriers facing many abused immigrant women in Canada
is the inability to speak either French or English. Sadly, many immigrant women who
undergo the sponsorship process do not have access to English classes, both because
the courses are not subsidized and because abusive husbands frequently forbid their
wives from enrolling. Their husbands may be unwilling to spend the money or prefer that their wives not develop skills that might promote autonomy.33 Women are
often unable to obtain information pertaining to their rights, concerning services
for abuse survivors or regarding complaints to the police.34 When interacting with
immigration authorities, women may remain silent, their only knowledge of the
process consisting of what their spouse has chosen to tell them.35 If the police are
called to a domestic incident, many women report that officers take a statement only
from their husband.36 Many immigrant women are unwilling to implicate their children as interpreters in emotionally charged situations. As a result, immigrant abuse
­survivors often refrain from accessing social services such as women’s shelters.37 In
short, communication with the outside world for many abused immigrant women is
all but cut off.
Financial Dependency
Frequently, immigrant women arrive in Canada entirely without financial resources.
Their husbands may refuse to give them money for basic necessities and repeatedly
tell them that they are a burden. Sponsors may refuse to allow their wives to seek
employment or permit them to work only in low-wage occupations. Alternatively,
husbands may force their wives to work illegally, then threaten to report them to immigration authorities. Women who are sponsored in this country often lack marketable skills or their credentials from abroad are not recognized. Most of these women
will have little choice but to remain at home to care for children, unable to take
advantage of community and employment resources.38
33. Debbie Douglas, “The Experience of Violence for Immigrant Women and Women of Colour” (Seeking Justice: Exploring Violence against Women Conference, Toronto, Ontario, 5 March 2005), online:
Coalition of Agencies Serving Immigrants, <http://www.ocasi.org/index.php?qid=784&catid=102>
[OCASI].
34. Linda MacLeod et al., Like a Wingless Bird: A Tribute to the Survival and Courage of Women Who Are
Abused and Who Speak Neither English Nor French (Ottawa: Department of Canadian Heritage, 1993) at
39, online: Public Health Agency of Canada <http://www.phac-aspc.gc.ca/ncfv-cnivf/­familyviolence/
pdfs/tribute.pdf> [MacLeod et al.].
35. Côté, Kérisit & Côté, supra note 6 at 45-46.
36. Stairs & Pope, supra note 32 at 159.
37. Ibid. at 159; Susan McDonald, “Not in the Numbers: Domestic Violence and Immigrant Women”
(1999) 19 Canadian Woman Studies (3) at 163-67 online: <http://proxy.bib.uottawa.ca:2304/ips/infomark.do?&contentSet=IAC-Documents&type=retrieve&tabID=T002&prodId=IPS&docId=A300763
88&source=gale&srcprod=CPI&userGroupName=otta77973&version=1.0> [McDonald].
38. Côté, Kérisit & Côté, supra note 6 at 26.
184
(2009) 22 Journal of Law and Social Policy
The employment issue is further complicated by the fact that the right to work or
study is not attained without hurdles. A woman who undergoes the sponsorship
process from within Canada must apply for a work permit and pay the required fee.
This process is often very lengthy.39 Moreover, women may apply only when their
sponsorship has been accepted in principle.40 To make matters worse, until a woman
becomes a permanent resident, her social insurance number begins with the number
nine, a signal to potential employers that her immigration status is still in question.
Women who wish to study but who are not yet permanent residents are not entitled
to federal or provincial government grants or loans.41
Compounding these difficulties is a mother’s lack of access to the Canada Child Tax
Benefit if she lacks legal status and ceases to reside with her sponsor. The Canada
Child Tax Benefit is a non-taxable amount paid to eligible families by the government to help with the cost of raising children. The money is paid to the parent who
is primarily responsible for the care of the child, usually the mother. If a woman with
children resides with a Canadian citizen or permanent resident spouse or commonlaw partner, she is eligible for the benefits despite lacking permanent status herself.
However, if an immigrant woman without status leaves her sponsor, even as a result of abuse, she loses her right to the Child Tax Benefit. Without this financial
assistance, based on household income and the number of children in the family,
economic resources are further diminished for a mother who no longer lives with
her husband.42 In one case, a woman with three children separated from her abusive
spouse before the sponsorship process had been completed. She continued to receive
the Child Tax Benefit while her permanent resident application on humanitarian
and compassionate grounds was processed. When the government learned that she
had separated from her husband, she was required to repay the sum of $12,000, an
extremely severe penalty for leaving an abusive spouse prior to receiving permanent
resident status.43 In addition, if a woman without permanent status incorrectly receives Child Tax Benefits after separating from her sponsor, the Canada Revenue
Agency may withhold benefits even after she receives permanent status until she
repays the benefits she was previously overpaid.44
With obstacles at every turn, many women, unable to work or study, do not leave
their husbands for fear of being homeless.45 To do so before a sponsorship applicaIbid. at 36, 137-38.
Regulations, supra note 8 at s. 207(b).
Côté, Kérisit & Côté, supra note 6 at 137.
Canada Child Benefits (2008), online: Canada Revenue Agency <http://www.cra-arc.gc.ca/E/pub/tg/
t4114/t4114-09e.pdf> [Canada Revenue Agency].
43. E-mail correspondence with Geraldine Sadoway, immigration lawyer, Parkdale Community Legal
Services in Toronto, Canada (27 May 2007) (on file with author) [Sadoway, 27 May].
44. Canada Revenue Agency, supra note 42.
45. Côté, Kérisit & Côté, supra note 6 at 134, 138.
39.
40.
41.
42.
Inadequacies of the Humanitarian and Compassionate Procedure 185
tion has been submitted on their behalf would likely render them ineligible for social
assistance.46
Isolation
For many women who find themselves in a new country where the language, customs and people are unfamiliar, spousal abuse can lead to a sense of total isolation.
They may have no one with whom to share their despair as abuse escalates. Some
spouses expressly ensure their wife’s solitude by forbidding her to leave the house,
make new friends or contact family in her country of origin. Some women come to
feel so desperate that they fall into depression or attempt suicide.47
Because of their cultural background, some women believe it is their duty to hold the
family together, conditioned to view abuse as a very private matter. Their only link
to the world outside may be fellow members of their ethnic or linguistic community.
Reasonably, women with only limited ties may be disinclined to break faith with
the traditions and mores of their peer group. Few will risk leaving their husband to
be ­ostracized by the only people they know in their new country. Some immigrant
women have been taught from childhood that they are to be submissive to their
husband.48
The Police
Few women will complain to the police for fear of deportation of herself or her spouse
if he is not a Canadian citizen. Regrettably, this concern is well founded if a woman
lacks any form of legal status.49 A woman whose spouse has promised to sponsor
her but who has not yet done so may find herself in the impossible situation of either
calling the police for help and facing the intervention of immigration authorities
or enduring abuse.50 A woman may also fear mistreatment by state authorities, es-
46. “Directive 25.0: Immigrants, Refugees and Deportees”, online: Ontario Works, Ontario Ministry of
Community and Social Services <http://www.cfcs.gov.on.ca/NR/MCFCS/OW/English/25_0.pdf>;
Ontario Regulation 134/98 at s. 6(1)2(iii).
47. Côté, Kérisit & Côté, supra note 6 at 60.
48. Justice Institute of British Colombia, Empowerment of Immigrant and Refugee Women Who Are Victims
of Violence in Their Intimate Relationships (March 2007), online: Justice Institute of British Columbia
<http://www.jibc.ca/cccs/Publications/Pages%20from%20Empowerment_for_ImmigrantWomen_
ExecutiveSummary.pdf> [Empowerment].
49. Kristin Marshall, “Basic Immigration Issues Related to Woman Abuse” (2005), online: Ontario
Women’s Justice Network <http://www.owjn.org/owjn_2009/index.php?option=com_content&view=
article&id=194:basic-immigration-issues-related-to-woman-abuse&catid=57:immigration-law>
[Marshall, Women]; Sheppard, supra note 2 at 6-7.
50. Carolina Berinstein et al., “Access Not Fear: Non-Status Immigrants and City Services” (preliminary
report, 2006) at 22-23, online: McMaster University.
186
(2009) 22 Journal of Law and Social Policy
pecially if she originates from a country in which the police are used as a tool of
repression.51
Many jurisdictions have police policies intended to promote the arrest of abusers.
Ontario, for example, has had a mandatory arrest policy since 1983. This means
that if the police have reasonable grounds to believe that an offence has taken place,
they must charge one or both of the individuals involved. Not only does the abused
woman herself have no control over whether her partner is arrested, but she risks
arrest herself if she fights back to protect herself from violence.52 At least in Toronto,
the number of women charged in domestic violence incidents, many of whom had
a long history as domestic violence survivors and responded with force to protect
themselves, has increased over recent years.53 Significantly, if a domestic violence
survivor is convicted of assaulting her abusive spouse, she risks being denied permanent residence on H&C grounds, should sponsorship breakdown cause her to file
such an application. A woman may also be concerned that if a complaint on her part
results in a charge against her partner, she may consequently be obliged to testify
against him.54
In addition, an individual convicted of a violent offence against a family member is
ineligible to act as a sponsor.55 This provision, which appears intended to protect a
spouse from sponsorship by an abuser, may instead discourage a woman from reporting mistreatment. If her sponsorship is in process and her husband is convicted
of abusing her, she may find herself in a precarious situation without a sponsor.
Immigration Authorities
Often women incorrectly assume that leaving their sponsor will result in deportation.56 Many women are unaware that they can apply for permanent residence in
51
52.
53.
54.
55.
56.
<http://www.socsci.mcmaster.ca/polisci/emplibrary/Access%20Not%20Fear%20Report%20(Feb%20
2006).pdf>.
Dianne L. Martin & Janet E. Mosher, “Unkept Promises: Experiences of Immigrant Women with the
Neo-Criminalization of Wife Abuse” (1995) 8 C.J.W.L. 3 at 20 [Martin & Mosher]; Andalee Adamali,
Janet Kim & Angie Rupra, Family Violence against Immigrant and Refugee Women: Community Development Strategies—Resource Manual (Toronto: Ontario Coalition of Agencies Serving Immigrants,
2008) at 17, online: At Work Settlement.Org <http://atwork.settlement.org/downloads/atwork/OCASI_Preventing_Family_Violence_Community_Development_Strategies_Resource_Manual_2008.
pdf> [Adamali , Kim, & Rupra]
Ibid. at 22-24.
Shoshana Pollack, Vivien Green & Anke Allspach, Women Charged with Domestic Violence in Toronto: The Unintended Consequences of Mandatory Charge Policies (Toronto: Woman Abuse Council of
­Toronto, 2005) at 3, online: Woman Abuse Council of Toronto <http://www.womanabuse.ca/resources/
cf_download.cfm?file=womenchargedfinal.pdf&path=%5C>.
Marshall, supra note 49.
Regulations, supra note 8 at s. 133(1)(e).
Stairs & Pope, supra note 32 at 159-60.
Inadequacies of the Humanitarian and Compassionate Procedure 187
their own right. In some instances, women have been told by immigration personnel
that sponsorship requires them to follow the admonitions of their husband, that they
are under his charge. Immigration officers, who frequently do not meet with the parties at all during the sponsorship process, sometimes fail to explain a woman’s rights
or make clear what recourse is available to her if sponsorship breaks down. Women
often have little or no knowledge about what has been stated in their sponsorship
application since it is their spouse who engages in all interaction with immigration
authorities. Sometimes Citizenship and Immigration Canada conducts the entire
process as though the woman is either not present or need not be involved. This exclusive attitude facilitates abusers who lie to their wives concerning the sponsorship
process.57 This writer knows of no organization in Canada whose specific mandate
is to counsel women on all matters pertaining to sponsorship.
Loss of Children
Women are often told by their abuser that if they leave he will receive sole custody
of the children by arguing that their mother abandoned them. Women may also experience guilt if they remove children from their father’s care. They may also be
apprehensive about involvement by the Children’s Aid Society, because of their lack
of knowledge of typical circumstances that prompt the government to seek foster
care.58 Women rarely have sufficient financial resources to take their children with
them if they must leave Canada. Hence, women who face such dilemmas are often
forced to continue to suffer abuse rather than flee with their children and risk abduction charges by their husbands.59
Women who have no further immigration option available to them cannot elude a
removal order simply because their children are born in this country. In Langner v.
Canada (Minister of Employment and Immigration),60 the Federal Court of Appeal
adopted the position that neither a Canadian citizen child’s rights nor those of an
immigrant mother or father are violated when the parent’s only alternative is to leave
the child in Canada or to return with him or her to the home country. According
to the Federal Court of Appeal, the decision to leave a child in Canada is strictly a
private family matter.61 The Court expressed concern that an individual “need only
57. Côté, Kérisit & Côté, supra note 6 at 43-45; Miedema & Wachholz, supra note 29 at 22, 36-37.
58. Maria Rosa Pinedo & Ana Maria Santinoli, “Immigrant Women and Wife Assault,” in Fauzia Rafiq,
ed., Towards Equal Access: A Handbook for Service Providers Working with Immigrant Women Survivors of Wife Assault (Ottawa: Immigrant and Visible Minority Women against Abuse, 1991), online: Springtide Resources <http://www.womanabuseprevention.com/html/immigrant_women.html>
[Pinedo & Santinoli].
59. Côté, Kérisit & Côté, supra note 6 at 58.
60. [1995] F.C.J. No. 469 [Langner].
61. Ibid. at para. 6.
188
(2009) 22 Journal of Law and Social Policy
have a child on Canadian soil and argue that child’s Canadian citizenship rights in
order to avoid the effect of Canadian immigration laws”.62
As a result of the Langner decision, immigration lawyers turned to the family court
in an attempt to keep immigrant women and their Canadian children together. Their
approach was to obtain judgments that grant sole custody to the mother and, incidentally, prohibit parents’ removal of the children from the province. These lawyers
hoped that the court orders would create de facto stays of removal for mothers.63
Section 50 of the Immigration and Refugee Protection Act states: “A removal order is
stayed (a) if a decision that was made in a judicial proceeding—at which the Minister
shall be given the opportunity to make submissions—would be directly contravened
by the enforcement of the removal order”.64
In the case of Alexander v. Canada (Solicitor General),65 Madam Justice Dawson
found that a custody order that prevents an immigrant woman from removing her
Canadian-born children from Ontario is not a judicial decision that would be “­directly
contravened” by her removal from Canada. According to the justice, custody does
not require that the parent have physical care of the children at all times. She adopted
the reasoning of Justice Perkins in Chou v. Chou that custody is a “bundle of rights”
that allows the custodial parent to make decisions about the child’s place of residence
but does not necessarily require that the parent reside with the child.66
The result of the Alexander decision is that immigrant women cannot rely on custody
orders to protect them from separation from their children. This case was recently
upheld by the Federal Court of Appeal in Idahosa v. Canada (Minister of Public Safety
and Emergency Preparedness).67 However, in Idahosa, Justice Evans did note that the
custody order prohibiting the removal of the children from Ontario was sought to attempt to prevent the mother’s removal from Canada, rather than because of an actual
custody dispute between two parents.68 This means that the question of whether a
custody order could ever stay a parent’s removal is still not entirely decided by the
Federal Court.
In short, some immigrant women are forced to choose between leaving children
in Canada with an abusive spouse, entrusting them to the care of a Children’s Aid
62. Ibid. at para. 4.
63. Geraldine Sadoway, “The Best Interests of the Child in Immigration and Refugee Proceedings: Report
Card” (Paper presented to the Ottawa Immigration Law Conference, 30 March 2007). For an example
of a case in which the Family Court found that it was in the Canadian-born children’s best interest
to remain with their mother and not be removed from Ontario, see Alexander v. Powell, [2005] O.J.
No. 500.
64. IRPA, supra note 1 at s. 50.
65. [2005] F.C.J. No. 1416 at para. 30 [Alexander].
66. Ibid. at paras. 40-41; Chou v. Chou, [2005] O.J. No. 1374, at paras. 21, 54.
67. [2008] FCA 418 [Idahosa].
68. Ibid. at para. 57.
Inadequacies of the Humanitarian and Compassionate Procedure 189
Society or taking the children with them when removed from the country. Thus,
immigrant women’s fears about possible loss of their children are well founded, their
uncertainty yet one more disincentive to break away from an abusive relationship.69
Fear of Deportation
Immigrant women face many risks and hardships if forced to leave Canada and apply
for permanent residence status from abroad. Some of them would not meet language, education and work-experience requirements for selection as independent
immigrants. Also, a woman removed to her country of origin loses the benefit of
Canadian restraining orders and peace bonds meant to protect her from her abusive
partner.70
As well as being at continued risk from her abuser, a woman who returns to her
country of origin without her spouse is often shunned for having left her husband. A
woman’s family may refuse to shelter her and may blame her for her marital problems.
In many countries, divorce leads to social stigma. Gender and religious norms may
make reintegration very difficult. Women often return to poverty and entrenched
gender discrimination. They frequently lack access to health and counselling services to address the physical and psychological effects of past abuse. For these reasons,
domestic violence survivors are frequently terrified of coming to the attention of
Citizenship and Immigration Canada.71
The Humanitarian and Compassionate Process
While not comprehensive, the barriers discussed above illustrate the demoralizing
obstacles abused immigrant women face in their attempts to make Canada their new
home. As I will now endeavour to show, not only does immigration law fail to take
account of their particular challenges and vulnerabilities, but immigration officers
fail to adequately consider the actual experiences of abuse survivors during the humanitarian and compassionate process.
