Promoting and claiming social and economic rights through an inclusive human rights practice

What's New

CERA and National Right to Housing Network Make first SUBMISSION under the National Housing Strategy Act. Read about the NHSA.

 

The struggle continues in Toussaint v Canada. Canada continues to deny irregular migrants access to essential healthcare and SCC declines to reconsider leave application. Statement of Claim filed in ON Supeior Court. Read more.

Charities liberated to engage in public policy after decn in Canada Without Poverty v Canada


New Publications

Jackie Dugard, Bruce Porter, Daniela Ikawa and Lilian Chenwi (eds) Research Handbook on Economic, Social and Cultural Rights as Human Rights

Bruce Porter "Bruce Porter, The Interdependence of Human Rights

Elizabeth McIsaac and Bruce Porter "Housing Rights: Ottawa takes an historic step forward"Literary Review of Canada,(November, 2019)

Martha Jackman & Bruce Porter "Social and Economic Rights" in P. Oliver, P. Macklem and N. Des Rosiers, The Oxford Handbook of the Canadian Constitution (New York, Oxford Univesity Press, 2017) at pp 843-866.

Martha Jackman and Bruce Porter (eds)  Advancing Social Rights in Canada (Toronto: Irwin Law, 2014)

Bruce Porter Inclusive Interpretations: Social and Economic Rights and the Canadian Charter 

Rethinking Progressive Realization: How Should it be Implemented in Canada?.

Designing and Enforcing Social Rights Remedies: Reflections on the Canadian Experience

From the Archives

Human Rights and the Right to Housing Now Magazine, Toronto, 1989.

Maureen Callaghan, Leilani Farha & Bruce Porter Women and Housing in Canada: Barriers to Equality(CERA, 2002)

Bill C-400 earlier proposed housing strategy legislation.

1992 Alternative Social Charter 

See Further publications

Historic Victory at the UN Human Rights Committee and Ongoing Litigation in Canada:

The right to life and non-discrimation of irregular migrants in access to essential healthcare

Nell Tousaint, who had lived and worked in Canada as an irregular migrant for almost a decade was in the process of seeking to regularize her status in Canada when she developed life-threatening health problems. She sought access to the Interim Federal Health Program (IFHP) but was denied because of her irregular immigration status. She courageously challenged this as a violation of her rights to life and security of the person under section 7 of the Canadian Charter and her right to equality under section 15.

The Federal Court and the Federal Court of Appeal agreed that her life and long term health had been put at risk but they held that the violation of the right to life was justiified as a means to promote compliance with immigration law. The courts simply ignored uncontested evidence filed in the case showing that most irregular migrants, like Ms. Toussaint, migrate for work, not to acces health care, and that providing access to essential health care has no effect on irregular migration. The Supreme Court of Canada denied Ms Toussaint leave to appeal these shocking decisions

This is the kind of situation when we realize how important international complaints procedures are!! Bruce Porter of SRAC, along with Nell's lawyer Andrew Dekany, assisted Nell in filing a petition to the UN Human Rights Committe alleging violations of the right to life in article 6 of the Internatoinal Covenant on Civil and Political Rights, and the right to non-discrimination under article 26. The Government of Canada vigorously defended denying essential health care to Nell, even disparaging her with stigmatizing and false accusations.

On August 7, 2018 the Human Rights Committee issued its historic decision, finding that Canada had violated Nell's right to life and non-discrimination and that the government is obliged to review all legislation to ensure that no one is denied access to essential health care because of irregular immigration status. This is the first decision of a UN treaty monitoring body to consider access to health care for irregular migrants as a right to life issue.

