Confessions of a Sinning Lawyer

A paper presented at the Canadian Bar Association National Administrative Law and Labour and Employment Law Conference on 21 November 2008 at the Fairmont Chateau Laurier, Ottawa

Confiteor: Confessions of a Sinning Lawyer

by Robert Dawson

B.A. (Tor.), LL.B. (Man.), M.A. (Oxon.) Of the Manitoba Bar

Dawson Law Chambers 700 – 177 Lombard Avenue Winnipeg, Manitoba R3B 0W5 Telephone: (204) 989-1331 · Fax: (204) 989-1339 E-mail: [email protected]

Confiteor: Confessions of a Sinning Lawyer

by Robert Dawson*

Confessional biographies are a standard genre in the literature of Western civilization, aiming to have an instructional value to the reader. For example, St Augustine of Hippo laid out his sins, hoping to convince those who were yet Christians that anyone could be converted, even the vilest sinner. Jean-Jacques Rousseau wrote centuries later of the shameful and embarrassing episodes that had shaped the philosopher and his views. In a less lofty way but with some hopes of edification, this paper describes a recent Manitoba case, in which the author adopted a strategy that may be useful to lawyers defending against ongoing breaches of human rights but which surely offends against the public policies that underlie administrative law.

To be blunt, human rights commissions across the country are not the forum in which to seek expedited relief. The filing of a complaint only triggers an investigation, which at least in Manitoba can fill several months even in the most pressing of cases.1 Adjudicative action often

* Robert Dawson is a Winnipeg lawyer, called to the Manitoba Bar in 1991. His practice at Dawson Law Chambers is chiefly restricted to administrative law and regulatory work, including professional governance and professional discipline matters. He sits as a tribunal member of the Manitoba Health Appeal Board, and he is a former chair of the Canadian Bar Association’s national Administrative Law Section.

1 The Manitoba Human Rights Commission does not publish statistics on how much time lapses on average between intake of a complaint, its investigation, and any adjudicative process:

takes place only years into the future.2 While the governing legislation in several jurisdictions anticipates the possibility that urgent and ongoing breaches of human rights may require the Commission to act in the interim,3 it is rare, and in many jurisdictions unheard of, that a human rights tribunal should take expedited action under that grant of authority.

Where a victim of a breach of human rights requires more immediate protection than most human rights commissions can, or will, offer, lawyers need to consider other options that supplement or remedy the administrative law process. In the context of a recent Manitoba case, this paper will now turn to such an option, but conclude with a concern that the outlined option offends against legal theory and points to the need for legislative reforms that would strengthen the role of human rights commissions in their handling of urgent and ongoing breaches.

http://www.gov.mb.ca/hrc/english/publicat html (last visited on 18 October 2008). Its most recent published collection of statistics dates back to 2003, and its latest annual report covers the period ending February 2006, and in neither of these sets of materials is there a statement as to timing. The author is therefore left to his own experience and the anecdotal evidence of other lawyers with regular dealings with the Commission. 2 For example, Pasternak v. Manitoba High Schools Athletic Association Inc. (available online at http://www.gov.mb.ca/hrc/english/publications/pasternak.pdf) dealt with the complaints of female high school students who had been excluded from play in a hockey league, solely on the basis of their sex. In 2004, the complainants were Grade 10 students and, after their exclusion from the male high school hockey league, filed a complaint with the Manitoba Human Rights Commission. It took 2 years before the Human Rights Commission disposed of the complaint, by which time the victims of the breach of human rights were into their final year of high school. 3 For example, The Human Rights Code, C.C.S.M. c. H175, s. 54 authorizes the Manitoba Human Rights Commission to apply to the Court of Queen’s Bench for injunctive relief: Application for court order 54(1) Where a complaint has been filed, the Commission may apply to the court for an order restraining the respondent from engaging in conduct alleged to be in contravention of this Code, or requiring the respondent to comply with this Code in specified respects or to do or refrain from doing any other act or thing, until the complaint has been disposed of in accordance with this Code or for such other time as the application may specify. Where order may be issued 54(2) Upon hearing the application referred to in subsection (1), the court may grant the order on such terms and conditions as it considers appropriate, if the court is satisfied that (a) the Commission has established a prima facie case that the respondent has contravened this Code; and, (b) granting the order would further the objectives of this Code. However, the Commission has never exercised this power.

The Bannerman case

On Bannerman Avenue in Winnipeg’s North End, two former apartment buildings had been converted into residences for single persons living on social assistance and suffering under a mental or physical disability. Unable to live without any support but not so disabled that they required institutionalization or similar close supervision, the residents of the Bannerman buildings signed leases and became co-tenants, so that 2 or 3 individuals would share a single suite with a common kitchen, bathroom, and sitting area, but each would also have his or her own private bedroom. The Bannerman residences also provided meals to those living there and enforced a set of rules for the residents to follow.

The operation of the Bannerman buildings was not popular with the neighbours, and their complaints to the City of Winnipeg prompted it to make a series of health and zoning inspections. After more than a year had lapsed, the City decided that the Bannerman residences were more akin to a rooming house instead of a multiple-family dwelling. Because the properties had not been zoned to operate as a rooming house, the City issued an order on 17 December 2007, directing the residents to vacate the Bannerman residences by 1 February 2008.

The City’s order made the prospect of homelessness for the residents both real and likely. There always is a shortage of housing for those with low incomes, and the problem was here compounded by the disabled residents’ need for safe and supportive housing. The clients’ goal therefore became to delay the implementation of the City’s order to vacate until either the Bannerman residents had made new and appropriate housing arrangements or the owner of the Bannerman building had brought the properties into compliance with Winnipeg zoning by-laws.

