Charter Litigation, Social and Economic Rights & Civil Procedure

In this article we consider the scope of social and economic rights litigation under the Charter of Rights and Freedoms with reference to the recent right to housing case, Tanudjaja v Canada (Attorney General). In Tanudjaja, the applicants sought to challenge both Ontario’s and Canada’s housing-related law and policy, under sections 7 and 15 of the Charter. The Ontario Court of Appeal upheld the Superior Court’s decision to strike the Charter application on the basis that a right to housing as pleaded was not justiciable (the Supreme Court of Canada subsequently denied leave to appeal). This article challenges the reasoning used by both levels of court. We argue that novel approaches to the Charter should serve as a catalyst for examining a series of crucial and unresolved questions for Canadian constitutional thought and practice. The article begins with a discussion of the Tanudjaja case. We then consider the application of civil procedure principles in the context of Charter litigation. We also explore the case and its implications for the law of justiciability, especially in Charter settings. We then examine the current state of positive social and economic rights in Canada, including in the aftermath of the Tanudjaja decision. We conclude by proposing a new approach to justiciability within the context of Charter litigation: a form of public interest justiciability that aligns with the approach the courts have adopted towards public interest standing and does not automatically preclude litigants who advance novel and/or complex Charter claims from having their day in court