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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Failure to ensure de facto equality in employment a violation of CEDAW (R.K.B. v. Turkey)


R.K.B.’s employer, a hairdressing salon, terminated her contract of employment.  It also allegedly threatened to spread rumours that R.K.B. had extramarital affairs in order to pressure her to sign a document stating that she had received all of her work entitlements and precluding her from suing for unfair dismissal.  R.K.B. did not sign the document, but claimed that she felt threatened to do so. 

R.K.B. filed a claim before the Kocaeli 3rd Labour Court for severance pay and other damages.  The employer sought to have the matter dismissed, claiming (inter alia) that it fired R.K.B. because she had a relationship with a male colleague (Mr. D.U.), displayed this sexual relationship, and behaved contrary to its business ethics.

R.K.B. then added sex/gender discrimination as an additional action, in accordance article 5 of the Labour Act of 2003.  She claimed that, despite the contention of her former employer that it had dismissed her because of her alleged relationship with Mr. D.U., it had not also terminated his employment and that this difference in treatment was because she was a woman.  The two actions were consolidated.

The Court held that R.K.B. had been terminated unlawfully and awarded her severance allowance and payments in lieu of notice.  However, it held that her former employer had not violated the equal treatment principle in the Labour Act.  R.K.B. appealed to the Court of Cassation, arguing that the Labour Court’s decision violated the principle of equal treatment guaranteed by the Labour Act and the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).  The appeal was later dismissed, without any reference to the claim of discrimination.  

R.K.B. then submitted a communication to the Committee on the Elimination of Discrimination against Women (Committee) in which she claimed that Turkey had violated articles 1, 2(a), 2(c) (state obligations), 5(a) (stereotyping), 11(1)(a) and 11(1)(d) (equality in employment) of CEDAW.  She submitted that the courts had failed to apply the legal guarantee of equal treatment, and protect her against discrimination, in practice.  She also submitted that they had based their decisions on gender stereotypes related to marital affairs, rather than law and fact.

Turkey’s observations on admissibility

Turkey submitted that the communication should be declared inadmissible under the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women (Optional Protocol), because it was incompatible with CEDAW (art 4(2)(b)), ill-founded and insufficiently substantiated (art 4(2)(c)).

Committee’s admissibility decision

The Committee opted to determine admissibility and merits together.

CEDAW Committee’s views

The Committee concluded that Turkey had violated articles 2(a) and 2(c) of CEDAW, read with article 1, as well as articles 5(a), 11(1)(a) and 11(1)(d).  Committee member Pramila Patten issued a concurring opinion. 

General obligations of States Parties

The Committee determined that, although Turkey had introduced legal guarantees of gender equality, it had failed to ensure the practical realisation of those guarantees and the effective protection of women against discrimination, in violation of articles 2(a) and 2(c) of CEDAW, read with article 1. 

In reaching this determination, the Committee condemned the failure of both courts to “give due consideration to the clear prima facie indication of infringement of [the] equal treatment obligation in the field of employment.”  It also condemned the Labour’s Court’s “very narrow interpretation” of the equal treatment principle.

Freedom from wrongful gender stereotyping

The Committee concluded that the courts’ decisions were based on gender stereotypes that condoned extramarital affairs by men but not women, in violation of article 5(a) of CEDAW.  It explained that the Labour Court had allowed its reasoning to be influenced by stereotypes when it failed to challenge and reject the discriminatory evidence submitted by the employer, and scrutinised the moral integrity of R.K.B. and not that of her male colleagues.  The Committee further explained that the Court of Cassation perpetuated gender stereotypes when it failed to address the gender-related aspects of R.K.B.’s complaint.  In finding Turkey in violation of article 5(a), the Committee affirmed that CEDAW requires States Parties to “modify and transform gender stereotypes and eliminate wrongful gender stereotyping, a root cause and consequence of discrimination.”  

Right to equality in employment

The Committee determined that the behaviour of the employer, including the threats it made when terminating R.K.B.’s contract, violated the principle of equal treatment.  Turkey’s failure to hold the employer accountable for that behaviour, the Committee found, violated articles 11(1)(a) and 11(1)(d) of CEDAW.  The Committee clarified that the obligation of employers to refrain from discrimination and, concomitantly, states’ obligation to prevent, redress and remedy such discrimination, extends beyond the termination of employment to arguments made in unfair dismissal cases.

Although Committee member Patten agreed with the Committee’s findings in relation to article 11, she did not endorse its reasoning.  She explained:

Article 11 … contains the most comprehensive provision on the right of women to work and … defines the core elements of the right to work, which includes the right to job security, the right to equal benefits and equality of treatment in the evaluation of quality of work.  Article 11 requires States parties to take all appropriate measures to eliminate discrimination against women in the field of employment in order to ensure, on a basis of equality of men and women, the same rights, in particular the right to free choice of profession and employment, the right to promotion, job security and all benefits and conditions of service.  …  [T]he author has lost her job despite a finding by the court of the unjustified and unlawful termination of her employment.  I therefore conclude that the State party has failed to guarantee the author’s substantive equality at work, that the acts and doings of the employer and his agents has resulted in a denial of the author’s right to employment as well as a denial of job security.   

Communication No. 28/2010, UN Doc. CEDAW/C/51/D/28/2010 (13 April 2012)

Decision