At the initiative of Legal Aid Manitoba’s Public Interest Law Centre, a pro bono legal team was assembled to defend the residents’ interests.4 It was immediately apparent that the conduct of the City brought into question the human rights of the Bannerman residents to whom the order to vacate had been directed.5 The Human Rights Code6 lists several protected characteristics that may be attributed to the Bannerman residents, including their status as single, unmarried persons; 7 their reliance upon social assistance;8 and, their mental and physical disabilities.9

The City’s order to vacate the Bannerman residences was based upon its interpretation of Winnipeg Zoning By-Law No. 6400/94. However, it was arguable that the City had failed to take into accounted the protected characteristics of the residents. The zoning by-law defines a multiple-family dwelling in s. 210 as “a building containing three (3) or more non- communicating dwelling units, each for the exclusive use by one (1) family.” The same section goes on to define “family” as “one (1) person or two (2) or more persons voluntarily associated, plus any dependents, living together as an independent, self-governing single-housekeeping unit.” Of course, being single and under a mental or physical disability, the Bannerman residents were unable to function as “independent” and “self-governing” in the way that the by-law requires. As a result, the City concluded that the Bannerman residences could not be multiple- family dwellings and that they therefore were rooming houses, the operation of which requires a conditional use permit that the Bannerman buildings did not have. It seemed that, if the same

4 Although the author’s name appears on this paper, the reader must recognize that many other lawyers made fundamental and essential contributions to the strategies and legal arguments by which this case was advanced. Deserving of recognition for their many hours of work are John A. Myers, Shereese Qually, and Andrew Moreau, all of the Winnipeg law firm Taylor McCaffrey LLP. It goes without saying that the efforts of Byron Williams and legal inventiveness of researcher Evelyn Braun were necessary to the successful outcome. 5 For practical reasons and to focus the attention of the Court on the Manitoba Human Rights Code, the submission in the Bannerman case focused upon the provisions of The Human Rights Code. However, the facts also raised comparable concerns and arguments deriving from an analysis under s. 15(1) of the Canadian Charter of Rights and Freedoms. For a summary of the applicable guidelines, see Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497 at para. 88. 6 Supra. 7 s. 9(2)(i). 8 s. 9(2)(j). 9 s. 9(2)(l).

configuration of suites were occupied by persons without disabilities and who had thus been able to enter into voluntary associations with others and then live independently and under self- governance, the City would have classed the Bannerman buildings as falling within the definition of a multiple-family dwelling. Instead, by reason of their protected characteristics of disability and family status, the Bannerman residents were limited in their ability to enter into voluntary associations and choose their accommodations as freely as persons without their disabilities and special needs. On the face of it, the City’s interpretation of its zoning by-law had resulted in the Bannerman residents being differently treated and suffering an adverse effect.10

One of the residents immediately filed a complaint with the Manitoba Human Rights Commission, but that did nothing to achieve the goal of the Bannerman residents, which was to delay implementation of the City’s order to vacate.11 In the face of eviction from their home in the middle of a Winnipeg winter, the residents sought a more immediate forum; and so, the main defence of the residents’ interests went before the Manitoba Court of Queen’s Bench.

Section 55 of The Human Rights Code12 permits any one to seek injunctive relief in the face of a breach of human rights arising out protected characteristics:

The Commission or any person may, by statement of claim, bring action against any person for an injunction to restrain the person from depriving, abridging or restricting or attempting to deprive, abridge or restrict, on the basis of any characteristic referred to in subsection 9(2), any other person in the enjoyment of

10 British Columbia (Public Service Employee Relations Commission) v. British Columbia and Service Employees’ Union, [1999] 3 S.C.R. 3, requires that, in cases of indirect or adverse effect discrimination, the party in breach must make reasonable accommodation for the protected characteristics of the party whose human rights are in question. In the Bannerman case, it could be said that the City could (a) recognize each suite shared by the individual residents as a suite, instead of a collection of single rooms with a common area; (b) recognize the co- tenants as voluntarily-associated individuals; and more broadly, (c) interpret the level of independence and self- governance required by the zoning by-law in a way that acknowledged the role of supportive housing as a means by which the residents enjoy a degree of independence. 11 As of this writing some 11 months later, the resident’s complaint to the Manitoba Human Rights Tribunal remains “under investigation” without any action taken to provide tangible protection to the complainant. 12 Supra.

a right under this Code, and the court may grant the injunction on such terms and conditions as it considers appropriate.

Accordingly, the Bannerman residents filed a statement of claim, 13 naming the City of Winnipeg as defendant and the owner of the Bannerman properties as intervener. They sought declaratory and injunctive relief against the City, including:

• an order quashing the City’s order to vacate the premises and declaring it to be inoperative, void and without force or effect;

• an order excluding the Bannerman residents from the scope of the operation of zoning by-law to the extent that it restricted or prohibited the then-current use and occupancy of the Bannerman buildings; or, in the alternative, a declaration that those provisions are suspended and inoperative, without force and effect;

• a declaration that the then-present use and occupancy of the Bannerman buildings was lawful; and,

• an interim, interlocutory and permanent injunction restraining, enjoining, and prohibiting the City from enforcing any part of its order respecting the vacating of the Bannerman buildings, or from acting or refraining to act in any manner that would give force or effect to that order.

