On October 16-17, 2023, Our Homes Can't Wait Coalition [“OHCW”] and Pivot Legal Society [“Pivot”] will be at the BC Court of Appeal to co-intervene in the appeal of McNeil v. Elizabeth Fry Society of Greater Vancouver 2022 BCSC 2174. The case will impact core housing and tenancy protections for low-income communities all across BC, especially as state-sponsored evictions continue to push many Black, Indigenous, racialized and poor people out of their communities.
This is part 3 of a series on housing justice in so-called Vancouver, the unceded territories of the xʷməθkʷəy̓əm (Musqueam), Skwxwú7mesh (Squamish), and səl̓ílwətaʔɬ (Tsleil-Waututh) Nations.
See Part 1 for background on the case of McNeil v Elizabeth Fry and a discussion of why it matters to our coalition.
While the rights of marginalized communities in low-income neighbourhoods have been continuously trampled on, these same communities have rich traditions of organizing in tenant associations where people impacted by housing precarity come together to organize and advocate for improved housing conditions that advance housing as a human right. They recognize that there is strength in numbers in resisting corrupt landlords and in being able to advocate for housing protections for those that need it most.
We wrote in our earlier blog that the housing crisis is really a crisis of colonialism, it reflects the continued land dispossession, the stripping away of the commons, and people’s belongings amidst city sweeps of tent cities on Hastings street. It is also about the continued state abandonment from social housing programs that has left Elders, Indigenous, Black, Brown and immigrant communities grappling with no affordable housing options, and navigating between shelters or sheltering rough through police violence and harassment. When people are forcibly pulled away from their homes and communities, this only worsens the economic and social crises already shouldered by marginalized communities.
As Mariame Kaba and Kelly Hayes note in their powerful handbook for organizing, Let This Radicalize You: Organizing and the Revolution of Reciprocal Care, capitalism requires an ever-growing class of disposable people. It necessarily entails a political and economic system where whites and POC elites upholding white supremacy, can distance themselves from poor and working-class communities and maintain the mythology of merit, hard work and individualism that continuously tries to keep marginalized people apart and away from developing a political consciousness about the interconnected roots of our social oppression. It’s not just about engaging in theoretical discussion, or, challenging the settler mythologies that are apparent in our work, organizing for dignified housing is an invitation to go deeper in the work and connect folks that would otherwise be isolated to a particular tradition of Black, Indigenous, feminist organizing amidst interconnected political struggles.
As legal scholar Dean Spade has poignantly argued, social change happens when large groups of people come together to organize, fightback, disrupt, and make it impossible for state violence and extraction to continue, not from top-down processes run by corporate elites, private developers and unprincipled policymakers finally deciding to extend goodwill and reinvest in social programs that benefit marginalized communities. Within a movement-lawyering tradition, supporting groups engaged in grassroots organizing and in the legal intervention, we meet together on a weekly basis to strategize over food, drinks, we provide legal update, write submissions, and engage in knowledge-sharing as part of the ongoing anchoring that we’ve committed to in the context of this campaign. This work is an invitation for us to deepen our relationships with one another, to keep imagining, designing new worlds and engaging in counter-storytelling, in the face of an otherwise brutal and repressive colonial legal system.
Abolitionist organizers Mariame Kaba and Kelly Hayes urge us to consider organizing as a process for building power from the ground-up that involves intentional relationship-building and cultivating a shared analysis of power, particularly around the root causes of oppression. As Pivot and Our Homes Can’t Wait work jointly on this intervention, it is particularly important to recognize that part of the long-term struggle for housing justice requires us to continuously build and foreground our analysis in a critique and vision for housing as a fundamental human right.
We recognize that the language of rights presumes that (colonial) legal systems and laws provide adequate protection of the right to housing, when this is not always the case. At the same time, we see human rights as one framework that can help Pivot and OHCW collectively push back against popular narratives that position housing as a private good and commodity, and instead treat housing as a human right that is essential for human dignity, wellbeing, autonomy and self-determination. We continuously reject state abandonment of marginalized people for the continued protection of private property and capital interests.
We know from our ongoing work in communities that violations of housing rights (including forced evictions, high rents, guest bans, and substandard housing) often stem from private land development, infrastructure projects and renovictions aimed at increasing profits. These measures disproportionately displace and otherwise impact Indigenous peoples, elders, people with disabilities, low-income groups, racialized and other marginalized communities recognized under various provincial human rights legislation as protected groups, having unique housing and social needs that governments are obliged to take into account.