The Procedure
Individuals who hope to remain in Canada permanently may submit an H&C application that details why their personal circumstances warrant exemption from the
rules of the Immigration and Refugee Protection Act. Examples of individuals who
might submit an H&C application are those who unsuccessfully sought refugee status
69. E-mail correspondence with Geraldine Sadoway, immigration lawyer, Parkdale Community Legal
Services in Toronto (8 January 2007) (on file with author) [Sadoway, 8 January].
70. E-mail correspondence with Kristin Marshall, immigration lawyer, Refugee Law Office in Toronto
(April 2007) (on file with author).
71. Côté, Kérisit & Côté, supra note 6 at 56-59.
190
(2009) 22 Journal of Law and Social Policy
or who built a life in Canada after initially entering the country illegally. The authority for granting H&C decisions is found in section 25(1) of the IRPA, which states:
The minister shall, on request of a foreign national in Canada who is inadmissible or who
does not meet the requirements of this act and may on the minister’s own initiative or
on request of a foreign national outside Canada examine the circumstances concerning
the foreign national and may grant the foreign national permanent resident status or an
exemption from any applicable criteria or obligation of this act if the minister is of the
opinion that it is justified by humanitarian and compassionate considerations relating to
them taking into account the best interests of a child directly affected or by public policy
considerations.72
Although this provision refers to the minister, H&C applications are evaluated by immigration officers who act on the minister’s behalf.73 These officers have a significant
level of discretion, for they are not required to reach specific or prescribed decisions.
Since H&C considerations are nowhere defined in the Immigration and Refugee
Protection Act, officers rely on a policy manual, called the Immigration Manual,
which sets out guidelines for deciding such cases. According to the Manual, the decisions are meant to “approve deserving cases not anticipated in the legislation”.74
An applicant bears the burden of proof.75 She must provide written submissions that
detail her personal situation and any relevant legal arguments. Applicants must also
submit supporting documents.76 Immigration officers generally make decisions on
the basis of written material alone.77
The H&C procedure has two stages. First, the immigration officer determines whether there are sufficient H&C factors to permit the applicant to apply for permanent
residence without having to leave Canada. The officer may reach a positive decision even if the applicant would ordinarily be prohibited from receiving permanent
residence. At this stage, the officer decides only whether to permit the individual to
seek permanent residence from inside Canada. This does not mean that the status
will ultimately be granted. In some cases, such as those involving issues of security
or possible human rights violations, the officer does not have the authority to allow
the applicant to apply for permanent residence from inside Canada.78 Once a case is
approved in principle, processing for permanent residence will begin and legal status
72.
73.
74.
75.
76.
77.
78.
IRPA, supra note 1 at s. 25(1).
Immigration Manual, supra note 5 at c. IP-5 ss. 4.2, 5.24.
Ibid. at c. IP-5, s. 2.
Ibid. at c. IP-5, s. 5.26.
Regulations, supra note 8 at s. 66; Immigration Manual, supra note 5 at c. IP-5, s. 3.1.
Immigration Manual, supra note 5 at c. IP-5, s. 5.28.
Regulations, supra note 8 at s. 68; Immigration Manual, supra note 5 at c. IP-5, ss. 4.2, 5.6, 5.7. The requirements that applicants must fulfil in order to obtain permanent residence subsequent to a positive
H&C decision are found in subsections 72 (1)(b) and (e) of the Regulations. However, these requirements may be overcome in certain circumstances. See Citizenship and Immigration Canada, “Operational Bulletin 021: Interim Instructions to CIC Officers Concerning the Examination of H&C Ap-
Inadequacies of the Humanitarian and Compassionate Procedure 191
is eventually granted, assuming the applicant is not medically inadmissible, in receipt
of social assistance or subject to another form of inadmissibility.79
The Hardship Criterion
Hardship Defined
According to the Immigration Manual, an H&C applicant must prove that the hardship she would face if forced to apply for permanent residence from outside Canada
would be unusual and undeserved or disproportionate.80 As with H&C considerations, the concepts of undue, undeserved or disproportionate hardship are not defined in legislation. Likewise, the Manual provides little guidance on how officers
should interpret the concept of hardship. It does state that for hardship to be unusual
and undeserved it should be “a hardship not anticipated by the Act or Regulations”
and that the hardship should normally result from circumstances beyond the individual’s control.81 Disproportionate hardship exists where the obligation to leave
Canada would have a more severe impact on an individual because of her personal
circumstances.82 These vague and rather cryptic definitions of hardship provide
scant practical guidance for immigration officers and applicants on what situations
will or will not meet the hardship criterion.
Difficulties in Proving Hardship
Although family violence is briefly mentioned in the Immigration Manual,83 the section on hardship makes no reference to the special circumstances of abused women.
This fact, combined with officers’ broad discretion to decide cases on the basis of
what they consider to be reasonable, makes it very difficult for an abused immigrant
woman to know precisely what she must prove to satisfy the hardship criterion.84 As
Justice Strayer noted in Vidal v. Canada (Minister of Employment and Immigration):
“[I]t is highly desirable that immigration officers have some sort of guidance as
to what factors the Minister thinks important”.85 However, since the Immigration
Manual does not clearly define the hardship factor, knowledge of what will fulfil that
79.
80.
81.
82.
83.
84.
85.
plications (in Canada)” (22 June 2006), online: Citizenship and Immigration Canada <http://www.cic.
gc.ca/english/resources/manuals/bulletins/2006/ob021.asp> [“Operational Bulletin”].
Regulations, supra note 8 at ss. 68, 72(1) (b) and (e); Immigration Manual, supra note 5 at c. IP-5, ss. 5.9,
5.12-5.13.
Immigration Manual, supra note 5 at c. IP-5, s. 5.1.
Ibid. at c. IP-5, s. 6.7.
Ibid. at c. IP-5, s. 6.8.
Ibid. at c. IP-5, s. 13.10.
West Coast Legal Action Education Fund Association, Submission of West Coast LEAF to the Standing Committee on Citizenship and Immigration on Bill C-11, The Immigration and Refugee Protection Act: Equality Considerations in Humanitarian and Compassionate Applications (Vancouver: West
Coast ­Legal Action Education Fund Association, 2001) at ss. 2.0, 2.1, online: Canadian Bar Association
<http://www.cba.org/bc/pdf/submissions/westcoast_leaf_04_01.pdf> [LEAF].
Vidal v. Canada (Minister of Employment & Immigration), (1991), 13 Imm. L.R. (2d) 123 at 134.
192
(2009) 22 Journal of Law and Social Policy
criterion can be gained only by looking to Federal Court case law, to cases in which
H&C decisions have been reviewed.
Trends in H&C decisions regarding abused immigrant women who resort to the process after sponsorship breakdown are nearly impossible to access, since immigration
officers’ decisions are not published. Only from the small number of decisions challenged on judicial review at the Federal Court can conclusions be drawn. H&C cases
that do not involve domestic violence are not especially helpful when evaluating the
challenges the process poses for abused women, unique as their circumstances often
are. An example of two cases with very different outcomes illustrates that immigration officers sometimes assess hardship arbitrarily and inconsistently.
In the case of A.A., the immigration officer reached a favourable decision. The applicant married a Canadian citizen. Subsequent to her marriage, her husband became
very violent and verbally abusive. He also harassed her at her workplace. When A.A.
was at home, her husband frequently beat her and punched her in the face, only to
beg her for forgiveness later. During fits of rage, he knocked many holes in their
apartment walls. Although A.A.’s husband promised to sponsor her, he failed to do
so. He also lied to her about his lengthy criminal record of violent offences. A.A. sustained numerous physical injuries at the hands of her spouse and, when she defended
herself against him, she was charged with assault. In addition to detailing this history
of violence, A.A.’s counsel provided written submissions to demonstrate that A.A.
would suffer hardship if forced to leave Canada. She would lose her entire support
system, including counselling services, educational and employment opportunities
and medical attention. In this case, the immigration officer accepted that A.A.’s situation did indeed meet the hardship criterion.86
In contrast, the H&C application of B.B. was denied. She came to Canada as a visitor
to be with her common-law spouse whom she later married. As in the case of A.A.,
B.B.’s husband told her that he would submit a spousal sponsorship application on
her behalf. Shortly after, he became physically violent. In one incident, he beat B.B.
severely and pulled chunks of hair from her scalp. The police subsequently charged
him with assault. As discussed above, it is not uncommon for a woman to be uninformed about the sponsorship process, hence unable to determine whether or not
all necessary paperwork has been filed. In B.B.’s case, the application for sponsorship
was never submitted. Her husband had lied about his transactions with immigration.
Although B.B.’s spouse begged her to return to him, promising to sponsor her if she
informed law enforcement personnel that she wished to reconcile. B.B.’s lawyer assured her the abuse she suffered would be taken into consideration in her H & C case.
In her application, B.B. explained that she feared her husband would follow her to
her country of origin and that she would not be protected from him there.
86. E-mail correspondence with Melinda Gayda, immigration lawyer, Refugee Law Office in Toronto
(2007) (on file with author).
Inadequacies of the Humanitarian and Compassionate Procedure 193
B.B.’s application was refused. In the immigration officer’s written reasons, he stated
that B.B. had been in a legitimate relationship and had relied on her husband to sponsor her. Even though the officer conceded that she had suffered domestic violence, he
found that B.B. did not satisfy the hardship criterion. He failed to reference the family
violence guidelines in the Immigration Manual, instead blaming B.B. for having married an abusive man. The officer went on to indicate that insufficient evidence had
been provided to corroborate certain facts, even though the applicant had never been
permitted an opportunity to submit this evidence prior to the final decision.87
These two decisions pertain to women in very similar circumstances, both having
believed in vain that they would have sponsorship. The two women were physically abused and both feared a lack of support if returned to their country of origin. Nonetheless, as already pointed out, these cases had very different outcomes.
In the seminal Supreme Court case of Baker v. Canada (Minister of Citizenship and
Immigration), Madam Justice L’Heureux-Dubé noted that, in the case of H&C decisions: “immigration officers are expected to make the decision that a reasonable
person would make”.88 Likewise, in the Immigration Appeal Board case of Chirwa v.
Canada (Minister of Citizenship and Immigration), H&C considerations are defined
as “those facts, established by the evidence, which would excite in a reasonable man
in a civilized community a desire to relieve the misfortunes of another”.89 Unhappily,
with respect to B.B., this logic did not prevail. Although judicial review was sought
in her case, as frequently occurs, leave was not granted.90
The Establishment Criterion
Establishment Defined
The second major criterion that applicants must satisfy, one even more problematic
for abused women than the hardship criterion, is the establishment factor. Abuse
survivors must prove that their level of establishment in Canada is such that they
should not be required to leave the country. The Immigration Manual indicates that,
when assessing the degree of an applicant’s establishment, an officer should examine
whether the individual has a “history of stable employment”, whether the individual
has engaged in “sound financial management”, whether the individual has participated in volunteer work or otherwise integrated into the community, whether the
individual has undertaken any form of study and whether the individual is free of
criminal charges.91 As with the hardship criterion, the discretion afforded immigra-
87. E-mail correspondence with Geraldine Sadoway, immigration lawyer, Parkdale Community Legal
Services in Toronto (30 January 2007) (on file with author) [Sadoway, 30 January].
88. Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at para. 72 [Baker].
89. Chirwa v. Canada (Minister of Citizenship and Immigration), [1970] I.A.B.D. No. 1 at para. 27.
90. Sadoway, 8 January, supra note 69.
91. Immigration Manual, supra note 5 at c. IP-5, s. 11.2.
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(2009) 22 Journal of Law and Social Policy
tion officers gives them considerable latitude when deciding what constitutes sufficient establishment in Canada.92
Difficulties in Proving Establishment
According to the Immigration Manual, establishment need be proven only in certain types of cases. Interestingly, family violence scenarios are one of the categories
listed.93 The requirement that abuse survivors demonstrate establishment reveals a
profound lack of awareness of the daunting barriers that many immigrant women
face. Personal financial resources, steady employment, access to education and community involvement are the very opportunities women need but often do not have
when attempting to extricate themselves from unhealthy relationships. To apply the
same standards of societal integration to abuse survivors as relate to other categories
of applicants who do not face similar obstacles is to exacerbate rather than ameliorate the disadvantaged position the former already hold in society. The establishment
factors entail individual autonomy of a kind that is all but unattainable by abuse
survivors who are still isolated and lacking in self-confidence.94
Confoundingly, a woman who wishes to secure employment to demonstrate establishment is ineligible for a work permit until her application is approved in principle.95 This is unless she already received a work permit under other circumstances,
such as while a refugee claimant or once a spousal sponsorship had been accepted in
principle.96 Ironically, when applying for permanent residence for H&C reasons, a
woman will receive her work permit only after establishment is assessed, rather than
granting her the permit to assist her in establishing herself financially.
The inability to work prior to acceptance in principle often makes it impossible for
women to pay the required processing fees.97 A principal applicant who applies for
permanent residence on H&C grounds must pay $550 for herself and $150 for each of
her dependent children. Before permanent residence status is granted, she must pay
$490 more for herself, the Right of Permanent Residence Fee. Dependent children
are exempt from paying this extra fee.98 Parkdale Community Legal Services and
other community groups began a petition campaign in 2003 to eliminate the H&C
92. See for example Ruiz v. Canada Minister of Citizenship and Immigration, [2006] F.C.J. No. 573 at paras.
13-14 [Ruiz].
93. Immigration Manual, supra note 5 at c. IP-5, s. 11.2.
94. Andrée Côté, “The IRPA and Women” (Ottawa: National Association of Women and the Law, 2006)
at 2, online: National Association of Women and the Law <http://www.nawl.ca/ns/en/documents/
Pub_Brief_Imm06_en.doc> [Côté, IRPA & Women]; McDonald, supra note 37.
95. Regulations, supra note 8 at ss. 200(1), 207(d); Immigration Manual, supra note 5 at c. IP-5, ss. 15, 15.3.
96. Regulations, supra note 8 at ss. 206(a) & (b), 207(b).
97. Côté, Kérisit & Côté, supra note 6 at 40-41.
98. Citizenship and Immigration Canada, “Applying for Permanent Residence from within Canada: Humanitarian and Compassionate Considerations” (2006), online: Citizenship and Immigration Canada
<http://www.cic.gc.ca/english/information/applications/guides/5291E_C.asp> [CIC, H&C Considerations].
Inadequacies of the Humanitarian and Compassionate Procedure 195
application fee in domestic violence cases, but these efforts have been unsuccessful.99
Citizenship and Immigration Canada does not provide loans to assist women to pay
the H&C processing costs. Loans do exist to help them defray the Right of Permanent
Residence Fee, but a woman must prove that the loan is necessary and that she can
repay it.100 Such evidence is frequently very difficult for abused women to provide.
For this reason, some do not apply for H&C consideration at all.101 On the one hand,
our government requires that H&C applicants be “established” while, on the other,
current policy of this same government ensures that this will be very difficult, if
possible at all.
As well, it is difficult for an abuse survivor to demonstrate on judicial review that an
immigration officer reached the wrong conclusion regarding establishment. In the
case of Ruiz, a Chilean woman came to Canada in the company of her daughter and
abusive husband. Although sponsorship breakdown was not involved, the woman
did file an H&C application because of domestic abuse that persisted in this country.
The Federal Court upheld the immigration officer’s finding of insufficient establishment. Justice Teitelbaum acknowledged that the applicant had employment and
savings. He considered this to be insufficient evidence of establishment, however,
because the applicant regularly relied on public assistance to enable her to pay rent.
He found that her establishment was no greater than that demonstrated by others
who had lived in Canada for several years.102 According to the reasoning in Ruiz,
not only must abused immigrant women prove complete self-sufficiency, avoiding
all forms of social assistance, but they must show establishment beyond that of others
who have been in Canada for the same period.
In contrast, in I.G. v. Canada (Minister of Citizenship and Immigration), the Federal
Court overturned a negative H&C decision in which the immigration officer had
determined the applicant to be so self-sufficient that she could simply return to her
home country without incurring hardship.103 Although the applicant was a survivor
of severe physical and sexual abuse at the hands of her husband, for which he was
convicted,104 the immigration officer chose to interpret the applicant’s level of independence and financial success as negative factors. Instead of valuing the applicant’s level of establishment as factors favouring positive H&C consideration, the
officer used the woman’s level of independence against her. He found that she would
not have difficulty adjusting to life back in her home country because she was financially self-sufficient. This decision put the applicant in a no-win situation. Had she
shown insufficient indicia of establishment, she could have been denied a positive
99.
100.
101.
102.
103.
104
Sadoway, 27 May, supra note 43.
CIC, H&C Considerations, supra note 98.
Sadoway, 8 January, supra note 69.
Ruiz, supra note 92 at paras. 20, 34.
I.G. v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1704 (QL) at para. 22.
Ibid. at paras. 15-17.
