Cite as: Dartmouth/Halifax County Regional Housing Authority v. Sparks, 1992 NSCO 29 , .. \ , , ~ PROVINCE OF NOVA SCOTIA C.H. No.: 75171 COUNTY OF HALIFAX I N THE COUNTY COURT OF DISTRICT NUMBER ONE BETWEEN: DARTMOUTH/HALIFAX COUNTY REGIONAL HOUSING AUTHORITY Applicant - and IRMA SPARKS Respondent - and THE ATTORNEY GENERAL OF NOVA SCOTIA Intervenor
Jamie Campbell, Esq., and counsel for the Applicant/Landlord. Vincent P. Calderhead, Respondent/Tenant. Allison Scott and Ms. Lyse Gareau, Articled Clerk; counsel
for the Attorney General.
1992, April 13th, Palmeter, C.J.C.C.:- This matter comes before the Court as an objection to a report of the Dartmouth and County East Residential Tenancies Board dated September 10th, 1991, pursuant to Section l5{4) of the Residential Tenancies Act, Chapter 401 R.S.N.S. 1989.
The Applicant/Landlord application to this Court seeking an Order that the tenancy agreement with the Respondent/Tenant the Applicant be put into possession of the residential premises at 10 Chebucto Lane, that monies be paid to the Landlord by the Tenant.
Colin Clarke, Articled Clerk; Esq.; counsel for the
originally made an be terminated, that Dartmouth, Nova Scotia and The
, ) ,J - 2 matter was directed to the appropriate Residential Tenancies Board for hearing and for a report and recommendation.
The parties appeared before the Residential Tenancies Board on July 25th, adjourned for further argument The Tenant argued that the Board should refer constitutional issues to the County Court for determination or, in the alternative, stay the proceedings until complaint, made by the Tenant against the Landlord, determined.
(., In its report the Board found that it had no jurisdiction to stay the proceedings or determine questions of a constitutional nature under the Charter of Rights and Freedans. The Board recommended termination of the tenancy as of September 30th, 1991 and ordered the Tenant to pay to the Landlord $692.00 in unpaid rent. The issues raised in the Notice of Objection filed by the Tenant were basically as follows:
1. Should Tenancies Board its proceedings Human Rights
1991 and the hearing was to September 5th, 1991. a Human Rights was
the Residential have stayed pending the. Commission hearing
j ) or pending of the constitutional of portions of Tenancies Act, and;
2. Do Section 25(2) of the Residential Tenancies Act contravene Canadian Charter of Rights and Freedoms. , At the hearing of this objection counsel for the Tenant did not pursue proceedings.
It should be noted that the· same issues were raised in Halifax Housing Authority v. Yolanda carvery, C.H. No. 75945, a Notice of Objection heard by me on February 7th, 1992. In that matter the Landlord, Halifax Housing Authority, was represented by Mr. Jamie Campbell, solicitor for the Landlord herein, and Ms. Carvery was represented by Ms. Claire McNeil of Dalhousie Legal Aid Service. I refused to consolidate these two actions and with the agreement of the solicitors postponed decision on either matter until I heard submissions in both. (.,
- 3 the determination validity the Residential
lO(8)(d) and s •. 15(1) of the the issue of the stay of
t , , - 4 The fact s here are not in di spute. They are stated in the Tenant's Memorandum of Law. Irma Sparks is a 42 year old Black Nova Scotian single parent. She has two children who live with her: Parker, aged 16, and Faith, aged 8.
Ms. Sparks moved into Public Housing at 10 Chebucto Lane, Dartmouth, Nova Scotia in December of 1980 and has lived there since. She has a year-to-year lease dated April 1, 1991. The lease provides for a rent of $173.00 per month which is based upon a percentage of the tenant's income. Ms. Sparks' sole source of income is Family Benefits (provincial social assistance) of $767.00 per month for herself and her two children.
On May 1, 1991 Ms. Sparks was served with a notice to quit by her landlord, the Dartmouth/Halifax County Regional Housing Authority. The notice to terminate the tenancy was to be effective May 31, 1991 - thirty days later, the length of which notice was stipulated in the lease.
When Ms. Sparks refused to vacate the premises, , the Landlord applied through this Court for a termination of the tenancy.
- I determined that I on the objection but would allow counsel to refer in argument to any relevant documentation, material. As a result, substantial number of studies, texts, articles and statistics, particularly by counsel for the Tenant. the material provided where appropriate.