It goes beyond the scope of this paper to review principles of the law of injunctions, and the reader is referred to the edited Motions Brief set out as an appendix to this paper for an outline of the argument and application of the case law. It suffices to remind the reader that an application for injunctive relief follows the three-prong approach set out in the 1994 Supreme Court of Canada decision R.J.R.-MacDonald Inc. v. Canada (Attorney General),14 which requires the moving party to (1) demonstrate a serious question to be tried, (2) convince the court that the moving party would suffer irreparable harm if the relief were not granted; and, (3) show

13 A version of the statement of claim, redacted to respect the privacy of the individual residents, is appended to this paper as a precedent. 14 [1994] 1 S.C.R. 311.

that the balance of convenience, including to a lesser extent the public interest, favours the granting of the relief sought.

Applying the principles set out in the R.J.R.-MacDonald case, the Bannerman residents first submitted that they had made out a prima facie case of discrimination on the basis of protected characteristics listed in The Human Rights Code,15 and they had shown adverse effect.16 They made a comparable argument, alleging the City’s breach of their s. 15 Charter rights. Both of these arguments aimed to convince the motions judge that, as R.J.R.-MacDonald requires, the Bannerman case puts forth a serious issue to be tried.

The second element of the R.J.R.-MacDonald test requires the moving party to show irreparable harm would follow if the injunctive relief were not granted. A review of the case law set out helpful decisions from across Canada, in which the loss of one’s home amounted to irreparable harm to the resident.17 Quite apart from the law, the motions judge was quite alive to the prospect of turning out the Bannerman residents in the middle of a Winnipeg winter.

The third prong of the R.J.R.-MacDonald approach was the greatest hurdle, at least in the opinion of counsel for the Bannerman residents. It was not entirely clear that the balance of convenience lay with the residents, especially because the City put forth effective evidence on the safety hazards that could arise to both residents and emergency responders where there was non-compliance with zoning by-laws. The only real answer that the Bannerman residents could make was to point to the length of time during which the City had known about the alleged non- compliance and then argue that, after more than a year, there was no imminent or overriding harm or safety concern that justified the immediate removal of the residents without alternate and suitable living arrangements in place.

15 Supra. 16 See both the discussion above and the argument outlined in the Motions Brief, which is appended in edited form to this paper below. 17 Garside v. Jane Oak Apartments Inc. (1988), 27 O.A.C. 308 (Div. Ct); Trans Canada Credit Corp. v. Morehouse, [1997] N.B.J. No. 460 (Q.B.) (QL); and, Aird v. Country Park Village Properties, [2001] FCT 1305.

After a day-long hearing, Oliphant A.C.J. granted the Bannerman residents’ motion, enjoining the City on an interim and temporary basis from acting upon, or otherwise giving effect to, its order to vacate for at least 45 days.18 In contrast to the filing of a complaint with the Human Rights Commission, proceedings in the Court of Queen’s Bench had thus achieved the clients’ desired outcome within 8 days of filing the statement of claim.19

Practice notes arising out of the Bannerman case

The sympathy of the court will surely be with any disabled plaintiff who is faced with homelessness in the middle of winter, so the outcome in the Bannerman case should not be surprising. Moreover, it was not a dispute in which new legal principles were forged. The case is nonetheless instructive to other lawyers defending against breaches of their clients’ human rights.

Edited versions of some of the pleadings filed in connection with the Bannerman case are appended to this paper, including the

• statement of claim, • notice of motion for injunctive relief, • motions brief outlining the argument in support of the motion for an interim and temporary injunction, • notice of constitutional question, which was required because of the alternative argument relying upon s. 15 of the Charter and the possible invalidity of the governing Winnipeg by-law provision, and

18 Hadden et al. v. Winnipeg (City), File No. CI 08-01-55273 (unreported, 31 January 2008), (Man. Q.B.). 19 By way of closing the storyline, the Bannerman residents used the life of the interim and temporary injunction to make new arrangements for suitable housing. Left with vacate buildings, the Bannerman property owner chose to abandon the operation of alternate housing rather than incur the costs of complying with the City’s zoning by-laws or continuing the legal challenge against the City’s interpretation of those provisions.

• undertaking as to damages, which the Court Rules require whenever injunctive relief is sought.

Some of the appended pleadings have been redacted to remove names and other personal references to the individual plaintiffs and some third parties.

There also are some brief practice notes that arise out of the case. First and only as a reminder, a notice of constitutional question is required to be filed in every Canadian jurisdiction whenever a party attacks the Charter compliance of any legislative provision, including delegated legislation such as municipal by-laws.20 The notice must then be served upon both the Attorney-General of Canada (or more usually his delegate, the Director of the local federal Justice office) and upon the attorney general of the province or territory (also more usually a delegate, such as a lawyer in the employ of the provincial or territorial Civil Legal Services branch). It is the normal practice of both federal and provincial or territorial ministries to write to the solicitor of record, indicating that the Department of Justice either has no interest in the proceedings or will attend at the motion. Although the constitutional notice legislation requires that at least 14 days elapse between the date of service and the motion’s return date, the legislation or court rules also anticipate the bringing of a motion for abridgment of the time required for service. It is therefore the practice of many lawyers to seek automatically a motion for abridgment of time whenever they file and serve a notice of constitutional question.

A second practice point relates to the requirement in interim and temporary injunction cases that the moving party file an undertaking as to damages. The undertaking is intended to assure the court that, if the injunctive relief were granted, the moving party would be in a position to compensate the enjoined party for any losses if, upon hearing the motion for a permanent injunction, the court were inclined to reverse the original order and free the enjoined party from restrictions. However, even where the moving party is impecunious and, as in the Bannerman case, living on social assistance without other financial resources, court rules in many jurisdictions continue to require the undertaking to be filed. In such cases, it has become

20 See, for example, The Constitutional Questions Act, C.C.S.M. c. C180.

the practice that the undertaking instead become a statement about the nature of the injunction sought, precluding any concern about financial loss by the enjoined party. As the appended undertaking filed in the Bannerman case shows, the residents merely noted that the City would not suffer financial loss in the circumstances.