196
(2009) 22 Journal of Law and Social Policy
H&C decision. Ironically, possessing the exact financial resources that officers seek
meant that she received a negative decision because the officer thought she could
reintegrate into her home country. Fortunately, Justice Lemieux disagreed with the
immigration officer’s decision. He sent the case back to be examined by a different
officer.105
Inadmissibility and the Citizenship and Immigration Canada Operational Bulletin
Decisions to grant permanent residence on humanitarian and compassionate
grounds are made at the discretion of immigration officers. Although section 25(1)
of the Immigration and Refugee Protection Act permits officers to grant permanent
residence on H&C grounds to an individual who is “inadmissible or who does not
meet the requirements of this act”, officers have often made a negative H&C decision where inadmissibility is involved. A positive H&C decision allows an individual
to apply for permanent residence from within Canada but does not automatically
mean that status will be conferred. In the past, even if an officer made a positive
H&C decision, permanent residence was often still denied as the result of a form
of inadmissibility, such as receipt of social assistance. In June 2006, Citizenship
and Immigration Canada published an Operational Bulletin that instructs officers
to weigh any H&C considerations against inadmissibility when applicants request
exemptions from requirements that must ordinarily be fulfilled to receive permanent
resident status. Among others, forms of inadmissibility may relate to an applicant’s
­misrepresentation of material facts or her inability to financially support herself.
However, the weighing of factors for and against granting permanent residence on
humanitarian and compassionate grounds pursuant to the Bulletin does not apply to
all forms of inadmissibility. According to the Bulletin, immigration officers cannot
exempt individuals who have committed human rights abuses or who are considered
security risks from the requirement to be admissible. Such individuals would have to
seek an exemption directly from the minister.106
The Operational Bulletin appears at first glance to signal an important change in
policy that would ensure that applicants who are inadmissible may yet receive status.
However, it is far from clear how effective the policy will be in practice. Immigration
officers remain the arbiters of what is most important—inadmissibility, or humanitarian and compassionate factors. This fact is worrisome. In cases that involve immigrant women who may also be abuse survivors, their unique circumstances render
them more susceptible than other applicants to certain forms of inadmissibility, the
most prevalent form of which will now be considered. However, since the Bulletin is
policy only and not law, inadmissibility will very probably continue to pose significant obstacles.
105. Ibid. at para. 43.
106. “Operational Bulletin,” supra note 78.
Inadequacies of the Humanitarian and Compassionate Procedure 197
Financial Inadmissibility
Section 39 of the Immigration and Refugee Protection Act states:
A foreign national is inadmissible for financial reasons if they are or will be unable or unwilling to support themselves or any other person who is dependent on them, and have not
satisfied an officer that adequate arrangements for care and support, other than those that
involve social assistance, have been made.107
Section 25(1) of the Immigration and Refugee Protection Act, which addresses H&C
applications, in principle, permits “an exemption from any applicable criteria or
obligation of this act”.108 In practice, however, H&C applicants have frequently been
denied permanent residence because they were found inadmissible under section 39
for having relied on social assistance.109
The Immigration Manual indicates that officers are free to make positive H&C
decisions even if an applicant receives social assistance. Such decisions, according
to the Manual, will enable persons to obtain a work permit and hopefully become
self-supporting. If an individual continues to receive social assistance at the time
permanent residence is to be conferred, the final decision may be deferred for a few
more months to give the applicant more time to become financially independent. If
circumstances have not changed after such time, however, the final grant of permanent residence status is to be denied.110
Optimally, guidelines in the Operational Bulletin will reduce the number of situations in which receipt of social assistance prevents women from receiving permanent
residence. The long-term impact of the Bulletin is still uncertain, however. As suggested above, much will depend upon immigration officers’ inclination to balance
inadmissibility against H&C factors.
Indications are that the Operational Bulletin is not yet applied consistently concerning financial inadmissibility. In one case, an immigration officer informed an abuse
survivor with three young children that she must be self-supporting to overcome
financial inadmissibility. Despite provisos in the Operational Bulletin, the officer
failed to exempt her from proof of economic independence. In contrast, another officer exempted a severely abused woman with seven children from the need to prove
she would not receive social assistance.111
As with other H&C parameters, inadmissibility based on receipt of social assistance ignores the plight of many abused women whose only way to feed and house
themselves and their children is to rely on such financial aid. Moreover, the period
107.
108.
109.
110.
111.
IRPA, supra note 1 at s. 39.
Ibid. at s. 25(1).
LEAF supra note 84 at s. 2.2.
Immigration Manual, supra note 5 at c. IP-5, ss. 16.1, 16.14, 16.15.
Sadoway, 27 May, supra note 43.
198
(2009) 22 Journal of Law and Social Policy
between initial receipt of a work permit and the final grant of permanent residence
does not provide women adequate time to become financially self-sufficient. Those
who determine immigration policy must be dissuaded from the simplistic view
that work permits will suffice to end domestic violence survivors’ reliance on social
assistance.112
Family Violence Guidelines
The section of the Immigration Manual that addresses issues of family violence
states:
Family members in Canada, particularly spouses, who are in abusive relationships and are
not permanent residents or Canadian citizens, may feel compelled to stay in the relationship or abusive situation in order to remain in Canada; this could put them at risk. Officers
should be sensitive to situations where the spouse (or other family member) of a Canadian
citizen or permanent resident leaves an abusive situation and, as a result, does not have an
approved sponsorship.113
The Manual goes on to list several additional factors that immigration officers should
consider when assessing H&C applications from persons who have suffered domestic violence. These include how long the applicant has been in Canada, whether she is
pregnant, whether there are potentially restrictive customs in her home country and
proof of abuse such as reports from the police, a physician or a women’s shelter. It is
disquieting that the list of factors includes an assessment of whether a family violence
survivor demonstrates a “significant degree of establishment in Canada”.114 Rather
than exempt abused women from proving establishment, the family violence guidelines specifically highlight this factor. Still worse, the Manual pointedly prohibits
officers from assessing an abused woman’s potential for establishment, reminding
them that the only level of establishment to be considered is what exists at the time
the H&C decision is made.115 Penalizing abuse survivors for not rapidly becoming
self-sufficient is patently unfair.
While the family violence guidelines represent a positive step toward sensitizing officers to issues of domestic violence, they lack any detail and do not explicitly define
what constitutes abuse. Moreover, these guidelines do not educate officers about the
need to make decisions that will assist women to rebuild their lives. Furthermore,
the guidelines make no mention of women’s realities such as fear of approaching the
police116 and the many instances in which women are turned away from shelters
112.
113.
114.
115.
116.
Côté, Kérisit & Côté, supra note 6 at 137.
Immigration Manual, supra note 5 at c. IP-5, s. 13.10.
Ibid.
Ibid. at c. IP-5, s. 11.2.
Adamali, Kim & Rupra, supra note 51 at 17.
Inadequacies of the Humanitarian and Compassionate Procedure 199
with no space available.117 In many situations, providing proof of abuse from police
or medical personnel is simply not possible. The guidelines, in effect, are merely a
list of factors an officer may consider that require no greater attention than any other
criterion set forth in the Manual.
Officers’ Discretion and the Nature of Policy Guidelines
Discretion and Guidelines Defined
According to the Supreme Court of Canada, “[T]he concept of discretion refers to
decisions where the law does not dictate a specific outcome, or where the decisionmaker is given a choice of options within a statutorily imposed set of boundaries”.118
However, given that unlimited discretion is impermissible, courts review discretionary decisions for abuses. Officers commit an abuse of discretion if, for example,
they act with an improper intention in mind, rely on inadequate material, make an
­unreasonable decision, misconstrue the law or adopt a policy that fetters their ability
to consider cases with an open mind.119
As previously noted, the policy manual that immigration officers consult when making H&C decisions constitutes non-binding guidelines. Government ministries and
departments often issue guidelines to guide or constrain bureaucratic decision making, without prescribing certain results.120 Since the guidelines are not the product
of a legislative process, they must be applied flexibly in order to avoid impermissibly fettering officers’ discretion. Policy guidelines must not give rise to imperatives,
but “rough rules of thumb” are acceptable, as long as each case is considered on its
merits.121
Immigration officers choose whether to accept or reject an application based on
their assessment of the evidence. The Manual instructs them to weigh all relevant
evidence and not ignore or place too much emphasis on one particular factor.122 As
discussed above, Baker indicates that officers need only make a decision a reasonable
117. Cassandra Drudi, “Thousands Turned Away from Ottawa Women’s Shelters: Facilities Can’t Keep
Up with Soaring Demand, New Report Shows” Ottawa Citizen (7 October 2008), online: Ottawa
Citizen
<http://www.canada.com/ottawacitizen/news/story.html?id=3607fadc-1a27-4e4e-9679459b778ef35b>; Kristin Cucan, “Women’s Shelters Bursting at the Seams” [Ottawa] Centretown News
(15 September 2008), online: Centretown News Online <http://centretownnewsonline.ca/index.
php?option=com_content&task=view&id=186&Itemid=94>.
118. Baker, supra note 88 at para. 52.
119. David P. Jones & Anne S. de Villars, Principles of Administrative Law, 4th ed. (Toronto: Thomson Carswell, 2004) at 168 [Jones & de Villars].
120. Lorne Sossin & Charles Smith, “Hard Choices and Soft Law: Ethical Codes, Policy Guidelines and the
Role of the Courts in Regulating Government” (2003) 40 Alta. L. Rev. 867 at 868-69.
121. Jones & de Villars, supra note 119 at 192-93.
122. Immigration Manual, supra note 5 at c. IP-5, s. 5.27.
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(2009) 22 Journal of Law and Social Policy
person would make.123 The Immigration Manual states that officers are to reach decisions objectively and impartially. However, the Manual does not specify how much
weight each piece of evidence is to receive; this determination to be the purview of
the officer.124
The Unpredictability of Discretion and the Shortcomings of Guidelines
Since interpretation of the guidelines is subjective, women who file H&C applications have no way to know for certain that domestic violence they may have suffered
will be given significant weight in their case.125 In Jebnoun v. Canada (Minister of
Employment and Immigration), the applicant suffered ongoing physical violence by
her husband. As a result of the woman’s move to a shelter, her spouse withdrew the
sponsorship he had submitted on her behalf. Her subsequent H&C application was
denied.126 On judicial review, Justice Noel found that the family violence guidelines
in the Immigration Manual are “not binding on immigration officers, but serve as a
guide to ensure some coherence and uniformity in decisions”. The justice emphasized
that proof of domestic violence “is not in itself a sufficient ground for the granting of
landing”.127 Thus, even if women have suffered grave mistreatment while in Canada,
their experience is but one factor to be considered, to be given no more weight than
their level of establishment.
In Swartz v. Canada (Minister of Citizenship and Immigration),128 the applicant
sought judicial review of a negative H&C decision in which the immigration officer
failed to apply the guidelines on family violence despite acknowledging that the applicant’s marriage had been extremely abusive. The officer did not analyze how the
applicant’s history of abuse and sponsorship breakdown contributed to the humanitarian and compassionate nature of her case. MacKay J. found that, had failure to
apply the family violence guidelines been the only flaw in the officer’s decision, the
case would not merit reassessment by another officer. Only because the justice found
other unrelated problems with the original decision was the case re-examined. In
regard to the nature of guidelines, MacKay J. stated: “[G]uidelines are guidelines—
they are not law. It would be difficult to intervene simply because one appears to have
been overlooked while others have been followed”.129 This poses a problem for all
H&C applicants, uncertain which guidelines will be weighted most heavily in their
case. In particular, however, immigrant women who have fled abusive situations have
123.
124.
125.
126.
127.
128.
129.
Baker, supra note 88 at para. 72.
Immigration Manual, supra note 5 at c. IP-5, ss. 5.27, 5.30.
Sadoway, 30 January, supra note 87.
Jebnoun v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 844, at paras. 2-4.
Ibid. at para. 8.
[2002] F.C.J. No. 340.
Ibid. at para. 22.
Inadequacies of the Humanitarian and Compassionate Procedure 201
no assurance that the guidelines regarding family violence will be privileged above
others.
Immigration lawyers who advocate on behalf of abuse survivors cannot tell their clients with confidence that domestic violence will be seriously considered in an H&C
application. In a recent case, a woman with three young children sought refuge in a
shelter to escape from her abusive spouse. She subsequently returned to him because
she feared that he would no longer continue to sponsor her. Although the woman’s
lawyer would have preferred that she permanently separate from her husband and
rely on the H&C process, the client was afraid to do so because she heard from others
in the community that the outcome of the process was uncertain.130
Also, inconsistent decision making in the A.A. and B.B. cases, related above, clearly
reflects officers’ personal attitudes toward the relevance of domestic violence. The
Immigration Manual unquestionably favours applicants who are socially and economically most successful, this in conflict with the stated goal of H&C applications
to “uphold Canada’s humanitarian tradition”.131
Effect of Negative H&C Decision
Judicial Review
The Process
The only means by which a woman can challenge a negative H&C decision is to
apply to the Federal Court for judicial review. Under the Immigration and Refugee
Protection Act, judicial review is not automatic. The court must grant leave. If leave
is granted, the Federal Court will examine the immigration officer’s decision and the
grounds on which it is challenged. The Court either upholds the decision or returns
the case for reassessment by a different officer.132
It is extremely difficult to obtain leave for judicial review if a woman lacks legal counsel to make written arguments regarding the officer’s error in her H&C case. Leave is
granted in roughly 23 per cent of cases that seek judicial review.133 If leave is granted,
counsel also plays a crucial role in presenting oral arguments to the Federal Court.
Unfortunately, legal aid is frequently unavailable, depending on whether a program
130.
131.
132.
133.
Sadoway, 8 January, supra note 69.
Immigration Manual, supra note 5 at c. IP-5, s. 2.
IRPA, supra note 1 at ss. 72-75; Federal Courts Act, R.S.C. 1985 at c. F-7, s. 18.1.
Federal Court of Canada Statistics, online: Federal Court of Canada <http://cas-ncr-nter03.cas-satj.
gc.ca/portal/page/portal/fc_cf_en/Statistics>. The precise percentage of humanitarian and compassionate applications granted leave by the Federal Court is unavailable. However, on the basis of the
court’s quarterly statistics, the number of cases granted leave appears to be approximately 23%. However, this number includes all immigration-related applications for judicial review, excluding refugee
cases. Thus it is still unclear whether the leave rate for H&C cases is higher or lower than other types
of immigration-related cases.
202
(2009) 22 Journal of Law and Social Policy
exists in the province where a woman resides.134 In Ontario, for example, despite the
existence of legal aid, funding for judicial review is not guaranteed.135
Standard of Review
The standard upon which the Federal Court reviews H&C decisions is reasonableness, previously called reasonableness simpliciter.136 As the court commented in
Legault v. Canada (Minister of Citizenship and Immigration): “[I]t is not the role of
the Federal Court to re-examine the weight given by an Immigration Officer to the
various factors considered by that officer”.137 In Canada (Director of Investigation
and Research) v. Southam Inc., the Supreme Court of Canada described an unreasonable decision as one not “supported by reasons that can stand up to a somewhat
probing examination”.138 As stated by the Supreme Court in Law Society of New
Brunswick v. Ryan: “A decision may satisfy the standard of review if supported by a
tenable explanation, even if that explanation is not one that the reviewing court finds
compelling”.139 In other words, immigration officers are free to make any decisions
that are reasonably open to them based on the facts of a case. Therefore, it is difficult
for a woman to prove that the H&C decision made in her case is unreasonable.
The 2008 Supreme Court case of Dunsmuir v. New Brunswick collapsed the three
previous standards of review of patent unreasonableness, reasonableness simpliciter
and correctness into two: reasonableness and correctness.140 Describing the standard that a discretionary decision must meet in order to be upheld, the Court in
Dunsmuir states:
Tribunals have a margin of appreciation within the range of acceptable and rational solutions … [R]easonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with
whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.141
However, it is still unclear what the terms “justification”, “transparency” and “intelligibility” mean in regard to the reasonableness of particular H&C decisions.
Under the standard of reasonableness conceptualized in Dunsmuir, the Federal Court
continues to show deference to immigration officers’ decisions. The Dunsmuir deci134. Canadian Council for Refugees, “H&C Issues: Issues for H&C Roundtable, 27-28 March 2006”, online:
Canadian Council for Refugees <http://www.web.ca/~ccr/H%26CMarch2006.html> [CCR].
135. Legal Aid Ontario, Area Office Policy Manual (Toronto: Legal Aid Ontario, 2008) at c. 5-5.
136. Baker, supra note 88 at para. 62; Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at paras.
44–45 [Dunsmuir].
137. Legault v. Canada (Minister of Citizenship and Immigration), 2002 FCA 125, [2002] F.C.J. No. 457 at
para. 11.
138. Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748 at para. 56.
139. Law Society of New Brunswick v. Ryan, 2003 SCC 20, [2003] 1 S.C.R. 247 at para. 55.
140. Dunsmuir, supra note 136 at paras. 44-45.
141. Ibid. at para. 47.
Inadequacies of the Humanitarian and Compassionate Procedure 203
sion states: “[D]eference requires respect for the legislative choices to leave some
matters in the hands of administrative decision makers, for the processes and determinations that draw on particular expertise and experiences”.142 It is too soon
to pronounce on whether the reasonableness standard elaborated in Dunsmuir will
have any impact, either positive or negative, on judicial review of H&C decisions.
However, what is clear is that officers’ wide discretion remains unchanged.
Even if a Federal Court judge believes that an applicant’s circumstances merit compassion, he or she is often reticent to set aside a decision if the reasons for that decision are not clearly unreasonable. In Ruiz the judge commented: “I feel sadness and
empathy for the applicants and the problems they had to endure at the hands of
Mr. Espinosa, but the H&C Decision is reasonable and the law does not allow me
to interfere”.143 Needless to say, the inability of sympathetic judges to redress errors
committed by insensitive immigration officers underscores the need to ensure that
humane and sensitive decisions are made at the first instance.
Stays of Removal
Another significant barrier when challenging a negative H&C decision is that stays of
removal are not automatically granted to individuals who undergo the H&C process.
