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An Interview with Downtown Legal Services Housing Staff Lawyer on the Right to Housing in the Pandemic
While upholding the right to housing is more important than ever, the COVID-19 pandemic has brought forward new and exasperated existing challenges in housing law
(Photo courtesy of Abdullah Khan)
The right to housing is enshrined in the Universal Declaration on Human Rights and recognized in a number of treaties ratified by Canada. The National Housing Strategy Act reaffirms that “adequate housing is a fundamental human right affirmed in international law,” and that “housing is essential to the inherent dignity and well-being of the person and to building sustainable and inclusive communities.” Locally, the City of Toronto’s HousingTO 2020-30 Action Plan recognizes housing as a human right, and commits to a rights-based approach to responding to housing and homelessness issues.
In 2008 the “Right at home: Report on the consultation on human rights and rental housing in Ontario” found that “a wide range of consultees expressed significant concern that people protected under [Ontario’s Human Rights Code] are disproportionately excluded from suitable rental housing despite international protections.”
Over ten years later, a 2019 report by the Canadian Centre for Policy Alternatives (CCPA) found “no neighbourhoods in Canada’s biggest cities,” including the Greater Toronto Area, “where a full-time minimum wage worker could afford either a modest one- or two-bedroom apartment.” What’s more, NOW Magazine reports that there are “more than 10,000 people currently unhoused in Toronto any given night,” effectively identifying one of the groups hit hardest by the COVID-19 pandemic.
The economic effects of the pandemic, coupled with challenges posed by physical distancing have given rise to new issues and exacerbated existing ones that Toronto housing advocates already grappled with daily. In addition to ramping up their work on behalf of low-income tenants, the city’s legal clinics find themselves holding government agencies at the provincial and municipal levels accountable for ensuring access to justice and protecting the right to housing. One of these clinics is Downtown Legal Services (DLS), where Benjamin Ries supervises the Housing Law division.
This interview has been condensed and edited for clarity.
Martha Côté (MC): In October, the Advocacy Centre for Tenants Ontario (ACTO) published a report outlining concerns about the Landlord Tenants Board (LTB), which DLS signed on to. Could you talk about how the pandemic has affected the LTB?
Benjamin Ries (BR): It started before the pandemic, really, in a very challenging climate for the tribunal itself to function. The whole of access to justice was recast as the problem, the speed bumps, what’s slowing things down.
When the pandemic began, the tribunal was at very low capacity to begin with. It had a huge backlog already and then [came the] eviction moratorium — a case the DLS is directly involved in. Since August, [when the moratorium was lifted] the tribunal has had to deal with an existing backlog, a pandemic-based backlog, and one of its lowest ever adjudicator complements. All of that has been funneled towards this effort to push through eviction hearings within minutes through Microsoft Teams. Stories have started to accumulate since those hearings got going in earnest in September: tenants who don't have a stable Internet connection use the phone — well, they can't see anybody while everybody else is looking at each other — or tenants are not getting admitted [from the waiting room], or tenants are not receiving their notice of hearing because it was only booked the day before, and so on and so forth.
I think the main concerns that were highlighted in the [ACTO] report, and by our colleagues in the clinic system, is seeing unrepresented tenants given a maximum of ten minutes to separately connect with the lawyer serving as duty counsel that day to get advice, which often can't be delivered in ten minutes. Then, they try to reconnect, and in some cases are not able to.
The conclusions are kind of simple: a certain number of those applications are being processed as uncontested. There have always been tenants who didn’t go to their hearing, but now we have reason to think those are not because the tenants decided not to participate, but because they haven't been given notice or encountered technical problems that prevented them from talking to adjudicators who only wait for a few minutes. None of that really looks like procedural fairness to us. What we hear is that the LTB does not really treat the pandemic as a reason to exercise discretionary relief from eviction.
MC: You mentioned you were involved with litigation around the moratorium order on evictions. Can you say more about the latest decision dismissing the ACTO’s motion to represent unknown tenants with an interest in the proceeding?
BR: It's admittedly a difficult case to understand but I think there's a lot there for international human rights aficionados. The Attorney General (AG) filed an application on March 19 styled as Attorney General of Ontario v Persons Unknown [Ont. S.C., March 19, 2020],where “persons unknown” was all parties, individually, to residential rental and homeowner evictions. [The order was varied to end the moratorium at the end of July 2020.]
All those people were too numerous to identify and serve, so the AG got an order broadly suspending the regular application. That seemed to open up an interesting new area of jurisdiction outside of the LTB that was kind of the final say on whether eviction should happen. It seemed to be based on guidance from the World Health Organization, based on broad concerns for the health and safety of the community at large.