The final practice point to emerge from the Bannerman case relates to the pleading of a Charter violation as an alternative to the principle argument that proceeded on the basis of human rights legislation. While there is a sound basis upon which to found such a Charter argument in this case, there was a strategic reason for its inclusion. The Bannerman plaintiffs were concerned that, having filed a complaint with the Human Rights Commission, they might encounter the City’s argument that the Court of Queen’s Bench was not the appropriate forum in which to seek relief. Of course, s. 55 of The Human Rights Act21allows any person to seek injunctive relief to address an ongoing breach of human rights, but there still was concern that a court might be reluctant to intervene in what had began as an administrative proceeding. If any part of the injunction argument did not convince the motions judge, the forum issue might be a more palatable pretext upon which to refuse the injunction than to hold, for example, that the balance of convenience did not favour a disabled person who was faced with homelessness. The Charter argument was therefore inserted to ensure that part of the Bannerman residents’ case could only be heard by the courts in a timely and effective way. Readers of the motions brief, an edited version of which is appended to this paper, will note that little attention is there paid to the Charter argument, suggesting that, although a ground upon which argument might proceed, its insertion into the brief reflects its lesser role in the overall application for the injunction.

The Bannerman case as an affront to administrative justice

The Bannerman case began as a human rights complaint to an administrative tribunal to which the legislature had delegated authority to handle allegations of breaches of human rights. The delegated authority proceeded upon the assumption that, although the courts have general

21 Supra.

dispute resolution abilities, a specialized tribunal was necessary to bring the peculiar expertise and attention that human rights issues require. However, the Human Rights Commission was entirely ineffective in protecting the Bannerman residents against an ongoing breach of their protected rights, even in the face of irreparable harm. Although the Commission had the power to apply itself for injunctive relief under ss. 54 and 55 of The Human Rights Code,22 it simply is not equipped to move expeditiously for such an order.23 The Bannerman residents had no choice but to begin parallel proceedings in the Court of Queen’s Bench. In that context, it is especially to be noted that they did nothing outside of the procedural framework that governs human rights complaints, because s. 55 of The Human Rights Code24 expressly anticipates that any person may apply to the courts for an injunction.

Yet, this is surely wrong, because it undermines the authority of a human rights commission as the preferred decision-maker in matters involving human rights. There seems little point in the establishment of a body whose apparent function is to deal with allegations of non-urgent breaches of human rights, especially when the most harmful breaches are likely those which are ongoing or imminent. The statutory arrangement seems to promote a two-tiered approach to human rights complaints. Moreover, only those victims of human rights breaches with access to the courts are allowed to seek injunctive relief, which effectively excludes every victim without sufficient financial resources whose case fails to attract the pro bono interest of lawyers.

This paradox calls for a reconsideration of procedural rules and the scope of delegated authority that human rights commissions should enjoy. Although in a different and broader context, the Supreme Court of Canada has previously frowned upon parallel proceedings and

22 Supra. 23 It is the view of some commentators that it is not in the interests of human rights commissions that they should routinely apply to the courts for injunctive relief, because reliance upon the judiciary undermines the promise of such commissions as the appropriate recipients of delegated authority as the preferred decision-maker in matters involving human rights. 24 Supra.

attempts to by-pass the expected routes of administrative justice.25 However, until such time as human rights commissions are effective champions of human rights, victims of human rights violations will continue to rely upon the courts to stop ongoing breaches and protect against imminent harm.

25 Weber v. Ontario Hydro, [1995] 2 S.C.R. 929.

Appendices

The appended pleadings have been redacted to respect the privacy of the Bannerman residents. The motions brief has been further edited to remove references to supporting materials that relate only to the instant case and have no precedential value.

A – Statement of claim

B – Notice of motion

C – Motions brief

D – Notice of constitutional question

E – Undertaking as to damages

Appendix A – 1

Appendix A Statement of Claim

1. The plaintiffs claims:

a. an order quashing the defendant’s order dated 17 December 2007 to vacate the premises commonly known as 103 Bannerman Avenue and 135 Bannerman Avenue, both in the City of Winnipeg, Manitoba (hereinafter after the “Bannerman Residences”), and declaring the defendant’s order to be inoperative, void and without force or effect;

b. an order excluding the plaintiffs from the scope of the operation of City of Winnipeg Zoning By-Law No. 6400/94 and Winnipeg Building By-Law 4555/87 (and to the extent that the latter by-law incorporates the Manitoba Building Code and/or the National Building Code, the affected provisions in those codes) to the extent that these provisions restrict or prohibit the present use and occupancy of the Bannerman Residences in the alternative, a declaration that those provisions are suspended and inoperative, without force and effect;

c. a declaration that the present use and occupancy of the Bannerman Residences are lawful;

d. an interim, interlocutory and permanent injunction restraining, enjoining, and prohibiting the defendant City from enforcing any part of its order dated 17 December 2007 respecting the vacating of the Bannerman Residences, or from acting or refraining to act in any manner that would give force or effect to that order;

e. costs; and,

f. such further and other relief as this Honourable Court may deem just.

2. The plaintiffs are each individuals who reside at the City of Winnipeg in the Province of Manitoba.

3. The defendant is a body politic known as The City of Winnipeg and incorporated under The City of Winnipeg Charter, S.M. 2002, c. 39, having all the rights, duties, and responsibilities prescribed pursuant to that Charter.

