Failure to prevent loss of ownership of property a violation of CEDAW (Cecilia Kell v Canada)


Cecilia Kell via CBC NewsIn 1990, William Senych applied for housing without the knowledge of his common law partner, Cecilia Kell, an Aboriginal woman from the Rae-Edzo community in the Northwest Territories (N.W.T.) of Canada.  Senych’s application was denied because he was not a member of the Rae-Edzo community for which the housing was earmarked. 

On the advice of a Tenant Relations officer at the Rae-Edzo Housing Authority, Kell then applied for housing, listing Senych as her spouse.  In 1991, the N.W.T. Housing Corporation issued an Agreement for Purchase and Sale to Kell and Senych as co-owners of the property.  Senych subjected Kell to domestic violence, including economic abuse, over the subsequent three-year period.     

In 1993, following a request from Senych and without Kell’s knowledge, the N.W.T. Housing Corporation (on instruction from the Rae-Edzo Housing Authority) removed Kell’s name from the Assignment of Lease, the document that certified co-ownership.  The removal had the effect of making Senych the sole owner of the property.  Senych was a board member of the Housing Authority at the time of his request.  

In 1995, Senych changed the locks and denied Kell access to the property.  He subsequently sought to evict her while she sought protection in a shelter.

Kell filed proceedings against Senych in the N.W.T. Supreme Court seeking compensation for assault, battery, sexual assault, intimidation, trespass to chattels, loss of use of her home and consequential payment of rent and attendant expenses.  She also filed a declaration that Senych had obtained the property fraudulently, aided and abetted by the N.W.T. Government.  Kell was assigned a legal aid lawyer, who advised her to comply with the letter of eviction and did not challenge the letter’s validity.

Shortly thereafter, Senych was diagnosed with cancer, at which time Kell’s lawyer advised her to delay proceedings.  Senych later died, following which Kell’s lawyer initiated proceedings against his estate, the N.W.T. Housing Corporation and another person.  A replacement legal aid lawyer added a claim for damages for assault and intimidation. 

In 1999, Senych’s estate and the Housing Corporation offered Kell a monetary settlement.  During negotiations, Kell’s case was twice reassigned to new lawyers.  Both insisted that Kell settle.  She refused, however, as her key concern was regaining the property.  Following her refusal, Kell’s lawyer ceased acting on her behalf.  Kell’s case was only re-assigned to a new lawyer after she appealed to the Legal Services Board.

The Supreme Court dismissed both proceedings for “want of prosecution.”  Costs were imposed against Kell and subsequent appeals were unsuccessful. In 2004, Kell filed a third action related to her interest in and right to the leasehold title and possession of the property.  The property had then been sold and the Court dismissed the matter.    

Kell subsequently submitted a communication to the Committee on the Elimination of Discrimination against Women (CEDAW Committee) in which she claimed that Canada had violated articles 1, 2(d), 2(e), 14(2)(h), 15(1)-15(4), 16(1)(h) of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).  Kell claimed that Canada had allowed its agents – the N.W.T. Housing Corporation and the Rae-Edzo Housing Authority – to discriminate against her on the grounds of sex, marital status and cultural heritage and had failed to ensure that its agents provide equal treatment to female housing applicants.  Kell noted, in particular, Canada’s failure to prevent and remedy the fraudulent removal of her name from the Assignment of Lease and the failure to ensure that its agents afford women and men equal rights in respect of ownership, acquisition, management, administration and enjoyment of property.

Canada’s observations on admissibility

Canada alleged that the communication was inadmissible ratione temporis under article 4(2)(e) of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women (Optional Protocol).  It claimed that the removal of Kell from the Assignment of Lease occurred prior to the Protocol’s entry into force for Canada.  It also claimed that the communication was inadmissible because Kell had failed to exhaust domestic remedies (art. 4(1)), specifically she had failed to raise the substance of her claim before domestic authorities and had not availed herself of all appeal routes.  Finally, Canada disputed admissibility on the basis that the communication was manifestly ill-founded and not sufficiently substantiated (art. 4(2)(c)). 

CEDAW Committee’s admissibility decision

A majority of the CEDAW Committee declared the communication admissible.  In finding the communication admissible ratione temporis, the Committee noted that, although the removal of Kell’s name from the Assignment of Lease occurred prior to the Protocol’s entry into force date, the effect of the removal was ongoing and her claim was already pending before domestic courts.  In relation to the exhaustion of domestic remedies requirement, the Committee expressed the view that even if domestic remedies had not been exhausted, the application of such remedies was unlikely to bring Kell effective relief.  The Committee concluded that Kell had sufficiently substantiated her claim of discrimination and noted that she had filed proceedings in domestic courts that included claims of sex discrimination, domestic violence, and eviction from property and land.

Canada’s observations on the merits

Canada contested Kell’s claim of discrimination.  It maintained that Senych might have perpetrated a fraud by abusing his position within the Housing Authority, but that this abuse could not be attributed to the state or its agents as an act of discrimination.  More generally, it argued that Kell had failed to provide sufficient evidence to support her alleged claims under CEDAW.    

Views

The Committee found that Canada was responsible for Kell losing ownership of the property, in violation of articles 2(d), 2(e), and 16(1)(h) of CEDAW, read with article 1.  However, it found that Canada had not violated articles 14(2)(h) or 15(4), as there was no evidence Kell had been discriminated against as a rural woman or prevented from residing in another property in the community.  Committee member Schulz dissented.

Intersectional discrimination (arts 1, 2)

The Committee found that Kell was a victim of intersectional discrimination based on her status as an Aboriginal woman who was also a victim/survivor of domestic violence.  The Committee based its decision on the removal of Kell from the Assignment of Lease, Kell’s loss of her share in the house (which was only possible with action or inaction by the N.W.T. Housing Corporation, an agent of the state), and the failure of the Housing Corporation to inform Kell that her property rights had been annulled without her consent.  The Committee also based its decision on the eviction of Kell while she sought protection in a shelter against domestic violence and the failure of Kell’s legal aid lawyers to challenge the validity of the eviction. 

General obligations of states (arts 2(d), 2(e))

The Committee concluded that Canada’s failure to refrain from, and provide effective remedies to address, discrimination constituted a violation of states’ general obligations in articles 2(d) and 2(e) of CEDAW.  The Committee condemned Canada’s failure to prevent the removal of Kell’s name from the Assignment of Lease and the reassignment of Kell’s share to her partner.  It also condemned Canada’s failure to ensure that its agents declared the new Assignment of Lease, which excluded Kell, null and void.  The Committee also noted, inter alia, that the alternative accommodations Canada’s agents had offered Kell in settlement were for rent and not ownership and were smaller in size than the property she had been deprived of.  The Committee condemned the discriminatory actions of the legal aid lawyers assigned to Kell’s case, noting that they had impaired her ability to seek redress and obtain effective remedies.

Equal rights in respect of property (art 16(1)(h))

The Committee based its finding of a violation of the right to equality in respect of property on: the failure to prevent the eviction of Kell while she was seeking protection in a domestic violence shelter; the failure to take Kell’s contribution to the property into account or inform her before it removed her name from the Assignment of Lease; and its advise to Kell that Senych’s application would be considered if her name was added.

Recommendations

The Committee recommended that Canada compensate Kell and provide her with appropriate housing.  It also recommended recruiting and training more Aboriginal women to provide legal aid and reviewing the legal aid system to ensure Aboriginal women who are victims/survivors of domestic violence have effective access to justice. 

Communication No. 19/2008, UN Doc. CEDAW/C/51/D/19/2008 (26 April 2012)

Decision



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