I'm used to hearing my international human rights colleagues say that forced evictions in particular are a violation of the right to housing. I've always thought, aren't all evictions, by definition, forced? It's a traditional Anglo-perspective that an eviction is a writ of possession and all writs from the court come with “the force” — the force of law, the rule of law. But I think separating out the decision that a person’s interest in their tenancy should be ended from brute government-led force that physically removes them from the property, as we briefly did in March, is what the international right to housing calls on governments to do. That area of jurisdiction now seems to have come to a close.
Our case [Attorney General for Ontario v. Persons Unknown, 2020 ONSC 6892] was desperately seeking a chance to ask, how did that area of jurisdiction come to a close by another ex parte motion that nobody was given a chance to argue? The individual tenants that were trying to bring that motion have since been evicted themselves, so [the judgement] was a refusal to allow the ACTO to be appointed as a stand-in for all of those other “persons unknown.”
MC: In April 2020, the UN Special Rapporteur on the right to adequate housing released a National Protocol for Homeless Encampments in Canada, which affirms that in cases of eviction, including breaking up encampments, the right to housing mandates the government offer a suitable alternative. Just before the pandemic, Toronto also adopted a human rights-based approach in their HousingTO 2020-30 Action Plan. Would you say housing alternatives available, including shelters and crisis centres, align with a rights-based approach?
BR: I’ve worked in domestic, low-income tenant litigation my entire career and I've always been a skeptic —not of international social, economic, and cultural rights themselves — but of the current generation of executive branch commitments to these. Working on the ground, I've rarely seen anything actually get better or change as a result.
I think two cases that we saw this summer, [Sanctuary et al v. Toronto (City) et al., 2020 ONSC 6207] and [Black et al. v. City of Toronto, 2020 ONSC 6398, (Black)], really demonstrate that when the rubber hits the road, there's a far more limited set of things municipalities are prepared to do. I don't think the improvement of shelter standards during the pandemic is because the city is waking up to its human rights obligations. I think that's frankly because hotel rooms have become cheaply available. How much of that is going to go away when we get a vaccine and those hotels are back in business? I think it's not a long-term plan or part of a serious rights-based approach.
MC: Do you see these changes to shelter standards carrying into a post-pandemic setting or informing future access to housing measures?
BR: After the pandemic is over, I think we’ll be able to say that things previously thought impossible might not be so. One positive step will be to ask ourselves: are we really ready to go through the process of taking these people in these city-operated hotel spaces and moving them back into congregate shelter spaces? And there is a public interest in housing issues, I think, like never before in my career — maybe in my lifetime. We'll have to see.
MC: Going back to Black, the application of the RJR-MacDonald test for injunction appears to shed light on the conflict between the rights of people living in public park encampments and the rights of the general public to enjoy the public spaces of the city. Do you see this as a conflict exacerbated by COVID?
BR: I don't know that I would find the language in the Black decision as worrying as one might think. It embraced [precedent to the effect] that the Charter is engaged by homelessness and, in particular, by bylaws that restrict the freedom of homeless people to move about an encampment. I think what you see is that the case was decided on [the majority of plaintiffs] having been offered hotel rooms. I do think that it's a good thing for the city to offer people something more than a shelter bed in a crowded concrete space. Actually offering them a hotel room or something more self-contained — is the best strategic response to litigation that puts the whole park bylaw at risk.
However, I think the experience of my colleagues more generally over the summer would be to see bulldozers, the police, encampments being dismantled. Only when the camera turns on does the person in the tent get offered the hotel room, and as soon as the attention shifts, there's some concern that other people are removed from their encampments with a lot less support offered. So then, should we worry that it's only through a certain combination of public scrutiny and legal threat that people actually get these entitlements?
MC: How has DLS’ work on housing changed in response to the pandemic?
The eviction moratorium case is a good example of where we've actually taken advantage of the slowdown in the board’s attentiveness to our primary files — as much as it's rushing to get through eviction applications, in many cases, on the [application for] tenant rights side, they’ve been [silent] through the pandemic so far. We’re using this temporary capacity to try to support partners in the clinic system by supplying research and maybe stepping into a province-wide advocacy role with ACTO to augment and connect the work other clinics are doing.
We did the same thing with Bill 184 this summer. Changes to the Residential Tenancies Act didn't necessarily immediately affect our individual clients but allowed us to partner with larger tenant unions in the city to help them form an opinion about the legislation and convey that opinion.
Tenant organizing work is something we've also really been able to continue online. You take a dozen tenants who were all isolated and, remarkably, in a time when it's not safe for people to gather in big meetings, they've still found a way to get to know each other, connect, get on the same page, and all watch each other’s backs.