Appendix A – 2

4. The intervener is an individual who resides at the City of Winnipeg in the Province of Manitoba and carries on a business as a property owner and landlord of the premises commonly known as 103 Bannerman Avenue and 135 Bannerman Avenue, both of the City of Winnipeg in the Province of Manitoba (hereinafter the “Bannerman Residences”).

5. The plaintiffs [redacted] are single persons living on social assistance with various physical or mental illnesses or disabilities, including ongoing recovery from substance abuse. The plaintiff [redacted] is a low income single person with a disability related to ongoing recovery from substance abuse.

6. For varying lengths of time, each plaintiff has lived as a tenant at the Bannerman Residences, and each was a resident there at the time that the defendant ordered the intervener to vacate the premises. All, except the plaintiff [redacted] continued to reside there at the time that this claim was filed.

7. Prior to moving to the Bannerman Residences, the plaintiffs experienced that, because of their various disabilities and circumstances, it was difficult and, at times, impossible to find safe and supportive housing that is suited to their special needs.

8. As apartment buildings, the structures that comprise the Bannerman Residences are configured so that 3 or 4 residents enter into a leasing agreement and become co-tenants who share a single suite, leaving each with his or her own private bedroom and a common kitchen and bathroom.

9. As tenants at the Bannerman Residences, the plaintiffs and all other persons living there receive not only accommodation but also food and a structured environment that is aimed to promote the support, physical security, and well-being that persons like the plaintiffs need to live with dignity and as independently as their various conditions allow.

10. By its order dated 17 December 2007, the defendant alleged that the Bannerman Residences do not strictly conform to its by-laws and therefore required the intervener to vacate the plaintiffs and all other tenants from the Bannerman Residences before 1 February 2008.

11. In interpreting and applying its by-laws, the defendant refused or failed to take into account, or make reasonable accommodation for, the plaintiffs’ disabilities and status as single and unmarried individuals of low income.

Appendix A – 3

12. The plaintiffs say that they are a protected group under both the Canadian Charter of Rights and Freedoms and The Human Rights Code, S.M. 1987-88, c. 45 (hereinafter the “Manitoba Human Rights Code”), and that such protections arise out of their status as single and unmarried individuals of low income and as persons suffering a disability.

13. The plaintiffs further say that the defendant, in interpreting and applying its by-laws, has discriminated against the plaintiffs by failing to take into account the plaintiffs' already disadvantaged position within Canadian society due to their status as single and unmarried individuals of low income suffering a disability. The consequence has been substantially different treatment of the plaintiffs as compared to other persons without mental or physical disabilities that limit their ability to choose freely their residence and accommodation.

14. The plaintiffs say that they raise a serious issue for trial, being the extent and scope of the defendant’s obligation to interpret and apply its by-laws in accordance with the Canadian Charter of Rights and Freedoms and the Manitoba Human Rights Code.

15. The plaintiffs further say that, by reason of their own special needs and an acute shortage of alternate and suitable housing, they would suffer irreparable harm if effect were given to the defendant’s order to vacate the Bannerman Residences.

16. The plaintiffs further say that, for the preceding reasons, the balance of convenience favours the granting of the injunctive relief for which the plaintiffs here pray. Moreover, an injunction would not impose undue hardship upon the defendant or the neighbourhoods in which the Bannerman Residences are located, and there is no imminent threat to the safety or well-being of persons living at the Bannerman Residences that would require the immediate enforcement of the defendant’s order to vacate the premises.

17. The plaintiffs plead and rely upon: a. The Court of Queen’s Bench Act, C.C.S.M. c. C280, s. 55; b. Queen’s Bench Rule 40.01; c. Canadian Charter of Rights and Freedoms, ss. 15 and 24(1); and, d. The Human Rights Code, S.M. 1987-88, c. 45, ss. 9(1)(a), 9(1)(b), 9(1)(d), 9(2)(i), 9(2)(j), 9(2)(l), 12, 13, and 55.

Appendix B – 1

Appendix B – Notice of Motion

The plaintiffs will make a motion before the presiding judge on Tuesday, 22 January 2008, at 10:00 a.m., or as soon after that time as the motion can be heard, at the Winnipeg Law Courts, 408 York Avenue, Winnipeg, Manitoba.

The motion is for:

1. an order that the time for the hearing of this motion be abridged;

2. an order that the time for service of a notice of constitutional question upon the Attorney General of Canada and the Attorney-General of Manitoba be abridged;

3. an interim, interlocutory and permanent injunction restraining, enjoining, and prohibiting the respondent from enforcing any part of the respondent City’s order dated 17 December 2007 respecting the vacating of the premises commonly known as 103 Bannerman Avenue and 135 Bannerman Avenue, both in the City of Winnipeg, Manitoba (hereinafter referred to as the “Bannerman Residences”), or from acting or refraining to act in any manner that would give force or effect to that order;

4. costs of this motion; and,

5. such further and other relief as this Honourable Court may deem just.