A woman may actually be removed from Canada before the initial determination is
made on her H&C application, especially since decisions of this kind are not reached
expeditiously.144 Also problematic is the possibility that a woman will be removed
while she awaits the outcome of an application for judicial review before the Federal
Court. In brief, no automatic stay operates to ensure that women may complete the
entire H&C process, including the right to challenge a negative decision, while still
present in Canada.145 Reliable predictions are difficult to make regarding whether
women who have pending H&C decisions or who have applied for judicial review
will receive a stay.146 To succeed in her application for a stay, a woman must satisfy
the Federal Court that she has a serious issue to be tried, that she would suffer irreparable harm if removed from Canada and that the balance of convenience favours
her.147
Recommendations for Reform
Ideally, we could look forward to extensive reform in Canadian immigration law
that would address the unique needs of abused immigrant women. Included in such
142.
143.
144.
145.
146.
147.
Ibid. at para. 49.
Ruiz, supra note 92 at para. 35.
Immigration Manual, supra note 5 at c. IP-5, s. 5.10; LEAF, supra note 83 at s. 2.4.
Sadoway, 8 January, supra note 68.
LEAF, supra note 84 at s. 2.4; Sadoway, 8 January, supra note 69.
Toth v. Canada (Minister of Employment and Immigration), (1988) 6 Imm. L.R. (2d) 123 (FCA).
204
(2009) 22 Journal of Law and Social Policy
reform would be amendments to the Immigration and Refugee Protection Act that
pertain to the H&C procedure as well as the development of new or revised statutes
that speak to the special problems of women who are susceptible to sponsorship
breakdown. Regrettably, sweeping changes are unlikely in the short term. More realizable and surely necessary are modifications of the kind discussed below.
Some commentators call for complete abolition of the spousal sponsorship regime.
They emphasize the many ways that it contributes to the subordination and inequality of immigrant women.148 Although I agree wholeheartedly with their criticisms,
I submit that complete elimination of sponsorship would disadvantage women who
have no other means to join their husbands in Canada. It is preferable to retain the
concept of sponsorship while strengthening protections for women who find themselves in situations of sponsorship breakdown.
The H&C Procedure
Simpler and more likely than legislative amendment or regulatory change would be
for the minister to amend the guidelines in the Immigration Manual or ­develop a
Spousal Sponsorship and Family Violence Public policy. Section 25 of the Immigration
and Refugee Protection Act specifically permits the creation of “public policy” exceptions, categories of individuals whose permanent residence applications may be
granted on the basis of special circumstances.149 Unlike the guidelines in the manual
used by immigration officers, issues of discretion do not arise when the minister
sets public policy under section 25. As noted by the Federal Court in both Aqeel v.
Canada (Minister of Citizenship and Immigration) and Dawkins v. Canada (Minister
of Employment and Immigration),150 public policy exceptions prescribed by the minister do not fetter immigration officers’ discretion because officers do not have the authority to modify or extend public policy. Therefore, creating a Spousal Sponsorship
and Family Violence policy under the exception could allow for special consideration
without the concern that officers’ discretion was impermissibly constrained.
However, were the minister unwilling to create a public policy regarding spousal
sponsorship and family violence, the Immigration Manual could be amended to
weight domestic violence more heavily than other factors favouring a positive H&C
decision. Even were the Manual strengthened to presume a favourable exercise of
discretion in most cases of domestic violence and sponsorship breakdown, such a
guideline would not impermissibly fetter officers’ discretion. The Federal Court of
Appeal case of Thamotheram v. Canada (Minister of Citizenship and Immigration)
states: “[A]s Maple Lodge Farms makes clear, the fact that a guideline is intended to
establish how discretion will normally be exercised is not enough to make it an unlaw148. Côté, Kérisit & Côté, supra note 6 at 171.
149. IRPA, supra note 1 at s. 25(1); Immigration Manual, supra note 5 at c. IP-5, s. 5.22.
150. Aqeel v. Canada (Minister of Citizenship and Immigration), [2006] FCJ No. 1895 at paras. 21-25.
Inadequacies of the Humanitarian and Compassionate Procedure 205
ful fetter, as long as it does not preclude the possibility that the decision-maker may
deviate from normal practice in the light of particular facts”.151 Therefore, officers
would ultimately retain the right to deviate from the domestic violence guideline.
In short, the form in which the recommendations discussed below are implemented,
and whether they must be carefully tailored to avoid fettering discretion, will depend to some extent on whether they become part of a public policy or strengthened
guidelines in the Immigration Manual. Further discussion and exploration of this
issue is needed in order to determine which vehicle is preferable and most feasible
for implementing changes in the H&C procedure.
Undue Hardship
Citizenship and Immigration Canada should accept proof of domestic violence in
Canada as generally sufficient to justify the need for landing, rather than requiring
women to demonstrate undue or disproportionate hardship.152 Abuse endured in
Canada, rather than suffering that might occur if removed from the country, would
become the central criterion upon which permanent residence would be granted.
It is important that women know their permanent residence application has a high
probability of approval.
A Spousal Sponsorship and Family Violence Public Policy or amended Immigration
Manual must clearly define domestic violence with illustrative examples of physical,
psychological, emotional and economic mistreatment so that immigration officers
may correctly assess whether or not a woman has suffered domestic abuse. Any
threatening and controlling behaviour that limits the autonomy and freedom of
women should be taken into account by officers. When deciding whether a woman
has submitted sufficient proof of abuse, officers should be required to accept all credible and relevant evidence. If corroborating data are not available, officers should be
explicitly authorized to base their findings solely on a woman’s sworn statement, as is
the case in refugee decisions.153
What Is Reasonable?
When assessing the H&C applications of women whose spousal sponsorship has
broken down, immigration officers sometimes blame women for having married
men they knew to be violent. In their written reasons for denying an application, officers sometimes claim that the woman’s lack of legal status is of her own making.154
Thus, Citizenship and Immigration Canada must ensure that any new policy requires
immigration officers to assess actions in terms of what is reasonable to expect of a
domestic violence survivor instead of reaching decisions predicated solely on their
151. Thamotheram v. Canada (Minister of Citizenship and Immigration), [2007] FCJ No. 734 at paras. 11,
73-74, 78; Maple Lodge Farms LTD v. Canada, [1982] 2 S.C.R. 2, at paras. 6-7.
152. Sheppard, supra note 2 at 40-41.
153. Maldonado v. Canada (Minister of Employment and Immigration), [1979] F.C.J. No. 248 (FCA) at para. 5.
154. Sadoway, 30 January, supra note 87.
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personal opinions about what constitutes plausibility. Abused women’s applications
should succeed in most cases, unless there is convincing evidence of a false story of
abuse or fraudulent marriage.
In the context of refugee status determinations, Canadian law recognizes that special
care is necessary when evaluating the reasonableness of an abused woman’s actions.
Women sometimes marry men they know to be abusive with the hope that their husbands will change. Also, women do not always leave an abusive situation at the first
opportunity. This does not signify, of course, that they are not at risk of persecution
and in need of protection.155 This level of appreciation of women’s experiences must
find its way into the public policy document or Immigration Manual. In the Supreme
Court case of R. v. Lavallee, in which a domestic abuse survivor shot her partner in
self-defence, Wilson J. stated:
If it strains credulity to imagine what the “ordinary man” would do in the position of a
battered spouse, it is probably because men do not typically find themselves in that situation. Some women do, however. The definition of what is reasonable must be adapted to
circumstances which are, by and large, foreign to the world inhabited by the hypothetical
“reasonable man”.156
This is not to say that all immigrant women without permanent status who experience domestic violence in Canada will automatically receive a positive H&C decision. In some cases, for example, infrequent incidents of relatively minor violence or
control may appropriately receive little weight by an immigration officer. However,
the officer’s consideration of domestic violence must always be context-specific. For
example, a case may present few indicia of physical abuse but significant psychological abuse may nevertheless exist. Therefore, issues around how to determine
what experiences of domestic abuse merit a favourable H&C decision require far
more discussion.
Establishment
Abuse survivors must be entirely exempt from the requirement to prove establishment. Given frequent lack of French or English language skills, limited financial resources, poor employment prospects, child-care responsibilities and, at times, complete isolation, the criterion is discriminatory and often impossible for many women
to meet. To instruct immigration officers to place stress on social integration or to
emphasize current and potential establishment in Canada is to grossly oversimplify
the evaluation problem.
Inadmissibility
The Operational Bulletin on inadmissibility is insufficient to assure that women will
not be penalized for relying on social assistance, for fighting back in self-defence
155. Araujo Garcia v. Canada (Minister of Citizenship and Immigration), [2007], at paras. 23-27, 29; Elcock
v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1438, at paras. 10, 12-17.
156. R. v. Lavallee, [1990] 1 S.C.R. 852, at paras. 31-34, 38.
Inadequacies of the Humanitarian and Compassionate Procedure 207
against abusers or for unintentionally conveying misinformation. The Bulletin notwithstanding, the decision to overlook an instance of inadmissibility occurs only at
the discretion of the immigration officer. In cases that involve women who flee domestic abuse, reliance on social assistance must not adversely influence evaluation of
an application for permanent residence.157
Other Reforms
H&C Processing Fees
In recognition of abused women’s frequently precarious economic status and the obstacles they face when seeking financial self-sufficiency, Citizenship and Immigration
Canada should either eliminate H&C processing fees for abused women applying on
H&C grounds or implement a loan program that reflects adverse circumstances of
abuse survivors. In conjunction with these loans, workshops or other forms of assistance would be helpful to aid women in securing employment.
Stays of Removal
Indisputably, most immigrant women will be especially vulnerable after having just
left an abusive relationship. For this reason, abuse survivors who have submitted an
H&C application should be granted an automatic stay of removal, the duration of
which would be sufficient for processing the application and pursuing judicial review
if necessary.158
Training of Personnel
Both immigration officers and Federal Court judges should receive ongoing training
in issues of domestic abuse.159 They should be obligated to treat such cases favourably unless convincing negative evidence precludes a positive decision. In addition,
Citizenship and Immigration Canada personnel should be obligated to interact
equally with both spouses to ensure that women are not ignored during the sponsorship process. In this vein, it would be helpful if staff could provide women with
157. LEAF, supra note 84 at s. 2.2.
158. CCR, supra note 134.
159. For example, see L. McClenaghan (on behalf of the deputy attorney general of Canada), Respondent’s
Memorandum of Argument in the Case of M.H. v. Canada (Minister of Citizenship and Immigration)
(Toronto, 2006). This Memorandum of Argument, on behalf of the government, relates to a leave application for judicial review sought by an immigrant domestic violence survivor whose H&C decision
was turned down. The immigration officer did not even refer to the family violence guidelines in the
Immigration Manual. In his Memorandum of Argument, counsel for the government states at paragraph
18: “While there is the submission that the Officer displayed a ‘startling lack of understanding of the
situation of domestic abuse’ and was ‘clearly insensitive to [the Applicant’s] situation’, these are emotional and not legal submissions supported by any objective facts and as such do not provide any basis
for the Court’s intervention”. Comments like these, made by government officials, indicate the extent to
which members of the judiciary and immigration personnel need to be sensitized to the circumstances
of abuse survivors. It is unacceptable for immigration officers and government counsel alike to treat
insensitivity to domestic violence as irrelevant.
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information about their rights in their native language. Likewise, Citizenship and
Immigration Canada should take pains to inform both parties to a sponsorship that
domestic abuse can be a violation of the criminal law.
Conclusion
The focus in this paper has been the plight of immigrant women whose spousal
sponsorship breaks down as a result of domestic violence. More specifically, I have
critiqued the shortcomings in the H&C process, which remains their sole recourse
for attaining permanent resident status. I have attempted to strike a balance between
the need for radical change and the fact that incremental modifications of immigration policy have a greater chance for implementation. Hopefully, changes like those
outlined above will lead to reformulation of immigration law that will be more sensitive to the difficulties abused immigrant women face in our country.
Finally, we must work to increase collaboration between Citizenship and Immigration
Canada personnel and specialists in the field. Women must have access to competent
legal representation, culturally sensitive shelter services, subsidized language training, child day care and financial assistance such as the Canada Child Tax Benefit.
Social integration and financial independence for abuse survivors who find themselves alone deserve our help.
To Serve Some and Protect Fewer: the Toronto Police
Services’ Policy on Non-Status Victims
and Witnesses of Crimes
Abigail Deshman*
Résumé
Les immigrants de fraîche date sont souvent confrontés à de formidables barrières
linguistiques, culturelles et institutionnelles qui font obstacle à leur capacité à se prévaloir des services élémentaires de protection et d’assistance de la police. De surcroît,
les membres de la communauté qui sont sans statut officiel en matière d’immigration
sont confrontés à la préoccupation dominante additionnelle que leur contact avec la
police mènera à la déportation. Pour répondre à ces inquiétudes, le Toronto Police
Services Board (TPSB) [la Commission des services de police de Toronto] entreprit
une étude de faisabilité d’une politique ‘don’t ask, don’t tell’ (« Ne questionnez pas,
N’informez pas ») pour les victimes et les témoins de crimes. La mise en application d’une telle politique signifierait que la police ne s’enquerrait pas du statut en
matière d’immigration de victimes et de témoins. Au cas où la police recevrait de
tels renseignements, elle s’assurerait que les renseignements personnels soient traités confidentiellement et « n’en informerait pas » les autorités fédérales en matière
d’immigration.
Cependant, en raison de controverses entourant les implications légales et politiques
de la disposition « N’informez pas », la politique fut finalisée sans une clause de
confidentialité. Cet article examinera les obstacles confrontant les immigrants sans
statut, la politique proposée par la TPSB en réaction à ces problèmes, et les controverses juridiques et de politique publique qui ont accompagné son adoption. L’article
fera aussi appel à l’expérience comparative issue de la mise en œuvre d’une disposition similaire dans la ville de New York. Finalement, l’article conclut qu’il serait tout à
fait possible légalement d’avoir une politique plus étoffée et qu’il semble peu probable
que la politique établie à Toronto puisse atteindre ses buts de rassurer les membres de
la communauté qui sont sans statut et d’augmenter la sécurité communautaire.
Introduction
All individuals in Canada, regardless of their immigration status, should have access
to basic police protection. Traditionally, however, the Toronto police have been free
*
Abigail Deshman is the project director for the Canadian Civil Liberties Association; JD University of Toronto Faculty of Law (2008). The opinions in this paper are those of the author and do not necessarily represent the position of the Canadian Civil Liberties Association. This paper reflects the law as of June 2009.
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to inquire about, report on and, under certain circumstances, enforce compliance
with immigration statutes.1 As the number of people living in Toronto without immigration status has continued to grow, there has been an increasing awareness of the
extent to which casual police investigations into immigration status effectively create
a population without access to police services. The impact on the physical safety of
non-status individuals, surrounding community members and community–police
relations in general can be devastating.
In recognition of the barriers non-status individuals face in accessing police services,
the Toronto Police Services Board [Board] set up a working group to examine the
feasibility and scope of a proposed “Don’t Ask, Don’t Tell” policy for victims and
witnesses of crime. In its most comprehensive and robust form, such a policy would
consist of two directives. First, the “Don’t Ask” portion would prevent police officers
from inquiring into victims’ or witnesses’ immigration status. Second, the “Don’t
Tell” portion would mandate that the police treat victims’ and witnesses’ personal
information as confidential, thereby restricting police officers’ ability to communicate this information to federal immigration and border services agencies. In late
2008, the Toronto Police Services Board [TPS] finalized their Victims and Witnesses
without Legal Status policy directive.2 While the final version included a “Don’t Ask”
component, restricting officers’ ability to question victims and witnesses about their
immigration status, the Board declined to include a “Don’t Tell” clause.3
This article examines the current TPS policy on victims and witnesses without legal
status and evaluates the legal and policy arguments raised both for and against a
robust “Don’t Ask, Don’t Tell” policy with respect to non-status individuals. The
second part of this article summarizes some of the major barriers that recent migrants regularly face when interacting with police officers. The third part focuses on
Toronto and details the experiences of non-status persons in their interactions with
police. These individual accounts offer an insight into the adverse impact that the
fear of deportation can have on both individual and community safety. The fourth
part describes the TPS’s past and current policy towards non-status victims and witnesses of crime. The following two parts examine legal and policy controversies surrounding the Toronto “Don’t Ask, Don’t Tell” policy. For example, the article will ask
from a legal perspective if police officers have a legal obligation to enforce federal
1.
2.
3.
William Blair, chief of police, “Review of a Complaint about Police Service Policy – File #2004-ext0857 – Immigration Status”, in “Minutes of the Public Meeting of the Toronto Police Services Board”
(11 August 2005), online: Toronto Police Services Board <http://www.tpsb.ca/FS/Docs/Minutes/2005>
at 6 [TPSB August 2005].
Toronto Police Services, Victims and Witnesses without Legal Status, online: Toronto Police Service
<http://www.torontopolice.on.ca/publications/files/victims_and_witnesses_wthout_legal_status.pdf>
[TPS, Victims and Witnesses].
Toronto Police Services Board, “Minutes of the Public Meeting of the Toronto Police Services Board” (20
November 2008), online: Toronto Police Services Board <http://www.tpsb.ca/FS/Docs/­Minutes/2008>
at 55 [TPSB November 2008].
To Serve Some and Protect Fewer 211
immigration laws when they suspect a violation of these provisions. The article will
also ask from a policy perspective if there are national security implications of a full
“Don’t Ask Don’t Tell” policy, and finally, whether the partial policy that was ultimately adopted by the Board actually works.