The references used by counsel for the Tenant in his argument are listed in Appendix "A" to this decision. A large number of references were also submitted by counsel. for the Tenant in the Yolanda Carvery case. These references are listed in Appendix "B" to this decision. I have also considered that material where applicable. All solicitors involved in both applications were aware of this procedure.
For the purposes for the Landlord and the Attorney General agree to the admission of the following facts, namely:
1. That women, blacks and social assistance recipients disproportionately of tenants in public housing.
5 would not hear evidence including extra judicial I have been provided with a I have considered
of this hearing, counsel
form a large number
, . , 2. That women, blacks and social assistance recipients disproportionate people on the waiting list for public housing.
3. That the by the Landlord into account who are tenants housing.
4. That for " the argument it is admitted that public housing tenants are treated differently than tenants sector under Tenancies Act.
5. That for the Tenant's Landlord in this matter is to be considered actor".
- 6 form a number of the
facts admitted do not take senior citizens of subsidized
the purposes of of the Tenant, in the private the Residential
the purposes of argument, the a "government
, It is understood that the percentage of women and recipients of social assistance tenants, or on the waiting list therefore, are determinable from studies and records of the Dartmouth/Halifax County Regional Housing Authority, persons who are either tenants or on the waiting list cannot be so determined, although it is agreed that the percentage is disproportionate.
When the word "disproportionate" is used, it means disproportionate to private sector tenants in the , area serviced by the Dartmouth/Halifax County Regional Housing Authority. The Tenant submits that Sections 10(8) (d) and 25(2) of the Residential Tenancies Act contravene Section 15 of the Canadian Charter of Rights and Freedoms.
Section 10 ( 8) (d) of the Residential Tenancies Act reads:
"10(8) Notwithstanding the periods of notice in subsection (1), (3) or (6), where a tenant, on . the eighteenth day of May, 1984, or thereafter, has resided
- 7 who are subsidized however, the number of black
in the residential for a period of five consecutive years or more, notice to qui t may not be given except where (d) the residential premises are operated by or for the Nova Scotia, of Canada or a municipality:" In other words, the tenure provisions of the Act do not apply to tenants of public housing. . case, moved into public housing in 1980 and had been a tenant for over ten years when the notice was given.
Section 25(2) of the Act reads as follows: "25(2) Where any Act conf1icts with a lease granted to a tenant of residential premises that are for the Government Province or a municipality, or any agency thereof, developed the National Housing Act, or the National the provisions of the lease govern." In the case before me Ms. Sparks was given 30 days notice to quit under the provisions of her lease. of the Act been applicable, entitled to three months' notice to quit at the end of each lease term, except for cause.
- 8 premises or administered Government of the Government The Tenant, in this
provision of this the provision of administered by or of Canada or the and financed under 1954 (Canada) Housing Act (Canada), Had the provisions Ms. Sparks would have been
, It is agreed that Ms. Sparks is a groups which are enumerated in s. 15 of the Charter, namely, race and sex. Counsel al so argues that Ms. Sparks, as a "social assistance recipient" is or "analogous group" also protected by s. Reference has been made to the cases of R. v. Turpin (1989) 69 C.R. (3d) 97 (S.C.C.) A.G. of British Columbia et aI, (unreported Vancouver Registry A 8 93 0 60 , May 31 , 1 991), (B • C•S •C. ) . assistance recipients" are an by s. 15 of the Charter. minori ty as defined by the Supreme Court of Canada in the ca se of Andrews v. Law Society of British Columbia (1987 ) , 56 D.L.R. (4th) 193 S.C.C. "Andrews") •
Counsel for the Tenant refers to a study published by the National Council of Welfare during the summer of 1990 entitled Women and Poverty Revisited. Chapter II of that study enumerates many disturbing findings which are set forth in the factum of the Tenant. On p. 14 the following paragraph summarizes the Chapter:
"Overall, this , 1979 finding that poor women are found
- 9 member of two wi thin an unenumerated 15 of the Charter. and F.A.P.G. (B.C.> et al v. I hold that "social "analogous group" protected They are a di screte and insular (hereinafter referred to as
chapter confirms our
, - in all types of family situations, but that women's risk of becoming poor greatly increases when they do not have a husband or a father to support them. data on the depth of poverty shows that low-income single-parent unattached women harder time than other low-income women because their incomes are so far below the poverty line." Wi th these findings are supported by the other reference material in both this and the Carvery single-parent mothers have a more difficult time economically. , The same is true regarding housing for single-parent mothers. Material submitted on both applications convince single-parent mothers have a appropriate housing. At p. 79 of the study Women and Poverty Revisited:
"Canada Mortgage and Housing Corporation reports that 40 per cent of female single parents under 65 have 'core' housing needs, meaning their housing is either too crowded, physically inadequate or costs more than 30 per cent of their total income. In the Atlantic Provinces, many single parents pay more than 50 per cent of their income for an apartment. Families on social assistances in New Brunswick spend more than 65 per cent of their income for rent." One can almost take judicial notice that the Black " Community in Nova Scotia has always been at the low end
10 Our new mothers and under 65 have a much I do not take issue. They submitted case. I accept that me that more difficult time securing
- 11 of the economic scale. The material submitted corroborates this submission. Per capita, the income and education of Black Nova Scotians are considerably lower than the majority of other Nova Scotians. Employment opportunities and availability of suitable housing also are not equivalent.