The grounds for the motion are:

1. The Bannerman Residences are home to the plaintiffs, who are each single individuals living on social assistance with a mental or physical disability and receiving safe and supportive housing through the Bannerman Residences;

2. By reason of their disabilities and status as single individuals, the plaintiffs constitute a protected group under both the Canadian Charter of Rights and Freedoms and The Human Rights Code;

Appendix B – 2

3. By its order dated 17 December 2007, the respondent City alleges that the properties do not strictly conform to its by-laws and therefore requires the property owner to vacate the plaintiffs and all others from the Bannerman Residences before 1 February 2008;

4. In its interpretation and application of its by-laws, the respondent City has not taken into account, or made reasonable accommodation for, the plaintiffs’ protected traits, resulting in their differential treatment that amounts to adverse effect discrimination;

5. Because of an acute shortage of safe and supportive housing suitable for them, the plaintiffs would suffer irreparable harm if effect were give to the respondent City’s order to vacate the Bannerman Residences;

6. The application raises a serious issue to be tried, and the balance of convenience favours the plaintiffs in granting the injunctive relief that they seek;

7. The Court of Queen’s Bench Act, C.C.S.M. c. C280, ss. 55 and 96(1);

8. Queen’s Bench Rules 3.02(1), 37.08(2), and 40.01;

9. The Constitutional Questions Act, C.C.S.M. c. C180, ss. 7 and 8;

10. Canadian Charter of Rights and Freedoms, ss. 15 and 24(1);

11. The Human Rights Code, S.M. 1987-88, c. 45, ss. 9(1)(a), 9(1)(b), 9(1)(d), 9(2)(i), 9(2)(j), 9(2)(l), 12, and 55; and,

12. Such further and other grounds as counsel may advice and this Honourable Court may permit.

The following documentary evidence will be used at the hearing of the motion:

1. The Statement of Claim, herein;

2. Affidavits of [the plaintiffs, names and dates of execution redacted];

3. Affidavits of residents in the neighbourhood of the Bannerman Residences [names and dates of execution redacted];

Appendix B – 3

4. Affidavit of the property owner, the intervener Boris Peter Wessner, dated 14 January 2008;

5. Affidavits of social workers [names and dates of execution redacted];

6. Affidavit of [architect, name and date of execution redacted];

7. Notice of Constitutional Question;

8. Undertaking as to damages, of the plaintiffs; and,

9. Such further and other documents as counsel may advise and this Honourable Court may permit.

Appendix C – 1

Appendix C – Motions Brief

Points to be argued

1. An interim and interlocutory, and permanent injunction should issue, restraining, enjoining, and prohibiting the respondent City from enforcing any part of its order dated 17 December 2007 respecting the vacating of the premises commonly known as 103 Bannerman Avenue and 135 Bannerman Avenue, both in the City of Winnipeg, Manitoba, or from acting or refraining to act in any manner that would give force or effect to that order;

2. The claim raises a serious issue to be tried;

3. The plaintiffs would suffer irreparable harm if they were not granted the injunctive relief for which they pray; and,

4. The balance of convenience favours the granting of the injunctive relief sought by this motion.

Argument

Summary

1. The plaintiff individuals seek to quash the respondent City’s order that they vacate the premises at which they reside before 1 February 2008. Living on social assistance and suffering mental and physical disabilities, the plaintiffs constitute a protected group under both the Canadian Charter of Rights and the Manitoba Human Rights Code. In arriving at its order to vacate, the respondent City’s interpretation and application of its by-laws have not taken into account, or made reasonable accommodation for, the plaintiffs’ protected traits. The result is their differential treatment, which amounts to adverse effect discrimination.

2. The plaintiffs are threatened with the loss of their homes at a time when there is an acute shortage of safe, suitable, and supportive housing in Winnipeg. The issue is serious, and the plaintiffs would suffer irreparable harm if effect were given to the respondent City’s order to vacate the Bannerman Residences. As vulnerable persons with disabilities, the plaintiffs face the prospect of homelessness and attract the balance of convenience over any interest that the respondent City might have in the immediate enforcement of its order to vacate or any other public interest.

Facts

Appendix C – 2

3. The plaintiffs are single individuals living on social assistance with mental or physical disabilities. Unable to live without any support but not so disabled that they require institutionalization or similar close supervision, the plaintiffs have lived for various periods of time at the Bannerman Residences.

4. Like the service provided by a residence for university students, the Bannerman Residences offer private accommodation, shared common areas, meals, and a set of rules for the plaintiffs and others who live there.

5. As former apartment buildings, the structures that comprise the Bannerman Residences are configured so that 2 or 3 residents sign a lease and become co-tenants who share a single suite, leaving each with his or her own private bedroom and a common kitchen, bathroom, and sitting area.

6. By its order dated 17 December 2007, the respondent City alleges that the properties do not conform to its By-Law 6400/94 on “multiple family dwellings” and therefore constitutes a rooming house. Lacking the appropriate conditional use permit, the property owner has been ordered to vacate the plaintiffs and all others from the Bannerman Residences before 1 February 2008.

7. There is an acute shortage of safe and supportive housing suitable for the plaintiffs. Persons with mental illness are likely to have more difficulty in finding housing, because of discriminatory attitudes of some property owners and managers towards the mentally disabled. The prospect of homelessness for the plaintiffs is both real and likely.

Injunctive relief

8. Pointing to infringements of their human rights under the Manitoba Human Rights Code and the Canadian Charter of Rights and Freedoms, the plaintiffs seek an interim, interlocutory and permanent injunction restraining, enjoining, and prohibiting the respondent City from enforcing any part of its order dated 17 December 2007 respecting the vacating of the Bannerman Residences, or from acting or refraining to act in any manner that would give force or effect to that order.