Although the Toronto policy has not been in place long enough to definitively assess its impact on police relations with non-status individuals and communities in
general, I attempt to show how such policies can be put into operation by drawing
on recent experiences interpreting and implementing a similar policy in New York
City. Ultimately, I conclude that a more robust policy would be legally permissible
and that the Toronto policy as it is written is unlikely to achieve its goal of reassuring
non-status community members and increasing community safety.
Barriers Faced by Recent Migrants When Accessing Police
Services
The rapid rise in the number of migrants and minority ethnic populations over the
past few decades has brought increased attention to the significant barriers these
recent migrants face when attempting to access municipal services generally, and
police services specifically. Numerous studies have detailed the adverse impact that
linguistic and cultural differences can have on the relationship between a migrant
community and the police. Migrant communities also frequently face additional
socio-economic and organizational obstacles that hamper their efforts to educate
their peers and advocate for reform to policing practices. Below is an overview of
major barriers identified in the literature.
Language Barriers
Language represents the most universal barrier that new migrants face when attempting to access police services. In Toronto, approximately 1.36 million people
out of a population of approximately 5.1 million use a language other than English
or French as their primary language at home, and 212,900 people in Toronto have no
knowledge of either official language.4 Moreover, statistics indicate that these figures
are on the increase: between 2001 and 2006, the number of people in Ontario who
used a language other than English or French as their primary language at home
increased by nearly 275,000; the number of people with no knowledge of either official language increased by nearly 34,000.5 Not surprisingly, the vast majority of this
4.
5.
Figures based on Statistics Canada, 2006, “2006 Census Highlight Tables, Population by Language
Spoken Most Often at Home and Age Groups, 2006 Counts”, cited in Karen Cohl & George Thomson, “Connecting across Language and Distance: Linguistic and Rural Access to Legal Information
and Services,” final report of the Linguistic and Rural Access to Justice Project, Law Foundation of
Ontario (December 2008) online: Law Foundation of Ontario <http://www.lawfoundation.on.ca/pdf/­
linguistic_rural_report_dec2008_final.pdf> at 11.
Ibid. at 10.
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increase is attributable to immigration. According to Citizenship and Immigration
Canada, between 2002 and 2006 well over a third of the 644,845 new permanent
residents settling in Ontario spoke neither English nor French.6 Similarly, across
Canada, 42.5 per cent of spouses and dependents of new economic class migrants,
41.5 per cent of family class immigrants and 37 per cent of refugees were unable to
communicate in either official language.7 For a very large proportion of new migrants, therefore, effective communication with the average police officer is all but
impossible.
Given the sheer number of individuals in the Toronto area with no knowledge of
English or French, it is not surprising that language is a primary obstacle in new
migrants’ abilities to access police services. Indeed, in a recent study of Torontoarea Chinese immigrants, only about 19 per cent of respondents surveyed reported
no problems communicating with the police in English and 94 per cent stated that
there were not enough bilingual police officers in the city.8 Studies conducted across
North America have consistently confirmed that, irrespective of whether the migrant is a witness, victim, or suspect, language is a primary difficulty when dealing
with police.9
Miscommunications can also worsen relations between the community and police.
Links have been drawn between language ability and an individual’s perceptions
of police helpfulness, concern and fairness, and the extent to which the individual
believes police are responsive to neighbourhood issues.10 In the Toronto study of
Chinese immigrants referenced above, the researchers found that “poor communication” was the most powerful predictor of whether an individual would perceive
“police prejudice against Asians.”11
The consequences of the language barrier often go further than simply creating a
barrier to services. Migrants within culturally and linguistically isolated communities may have a limited understanding of police protocols and procedures, inhibiting
Ibid. at 12.
Ibid. Figures are from Statistics Canada, 2006, 2006 Census of Population, Statistics Canada catalogue
no. 97-557-XCB2006021.
8. Doris C. Chu & John Huey-Long Song, “Chinese Immigrants’ Perceptions of the Police in Toronto,
Canada” (2008) 31:4 Policing: An International Journal of Police Strategies & Management 621. Note
that as a result of the methodology of the source paper, which drew its participants from community
service organizations in Toronto, these figures are likely higher than the actual figures within the Toronto Chinese immigrant community as a whole.
9. See e.g. ibid.; Leigh Culver, “The Impact of New Immigration Patterns on the Provision of Police
Services in Midwestern Communities” (2004) 32 Journal of Criminal Justice 329 at 336; Wesley G.
Skogan, Lynn Steiner, Jill DuBois, J. Erik Gudell, & Aimee Fagan, Community Policing and “The New
Immigrants”: Latinos in Chicago (Evanston, IL: Institute for Policy Research Northwestern University,
2002).
10. Skogan et al., ibid. at 19-20.
11. Chu & Song, supra note 8 at 623.
6.
7.
To Serve Some and Protect Fewer 213
their pursuit of legal remedies and hampering their ability to learn their legal rights
and obligations in their new home.12 In one study, officers policing in a community
with high immigrant concentrations reported that routine traffic stops took twice as
long when dealing with non-English-speaking residents, and that often they would
not pursue a violation because they were of the opinion that even if they did give the
individual a ticket or a citation, he or she would not understand what to do with it.13
Moreover, an individual’s lack of information on local laws, policy and procedure can
easily be misunderstood by officials and lead police officers to draw negative inferences. During a New York City consultation between immigrant communities and
police, a Mexican community leader noted that when assessing the credibility of two
residents in a dispute, the police tended to favour the one that speaks English more
fluently.14 As explained by Menjívar and Bejarano, “Police authorities may complain
that language and cultural barriers get in the way of communicating with immigrants, [and immigrants] may be perceived as uncooperative and suspicious.”15
Cultural Barriers
Cultural differences—both generally in terms of community practice, and specifically
in terms of individuals’ previous relations with state law-enforcement agencies—can
also have a large impact on how individuals relate to police.16 Although the cultural
influences that affect immigrants’ interactions with police are varied and depend
greatly on the background of the specific individuals involved, several trends should
be noted. One recurring theme is that immigrants often come from countries where
police forces are corrupt and ineffective, and traditionally, few conflicts are resolved
by calling the police.17 Studies indicate that an individual’s willingness to report a
crime is directly related to prior experiences with the police, and victims are more
likely to report violent crime to the police if they or those close to them have had
positive experiences with the police in the past.18 The impact of prior experience may
be particularly strong for refugees who have been traumatized by state persecution
12. Mark R. Pogrebin & Eric D. Poole, “South Korean Immigrants and Crime: A Case Study” (1990) 17:3
Journal of Ethnic Studies 47 at 1.
13. Culver, supra note 9 at 336.
14. Anita Khashu, Robin Busch, Zainab Latif, & Francesca Levy, “Building Strong Police–Immigrant
Community Relations: Lessons from a New York City Project” (2005), online: Vera Institute of Justice
<http://www.vera.org/download?file=83/300_564.pdf> at 16.
15. Cecilia Menjívar & Cynthia L. Bejarano, “Latino Immigrants’ Perceptions of Crime and Police Authorities in the United States: A Case Study from the Phoenix Metropolitan Area” (2004) 27:1 Ethnic
and Racial Studies 120 at 139.
16. Ibid.; Simon Holdaway, “Police Race Relations in England and Wales: Theory, Policy, and Practice”
(2003) 7 Police & Society 49.
17. Menjívar & Bejarano, supra note 15 at 126.
18. Mark Conway & Sharon I. Lohr, “Longitudinal Analysis of Factors Associated with Reporting Crime”
(1994) 10:1 Journal of Quantitative Criminology 23 at 37.
214
(2009) 22 Journal of Law and Social Policy
and mistreatment. Past persecution by authority figures can result in post-traumatic
stress disorder and a tremendous fear of all law enforcement agents. In a New York
focus group, one African refugee stated that for many years after he had arrived and
safely landed in the United States, the mere sight of a police uniform and gun made
him tremble uncontrollably.19
Lack of Social Support Structures
Community empowerment and a collective voice have been found to be very important factors in determining whether people feel comfortable contacting police and reporting on crime.20 Those who have recently immigrated are often isolated from the
larger community, are vulnerable and lack civic engagement.21 Research indicates
that when migrants need help they turn first to family and friends.22 However, family
and friends may not be any more knowledgeable about the legal and policy context
than the individual in need of assistance.23
Self-organizing community efforts are relatively rare. Many new migrants do not
know how to communicate their concerns to politicians or decision-makers. Those
who have never lived in a functioning democracy may not know how the political
system works, and many others are skeptical that those who wield public power will
be responsive to their concerns.24 Furthermore, for many recent migrants the daily
struggle for economic survival leaves very little free time for community or volunteer
work.25 More formal support networks can also be limited, and though Toronto has a
number of community resource centres and legal clinics directed specifically towards
new migrants and non-English speakers, it is indisputable that new migrants often
remain highly marginalized. The dearth of community organizations representing
migrants, and the limited funding for those groups that do exist, means that the needs
and concerns of many of these communities remain unvoiced and unaddressed.
19. Khashu et al., supra note 14 at 16.
20. Robert C. Davis & Nicole J. Henderson, “Willingness to Report Crimes: The Role of Ethnic Group
Membership and Community Efficacy” (2003) 49:4 Crime & Delinquency 564 at 577.
21. Sarah V. Wayland, “Unsettled: Legal and Policy Barriers for Newcomers to Canada” (2006), online: Law
Commission of Canada and Community Foundations of Canada, online <http://canada.metropolis.
net/publications/pf_9_ENG_Immigration.pdf> at 21.
22. Ibid.
23. Ibid.
24. Ibid.
25. Khashu et al., supra note 14 at 20-21.
To Serve Some and Protect Fewer 215
Police and the Non-Status Community: The Experiences of
Toronto-Area Residents
There is no census data or reliable published statistics regarding the number of nonstatus persons living in Canada. Estimates have ranged from 200,00026 to 400,00027
across the country, with the majority of individuals likely living in Toronto and other
large urban centres.28 These communities face the typical cultural, linguistic and
socio-economic barriers of recent migrants. In addition, however, they must confront the fear that their interactions with police will expose their immigration status,
eventually leading to deportation.
Studies have repeatedly shown that the fear of deportation acts as a strong deterrent
to communicating with law-enforcement agencies.29 Within Toronto there have been
numerous documented incidents in which non-status victims of crime have refused
to approach the police for fear of deportation.30 In 2005, for example, a non-status
teenager was robbed at gunpoint near the north end of the city. The eighteen-yearold refused to approach the police and report the crime for fear that he and his family
would be deported.31
Non-status community members are also frequently more socially marginalized than
the average new migrant. In one Toronto-area study of non-status individuals, re26. Peter Cheney & Colin Freeze, “200,000 May Be in Canada Illegally: Economic Underclass Faces Bleak
Future, But Now Everyone Supports Amnesty” Globe and Mail (26 May 2001).
27. Grant Robertson, “Canada Has No Handle on Illegal Immigrant Workers,” Edmonton Journal (30 May
2005).
28. Ontario Council of Agencies Serving Immigrants, “Campaign to Regularize Non-Status Immigrants:
Questions and Answers about Non-Status Canadians,” online: <www.ocasi.org/downloads/Status_
Questions.pdf>.
29. Menjívar & Bejarano, supra note 15 at 134-36. See also Samuel Walker, “Complaints against the Police:
A Focus Group Study of Citizen Perceptions, Goals, and Expectations” (1997) 22:2 Criminal Justice
Review 207 at 215-16.
30. See e.g. Carolina Berinstein, Jean McDonald, Peter Nyers, Cynthia Wright & Sima Sahar Zerehi,
“Access Not Fear: Non-Status Immigrants & City Services” (2006) online: <http://www.tsci.ca/files/
ET_Readings/Access_Not_Fear_Report.pdf> at 22-23 [Berinstein et al., 2006]; Meaghan McCluskey,
Community Legal Aid Service Program, Address (presented to Toronto Police Services Board, November 2006) [unpublished, archived at Toronto Police Services Board and on file with author] [CLASP];
Parkdale Community Legal Services Inc., Address (presented to Toronto Police Services Board, November 2006) [unpublished, archived at Toronto Police Services Board and on file with author], [Parkdale]; Judith Rae, Immigration Legal Committee, Address (presented to Toronto Police Services Board,
November 2006) [unpublished, archived at Toronto Police Services Board and on file with author] [Immigration Legal Committee, 2006]; Peter Rosenthal & Jackie Esmonde to Alok Mukherjee, chair, TPSB
(27 November 2006) [unpublished, archived at Toronto Police Services Board and on file with author]
[Rosenthal & Esmonde 2006]; Macdonal Scott, Carranza Barristers & Solicitors, Address (presented
to Toronto Police Services Board, November 2006) [unpublished, archived at Toronto Police Services
Board and on file with author] [Scott].
31. Nicholas Keung, “Hope Fades for Plan to Aid Illegal Workers; Illegal Workers Fear Effect of Election”
Toronto Star (16 May 2005).
216
(2009) 22 Journal of Law and Social Policy
spondents described pervasive feelings of fear and isolation, not only from the wider
host society but also from the more immediate migrant or ethnic community.32 One
non-status individual described the impact of her fear of deportation as follows:
[Y]ou become completely isolated from your community, from people, from everything.
And it is because of the fear of being deported that we live with. One becomes totally isolated to the point that, I don’t even go to the church where they speak my language … it is
because people will ask uncomfortable questions.33
This heightened fear and isolation experienced by non-status individuals push police
services even further out of reach.
Within the non-status community, female victims of domestic violence constitute
one of the most oppressed and at-risk demographics.34 Non-status women in Toronto
adamantly affirm that they would not report abuse to the police for fear that immigration authorities would be notified.35 Indeed, there are many documented cases of
women who have contacted the police only to end up in deportation proceedings.36
The following example relayed by a Toronto-area community legal clinic demonstrates the precarious position of these women:
A client came to our clinic in need of help gaining status in Canada. She had been in a
relationship with a man for seven years of which she was only in the last two years able to
extricate herself. Six months into their relationship, the man, on top of the physical abuse,
would drive her to the police station, and sitting parked outside would threaten to report
her to immigration. After nine years in the country, she happened to come into contact
with the police, who reported her to Immigration Officers when they learned of her status
in Canada. She was put in the Immigration Holding Centre until she was released on bond
to none other than her abuser. Being in such a position, her abuser forced her to sign over
legal custody of their daughter to him. When she filed a statement of claim to regain custody, her abuser pulled his bond and threatened to send her daughter to live with his family
abroad.37
Even women who have been legally sponsored by their partners and who are on
the path towards regularizing their status remain vulnerable to violent control and
manipulation. A domestic abuse complaint to the police or a social service organization is accompanied by the risk that the woman’s partner will revoke his sponsorship.
Because the woman’s immigration status is dependant on her permanent resident or
32. Judith K. Bernhard, Luin Goldring, Julie Young, Carolina Berinstein & Beth Wilson, “Living with Precarious Legal Status in Canada: Implications for the Well-being of Children and Families” (2007) 24:2
Refuge 101 at 106.
33. Ibid. at 107.
34. Berinstein et al., supra note 30 at 22.
35. Ibid.
36. See e.g. ibid.; CLASP, supra note 30; Immigration Legal Committee, supra note 30; Parkdale, supra note
30.
37. CLASP, ibid.
To Serve Some and Protect Fewer 217
citizen partner, the abused woman will then be at risk of deportation.38 Women who
are in abusive relationships and are not permanent residents or Canadian citizens
may tolerate physical and emotional abuse rather than seek help, as calling the police
or accessing emergency shelter or other social services can result in the partner withdrawing his sponsorship, resulting in the woman’s potential deportation.39
In recognition of this problem, Citizenship and Immigration Canada has implemented
a “family violence” policy, under which women who lose their status as sponsored
spouses because they sought refuge from their abusive partners may be granted a deportation deferral and apply for permanent immigration status under humanitarian
and compassionate grounds.40 There have not been any official assessments of the
efficacy of Citizenship and Immigration Canada’s domestic violence policy. At least
one Toronto-area community legal clinic, however, has reported that it has a limited
impact,41 explaining that immigration officials have been known to apply the policy
inconsistently, and the processing fee is an often-unaffordable $550.42 Moreover, the
women can take advantage of the policy only if they are aware of its existence and
have access to the legal expertise needed to benefit from it. Given the barriers described above and the typically marginalized position of abused women, it would not
be surprising if the policy failed to reach a good portion of the population that would
theoretically benefit from it.
The multiple barriers that non-status community members face in interacting with
the police have repercussions not only for their own safety, but also for the safety
of their families and close friends—who may or may not have status. Non-status
individuals will often have children who are Canadian citizens by birth. Studies have
demonstrated, however, that these children frequently face serious barriers in accessing basic services, such as education and health care.43 The implications for access to police protection are particularly stark, as related by one Toronto community
organization:
A child was being repeatedly and violently abused. Someone found out. The child was a citizen. The suspected perpetrator was a citizen. And the witness who found out was a citizen.
So what was the problem? The child’s parents were non-status. The witness was afraid to
call police for fear the whole family would be deported. This left the child at sustained risk,
likely exposed to further crimes of violence.44
38. In October 2006 I spoke with a woman who was being detained at the Immigration Detention Holding
Centre in Etobicoke. She had called the police to report the abusive behaviour of her Canadian husband, who was her sponsor at the time. When the police apprehended her husband, he notified CIC
that he was revoking his sponsorship. The woman was subsequently detained and deported.