I accept the submissions by the Tenant that single parent mothers, and blacks, are less advantaged than the majority of other members of our society. It also goes wi thout saying that social assi stance recipients are also less advantaged, although some arguments could be made that , there are certain advantages accruing to such recipients if they are able to obtain sui table public housing at a smaller percentage of their income than would be the case
if they were a private sector tenant.
Counsel for the Tenant argues that she is being discriminated against under s. 15 (1) of the Charter because she is black, is a single-parent mother, and is a recipient of social assistance. Accordingly, it is argued that s. lO(8)(d) and s. 25(2) are discriminatory and therefore unconsti tutional. The Tenant cites the concept of adverse effect discrimination.
The Supreme Court of Canada defined the concept. of "adverse effect discrimination" in Ontario Ruman Rights
, . , - Commission v. Simpson-Sears Ltd. 321. At p. 332 McIntyre, J. states: "A distinction must what I would discrimination and the referred to discrimination in employment. Direct discrimination occurs in this connection adopts a practice or rule which on its face discriminates on a prohibited ground. For example, 'No Catholics or no women or no blacks employed is, of course, no disagreement in the case at bar that direct discrimination of that nature Act. On the other hand, concept of adverse effect discrimination. , It arises where an employer for genuine business reasons adopts a rule or standard which is on its face neutral, and which will apply equally to all but which has a upon a prohibited ground on one employee 'or group of employees in that it imposes, because of same special characteristic of the employee or group, obligations, penalties, or restrictive not imposed on other work force. For essentially the reason that led discrimination contravening I am of the opinion that this court may consider adverse effect discrimination as described in contradiction of the terms of the Code. An employment rule sound economic or equally applicable to all to is intended to discriminatory if it affects or group of persons differently others to whom it may apply." , mine) Simply put, in the case before me, in my opinion the Tenant is arguing that the sections questioned in the
12 (1985), 23 D.L.R. (4th) be made between describe as direct concept already as adverse effect connection with where an employer here. ' There would contravene the there is a employees, discriminatory effect conditions members of the same to the element of the Code, these reasons a honestly made for business reasons, whom it apply, may yet be a person from (emphasis
· . - 13 Residential Tenancies Act disproportionately negative single-parent mother, and a recipient of social assistance. In other words, disproportionate to the effect on other tenants of public housing who are not black, single-parent mothers or on social assistance.
It is not being suggested that tenants who are black,' single-parent mothers assistance are treated any differently than other tenant~ of public housing, however, it is being submitted that the treatment has a disproportionate adverse effect on blacks, single-parent mothers or recipients of because they are discrete and insular minorities in the context of the Andrews disadvantaged groups who suffer social, political or legal disadvantage of vulnerability through political and social prejudice.
It is clear, and agreed by counsel, that tenants of public housing as a whole are treated differently than tenants in the private sector. The government has conferred a benefit on those in need of affordable housing by virtue , of subsidized rent, in order to relieve the burden of poverty
affect the Tenant in a way because she is a black,
or recipients of social social assistance case, that is, traditionally
, . - 14 to which they are sub ject as a result of their financial status. To protect this benefit, tenants of public housing are excluded from the provisions of s. 11 of the Act relating to rental increases. Rent is specifically related to a percentage of the public housing tenants I income. On the other hand, public housing tenants do not have the benefit of security of tenure and may be subject to different notice to quit provisions than those afforded tenants in the public sector.