9. Pursuant to s. 55(1) of The Court of Queen’s Bench Act, C.C.S.M. c. C280, and Queen’s Bench Rule 40.01, the plaintiffs seek interim and interlocutory injunctive relief by this motion, and they submit that, in Charter and human rights cases, the Supreme Court of Canada set out a 3-pronged test for the granting of such relief in R.J.R. – MacDonald Inc. v. Canada (Attorney General), [1994] S.C.R. 311:

Appendix C – 3

(a) an applicant for interlocutory relief must demonstrate a serious question to be tried;

(b) an applicant must convince the court that the applicant will suffer irreparable harm if the relief is not granted; and,

(c) an applicant must demonstrate that the balance of convenience, including to some extent the public interest, favours the granting of the relief sought.

R.J.R. – MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311 (hereinafter after “R.J.R. – MacDonald”)

10. The 3-pronged, R.J.R. – MacDonald test is a set of interrelated considerations; the 3 components of the test are not separate hurdles, and an applicant need not clear each in sequence in order to win the injunctive prize.

Apotex Fermentation Inc. v. Novopharm Ltd, [1994] M.J. No. 357 (C.A.) at para. 14 (QL)

Serious issue to be tried

11. One prong of the R.J.R. – MacDonald test requires an applicant to demonstrate a serious question to be tried, which, in a matter touching upon a constitutional issue, simply means a claim that is neither frivolous nor vexatious.

Manitoba (Attorney-General) v. Metropolitan Stores Ltd, [1987] 1 S.C.R. 110 (hereinafter Metropolitan Stores)

12. The plaintiffs submit that there is a serious question to be tried in the instant application, particulars of which include:

(a) that protected characteristics pursuant to s. 9(2) of the Manitoba Human Rights Code may be attributed to them, including

(i) their status as single, umarried persons (s. 9(2)(i)),

(ii) their reliance upon social assistance (s. 9(2)(j)), and

Appendix C – 4

(iii) their mental and physical disabilities (s. 9(2)(l)).

The Human Rights Code, S.M. 1987-88, c. 45, ss. 9(2)

(b) The plaintiffs further submit that the respondent City’s order to vacate the Bannerman Residences is based upon an interpretation of its by-laws that fails to take into account these protected characteristics:

(i) Section 210 of the Winnipeg Zoning By-Law No. 6400/94 defines a multiple- family dwelling as “a building containing three (3) or more non-communicating dwelling units, each for the exclusive use by one (1) family,” and the same section defines “family” as “one (1) person or two (2) or more persons voluntarily associated, plus any dependents, living together as an independent, self-governing single-housekeeping unit.”

Winnipeg Zoning By-Law No. 6400/94, s. 210

(ii) Being single and by reason of their mental and physical disabilities, the plaintiffs and others living at the Bannerman Residences are unable to function as “independent” and “self-governing”.

(iii) The respondent City’s interpretation and application of the By-law nevertheless refuses to recognize the Bannerman Residences as multiple-family dwellings. The City labels them as “rooming houses” whose operation requires a conditional use permit, which the City has refused to grant to the property owner.

Exhibit D to the affidavit of Boris Peter Wessner, sworn on 14 January 2008

(iv) If the same configuration of suites were occupied by persons without disabilities who were thus able to enter into voluntary associations with others and then to live independently and under self-governance, the plaintiffs submit that the Bannerman Residences would fall within the definition of a permitted multiple-family dwelling unit.

(v) It is the plaintiffs’ protected characteristics of disability and family status that limit their ability to enter into voluntary associations and choose their accommodations as freely as persons lacking their disabilities and special needs.

Appendix C – 5

(vi) By reason of the respondent City’s interpretation and application of its by- laws, the plaintiffs are differently treated and suffer an adverse effect.

(c) The plaintiffs further submit that the respondent City is required in cases of indirect, or adverse effect, discrimination to make reasonable accommodation for their characteristics.

British Columbia (Public Service Employee Relations Commission) v. British Columbia and Service Employees’ Union, [1999] 3 S.C.R. 3.

(d) The plaintiffs further submit that accommodation would be minimal in the instant circumstances. In making reasonable accommodation for the plaintiffs’ protected characteristics, the respondent City could:

(i) Recognize each suite shared by 2 or 3 individuals at the Bannerman Residences as a suite;

(ii) Recognize the co-tenants as voluntarily-associated individuals; and,

(iii) Interpret the level independence and self-governance required by the By-law in a way that acknowledges the role of supportive housing as a means by which the plaintiffs enjoy of a degree of independence.

(e) The plaintiffs further submit that a comparable outcome derives from an analysis under s. 15 (1) of the Canadian Charter of Rights and Freedoms.

Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497 at para. 88

Irreparable harm

13. Another prong of the R.J.R. – MacDonald test requires an applicant to convince the court that the applicant would suffer irreparable harm if the relief were not granted. The focus here is only on the impact upon the applicant and not the respondent or the public interest.

14. For all of the plaintiffs, the order to vacate the Bannerman Residences is distressing, and none is optimistic at prospects to find comparable supportive shelter:

Appendix C – 6

[redacted affidavits of plaintiffs]

15. The loss of one’s home and the prospect of homelessness would create irreparable harm.

Garside v. Jane Oak Apartments Inc. (1988), 27 O.A.C 308 (Div. Ct): eviction of single mother with small children

Trans Canada Credit Corp. v. Morehouse, [1997] N.B.J. No. 460 (Q.B.): forced sale of matrimonial home, where wife alleged undue influence in giving mortgage

Aird v. Country Park Village Properties, [2001] FCT 1305: eviction of tenants in the course of a rent dispute

Balance of convenience

16. The last prong of the R.J.R. – MacDonald test – and most determinative in the instant application – requires an applicant to demonstrate that the balance of convenience favours the granting of the injunctive relief sought: “which of the two parties will suffer the greater harm from the granting or refusal of an interlocutory injunction, pending a decision on the merits”

17. There is no compelling urgency to the respondent City’s order to vacate the Bannerman Residences.

Affidavit of the property owner, Boris Peter Wessner, dated 14 January 2008,

18. There is no imminent and overriding harm or safety concern that would now justify the City’s order to remove the plaintiffs from their homes and instead leave them without any ready and apparent prospect for safe, supportive shelter that is suitable for persons with mental and physical disabilities.

