Strategic Litigation and Advancing the Right to Housing in Canada

Strategic litigation in the context of promoting human rights requires the identification of legal cases that have the capacity to set precedents for long term social justice objectives. Strategic litigation is typically done in conjunction with other forms of mobilizing, as part of a broader strategy aimed at shedding light on pressing social issues. This paper chronicles two case studies involving the Dream Team, a grassroots organization in Ontario, that employed different forms of strategic litigation to advance housing rights for people with disabilities. The first case was a Charter challenge, engaging section 7 and section 15 of the Canadian Charter of Rights and Freedoms. The second case involved challenging discriminatory municipal urban planning bylaws in four different municipalities at the Human Rights Tribunal of Ontario.

While strategic litigation can be a powerful tool for social change, there are recurring political and academic debates about the usefulness and capacity of litigation as a tool to advance rights for marginalized groups. Typically, social and political rights are considered out of scope in Canadian Charter jurisprudence. Nevertheless, in the Charter context while there is criticism about using the judiciary to usurp the legitimate power of the elected legislatures in Canada, it is recognized that the Charter is still yet evolving, and as it applies to social and economic rights, the door is still left ‘ajar’ in the aftermath of the Supreme Court’s Gosselin decision.

This paper will explore those debates around justiciability as it relates to the Charter and judicial review, and the role that strategic litigation can play in advancing housing rights. The paper will also chronicle the usefulness of this tool at the local level, using the Ontario Human Rights Code to challenge laws and practices that are advertently discriminatory. The paper will highlight the usefulness of ‘storytelling’ for grassroots organizations, and the role that storytelling can play in shifting broader discourses around affordable housing, and housing rights. The paper will explore the role of building movements for both lawyers and urban planners seeking to working with marginalized communities in advancing their rights, and make suggestions about the types of competencies necessary to undertake this type of work.