It is suggested that the fact that public housing tenants do not have security of tenure and shorter notice periods could be a benefit for those on the waiting list for public housing, who are disproportionately black, single-parent mothers or recipients of social assistance. The onus is on the Tenant to establish a prima facie case of discrimination.
In Reference Re: Family Benefits Act (1986), 75 N.S.R. (2d) 338, the Supreme Court of Nova Scotia, Appeal Division considered s. 15(1) of the Charter and at p. 351 stated as follows:
"It will be necessary of the Charter to
under S. 15(1) establish that a
, ' , - 15 challenged law not only treats a class
unequally but also in a discriminatory manner. The burden of proof in the first instance of establishing that a law prima facie violates S. 15(1) will be on the person challenging the statute. We see no reason to distinguish in this regard between laws which fall within the listed classifications and those which discriminate on other grounds. No doubt it will be easier to establish a case under the listed classifications as laws classifying on some of those grounds will be inherently suspect. On the other hand, it may not be apparent that a law is discriminatory until the purpose and effect of the law is carefully examined." This case is cited only to show the burden which must fall on a person alleging discrimination.
Counsel for the Landlord and the Department of Attorney General submit that the issue is simply whether public housing tenants may be treated in a manner which is different from private sector tenants. Their submission is in the affirmative and they cite the case of Bernard v. The Dartmouth Housing Authority (1988) 88 N. S .R. (2d), 190 (N.S.S.C.A.D.) (hereinafter called "Bernard") as authority that the question has already been determined by our Court of Appeal.
In Bernard the tenant was given six weeks notice to quit, pursuant to the terms of her lease with the Dartmouth Housing Authority, less than the notice to quit provisions
· . , - 16 in the Residential Tenancies Act. The then s. 12(2) of the Act, which is identical to the present s. 22(2) of the Act, allowed the terms of the lease to govern. The tenant claimed that the provisions of s. 12(2) of the Act were in contravention of her rights under s. 7 (security of the person) and s. 15 (equality rights) of the Charter.
The Appeal Division held that because the right asserted was a proprietory one, which bestowed a direct benef it on the tenant, it had no constitutional protection under s. 7 of the Charter. The Court held that the ability of the Dartmouth Housing Authority to terminate the tenancy on thirty days notice was not discrimination and not in contravention of s. 15 of the Charter.
At p. 198 of Bernard, Pace J.A. states as follows: "The appellant concedes that the 'purpose' of s. 12 (2) of the Residential Tenancies Act is to provide the landlord . in the public housing setting with the administrative flexibility to administer the scheme. Counsel for the appellant also agreed that parties to public housing tenancies are accorded a special status because of the special nature of the tenancy and, therefore, conventional rights and obligations should be treated in a way that is sensitive to that context. , The object of the pUblic housing scheme is clearly designed for the relief of
, . , - poverty. The purpose legislation is to provide the landlord the administrative administer the scheme and adapt it to the various changes peculiar to subsidized housing. in eligibility and personal and family circumstances such of occupants, and changes may affect the rental ch~rges as well as the duration of the tenancy. The effect of s. 12(2) of the Act is as stated by .Goodridge, case of Newfoundland and Labrador Housing Corp., supra, at p. 361 : 'AS a non-subsidized a person would have the benefits of the lease, Act and the a subsidized tenant would have the lease and the common law.' There is no doubt there is a difference or inequality between afforded a non-subsidized a subsidized tenant. difference or inequality to discrimination necessitate the protection afforded under the provisions of s. 15(1) of the Charter." mine) In Newfoundland and Williams et al (1987) 62 Nfld. C.A. ), it was held that the provisions of the Landlord and Tenant Act, S.N. 1973, c. 54, which provided. that the Act , did not apply to residents of pUblic housing, did ~ot violate s. 15(1) of the Charter. At pp. 277-278, Goodridge, C.J.N. states as follows:
17 of the impugned flexibility to in circumstances Changes as income, number a variety of other C. J •N., in the tenant, if any, the common law. As a person the benefit of the protection tenant and However, not every gives rise such as would invocation of the (emphasis Labrador Housing Co~. v. & P.E.I. E.I.R. 269 (Nfld.