Everyone has a right to housing, healthcare, and all of that. For people that are living in supportive housing, they should have equal rights as people living in private, market-based housing. Everyone has a right to proper and dignified housing.
Aero, longtime organizer and OHCW member
This legal intervention is again a collective invitation for us to reimagine what housing rights would be like if we really asserted the broad spectrum of housing rights that we are entitled to, and if we weren’t so limited in our policy-making and collective political will by the confines of capitalism and colonialism.
How is the right to adequate housing defined in international law?
It goes without saying that housing is a fundamental human right, essential for people’s health, wellbeing, access to food, government benefits and supports. Our government has a responsibility to uphold a basic level of human rights that keeps people from being violently displaced and uprooted from their communities. As long-time OHCW member Aero explains, “Everyone has a right to housing, healthcare, and all of that. For people that are living in supportive housing, they should have equal rights as people living in private, market-based housing. Everyone has a right to proper and dignified housing.”
A basic principle of international human rights law is that everyone regardless of their race, gender, age, disability, immigration status or ability to pay, has a right to a degree of housing security and legal protection (i.e., security of tenure) preventing forced eviction, harassment and threats of eviction.
Specifically, the Committee on Economic, Social and Cultural Rights has identified several core elements of the right to adequate housing, including:
- Security of the tenure: ensuring a basic degree of security of tenure (i..e, housing stability and permanence) with legal protection against forced evictions, harassment and threats;
- Availability of services, materials and infrastructure: housing must have facilities that are essential for health, security, comfort and nutrition. This includes access to safe drinking water, heating, lighting, sanitation and washing facilities, and refuse disposal and emergency services;
- Affordability: tenants must be protected against unreasonable rent levels and rent increases. It is a basic principle of adequate housing that the cost of housing must be in line with income levels, and housing costs cannot be too expensive as to threaten or prevent people from meeting their basic needs;
- Habitability: housing must be habitable (i.e., livable), and must adequately protect people from health, safety and structural hazards, as well as poor health outcomes such as the higher mortality and morbidity rates that are often associated with unsuitable housing;
- Accessibility: housing must be fully accessible to systematically oppressed groups, and housing law and policy must fully account for the unique housing needs of these groups;
- Location: adequate housing must be in a location that allows full access to employment, health care services, schools, and childcare. Proximity to polluted sites are also important considerations; and,
- Cultural adequacy: housing should be diverse and help to allow individual and group expression of cultural identity and group-based needs.
- Non-discrimination: another key aspect of the right to adequate housing, in that tenants must not be subjected to discriminatory treatment – and that includes both direct and unintended impacts.
The right to adequate housing as set out under the International Covenant on Economic, Social and Cultural Rights [“ICESCR”] is binding on all governments who are parties to the treaty, which includes Canada. It is also binding on all levels of government (i.e., federal, provincial and municipal), regardless of the fact that the executive branch of government signs the ICESCR. We know these to be obligations and state responsibilities, despite government unwillingness to fully implement basic human rights.
While the ICESCR is technically binding on the Canadian state, Canadian courts see international law as “persuasive but non-binding” unless it has been explicitly adopted into domestic law. As a result there has been no means for tenants to bring a legal action against the Canadian state for failure to implement the terms of the treaty.
The National Housing Strategy Act – International Obligations Gain Domestic Traction
In 2019, the federal government introduced the National Housing Strategy Act (“NHSA”), recognizing the right to adequate housing for the first time ever in Canada. It marked a historic moment for many individuals and groups, and represented a shift in federal policy towards advancing housing as a human right, as a framework to advocate for permanent housing for all.
The NHSA enshrined the following commitments to housing policy on behalf of the federal government: 
- recognize that the right to adequate housing is a fundamental right affirmed in international law;
- recognize that housing is essential to the inherent dignity and wellbeing of the person and to building sustainable and inclusive communities;
- support improved housing outcomes for the people of Canada; and,
- further the progressive realization of the right to adequate housing as recognized in the ICESCR.
The NHSA is a federal statute that implements the ICESCR and, more specifically, the right to adequate housing domestically in Canadian law. It therefore requires governments to take steps in relation to its maximum possible resources to achieve the right to housing by appropriate means including through legislative measures.
The NHSA does not contain a clear path for rights claims, i.e. a way for individuals to bring legal action against the Canadian state. The passage of the NHSA certainly bolsters existing human rights legislation and, more specifically, tenancy laws that already have legally enforceable standards of housing adequacy as set out in international human rights law, which could eventually have significant impacts on how courts interpret housing and tenants’ rights going forward.