39. Citizenship and Immigration Canada, Policy Manual IP 5, ss. 11.7, 13.10.
40. Ibid., s. 13.10.
41. Parkdale, supra note 30.
42. Ibid.
43. Bernhard et al., supra note 32 at 107.
44. Immigration Legal Committee, supra note 30.
218
(2009) 22 Journal of Law and Social Policy
Finally, the fear of deportation can also have a negative impact on more general relations between the police and minority migrant communities. Over the past forty
years, dramatic shifts in the ethnic makeup of Canada’s urban centres have posed
particular challenges to police services, which have at times been slow or reluctant
to recognize, and subsequently embrace, the operational and organizational changes
required to effectively police an increasingly multicultural society.45 In the late 1980s
and 1990s, numerous task forces, commissions and government and private inquiries
examined the recurring allegations of over-policing, excessive force, and discrimination against minority populations.46 The main response of Canadian police services
in their attempt to improve relations between police and members of ethnic or visible
minorities has been to increase liaisons and communication between the police and
minority migrant communities.47 The TPS, for example, has set up a community
consultative process “[to create] meaningful partnerships through trust, understanding, shared knowledge and effective community mobilization to maintain safety and
security in our communities,” and heralds itself as “a world leader in the policing
community when it comes to consultation with its communities.”48
A central tenet of community policing is that police must have community cooperation, involvement, support and trust to be effective.49 However, in relation to
the non-status population, a basic precept of community policing—building
­neighbourhood trust through increased involvement and liaising—is undermined
by the police practice of investigating and enforcing immigration laws. Non-status
residents’ willingness to involve themselves with police investigations into crimes
they may have witnessed is therefore limited. This jeopardizes community safety and
hampers police ability to investigate crimes in neighbourhoods with substantial nonstatus populations. The deportation of victims and witnesses will also undermine
45. Philip C. Stenning, “Policing the Cultural Kaleidoscope: Recent Canadian Experience” (2003) 7 Police
& Society 13 at 14.
46. See e.g. W. Head & D. Clairmont, Discrimination against Blacks in Nova Scotia: The Criminal Justice
System – A Research Study, Royal Commission on the Donald Marshall, Jr., Prosecution, Final Report,
vol. 4 (Halifax: Nova Scotia Government Printer, 1989); Ontario, Race Relations and Policing Task Force,
Report (Toronto: Race Relations and Policing Task Force, 1989); Ontario, Report of the Commission on
Systemic Racism in the Ontario Criminal Justice System (Toronto: Queen’s Printer, 1995); Ontario, The
Report of the Race Relations and Policing Task Force (Toronto: Task Force on Race Relations and Policing, 1992); Quebec, Comite d’enquête sur les relations entre les corps policiers et les minorités visibles et
ethniques au Québec, Rapport Final (Montreal: Ministère des Communications, 1988); Quebec, An Opportunity for Progress (Montreal: Task Force of the Minister of Public Security of Quebec on Relations
between the Black Communities and the Montreal Urban Community Police Department, 1992).
47. Stenning, supra note 45 at 21.
48. Toronto Police Service, “Community Consultative Process,” online: <http://www.torontopolice.on.ca/
communitymobilization/ccc.php>.
49. Geoffrey Alpert, Roger Dunham & Alex Piquero, “On the Study of Neighborhoods and the Police,” in
Geoffrey Alpert & Alex Piquero, eds., Community Policing: Contemporary Readings, 2nd ed. (Prospect
Heights: Waveland, 1998) at 407-24; James E. Hawdon, John Ryan & Sean P. Griffin, “Policing Tactics
and Perceptions of Police Legitimacy” (2003) 6 Police Quarterly 469 at 470-71.
To Serve Some and Protect Fewer 219
overall community trust in the police, again directly countering community policing
efforts.
The Policy Response: TPS’s Victims and Witnesses without Legal
Status Policy
In light of the barriers that typically separate migrant populations and non-status
individuals from police services, the imperative to build understanding and trust
between the police and this community is very strong. So long as casual contact with
the police continues to lead to deportations, police services will remain unavailable
to the non-status community and their close family and friends.
Prompted by the efforts of community service organizations and grassroots activists,
the TPS has recognized that “[p]olice services should be available to all members
of the community regardless of their immigration status.”50 As well, the Board has
stated that “there appears to be a need to establish mechanisms to encourage victims
and witnesses to come forward without fear of exposing their status.”51 In this section I will trace the development of the TPS’s policy governing its interactions with
non-status community members and outline current policy.
Prior to February 2006, there was no specific policy directing whether or not officers were permitted to inquire into the immigration status of ordinary community
members, or under which circumstances such inquiries would be warranted.52 The
most that could be said was that there was no explicit requirement for police officers
to check the immigration status of victims, witnesses, or those calling the police for
assistance.53 The decision about whether to make inquiries into immigration status,
therefore, was left to the individual officer’s discretion. Community groups reported
that in their experience the police routinely inquired into the immigration status of
victims and witnesses of crime.54 Once the police became aware of any immigration
issues, standard practice was to communicate these suspicions to Citizenship and
Immigration Canada.55 Historically, then, the TPS practice regarding the immigration status of victims, witnesses and general community members could be described
as one of “often ask, always tell.”
50. TPS, Victims and Witnesses, supra note 2; see also William Blair, chief of police, “Report to the Toronto
Police Services Board: Victims of Crime and Witnesses to Crime without Legal Status”, 15 February
2007 [unpublished, on file with author] at 2.
51. Toronto Police Services Board, “Minutes of the Public Meeting of the Toronto Police Services Board”
(15 February 2006) [TPSB February 2006] at 2.
52. Shawn Meloche, “Report of Investigation Re: Policy Complaint File #2004-EXT-0857 – Immigration
Status,” cited in Steve Watson to Kristine Kijewski (18 May 2005), [unpublished, on file with author].
53. TPSB August 2005, supra note 1 at 7.
54. Berinstein et al., supra note 29 at 22; CLASP, supra note 29; Immigration Legal Committee, supra note
29; Parkdale, supra note 29; Rosenthal & Esmonde 2006, supra note 29; Scott, supra note 29.
55. TPSB August 2005, supra note 1 at 7.
220
(2009) 22 Journal of Law and Social Policy
Public debate regarding the issue was initiated in late 2004 when a complaint was
filed against the TPS alleging a “practice of inquiring as to the immigration status
of a person seeking police services and of providing that information to immigration authorities.”56 The police responded that, although a victim’s or witness’s immigration status had no bearing on the police investigation, and there was no explicit
requirement mandating inquiries into the immigration status of victims and witnesses, the police did have a legal duty to report any irregularities to Citizenship
and Immigration Canada.57 The initial TPS report on the matter concluded that no
changes to the rules, procedures, or policies of the TPS were required.58
However, upon reviewing the original complaint and the responses of the TPS and
the chief of police, the Board undertook to study the matter further.59 In February
2006, a Board Working Group issued a report recognizing that
the immigration status of victims and witnesses of crime is largely irrelevant in the conduct
of police investigations and that there appears to be a need to establish mechanisms to
encourage victims and witnesses to come forward without fear of exposing their status.60
The full Board adopted the recommendations of the 2006 Working Group report
and gave the chief of police two directives. First, the chief of police was required
to develop a “Don’t Ask” policy toward victims and witnesses of crime, prohibiting
the police from inquiring into the immigration status of victims and witnesses in
the absence of bona fide reasons.61 Second, the Board directed the chief of police
to develop policies that would encourage non-status victims and witnesses to come
forward with information regarding personal and community crime. The Board,
however, stopped short of recommending a “Don’t Tell” portion to the policy, which
would require the police to treat any immigration information they did happen upon
in the course of an investigation as strictly confidential.62
In February 2007, the Board again revisited the issue, officially approving the Toronto
Police Service’s proposed Victims and Witnesses without Legal Status Policy, which
stated that “victims and witnesses of crime shall not be asked their immigration
status, unless there are bona fide reasons to do so.”63 The phrase “bona fide reasons,”
left undefined in the 2006 directive, was clarified in the final policy to mean
• a victim or witness who may possibly require or may seek admission into
the Provincial Witness Protection Program;
56.
57.
58.
59.
60.
61.
62.
63.
TPSB February 2006, supra note 51.
TPSB August 2005, supra note 1 at 7-8.
Ibid. at 7.
Ibid.
TPSB February 2006, supra note 51.
Ibid.
Ibid.
TPS, Victims and Witnesses, supra note 2.
To Serve Some and Protect Fewer 221
• a Crown Attorney is requesting information for disclosure purposes;
• the information is necessary to prove essential elements of an offence; or
• investigations where the circumstances make it clear that it is essential to
public or officer safety and security to ascertain the immigration status of a
victim or witness.64
The Board again declined to oblige the Toronto Police Service to include a “Don’t
Tell” provision.65 In late 2008, despite the continued advocacy of many community
groups, the Toronto Police finalized their policy in the area without a “Don’t Tell”
clause.66 In a brief explanation of this decision, the Board’s Working Group referred
to continued unresolved concerns on the part of the chief of police regarding an officer’s legal responsibilities and liabilities.67 The conclusion of the Working Group was
that “a Don’t Tell component is not feasible” and that “the policy as it currently exists
and as it has been implemented by the Chief is as far as we can go on this matter.”68
The absence of a “Don’t Tell” clause means that the decision of whether or not to
treat information regarding victims and witnesses as confidential is still left to the
individual officer’s discretion. This issue has been the centre of lengthy discussions
between multiple stakeholders and has been approached from both legal and policy
perspectives. In the following section, I review and evaluate the TPS’s and other critics’ legal objections to developing a comprehensive “Don’t Ask, Don’t Tell” policy in
the context of victims and witnesses of crime.
Legal Considerations: Legal Controversies surrounding a
Comprehensive “Don’t Ask, Don’t Tell” Policy
There has been significant debate regarding the legal obligation of police officers to
investigate, inquire into, communicate and act upon immigration violations. There
now seems to be general agreement that the police are not legally required to inquire
into the immigration status of witnesses, victims, or those seeking general police assistance and advice. The TPS have acknowledged that their investigation of criminal
conduct does not mandate an inquiry into immigration status, stating, “The investigation into the crime being reported by the victim and any investigation regarding
the victim’s immigration issues are separate and distinct … the victim’s immigration
status will have no bearing on the police investigation.”69 Furthermore, simply because immigration status is regulated by law does not mean that the police have an
64.
65.
66.
67.
68.
69.
Ibid.
Ibid.
TPSB November 2008, supra note 3 at 55.
Ibid.
Ibid.
TPSB August 2005, supra note 1.
222
(2009) 22 Journal of Law and Social Policy
absolute duty to investigate potential violations. There are a large number of civil
statutes, including, for example, environmental protections, landlord–tenant provisions and labour regulations, that the police do not investigate or enforce on a routine
basis, if ever. The limits of police responsibility are even clearer with respect to an
officers’ duty to enforce compliance with immigration statutes. The police are specifically prohibited from detaining or arresting a person in violation of the Immigration
and Refugee Protection Act [IRPA] unless they have been given an explicit direction
by an immigration officer to execute a warrant or a written order.70 The main point
of debate, therefore, relates not to an officer’s obligation to inquire into immigration
status, or to take people into custody on the basis of immigration violations, but
rather whether or not the police have a legal obligation to communicate immigration
information to other agencies once they are aware of a potential violation.
According to a 2005 report the chief of police made to the Board, it appears that
the primary concern of the TPA is that a “Don’t Tell” provision would not be legally
permissible because it could force officers to contravene their statutory duty:
A violation of the Immigration and Refugee Protection Act is a federal offence, and police
officers are duty bound by law to act upon the information they receive … For a police
officer to suppress that information, or for the Service or the Board to direct officers to do
so would constitute an offence.71
To support this position, the chief of police cited three legal sources of police authority and duty. First, s. 2 of the Oaths and Affirmations regulation72 of the Police
Services Act73 [PSA] sets out the oath that officers must swear. The oath reads,
I solemnly swear (affirm) that I will be loyal to Her Majesty the Queen and to Canada, and
that I will uphold the Constitution of Canada and that I will, to the best of my ability, preserve the peace, prevent offences and discharge my other duties as (insert name of office)
faithfully, impartially and according to law.74
The broad duties to “preserve the peace” and “prevent offences” are interpreted to
include not only acting to prevent criminal offences, but also any other activity that
may contravene any federal or provincial laws.75 Additional support for this position
was drawn from the duties listed in s. 42(1) of the PSA, which include preserving the
peace, preventing crimes and other offences and providing assistance and encouragement to other persons in their prevention.76 Because the officers’ duties include
“preventing crimes and other offences”77, the chief of police argued that there is an
70.
71.
72.
73.
74.
75.
76.
77.
S.C. 2001, c. 33, ss. 55(1), 55(2), 142 and 143.
TPSB August 2005, supra note 1 at 10.
O.Reg. 144/91 [Oaths and Affirmations Regulation].
R.S.O. 1990, c. P.15 [PSA].
Oaths and Affirmations Regulation, supra note 72 at s. 2.
TPSB August 2005, supra note 1.
PSA, supra note 73 at s. 42(1).
Ibid.
To Serve Some and Protect Fewer 223
obligation to prevent and report possible violations of the IRPA.78 Finally, the chief
of police’s report refers to the Code of Conduct contained in the General Regulation
to the PSA.79 The Code dictates that a police officer will be found in Neglect of Duty
when he or she:
(i) without lawful excuse, neglects or omits promptly and diligently to perform
a duty as a member of the police force,
…
(iv)fails, when knowing where an offender is to be found, to report him or her
or to make due exertions for bringing the offender to justice,
(v) fails to report a matter that it is his or her duty to report,
(vi)fails to report anything that he or she knows concerning a criminal or other
charge, or fails to disclose any evidence that he or she, or any person within
his or her knowledge, can give for or against any prisoner or defendant80.
The report therefore concludes that the police have a legal duty to enforce the IRPA—
it is a police officer’s duty to prevent offences, and it is an offence for an officer to
neglect his or her duty, or to fail to report any offender or matter it is his or her duty
to report.81
The TPS bolstered their conclusions by pointing out that contravention of the IRPA
is an offence against an Act of Parliament, and those who have violated any act are
not “law abiding.” According to this reasoning, although non-status persons are
equally protected by police services, they may find themselves in a situation where
they themselves are reluctant to come forward because they are personally in violation of the law. To grant a “Don’t Ask, Don’t Tell” policy would therefore be to “justify
an exemption from the law as a result of becoming a victim of a crime.”82
The conclusions that a “Don’t Tell” component to the policy would force officers to
contravene their statutory duties, and that police are legally obliged to report information concerning a person’s immigration status, have been contentious points.83 As
others have pointed out, even if the interpretation of a police officer’s duty provides
for the enforcement of all statutes and provisions, this duty, as with all other enforcement duties, must be exercised with discretion.84 Police officers do not investigate,
TPSB August 2005, supra note 1.
O. Reg. 123/98, at Schedule [General Regulation].
Ibid., at Schedule, at s. 2(1)(c).
TPSB August 2005, supra note 1.
Ibid.
See e.g. Immigration Legal Committee, Police Services: Safe Access for All, May 2008 [unpublished, on
file with author]; Peter Rosenthal and Jackie Esmonde to Steve Watson (13 October 2005), [unpublished, on file with author] [Rosenthal & Esmonde 2005].
84. Rosenthal & Esmonde 2005, ibid. at 5.
78.
79.
80.
81.
82.
83.
224
(2009) 22 Journal of Law and Social Policy
and would not be faulted for failing to pursue, every single violation of the Criminal
Code. Rather, they constantly exercise their powers of law enforcement with reference to their overarching guiding principle—ensuring the safety and security of
persons and property.85 Moreover, two of the five core services of the TPS are the
prevention of crime and the provision of assistance to victims of crime.86 Taking into
consideration the dual mandate to protect witnesses and victims as well as prevent
crime, and the public policy interests outlined above with respect to the community
relations and safety implications of police enforcing immigration statutes, it is difficult to conclude that there is an absolute duty to inform immigration officials of a
person’s immigration status.
There is further support for this position in other provisions of the PSA and the associated regulations. In addition to the oath of office cited above and used to support
the position of the chief of police, all officers must also swear an oath or affirmation
of secrecy, which reads, “I solemnly swear (affirm) that I will not disclose any information obtained by me in the course of my duties … except as I may be authorized
or required by law.”87 The specific circumstances and requirements leading to the
authorization and duty to disclose personal information such as name, address and
birth date to other persons or agencies are set out in regulations made pursuant to
the PSA entitled Disclosure of Personal Information.88 Section 5 of these regulations
states,
(1) A chief of police or his or her designate may disclose any personal information about an individual if the individual is under investigation of, is charged
with or is convicted or found guilty of an offence under the Criminal Code
(Canada), the Controlled Drugs and Substances Act (Canada) or any other
federal or provincial Act to,
…
(c) any person or agency engaged in the protection of the public, the administration of justice or the enforcement of or compliance with any federal or
provincial Act, regulation or government program.89 [Emphasis added]
In most cases, the TPS would presumably be disclosing personal information to
Citizenship and Immigration Canada in the course of investigations for violations
of the IRPA. However, the spectre of police officers initiating official investigations
into potential IRPA violations, and then using their investigation as a justification for
sharing confidential information, is a dubious proposition from a policy standpoint.
To start an investigation of a potential IRPA violation, officers must have some basis
85.
86.
87.
88.
89.
PSA, supra note 73 at s. 1(1).
Ibid. at s. 4(2).
Oaths and Affirmations Regulation, supra note 72, at s. 4.