, . - (, "The Charter should not be seen as cornucopia from which all flow. Legislative bodies must function; accept some form discipline in society. perfect world. Full equality will never be accomplished. and probably not desirable. The goals of s. discrimination. discrimination. Not every distinction as a Charter case. area where government is free to act without having legislative or administrative without being subjected to adverse review. There are legitimate regulatory measures that society must be prepared. to accept. The function of a province must may arise some inequalities. Even if one for whatever reason gives the a non-pejorative meaning, one must accept that such distinctions and inequalities to some degree acceptable outcome administrative action be seen as a protection and benef it There is a range political regime impunity. That range, however narrow it may be, is certainly broad the bland inequalities in these cases. These views .while directed the ends may apply equally to the means. The ends involve regime or classification for subsidized tenants.
18 a good things and administrative individuals must of regulation and It is not a It is not possible 15 is to eliminate Distinction is not should be seen There must be an to justify every act and running the nation or continue and with it distinctions and term discrimination are the natural and of legislative and and should not denial of the equal of the law. wi thin which the may operate with enough to permit said to exist mainly to creating a special
, . - " The means involve the exclusion of the subsidized tenants and their government landlords from the Act and the acceptance The lease is not part of the legislation but it cannot be is this and this alone that makes the tenant a subsidized tenant ••. It is a legitimate end for the government to establish a subsidized tenants. and on that basis can legitimately have their own classification if only, no other reason, is paid in part out of public coffers and the provisions with regard to rent increases and termination vary because entitlement to subsidization may vary with respect to a time passes. , The means adopted are legitimate. does not pick at the legislation say it might have been done differently or that a better method might have been adopted. (see Gerol v. General of Canada, 85 D.T.C. One merely looks to see that the methods are within that acceptable range mentioned above and are free If the distinction and non-discriminatory consider no more. The period of notice is three months under the Act, one month under the lease. The legislation which brings this about is within· the range legislative conduct. more so when one that a tenant's right to subsidization may from time to time vary or cease." Counsel for the Landlord is the law in Nova Scotia and that the Court therein made
19 operation of the of a lease. disregarded for it separate regime for They are subsidized for because their rent may have to tenant as One and The Attorney 5561). of discrimination. has a regulatory tone, one need of acceptable This is all the considers the fact submits that Bernard
. . - three determinations, as follows: 1. That public treated differently than private sector tenants;
2. That not every discrimination; and, 3. That a system which has been set up to deal with pUblic social welfare program even though it is different through those public are indeed treated differently. I agree with his interpretation of Bernard. , In Newfoundland and Labrador Dousing Corporation v. Williams et aI, Goodridge C.J.N. stated at p. liThe challenger must difficult treatment. a prima facie case Proof of different proof of discrimination. that where the different treatment is shown to be related to one of the matters enumerated in s. race, origin, religion, disability, a prima facie case is made out." (emphasis mine) This was the reasoning followed in Bernard where the Court held that a prima facie case of discrimination was· not made out as it relates to pUblic housing tenants. reasoning.
20 housing tenants are
difference is housing as a is acceptable and even housing tenants 277: not only show He must present of discrimination. treatment is not It may be 15(1) of the Charter sex, age or I accept this
, . , - Counsel for the is the law in Nova Scotia as it relates to public housing tenants and agree. In order to get around Bernard the Tenant must try to distinguish the attempting to do this, counsel for the Tenant relies heavily on the Supreme Court of Canada decision in Andrews. suggests that Bernard is somehow criticized by the Supreme Court of Canada in Andrews because the case of re: Family Benefits Act, discredited. , Reference re: Family Benefits Act is discredited because of the acceptance of the "similarly situate" test only. It is clear in reading Bernard that the similarly si tuate test was not used in that case. the Court· in Bernard used the "purpose and ef f ect" approach as followed in Southam Inc. v. Bunter (1984) and R. v. Biq M. Druq Mart Limited (1985) an approach cited with approval in Andrews. Andrews, MacIntyre J. states as follows:
"Consideration must content of the law, and its impact upon those to whom it applies, and also excludes from its issues which will arise case are such that it would to attempt to confine these considerations within such a fixed and limited formula."