Canada responded to the Committee' decision on January 29, 2019, stating that it did not agree with the Committee's Views and would not be implementing the required remedy of ensuring that irregular migrants

 

Statement of Claim (as amended May 25 2021) in Ontario Superior Court Amended Amended Statement of Claim (May 25, 2021) Nell Toussaint v Attorney General of Canada (Ontario Superior Court of Justice Court File No. CV-20-00649404-0000)

AG Canada Motion to Strike the Statement of Claim

Charter Committee on Poverty Issues/Canadian Health Coalition/FCJ Refugee Centre - Motion Record for Leave to Intervene

Historic Decision of the Human Rights Committee

Toussaint v Canada CCPR/C/123/D/2348/2014 (30 August 2018)

Canada's Response to Committee's Decision

Author's Response to Canada's Refusal to Implement

Committee Follow-up to Canada's Response

 

Application for Reconsideration of the decision of the Supreme Court of Canada to deny leave to appeal in light of the decision of the UN Human Rights Committee

Affidavit of Bruce Porter

Notice of Motion

Memorandum of Argument

Decision of SCC Registrar

 

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Executive Summary of the Petition

Petition: Nell Toussaint v Canada HRC No 2348-2014

Canada's Response on Admissibility

Author's Comments on Admissibility

Canada's Response on Merits

Author's Comments on Canada's Submissions

Amnesty International's Opinion in Support of the Author

ESCR-Net's Opinion in Support of the Author

Canada's Supplementary Response

Author's Response to Canada's Supplementary

Opinion Letter of Constitutional and Health Law Experts

Motion for Leave to Appeal to the Supreme Court of Canada (2011-12)

Applicant's Application for Leave to Appeal to SCC Memorandum

Letter from Office of the UN High Commissioner on Human Rights

Affidavit of Nathalie Des Rosiers

Affidavit of Denise Gastalso

The leave application was dismissed by a panel of Justices LeBel, Abella and Cromwell on March 5, 2012.

At the Federal Court of Appeal (2011)

Appellant's Memorandum of Fact and Law

Canadian Civil Liberties Association Intervenor Memorandum

Respondants Memorandum of Fact and Law

The Federal Court of Appeal unanimously upheld the decision of Justice Zinn that denying healthcare necessary to the protection of life and security of undocumented migrants in Canada violates the right to life but is in accordance with principles of fundamental justice.

See the Federal Court of Appeal Decision Toussaint v. Canada (Attorney General) 2011 FCA 213

At the Federal Court (2009-2010)

Notice of Application issued August 10, 2009

Applicant's Memorandum of Argument  

Respondent's Memorandum of Argument

Affidavit of Nell Toussaint sworn August 23, 2009

Supplementary Affidavit of Nell Toussaint sworn January 3, 2010

Affidavit of Manuel Carballo  Executive Director of the International Centre for Migration, Health and Development (ICMHD) in Geneva. 

Exhibit A – Curriculum Vitae and Resumé of Manuel Carballo

Report of Dr. Gordon H. Guyatt August 21, 2009

Affidavit of Stephen W. Hwang sworn August 25, 2009

Affidavit of Ilene Hyman sworn August 25, 2009

See decision of Justice Zinn in Toussaint v. AG (Canada)  2010 FC Canada 810.

The applicant filed a Motion for Reconsideration of Justice Zinn's reasons with respect to the allegation of discrimination, arguing that the allegation of discrimination was mischaracterized. See the Applicant's Request for Reconsideration challenging mischaracterization of Discrimination Allegation. The Reconsideration application was dismissed by Justice Zinn after the Attorney General agreed not to object to the applicant arguing on appeal that discrimination on the ground of immigration status is prohibited under s.15 of the Charter.

See Decision of Zinn J on Application for Reconsideration

CURA research partner the Social Rights Advocacy Centre and co-director Bruce Porter provided research and drafting assistance for the Charter and international human rights components of the case. The case was ably argued by counsel for Nell Toussaint: Raj Anand, Andrew Dekany and Angus Grant. See the article in the Toronto Star .

 

The Original Decision (2009) and the Order-in-Council

Letter of aplication for IFHP dated May 6, 2009

Decision of Craig Shankar dated July 10, 2009 re Application for IFHP

Order-in-Council P.C. 157-11/848, effective June 20, 1957

 

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