The Residential Tenancy Act – The Tool We Currently Have
British Columbia’s Residential Tenancy Act (“RTA”) and regulations are the primary legislation governing tenancy rights in British Columbia. These existing tenancy laws provide a basic level of protection for people’s housing rights, curbing the ability of landlords and housing managers to evict tenants. While these laws do not protect the full contents of housing adequacy as set out above, they do protect some of the core rights, for instance:
- Enforcement of tenants’ rights and legal remedies through dispute resolution mechanism: Rights and obligations of tenants and landlords respectively, are enforceable under tenancy agreements. This means that tenants have a right to make an application for dispute resolution to have their tenancy matter resolved and their rights enforced through dispute resolution proceedings at the RTB.
- Protections against unlawful evictions: Tenants can only be evicted in limited circumstances outlined in the RTA, and landlords are required to give tenants reasonable notice in order to lawfully evict a person from their homes.
- Restrictions on unreasonable guest bans: Guest bans generally contravene the RTA. Landlords are not entitled to unreasonably impose guest restrictions or bans.
- Limits on excessive rent increases: Unlawful rent increases are prohibited under the RTA. Landlords are required to follow annual rental increase guidelines and must provide notice to tenants of any increases in rent.
- Safeguards against substandard housing conditions: Landlords have an obligation to maintain and repair rental units in a state that complies with basic health, safety and housing standards. Landlords are required to maintain rental units in a manner that is suitable for the occupation of a tenant, taking into account the age, character and location of the unit.
It is worth emphasizing that the RTA does not include protections for all areas of “housing adequacy” as required under international legal standards. The Committee on ESCR has described the importance of legislative measures that afford the greatest possible housing security for tenants, and that are designed to lessen, not widen, the gap in housing precarity between privileged and disadvantaged groups.
Second, as noted in Part I of our series on housing justice, there is a lack of clarity in how BC’s RTA defines transitional housing, a type of housing which is not covered by the RTA. As a result, individuals and groups who rely on non-profit housing are frequently excluded from tenancy protections and barred from accessing the RTB. In short, poor people are denied tenancy protections simply because of their inability to afford market rent, or their “social condition” (i.e., poverty, socio-economic status, and housing precarity). Arguably, the exclusion of low-income people from tenancy protections violates people’s rights to equality and non-discrimination by exposing low-income groups to forced evictions.
Third, within the existing RTA regime, the process of asserting tenancy rights and claims at the RTB is so inaccessible that it impedes access to justice for many tenants. Low-income and remote communities often lack access to internet and legal resources. There is no right to counsel for tenants in BC, and, with cuts to legal aid programs, existing tenant clinics are consistently overrun. Individual, self-represented litigants are faced with power imbalances with landlords who have repeated RTB experience and are more frequently represented. They are also faced with the very real threat of being retaliated against by landlords for even attempting to advance a case. All of this leads to people being unwilling or unable to challenge landlord practices and to landlords moving forward with evictions without them being contested in court.
It is a well-established under international law that everyone is entitled to adequate housing regardless of their socio-economic status, poverty and/or whether or not that person lives in public housing. In this vein, if BC is to implement provincial tenancy laws, those protections must be afforded to all renters, and courts must be attuned to the adverse impacts of carving out whole communities from tenancy rights that they are legally entitled to. At a minimum, BC’s tenancy laws must provide a mechanism for low-income communities whose tenancy rights are at stake, to assert RTA protections and challenge the policies and actions of landlords – that undermine fundamental housing rights.
See also arts. 21(2) and 23 of the United Nations Declaration on the Rights of Indigenous Peoples, (13 September 2007), A/61/L.67 and Add.1, [“UNDRIP”]. UNDRIP affirms the right to housing for Indigenous peoples, and most recently, BC has adopted the Declaration on the Rights of Indigenous Peoples Act, which mandates that provincial laws be brought in alignment with international law.
See Michele Biss, Bruce Porter, et al, “Progressive realization of the right to adequate housing: A literature review”, available online: https://housingrights.ca/wp-content/uploads/NHC-Progressive-Realization-Paper_EN.pdf at 63-64.
The NHSA is a new piece of legislation introduced by the federal government and its legal effects are currently unclear. That said, it does expressly give broad review and investigative powers to the Federal Housing Advocate, which includes, among others, the power to initiate its own reviews of systemic housing issues, and, to request that the National Housing Council convene review panels on systemic housing issues.
Using the law as a catalyst for positive social change, Pivot Legal Society works to improve the lives of marginalized communities.