21 Landlord submits that Bernard case in some manner. In He Reference supra, mentioned in Bernard is In my opinion, 25 C.R. 145 1 S.C.R. 295, At p. 13 of
be given to the to its purpose, upon those whom it application. The from case to be wrong
, . , - 22 The Tenant further suggests that Bernard decided a different issue on different facts. It is submitted that Bernard cannot saddle all disadvantaged groups with the outcome in that case in which the interests were not represented nor was the issue of discrimination against· them ever addressed. The Tenant sUbmits that Bernard is distinct from the present application on the basis that the Tenant is claiming discrimination based on one of the enumerated grounds in s. 15. , According to Andrews as. 15 challenge requires a two step approach: 1. The complainant under s. 15 (1) must establish that he or she is not receiving equal treatment before and under the law or that the law has a differential impact on him or her in the. protection or benefit accorded by law; and,
2. The complainant must establish that the legislative impact discriminatory. (See J. at pp. 23-24).
of the law is Andrews, McIntyre
.. - 23 , All parties agree that both section 10 (8) (d) and Section 24 (2) of the Act create a differential impact on the tenants of pUblic housing which of course includes the Ms. Sparks. The question, accordingly, is whether the impact of these sections is discriminatory against her.
As previously differentiations do not necessarily constitute discrimination under s. 15(1) of the Charter. states at p. 12: , "For, as has been said, a bad law will not be saved merely because it operates equally upon those application. Nor will a law necessarily be bad because it makes distinction." and again at p. 13: "It is not every differentiation in which will transgress guarantees of section 15 of the Charter. It is, of course, legislatures may effectively must individuals and ways. Indeed, such one of the main legislatures. The individuals in groups, different provisions groups, the application rules, regulations,
stated, distinctions and In Andrews, McIntyre J. to whom it has distinction or treatment at law the equality obvious that and to govern treat different groups in different distinctions are preoccupations of classifying of the making of respecting such of different requirements and
, - qualifications to is necessary for the governance of modern society. As notes accommodations of is the essence of will frequently be distinctions." In A Discrete and Comments on Andrews v. Law Society of British Columbia (1989) Ottawa Law Review, a review on Andrews, Richard Moon discussed the concept of disparate impact at pp. 563 - "A law is not wrongful (it does not violate the right to equality) , because it has a a particular group. benefit from programmes education, health construction, but that is not a reason to prohibit such their benefits to impact is not itself objectionable because equality does not of social provision denominator. The simply requires that the interests of some members of the completely ignored the general distribution and burden.
The wording in s. reference to this application. "without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability".
24 different persons above, for the differences, which true equality, it necessary to make Insular Right to Equality: 583: simply disparate impact on Not everyone will of higher care or road programmes and deny others. Disparate demand a levelling to a common right to equality community not be or sacrificed in of benefits
15(1) must be considered in In particular, the phrase
· . - 25 The words "without discrimination" were considered by McIntyre J. in Andrews. At p. 22 he states as follows: "The words 'without discrimination' require more than a mere finding of distinction between the treatment of groups and individuals. Those words are a form of qualifier built into s. 15 itself and limit those distinctions which are forbidden by the section to those which involve prejudice or disadvantage." I agree with counsel for the Landlord that the words "based on II are there for a reason and that legislation which purports to or has the effect of treating individuals differently, based on one of the groups mentioned in s. 15(1) or any analogous group, is subject to challenge. In Andrews, McIntyre J. states at p. 18:
"Distinctions based on personal characteristic attributed to an individual solely on the basis of association with a group will rarely escape the charge of discrimination while those based on individuals' merits and capacities will rarely be so classified." McIntyre J. differentiates between personal characteristics and an individual's merits and capacities.
Counsel for the Landlord are dealing with in this case is an individual's merits
submits that what we
. .
- and capacities and not characteristics. With that submission I am in agreement. The restrictions imposed by virtue of the sections in the Act are not imposed as a result of any characteristic of race or sex or source of income, but rather by virtue of having individually applied and individually been accepted for public housing. It is not a characteristic of being black that one resides in public housing. is not a characteristic of being a single mother or a female that one resides in public housing. , not a characteristic of having a low income that one resides in public housing. The disproportionately large number recipients of social assistance in public housing does not, in my opinion, make it characteristic of any of· the three groups individually or the three groups considered as one group.
There has to be • characteristic of the sex, or the race, or the source of
income, and the different dis·crimination to be even considered. the concept of adverse effect discrimination the must establish that a requirement which is otherwise neutral
26 an individual's personal Similarly, it In my opinion it is fact that there is a of blacks, women, and
a connection between the
treatment for a charge of In her reliance on Tenant
, , , - 27 is imposed and applies to everyone upon whom it is imposed, imposes special obligations on some because of some special characteristic of the group.