O. Reg. 265/98 [Disclosure of Personal Information Regulation].
Ibid. at s. 5.
To Serve Some and Protect Fewer 225
for their suspicion. IRPA, however, is a complex piece of civil legislation. There are
many categories of people who do not have official or secure immigration status, but
are nonetheless legally permitted to remain in Canada. Police officers are not trained
in the various categories and provisions of the IRPA or how to investigate potential
violations. Section 12(1) of the PSA regulations, entitled Adequacy and Effectiveness
of Police Services, outlines that police chiefs must “develop and maintain procedures
on and processes for undertaking and managing general criminal investigations and
investigations” into twenty-two specifically enumerated areas—and immigration is
not one of the enumerated areas.90 In fact, some have suggested that the Criminal
Code provision that allows police officers to arrest individuals solely on the reasonable and probable belief that a warrant exists does not apply to IRPA violations because police officers do not have enough knowledge to make this determination.91
In the absence of adequate training and complex investigative methods, investigations initiated by police officers would almost certainly rely on measures such as
racial, cultural and socio-economic profiling practices the TPS has very vigorously
denied employing in recent years.92 This concern is reinforced by experiences from
other countries where accusations of racial profiling have been levied against police
forces that have explicitly taken on the enforcement of immigration provisions.93
As further evidence of the suspect basis of a police officer’s legal obligation to share
personal information with immigration officials, s. 6 of the Disclosure of Personal
90. O. Reg. 3/99, s. 12(1) [Adequacy and Effectiveness Regulation].
91. Rosenthal & Esmonde 2005, supra note 83 at 5.
92. In 2002 the Toronto Star ran a series of media articles suggesting that Toronto police engaged in “racial
profiling”, that “justice is different for blacks and whites”, that “[b]lacks arrested by Toronto police
are treated more harshly than whites”, and that “[p]olice target black drivers”. Police representatives
strongly denied the accusations, and the Toronto Police Service commissioned several prominent academics to conduct an independent review of the Star’s, culminating with the police union launching a
$2.7 billion class action libel suit on behalf of its members. Regarding the allegations of racial profiling
and differential treatment, see “Singled Out” Toronto Star (19 October 2002); and “Police Target Black
Drivers” Toronto Star (20 October 2002). For the commissioned independent reviews see Alan D. Gold
& Edward B. Harvey, Executive Summary of Presentation on Behalf of the Toronto Police Service (February 2003), online: Toronto Police Service http://www.torontopolice.on.ca/publications/2003.02.20-review/presentationsummary.pdf; Edward B. Harvey, An Independent Review of the Toronto Star Analysis
of Criminal Information Processing System (CIPS) Data Provided by the Toronto Police Services (TPS):
A Summary Report (February 2003), online: Toronto Police Service <http://www.torontopolice.on.ca/
publications/2003.02.20-review/executivesummary.pdf>; Edward B. Harvey and Richard Liu, An Independent Review of the Toronto Star Analysis of Criminal Information Processing System (CIPS) Data Provided by the Toronto Police Services (TPS) (March 2003), online: Toronto Police Service <http://www.
torontopolice.on.ca/publications/files/reports/harveyreport.pdf>. Regarding the launch of the lawsuit,
see “Police Union Sues Star over Race-Crime Series” Toronto Star (18 January 2003). For an overview of
the issue see Ron Melchers, “Do Toronto Police Engage in Racial Profiling?” (July 2003) 45:3 Canadian
Journal of Criminology and Criminal Justice 347.
93. Tom Wall, “Police State” New Statesman 12:2 (22 November 2004).
226
(2009) 22 Journal of Law and Social Policy
Information regulations of the PSA explicitly requires police officers to use discretion
when deciding whether or not to disclose personal information:
In deciding whether or not to disclose personal information under this Regulation, the chief
of police or his or her designate shall consider the availability of resources and information,
what is reasonable in the circumstances of the case, what is consistent with the law and the
public interest and what is necessary to ensure that the resolution of criminal proceedings
is not delayed.94
Contrary to the assertions made by the chief of police in the 2005 report to the Board,
this provision demonstrates that even when the police have no doubt that a person
is in violation of IRPA, they are under no immediate obligation to disclose personal
information to Citizenship and Immigration Canada. Consistency with the law is but
one of the considerations that must be taken into account when deciding whether or
not to disclose personal information. Moreover, the other mandated considerations
such as the public interest, potential delay of criminal proceedings, and reasonableness in the circumstances of the case95 would all seem to indicate that personal information of victims and witnesses should not be disclosed to Immigration.
Finally, the considerable number of statutes and regulations that protect victims of
crime cannot be ignored when it comes to evaluating competing factors in a discretionary decision. Section 17 of the PSA regulations governing the adequacy and
effectiveness of police services states,
Every chief of police shall establish procedures on providing assistance to victims
that,
(a) reflect the principles of the Victims’ Bill of Rights, 1995; and
(b) set out the roles and responsibilities of members of the police force in providing assistance to victims.96
The preamble to the Victims’ Bill of Rights further defines the principles that should
guide the actions and policies of the police:
The people of Ontario believe that victims of crime, who have suffered harm and whose
rights and security have been violated by crime, should be treated with compassion and
fairness. The people of Ontario further believe that the justice system should operate in a
manner that does not increase the suffering of victims of crime and that does not discourage victims of crime from participating in the justice process.97
The previous TPS policy to possibly inquire into and always communicate a noncitizen victim’s personal information to other agencies without his or her permission
directly undermines the intent and purpose of the enumerated police duty to assist
94.
95.
96.
97.
Disclosure of Personal Information Regulation, supra note 88 at s. 6.
Ibid.
Adequacy and Effectiveness Regulation, supra note 90 at s. 17.
S.O. 1995, c. 6, Preamble.
To Serve Some and Protect Fewer 227
victims of crime.98 Even the modified policy, however, leaves open the possibility
that a victim may be further victimized by the accused’s power to disclose the victim’s
immigration status and affect his or her deportation.
Overall, it appears that in addition to the discretion that police officers have regarding
the communication of personal information, they also have an overriding duty to
protect victims and witnesses. These considerations suggest strongly that, at the very
least, a “Don’t Tell” provision would not place police officers or the Board in contravention of existing law. Although the Board indicated that their decision to reject a
“Don’t Tell” policy was based on “numerous discussions with the Chief,” including
“legal ramifications, and numerous liability issues,”99 the only legal arguments that
were publicly discussed were those canvassed above. On the basis this information,
it is difficult to support the conclusion of the chief of police that a “Don’t Tell” policy
would not be legally permissible.
Policy Considerations: National Security Concerns and the
Efficacy of the TPS’s Existing Victims and Witnesses without
Legal Status Policy
In addition to the legal debate over police officers’ obligations to report IRPA violations, two main policy debates surfaced during the discussions that eventually led to
the current TPS policy. First, the Canada Border Services Agency [CBSA] highlighted
a number of considerations from a national security perspective that are summarized
and briefly analyzed below. Second, there remain concerns by community groups
that the existing policy will not, as it is currently formulated, adequately address the
needs of non-status individuals and the surrounding communities.100 In the second
part of this section I will explore several aspects of the policy that may prevent it
from being truly effective in increasing access and confidence in police services. I
also draw on the considerable experience of New York City, which has had a similar
provision since 1985, in order to examine how such policies can function in day-today operations.
98. See PSA, supra note 73 at s. 42(1)(c).
99. TPSB November 2008, supra note 3 at 55.
100. See e.g. Immigration Legal Committee, “Police Services: Safe Access for All; Legal Arguments for a
Complete ‘Don’t Ask, Don’t Tell’ Policy” (May 2008) [unpublished, on file with author]; and Peter
Rosenthal & Jackie Esmonde to Alok Mukherjee, chair of the Toronto Police Services Board (14 July
2008), [unpublished, on file with author] [Rosenthal & Esmonde 2008]. The Toronto Police Services
Board also noted that it had received 844 individual petitions stating that, although the Board had
adopted a “Don’t Ask” policy, it was not uniformly enforced and required a “Don’t Tell” portion to be
effective. See TPSB November 2008, supra note 3.
228
(2009) 22 Journal of Law and Social Policy
National Security Implications
When a “Don’t Ask, Don’t Tell” policy was first being considered by the Board, the
CBSA objected strongly to the then-proposed policy based on potential national security implications.101 The CBSA asserted that IRPA itself contains provisions for
the protection of vulnerable persons such as victims and witnesses of crime.102 For
example, they explained that Citizenship and Immigration Canada has developed
policies and procedures to take into account the needs and special circumstances of
human trafficking victims, and offers humanitarian and compassionate grounds applications to allow for situations not anticipated through the other IRPA provisions.
Furthermore, the CBSA stated that consultation with the Crown is required before
potential witnesses are removed from Canada, thereby allowing for the simultaneous
pursuit of criminal justice and compliance with immigration requirements.103
Additionally, the CBSA argued that some important and pertinent information to
crime investigation can be provided only by the CBSA. The existence of foreign warrants, foreign criminal records and crime-related immigration violations is often
discovered only upon communication with the CBSA:
Our post-9/11 reality, increased security concerns, threats from organized crime and
community safety concerns have reinforced the need for fulsome and timely information
sharing and co-operation between law enforcement agencies at all levels. It is the key to
addressing and mitigating potential threats.104
The CBSA urged that refusing to ask and tell about basic immigration information
is equivalent to making a decision to disregard relevant information about a person’s
background.
The Board’s reception of the CBSA comments was cold, with members stating that
the concerns were “premature” and that the alarmist tone had taken them aback.105
Although it is beyond the scope of this paper to thoroughly canvass the links among
national security, international crime and immigration violations, a few issues should
be highlighted. First, the proposed police policy would not prevent the communication of the immigration status of those charged, or even those being investigated,
under the Criminal Code. Furthermore, if there were bona fide reasons to inquire
into immigration history, such as reasonable grounds to suspect links to international
101. Concerns were first publicly raised in a letter from John Gillan, director general of the Canada Border
Services Agency for the Greater Toronto Area Region, addressed to Alok Mukherjee, chair of the Toronto Police Services Board, 1 November 2006. See TPSB November 2006, supra note 28.
102. John Gillan, Address (presented to the Toronto Police Services Board, 28 November 2006) [unpublished, archived at Toronto Police Services Board, on file with author] [Gillan 2006].
103. Ibid. at 2.
104. Ibid.
105. Mike Oliveira, “Toronto Police Chief Says Border Agency Fears about New Policy Are Premature”
CanWest News Service (29 November 2006).
To Serve Some and Protect Fewer 229
crime or terrorism, investigation into and communication of this information would
not be prohibited.
The CBSA also suggested that if victims’ names are not communicated, independent
investigations by the CBSA could lead to the deportation of victims before the completion of the criminal justice process.106 According to the CBSA, this would lead to
a sense of betrayal in the victim and the victim’s family, undermining the atmosphere
of trust that the “Don’t Ask, Don’t Tell” policy is aimed to foster. The validity of this
concern is dubious, as community organizations reported that victims and witnesses
to crimes were regularly deported under the previous system. Furthermore, as noted
in the CBSA’s own submissions, s. 50(a) of the IRPA states that a removal order is
stayed if the removal would contravene a decision that was made in another judicial proceeding, preventing the removal of a witness subject to a court subpoena or
summons to appear.107 As such, a simple questioning of potential deportees and an
administrative check with the Crown’s office prior to removal should be sufficient to
assuage the fear of derailing the criminal justice process.
Impact of Existing Policy on Non-Status Individuals and Surrounding Communities
On the opposite side of the debate, community groups have expressed concerns
that the TPS policy as it is currently drafted will not provide sufficient security to
non-status individuals. The TPS’s policy is relatively new, and there have been no
thorough assessments of its implementation, adherence to the policy by individual
officers, or impact on police relations with immigrant and non-status communities.
There are, however, several features of the current policy that indicate that it may
ultimately fail to achieve its goals.
First, while there is only anecdotal information regarding police implementation of
and adherence to the policy, available information suggests that there has not been a
vigorous institutional push to incorporate the new directives into daily policing routine and interactions with marginalized communities. In November 2006, six months
after the “Don’t Ask” portion of the policy was supposed to have been adopted, community groups continued to receive reports that police were still regularly questioning victims and witnesses regarding their immigration status.108 Furthermore, over
two years after the 2006 directive, it appeared that the only step that the TPS had
taken to publicize the new policy and encourage non-status victims and witnesses to
come forward was to post the Victims and Witnesses without Legal Status policy on
their website.109 The fact that the TPS strongly fought against adoption of the policy
106. Gillan, 2006, supra note 102 at 3.
107. Ibid.; Citizenship and Immigration Canada, Policy Manual ENF 10; Peter Rosenthal & Jackie Esmonde
to Steve Watson (2 January 2006), [unpublished, on file with author].
108. TPSB November 2006, supra note 28.
109. Rosenthal & Esmonde 2008, supra note 100.
230
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in the first place, combined with a seemingly minimal effort at policy dissemination and implementation after its official adoption, will likely make it difficult for
non-status communities to believe that there has been a significant change in their
practical relations with the police.
Second, the limited scope of the policy—applying only to victims and witnesses of
crime—may also undercut its efficacy. Ordinary community members should feel
comfortable interacting with police, regardless of whether or not they have been directly affected by the commission of a specific crime. Although offering some protection to victims and witnesses is a good first step, ultimately relations with the larger
community will likely remain strained and mistrustful so long as casual encounters
with the police can lead to inquiries into immigration status and deportations.
Finally, and most concerning from a policy perspective, is the absence of any sort of
“Don’t Tell” component to the policy. As discussed, victims and witnesses are in a
particularly vulnerable position, especially when their involvement with a case leads
to criminal charges and prosecution. Unless clear guidelines are developed on the
disclosure of sensitive information, victims and witnesses will still be held hostage to
the threat that the accused will inform the police of their immigration status. There
will always be the possibility that police will somehow find out about a person’s immigration status without explicitly asking, and absent a strong “Don’t Tell” policy,
there is no guarantee that this information will not get passed on to immigration
officials. Even without direct inquiries, if the police, for whatever reason, suspect a
person may be without status, they will be free to pass that individual’s name, birth
date and other personal identifying information on to federal immigration officials.
Given these possibilities, it is difficult to understand how a policy without a robust
confidentiality clause is an improvement over no policy at all.
The experience of non-status residents in New York City, which for more than two
decades has had a much more comprehensive “Don’t Ask, Don’t Tell” policy, provides
a useful point of comparison. New York, like many other large U.S. urban centres,
has a long history of being a “sanctuary city” for immigrants. In 1985, an executive order issued by Mayor Edward I. Koch prevented police from asking about a
suspect’s immigration status and forbade officers from reporting individuals to the
Immigration and Naturalization Service [INS]110 or cooperating with federal agents
in tracking undocumented foreigners, unless the immigrant had committed a crime
or expressly authorized the release of the information.111 Even if a city worker suspected an alien of criminal activity, the information could not be transmitted directly
to federal authorities. Instead, the case would be passed to a specialized officer, who
110. Now incorporated into the Department of Homeland Security.
111. Albor Ruiz, “‘Don’t-Ask’ Policy Will Hurt City of Immigrants” New York Daily News (5 June 2003).
To Serve Some and Protect Fewer 231
would receive the report and consider the matter on a case-by-case basis to decide
what action, if any, should be taken.112
In the mid-1990s, however, the U.S. Congress passed several key pieces of legislation in an attempt to facilitate, and arguably mandate, increased police involvement
in immigration enforcement.113 Most significantly, in 1996 the federal government
made it illegal for municipalities to pass “Don’t Tell” policies prohibiting their employees from sharing information about an undocumented immigrant to federal
agents.114 Mayor Rudolph Giuliani refused to comply and upheld the city’s “Don’t
Tell” policy.115 The 1985 executive order, however, was eventually challenged in the
courts, and in 1999 the U.S. Court of Appeals for the second circuit ruled that Mayor
Koch’s original policy was unconstitutional.116
New York City’s official position on immigration information and the police was not
clarified until September 2003, when Mayor Bloomberg enacted Executive Order 41
[EO 41].117 The new order stated that law enforcement officers may not inquire into
a person’s immigration status or disclose confidential information if the only illegal
activity they were investigating was status as an undocumented alien. Furthermore,
they may never inquire into the immigration status of crime victims, witnesses, or
others who call or approach the police seeking assistance.118 The current New York
order, therefore, is a much stronger prohibition against inquiring into the immigration status of victims and witnesses, providing for no bona fide reasons whatsoever,
beyond investigation of non-immigration illegal activity. It is also wider in scope
than the Toronto policy, providing protection not just to victims and witnesses, but
to anyone who approaches the police for any reason.
112. Executive Order 124, cited in New York (City of) v. United States, 179 F.3d 29 (2nd Cir. 1999).
113. The Illegal Immigration Reform and Immigrant Responsibility Act, which came into effect in September
1996, added s. 287(g) to the Immigration and Nationality Act, enabling state officers and employees to
become certified to enforce immigration law. So long as state or local law enforcement agencies enter
into a Memorandum of Agreement with the Department of Homeland Security (DHS) and the local
law enforcement officers receive appropriate training and supervision of U.S. Immigration and Customs Enforcement officers, they are explicitly authorized to enforce immigration laws. There are 63
active Memorandums of Agreement between local law enforcement agencies and DHS, 87% of which
have been signed within the last three years. See U.S. Immigrations and Customs Enforcement, “Delegation of Immigration Authority Section 287(g) Immigration and Nationality Act,” online: <http://
www.ice.gov/partners/287g/Section287_g.htm>.
114. Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. No. 104-193, 110 Stat.
3069; Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, 110
Stat. 3009.
115. Chaleampon Ritthichai, “Executive Order 34 Revisited” Gotham Gazette (August 2003).
116. New York (City of) v. United States, 179 F.3d 29 (2nd Cir. 1999); petition for certiorari denied, see New
York (City of,) et al. v. United States, et al., 528 U.S. 1115 (2000).
117. City of New York, Office of the Mayor, “Executive Order No. 41: City-Wide Privacy Policy and Amendment of Executive Order No. 34 Relating to City Policy concerning Immigrant Access to City Services”
(17 September 2003), online: < http://www.nyc.gov/html/imm/downloads/pdf/exe_order_41.pdf >.
118. Ibid.
232
(2009) 22 Journal of Law and Social Policy
When EO 41 was passed in 2003, it was hailed as an affirmation of Mayor Koch’s
original 1985 Order and said to be an “assurance to all law-abiding New Yorkers—
whether you’re an immigrant, a victim of domestic violence, or any taxpayer—that
the confidential information you give to the City will stay with the City.”119 The
mayor further stated, “The promise of confidentiality is not for everyone … It offers
no protection to terrorists and violent criminals who seek to avoid responsibility for
their crimes. Nor is it a shield for law-breakers to hide behind.”120
The impact of the New York policy on the ground, however, has been mixed. Most
significantly, the efficacy of the “Don’t Ask” portion of the policy has been drastically
reduced by the National Security Entry-Exit Registration System [NSEERS], a program launched in 2002 that required “high-risk alien visitors” to provide fingerprints
and extensive biographical information.121 It also required these individuals to reregister with U.S. immigration officials periodically and imposed deportation orders
on those who failed to comply. Violators of the NSEERS requirements are listed in
the National Crime Information Center [NCIC] database, a database that was traditionally used to detect out-of-state criminal warrants. The information in the NCIC
database is generally accessible in the squad cars of local police departments and is
regularly accessed by police officers in the course of traffic stops and other routine
encounters.122 Because the NCIC database now contains the names of so many violators of standard administrative immigration provisions, it is seldom necessary to
ask about a person’s immigration status to find out confidential information: simply
running the name will be sufficient.
The protection given to confidential information that appears to be offered by the
New York policy—allowing for disclosure only in cases of suspected illegal activity—
has also been effectively undermined. First, New York City police have confirmed
that the name of every non-citizen who is arrested is automatically reported to
Immigration and Customs Enforcement [ICE], which is part of the Department of
Homeland Security. This fact is not surprising, as the policy specifically contemplates
that those suspected of criminal activity will not benefit from the confidentiality provisions. As one New York municipal councilman pointed out, however,
Anybody can be arrested … Arrested doesn’t mean you’re guilty. You know what it is in our
society today—they arrest you based on profile, on minor things. And as long as they arrest
you, that’s an excuse for them to give that information to ICE.123
119. New York Mayoral Office, Press Release PR-262-03, “Mayor Michael R. Bloomberg Signs Executive
Order 41 regarding City Services for Immigrants” (17 September 2003).
120. Ibid.
121. John Ashcroft, “Attorney General Prepared Remarks on the National Security Entry-Exit Registration
System” (6 June 2002), online: U.S. Department of Justice <http://www.usdoj.gov/archive/ag/speeches
/2002/060502agpreparedremarks.htm> [Ashcroft].
122. Ibid.
123. Nina Bernstein, “Police Report Noncitizens to U.S., Official Says” New York Times (23 April 2005)
[Bernstein, “Police Report Noncitizens”].
To Serve Some and Protect Fewer 233
Second, even when a person is not officially arrested, the police have defined “illegal
activity” very broadly, to include investigations into extremely minor transgressions.
As recently as 2005, community leaders were still citing cases in which routine traffic
stops or misdemeanour investigations had led directly to the deportation of noncriminal non-status residents.124 Police have since confirmed that “anyone whose
driver’s license is checked by the police, even in a random traffic stop, will have his
or her name and birth date run through the [NCIC] database.”125 If the person is
listed as having violated immigration laws, the police will call ICE and, at the request
of immigration authorities, hold the individual for forty-eight hours for pickup by
federal officers.126
The experience of Waheed Saleh, a Palestinian cab driver living in New York City,
offers a concrete example of how the New York policy has been applied and interpreted. According to media reports, Mr. Saleh believed that he was being harassed by
a member of the New York Police Department, who had issued Mr. Saleh a summons
for disorderly conduct when he found Mr. Saleh smoking a cigarette outside a doughnut shop.127 The officer also reportedly yelled at him, telling him to go back home
to his own country.128 Shortly after this incident, Mr. Saleh filed a complaint with
New York City’s Civilian Complaint Review Board. Before he heard back regarding
the outcome of the investigation, however, he was approached by the same police
officer, this time accompanied by immigration officials.129 The federal immigration
authorities questioned him briefly, and then the police officers took him into custody
for administrative immigration violations.130
The police denied that their actions were done in retaliation for the complaint, and
the Civilian Complaint Review Board subsequently rejected the complaint in any
case.131 When Mr. Saleh complained to city council alleging a breach of EO 41, he
was referred back to the very agency he was accusing of misconduct—the police
department.132 The Mayor’s Commissioner of Immigrant Affairs, though technically
responsible for protecting immigrants’ access to city agencies, has no authority to
investigate or enforce EO 41.133 A police spokesperson further explained that there
124.
125.
126.
127.
128.
129.
130.
131.
132.
133.
Charlie LeDuff, “Police Say Immigrant Policy Is Hindrance” New York Times (7 April 2005).
Bernstein, “Police Report Noncitizens”, supra note 123.
Ibid.
Nina Bernstein, “Grievance about a Policeman, Then a Deportation Hearing” New York Times (26
September 2005) [Bernstein, “Grievance”].
Ibid.
Ibid.
Asian American Legal Defense & Education Fund, Press Release, “AALDEF Challenges NYPD Retaliation against Immigrant” (9 February 2006), online: <http://www.aaldef.org/article.php?article_
id=26>.
Bernstein, “Grievance“, supra note 127.
Ibid.
Ibid.
234
(2009) 22 Journal of Law and Social Policy
had been no violation of the Mayor’s Order, as Mr. Saleh, a taxi driver, had a variety of
traffic summons issued against him that amounted to illegal activity, just as a single
parking ticket would.134
The New York experience should give the Toronto Police Services Board considerable pause regarding the practical impact that their policy, as currently formulated, is
likely to have on the target community. Prior to 1999, New York had been, for almost
fifteen years, a “sanctuary city” where the local police did not involve themselves in
immigration enforcement. Despite this history and overwhelming community support for a robust “Don’t Ask, Don’t Tell” policy, the availability of alternative means of
determining an individual’s immigration status, a relatively vague “Don’t Tell” provision, and an apparent lack of police will to purposively interpret the policy, have led
to heavy police involvement in immigration matters. Toronto, in comparison, has a
new policy that does not enjoy equally robust institutional support, is more limited
in scope, allows for more exceptions, and provides no protection whatsoever for confidential information. Although the efficacy of the existing Toronto policy cannot be
thoroughly assessed at this point, there appear to be very legitimate concerns that it
will ultimately prove insufficient to achieve its goals.
Conclusion
Recent immigrants, both those with and without status, are often highly marginalized within the larger Canadian society. In interacting with government offices and
officials, they face significant linguistic, cultural and organizational barriers that
interfere with their ability to access the most basic government services. In the case
of non-status community members who have been victims or witnesses of crimes, or
who are simply attempting to access basic police services, these individuals face the
additional overriding fear that their interaction with the police will lead to the deportation of themselves, their families, or other close members of their community. The
impact of having police fill the role of investigating and apprehending non-status
individuals has serious safety consequences, not only for the non-status individual
but also for the surrounding community.
As outlined above, however, while the Board has recognized the inherent difficulties
that arise when police contact regularly leads to prosecution for immigration violations, there remains a real possibility that the existing policy response will ultimately
fail to address the underlying concerns. The chief of police has attempted to argue
that a “Don’t Tell” provision would place police officers in contravention of their
statutory duties. A more comprehensive and purposive reading of the governing
legislation and regulations, however, leads to the conclusion that, not only is a “Don’t
Tell” provision legally permissible, but putting such a policy in place would actually
further the objects and purposes of the legislation. Moreover, the policy-based ob134. Ibid.
To Serve Some and Protect Fewer 235
jections to a comprehensive provision appear weak, while the experience in New
York City suggests that even a more robust policy than what is currently in place in
Toronto remains highly susceptible to subversion and abuse.
All those present in Canada have their right to life and security of the person guaranteed by s. 7 of the Canadian Charter of Rights and Freedoms. Access to police services
is an integral part of securing these rights and should in no way be impaired by
a person’s immigration status, or the immigration status of their immediate family
or community. The TPS and the Board have taken important first steps in demonstrating their willingness to address the issue of non-status individuals’ rights and
their desire to build trusting and mutually beneficial relationships with this highly
marginalized community. Ultimately, however, there remains a substantial and very
real concern that the current policy measures will do little, if anything, to increase
the trust that non-status individuals are able to place in the police. So long as the
non-status community fear that interactions with the police will lead to deportation,
they will remain a highly vulnerable and marginalized population, living outside the
state-guaranteed physical and legal protections that are so often taken for granted by
the rest of Canadian society.
Book Review
The First Women Lawyers: A Comparative Study of Gender,
Law and the Legal Professions
by Mary Jane Mossman
Oxford: Hart Publishing, 2006
The Ursula Franklin Reader: Pacifism as a Map
by Ursula M. Franklin
Toronto: Between the Lines, 2006
Reviewed by Linda Gehrke*
In the midst of an ongoing debate about whether women have finally and fully been
accepted as members of the legal profession, Mary Jane Mossman’s The First Women
Lawyers explores the lives and times of a group of nineteenth-century women who
sought entry to the legal profession. The Ursula Franklin Reader introduces the reader
to the work of Ursula Franklin, a leading thinker and speaker on the subjects of feminism, pacifism, science, technology and women’s relationship to the technological
professions. Both authors explore women’s acceptance in their respective professions
and the consequences this had for the professions and for the women themselves.
The First Women Lawyers is a lively account of remarkable women who became the
first women to practise law in their regions. Mossman’s carefully researched biographies of Eliza Orme, Cornelia Sorabji, Jeanne Chauvin, Ethel Benjamin, Clara Brett
Martin, Louis Frank (a Belgian lawyer who supported the cause of women advocates)
and others reveals the personal and social complexity of the gender and professional
issues they faced, and the forces that influenced the choices they made about their
professional identities and their personal lives. The breadth and detail of this work
develops themes of gender and professionalism on a global scale, while remaining
true to the lives and spirits of these women.
The articles and lectures in The Ursula Franklin Reader address the pursuit of peace,
feminism, the environment and the technological world. The volume explores the
relationship between women and the world of technology, and in particular their
relationship to the technological professions.
Both volumes employ a contextual analysis to the subject of women’s access to the
professions. Mossman and Franklin describe the relationship of women to the profes*
Linda Gehrke is the lobbyist registrar for the City of Toronto. The opinions expressed are those of the
author alone and do not represent the views held by any other institution or organization.
238
(2009) 22 Journal of Law and Social Policy
sions as a web of relationships in an interdependent, ever-changing historical, social,
technological and environmental context. Mossman uses the metaphor of a kaleidoscope “as a way of taking account of the complex interrelationships between different
historical contexts and women’s responses to different circumstances” (277).1
In her lecture New Issues of Access to Justice Raised by Modern Technology Franklin
describes technology as a “form of societal structuring” (184) and argues that the
“widespread use of modern technologies has given rise to a set of new and inherently
different problems of access to law and justice” (183). Franklin views technology in
terms of practice or “the way things are done around here” (184). In her view, access
to justice, the possibility of restricting access to particular technologies or practices and the gendering of the workplace and the professions are intertwined. When
women’s access to the technological professions is restricted, women’s ability to influence technology is likewise restricted.
This notion of restricting women’s ability to influence practice leads Franklin to ask
a fundamental question, “Can feminist practices shape and change technological
practices, and, at the same time, can practicing feminists function and survive as
feminists in the contemporary here and now?” (207). She identifies a contradiction
between women’s values and the operational principles of the technological order. In
her analysis, the integrative and organic perspective that women offer—for example,
their vision of an interconnected “web” as opposed to a “system”—are a source of
creativity and change within the technological professions (245). However, she worries that as women enter the world of technology they will lose this feminist perspective and will not survive “as human beings, as creative, spontaneous, and cheerful
persons” (248).
Mossman’s biographies reflect a creative approach, which Franklin identifies as part
of the integrative perspective that women offer. Mossman examines how women
practising law in the nineteenth century adapted to the lack of acceptance of women
in the legal profession by operating at the fringes of the profession and creating new
areas of practice. She notes that all the women she studied “tended to be individuals
who confidently embraced new kinds of opportunities” (285).
The biography of Cornelia Sorabji illustrates the concept of creatively operating at
the fringes of the profession. Sorabji was the first woman in Britain to study law at
Oxford University and the first woman in India to receive a bachelor of law degree
from Bombay University. She was also the first woman allowed to plead in a British
court, even though she was not formally admitted to the legal profession until much
1.
Mossman refers to the work of June Purvis, feminist biographer, commenting on current challenges
in biographical writing about women. According to Mossman, Purvis argued that, rather than look
at women’s lives through a microscope, “it was preferable to conceptualize women’s lives in terms of
a kaleidoscope—an approach that better reflects the always-changing and interconnected patterns in
their lives.”
Book Review 239
later (194).2 During the period before she was admitted to the bar, she practised
while in India as an advocate on behalf of women in purdah. As Indian women’s
seclusion made it difficult for them to enforce their property rights, Sorabji hoped
to define a new role for female advocates with knowledge of Indian law. Sorabji reasoned diplomatically, “We need not supplant men. There is enough to do if we will
supplement them” (208).
Eliza Orme, another of Mossman’s subjects, was the first woman to graduate in law
in England. Mossman comments that, though Orme “never did apply for admission
to the bar or the solicitor’s profession, she was engaged in legal work for twenty-five
years” (125). Orme’s practice was in conveyancing and patents and in drawing up
wills, which did not require admission to the legal profession. When she did work for
barristers and solicitors, she reported that she earned only half fees (131–32). Orme
was a “significant public figure” and may have served as the model for the character
of Vivie Warren in Bernard Shaw’s Mrs. Warren’s Profession (121, 125).
Both authors examine how some women admitted to a profession abandon or deny
feminist principles. Franklin notes the curious lack of response by women engineering students to comments denigrating the status of women published in student
newsletters. She concludes that “women who have entered the technological order
cope with adjustment to the new milieu and their new loyalties by denying their
origins” (249).
Mossman’s account of the life of Ethel Benjamin, the first woman lawyer in New
Zealand, illustrates a perceived antagonism between the status of membership in
the legal profession and feminist principles. Benjamin, while admitted to the legal
profession, was virtually excluded from participating in law society functions, yet
she publicly opposed some feminist equality initiatives (174).3 On the other hand,
Mossman writes that Orme, who never applied for admission in the legal profession,
was an advocate for women’s education and women’s suffrage.
This need for women to deny their origins in order to be accepted in the professions
stems from what Mossman observes to be the rhetoric of women’s equality at the
turn of the twentieth century. This rhetoric of equality was focused exclusively on
admitting women to the profession and did not challenge the structure or culture of
the profession, or its ideas of gender or professionalism. In Franklin’s words, early
women lawyers were denied full access to the technology of law and thus, while they
may have been allowed to participate in its dissemination, they played little part in
determining “the way things are done around here”.
2.
3.
Cornelia Sorabji was eventually called to the English bar in June 1923.
Mossman reports that the National Council on Women stated about Benjamin that “there was a feeling among [Council] members that young feminists like Ethel Benjamin could take advantage of gains
made by the older generation yet dismiss the struggle that had gone before.”
240
(2009) 22 Journal of Law and Social Policy
Conclusion
The biographies of the characters in The First Women Lawyers resonate with the complexities of their relationships to the legal profession and society at large. Mossman
brings to light the stories of women who struggled to cope with the male exclusivity
of the legal profession in different ways: the tragically ironic tale of Ethel Benjamin,
who gained entry to the profession only to face exclusion once within it, yet opposed feminist equality initiatives; Eliza Orme, who practised overtly and successfully “outside the tent” of the legal profession while supporting equality for women;
and Cornelia Sorabji, the first woman to represent a client in a court in the British
Empire, who sought to “supplement”, not to “supplant” the male legal profession, and
who practised for many years before being formally admitted to the profession.
Franklin examines the complexities of the relationship between women and the
technological professions. She illuminates the fundamental contradiction between
traditionally feminine perspectives and the values of the technological order. Franklin
asks, “Can feminist practices shape and change technological practices, and at the
same time, can practicing feminists function and survive as feminists in the contemporary here and now?” (207).
The pressing question raised by both authors is whether women will change the professions or whether the professions will change them.
Mossman’s biographies resonate with my experience as a woman lawyer who was
part of the wave of women admitted to the legal profession in the late 1970s. In my
view, the issues raised by Franklin and Mossman establish an important context to
the issues we face today in the professions. As we move into the twenty-first century,
whether the legal and technological cultures will change sufficiently to permit full
participation by women and others who are not part of the dominant cultures of
these professions remains an open question.