19. Where human rights are in issue, consideration of the balance of convenience extends beyond the instant litigants to include the public interest.

20. Although it is statutorily charged with the duty of protecting the public interest, the respondent City cannot here tip the balance of convenience in the instant application through a simple statement that, in the making of the impugned order to vacate, it was, in fact, acting pursuant to that duty to protect the public interest. The scope of the relief that the instant

Appendix C – 7

application seeks is primarily limited to 2 by-laws as they are applied only to the Bannerman Residences and only as they impact the plaintiffs and others now living there. Because the plaintiffs primarily seek an exception to the respondent City’s interpretation and application of its 2 by-laws, as opposed to a broad suspension of those provisions which would affect the entire population of the City, the public interest carries less weight:

Consideration of the public interest may also be influenced by other factors. In Metropolitan Stores, it was observed that the public interest considerations will weigh more heavily in a “suspension” case than in an “exemption” case. The reason for this is that the public interest is much less likely to be detrimentally affected when a discrete and limited number of applicants are exempted from the application of certain provisions of a law than when the application of the law is suspended entirely.

-- R.J.R. – MacDonald at p. 43

21. The plaintiffs submit that, although some persons in the community object to the operation of the Bannerman Residences, those with a firsthand knowledge of its operations and many in the immediate vicinity support the initiative.

[redacted affidavits of neighbours]

22. In addition, since acquiring the Bannerman Residences, the property owner has gradually worked to make improvements to the building that promote safety within and around the buildings.

[redacted affidavit of a plaintiff]

23. From the perspective of the residents and of social workers and care-givers, the Bannerman Residences fulfil a critical function that helpfully supports those who live there.

[redacted affidavit of a plaintiff]

Appropriate forum

24. Some of the plaintiffs have filed complaints with the Manitoba Human Rights Commission.

25. The plaintiffs submit that this Honourable Court nonetheless is the appropriate forum in which to seek the relief for which they here move:

Appendix C – 8

(a) The Human Rights Commission offers a mediated approach in the initial stages of its handling of any complaint, and the plaintiffs desire an outcome to the instant dispute that is satisfactory to them, the respondent City, and the community at large. However, there are limits to the scope of the Human Rights Commission’s powers and the extent to which it may grant relief that is both timely and necessary in the circumstances of the instant application.

(b) In contrast, this Honourable Court may address both human rights and Charter issues in a timely and effective way.

(c) In addition, s. 55 of the Human Rights Code anticipates that injunctive relief may be sought from this Honourable Court while an auxiliary complaint proceeds through the Human Rights Commission.

The Human Rights Code, S.M. 1987-88, c. 45, s. 55

Closing recital

26. By the preceding argument and on the basis of the oral submissions that will follow at the hearing of this motion, the plaintiffs submit that this Honourable Court should grant the relief for which they have moved.

27. All of which is respectfully submitted.

Appendix D – 1

Appendix D Notice of Constitutional Question

To: The Attorney General of Canada And to: The Attorney-General of Manitoba

1. Take notice that, pursuant to The Court of Queen’s Bench Act, C.C.S.M., c. C280, the applicants will make an application for, among other relief:

(a) an order pursuant to The Constitutional Questions Act, C.C.S.M. c. C180, s. 7(5), that the time for service of a notice of constitutional question upon the Attorney General of Canada and the Attorney-General of Manitoba be abridged; and,

(b) relief under the Canadian Charter of Rights and Freedoms, s. 24(1) on the ground that the applicants’ rights under s. 15 of the Canadian Charter of Rights and Freedoms have been infringed.

2. Take further notice that arguments in the application is set down for hearing on Tuesday, 22 January 2008, at 10:00 a.m., at the Winnipeg Law Courts, 408 York Avenue, Winnipeg, Manitoba.

3. The points to be argued are:

(a)The applicants are single individuals living on social assistance with a mental or physical disability and residing at the premises commonly known as 103 Bannerman Avenue and 135 Bannerman Avenue, both in the City of Winnipeg, Manitoba (hereinafter referred to as the “Bannerman Residences”), through which the applicants receive safe and supportive housing;

(b) By its order dated 17 December 2007, the respondent City alleges that the properties do not strictly conform to its by-laws and therefore requires the property owner to vacate the applicants and all others from the Bannerman Residences before 1 February 2008;

(c) Because of an acute shortage of safe and supportive housing suitable for them, the applicants would suffer irreparable harm if effect were give to the respondent City’s order to vacate the Bannerman Residences.

Appendix D – 2

(d) By reason of their disabilities and status as single individuals, the applicants constitute a protected group under, among other provisions, s. 15 of the Canadian Charter of Rights and Freedoms;

(e) In its interpretation and application of its by-laws, the respondent City has not taken into account, or made reasonable accommodation for, the applicants’ protected traits, resulting in their differential treatment that amounts to adverse effect discrimination.

Appendix E – 1

Appendix E Undertaking as to Damages

1. The applicants undertake to abide by any order that this Honourable Court might make arising out of the instant application or any interlocutory proceedings thereunder.

2. The applicants further state that, by reason of the nature of these proceedings and the relief prayed for, the respondent would not incur any damages arising out of any injunctive relief that this Honourable Court might award.