I have already discussed the concept of adverse effect discrimination and Ontario Human Rights Camnission refer to part of the same prior quote where McIntyre J. states at p. 332:
.. It ari ses where an employer for genuine business reasons adopts a rule or a , standard which is on its face neutral and which will apply equally to all employees, but which has a discriminatory effect upon the prohibited ground on one employee or group of employees in that it imposes, because of some special characteristic of the employee or group, obligations, penalties, or restrictive condi tions not imposed on other numbers of the work force." (emphasis mine) In his memorandum counsel for the Tenant at pp. 29-30 submits that there are three central elements on a s. 15 claim, namely: 1. There must be a distinction drawn by the impugned law or government activity;
referred and quoted from Re: and Simpson-Sears Ltd. I
, . - 2. The distinction disadvantage on the individual or group; and,
3. The resulting inequality must either directly or disproportionately· affect an enumerated or analogous group.
At p. 34 of his Memorandum counsel submits that the three elements necessary for a prima facie case have been met because the admission by the Landlord that blacks, women, and social assistance recipients are disproportionately represented in public housing, compared to the overall population, establishes the third element.
I have no difficulty finding that the first two elements have been established but with the third, based on which must be established. that a proponent of disproportionali ty but must also prove that the distinction is based on the personal characteristics of the individual or group.
In support for what third element, counsel for the Tenant refers to the cases
28 must impose a
I do have difficulty I agree discrimination must prove
he considers makes up the
, - of Andrews, at p. 18, R v. Turpin 97 9S.C.C.), at p. 125, R. v. Swain (1991), 5 C.R. 253 (S.C.C. ) at p. 297 and McKinney v. University of Guelph (1990) 76 D.L.R. (4th) 545 (S. C. C. ) at p. 647. _Andrews very definitely sets forth that the distinction must be based on personal characteristics. In R v. Turpin the Court refers to Andrews wi th approval. In R. v. Swain, the Court refers to both Andrews and Turpin, and at p. 297 states as follows:
"This enquiry will whether the law has drawn a distinction (intentionally or a claimant and others, based on personal characteristics." The McKinney case at p. disproportional impact is sufficient and refers to Andrews.
I have already determined that in the case before me, the distinction is not based on the Tenannt' s personal characteristics but rather on her merits and capacities. I find that the third element, as suggested by the Tenant, must also establish that the distinction is based on personal characteristics and that this has not been established.
The tenant in this case is treated differently because and solely arising from having applied and met the
29 (1989)m 69 C.R. C3d) (4th) This must be established.
focus largely on otherwise) between 647 doesn't suggest that a
" . - " criteria for public housing. by counsel for the Landlord that the fact that public housing tenants are disproportionately assistance tells us something about public housing but doesn't tell us anything about being black, about being female or upon being on social assi stance. a characteristic of any of those three groups to reside in public housing.
I accept the submission that the legislature is not discriminating against black, female, social assistance recipients by treating public housing tenants diff erently. In order to establish this the Tenant would have to show that the legislation somehow exempted blacks, women, and recipients of social assistance from the protection of the statute by singling out a characteristic of being a black, female, social assistance recipient, and exempting fram the protection of the Act those with that characteristic. With respect, the Tenant has not done so.
Counsel for the Tenant has argued that there are certain limitations which would be appropriate to be included in the legislation referring to public housing tenants, but that the Nova Scotia Legislature went too far in the Act. Submissions made would indicate that every cammon
30 I agree with the submission black, females on social I agree that it is not
·.. " , - 31 law province in Canada wi th the exception of Newf oundland,
New Brunswick and Nova Scotia, protection to public housing and other tenants, or in the case of Ontario, Saskatchewan, is a legislative regime that is equal except in controlling financial eligibility, in subletting or rental income to disclose information concerning the tenant's income.
The fact that legislation is not uniform across Canada does not establish discrimination. What might be appropriate in Ontario may not be appropriate for Newfoundland or Nova Scotia. Bernard has established that it is acceptable to have a separate system. The Nova Scotia system is the one put in place by the legislature to ensure the necessary flexibility. The Courts have held it to be appropriate. In my opinion it is not now reasonable to second guess the legislature and the decision of the Court in Bernard. As Chief Justice Goodridge said in Newfoundland and Labrador Housing Corporation v. Williams et alone does not pick at legislation to say that it might have been done differently. At p. 278 of Newfoundland he states as follows: "One merely looks to see that the methods are within that acceptable range mentioned
either provides equal Manitoba and N.W.T. there particular, in the area of protection and requirements
. . , , " . - 32 (., above and are free of discrimination. If the distinction has a regulatory and non discriminatory tone, one need consider no more." To summarize, Bernard is the law in Nova Scotia as it relates to distinctions created in the Residential Tenancies Act affecting tenants of public housing. Distinctions, differences or inequality do not necessarily give rise to discrimination. As in Bernard, the Tenant here has not established a prima facie case of discrimination as it affects pUblic housing tenants as a whole. , With regard to the Tenant's submission that she is sUffering adverse affect discrimination by virtue of being black, a woman, and a recipient of social assistance, I find that she has not established a prima facie case thereof. I accordingly find that sections lO(S)(d) and 25(2) of the Residential Tenancies Act do not contravene the provisions of s. 15(1) of the Charter. Because of this finding there is no necessity to consider s. 1 of the Charter.
I will dismiss the Notice of Objection and confirm the report of the Residential Tenancies Board dated September 10th, 1991.
udge of the County Court of District Number One
SCHEDULE -A HALIFAX HOUSING AUTHORITY v. SPARKS C.H. No.: 75171
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * MATERIALS SUBMITTED: 1. Public Housing Operations Manual. 2. Copy of Lease between Dartmouth Housing Authority and Irma Sparks, dated April 1, 1991. 3. Article - Education and Income in the Watershed Area - Kerry L. W. Deagle, July 5th, 1989., 4. Report on Employment Patterns in the Black Communities of Nova Scotia, April 1981 - Fred Wien and Joan Browne.
5. Mothers and Children One Decade Later, Published by the Nova Scotia Department of Community Services. , 6. Information on Non-Senior Family Housing tenants and Applicants, February 5th, 1992, Dartmouth/Halifax County Regional Housing Authority. 7. Article - The Recent Evolution of Social Housing in Canada, by Steve Pomeroy.
8. Canada Mortgage and Housing Corporation information bulletin on Lands Management. 9. Women and Children Last - Single Mothers on Welfare in Nova Scotia, by Barbara Blouin.
10 • Report - Wanen and Poverty Revisited - report by National Council of Welfare, Summer 1990. 11. Housing Assessibility Present and Future Issued in Atlantic Canada - proceedings of Atlantic Regional Housing Workshops, Oct. 29 -30, 1986.
12. Report of Nova Scotia Commission of Inquiry on Rents - September 1983.
13. Housing for People Coalition Report 1987. 14. Article - The Housing Needs of Single Parent Families in Canada -Klodawspy, Spector and Hendrin. 15. CMHC Bulletin Information Rent Supplement Program.
'I • , • - 2 16. Study Innovative and Alternative Financing of Social Housing - February 1991, by David Bruce. 17. Hassard Minutes Nova Scotia House of Assembly April 20, 1970. Remarks of Members, Donohoe, Nicholson, Regan, Vaughan and Brown. 18. Hassard - Assembly Debates, Nova Scotia House of Assembly, May 24th, 1984. ,
• • '.. < HALIPAX HOUSING AUTHORITY v. YOLANDA CARVERY C.H. NO.: 75945
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * MATERIALS SUBMITTED: 1. A Report on Employment Patterns In The Black Communities of Nova Scotia, Fred Wien and Joan Browne, April 1981.
2. A study of Women's emergency housing needs in the Halifax/Dartmouth area - At The End of the Rope Canada Mortgage and Housing Corporation. 3. A study The Housing Needs of Pemale Led One Parent Pamilies - Canada Mortgage and Housing Corporation. 4. Article Africville The Life and Death of a Canadian Black Community - Canadian Scholars' Press, Toronto 1987.
5. Report - Education and Income in the Watershed Area, by Kerry L. W. Deagle, July 5th, 1989. 6. Working Paper Number One Housing and Nova Scotia' s Welfare Safety Net, by Prof. J.G. Wanzel and Jane Wrathall - June 6th, 1991.
7. Case Histories International Women's Week Shelter Committee - OPEN MORE DOORS. 8. Manual - The Housing Authority. 9. A Roof Over Our Heads Single Mothers in Housing Crisis in the Halifax Metro Area, by Elizabeth Bosma-Donovan and Barbara Blouin.
10. Multifaceted Environmental Assessment of Public Housing for Mulgrave Park. Prepared for the Halifax Housing Authority, April 1988.
11. WaDen and Housing: Changing Needs And The Pailure Policy, by Janet McClain with Cassie Doyle. 12. A Report by the National Council of Welfare - WOMEN AND POVERTY REVISITED, Summer 1990. 13. Manual - Department of Housing Administration Manual - Chapters I - 8.