Tuesday, 1 May 2012

NWT Aboriginal Woman files UN case for discrimination by the NWT Housing Authority & Rae Edzo Housing Authority

"...The author of the communication, dated 24 June 2008, is Cecilia Kell, a Canadian aboriginal woman living in the Northwest Territories of Canada. The author claims to be the victim of violations by Canada of her rights under articles 1; 2, paragraphs (d) and (e), 14, paragraph 2 (h), 15, paragraphs 1-4, and 16, paragraph 1(h), of the Convention on the Elimination of All Forms of Discrimination against Women..."
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NWT Aboriginal Woman files UN case for discrimination by the NWT Housing Authority & Rae Edzo Housi...

"...2.1    The author is an aboriginal woman who belongs to the community of Rae-Edzo, in the Northwest Territories in Canada. After attending college, she returned to the community as a single mother but decided to leave her three children with her relatives outside the community until she could get established and secure a home for her family. The author and her late partner, W.S. (hereinafter ―partner), began a common-law relationship in 1989.
2.2    When housing became available in the Rae-Edzo community under a scheme by a local housing authority which earmarked housing for the indigenous population, the author told her partner that she wanted to apply for a house in order to bring her children home. Without telling her, her partner applied in his name only for a unit from the Rae-Edzo Housing Authority (hereafter ―Housing Authority‖). On 1 November 1990, his application was turned down by the Housing Authority Board because he was not a member of the community, and had applied for himself as a single man. The author’s partner told her that the Housing Authority had turned her down for a house. The author could not ask her partner any questions as to why she would have been turned down without even applying because her partner was violent and abusive towards her. It was common knowledge within the Rae-Edzo community that the author and her partner had a common-law relationship. The author was informed by the Tenant Relations officer at Rae-Edzo that her partner could not apply for himself as he was not a member of the aboriginal community, and they advised her to apply for housing, listing her partner as her spouse.
2.3    The author and her partner therefore applied as a family for a house on a leasehold land, in accordance with the advice from the Housing Authority. On 7 October 1991, the Northwest Territories Housing Corporation issued an Agreement for Purchase and Sale to William Senych and Cecilia Kell as purchasers (co-owners) of the house that they moved into.
2.4    Over the next three years, the author experienced spousal abuse and the situation worsened when she got a job and became financially independent. Her partner was extremely jealous and controlled her finances, monitored her whereabouts, threatened her, prevented her from having contact with her family, assaulted her on several occasions, tried to stop her from working and took actions that resulted in her losing jobs. She was admitted a couple of times to McAteer House, a shelter for battered women in Yellowknife.
2.5    In February 1992, at the partner’s request and without the author’s knowledge, the Housing Authority wrote to the Northwest Territories Housing Corporation stating that the partner wanted the author’s name removed from the Assignment of Lease, the document that certified co-ownership of the author and her partner. Her partner was a board member of the Housing Authority Board at the time, and in June 1993, the Northwest Territories Housing Corporation complied with his request.
2.6    In early 1995, when the author took employment without her partner’s consent, the latter changed the locks on the family home and denied her access. As a result, the author had no place to go for several days, until she found a place with her employer’s help. In February 1995, when the author was allowed to enter the house to pick up a few belongings, her partner presented her with a letter from his lawyer requesting her to vacate the house by 31 March 1995. The letter further notified her that his client would exercise the remedies available to him under the law if she did not comply with his request. The author is of the opinion that she was evicted from the house by her partner because she had escaped the abusive relationship by leaving home and seeking refuge in a battered women’s shelter.
2.7    In May 1995, the author decided to file the first court action against her partner before the Supreme Court of the Northwest Territories to seek 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 her partner had obtained the house through fraudulent methods, aided and abetted by the Government of the Northwest Territories.1 The author applied for legal aid and was assigned a lawyer who advised her to comply with the eviction letter and not to return to her home, otherwise she would be charged.
2.8    Shortly after the first lawsuit was filed, the partner became ill with cancer and the author’s lawyer recommended that the court action be delayed. The partner died in November 1995. In March 1996, the author’s lawyer initiated the second court action against the estate of the partner, the Northwest Territories Housing Corporation and William Pourier, who was alleged to have been residing in the house with her partner at the time of his death, and who continued to reside there. The author’s claim was amended by her new counsel on 9 July 1998 to include the claim for damages for assault and intimidation, in addition to the previously submitted claim.
2.9    In May 1999, a formal offer to settle in the amount of Can$15,000 was made by the partner’s estate and the Northwest Territories Housing Corporation, while the author’s lawyer focused his efforts on negotiating a settlement of Can$20,000. No further steps were taken in respect of the author’s outstanding legal actions. Thereafter, the author’s file was reassigned twice to different lawyers because one relocated to Alberta, and the other ceased employment with the Legal Services Board. In November 1999, the author was assigned a fourth lawyer, who insisted that she accept a monetary settlement. As the author’s primary focus has always been on regaining ownership and possession of her house, she wanted to pursue her claim in court, rather than pursue a monetary settlement. As a result of the conflict between the author and her lawyer, the latter ceased acting on her behalf in June 2002. The author was then denied another legal aid lawyer and had to appeal against her denial of legal coverage to the Legal Services Board, which allowed her appeal and assigned her a fifth lawyer.
2.10    On 3 June 2003, a notice of motion was filed by her partner’s estate to set aside the author’s statement of claims, for ―want of prosecution‖ on the grounds that the author, as the party who initiated a legal action, has not diligently acted to pursue her claim.2 On 10 June 2003, the Northwest Territories Housing Corporation also brought a motion to dismiss the action. When the application for dismissal of the first action was heard in October 2003 in the Supreme Court of the Northwest Territories, the author did not contest the dismissal; therefore the first action was dismissed without appeal to the Court of Appeal for the Northwest Territories. However, the author argued against the dismissal of the second action, on the ground that the Court should have reviewed all the actions in the two cases in its assessment of whether there had been a material delay in prosecution. The author was actively responsive to the first action which was linked to the second case, therefore she considered it unjust that the Court deemed that she had taken ―no action‖ in the past few years. The second action was nevertheless dismissed on 3 November 2003 by the Supreme Court of the Northwest Territories for ―want of prosecution,‖ on the grounds that no action had been taken by the author. Costs were imposed, which were later taxed at Can$5,800.3 The author appealed against this decision in the Court of Appeal for the Northwest Territories but her appeal was dismissed without any reasons provided in writing. No further appeal was made by the author in the Supreme Court of Canada regarding the second action.
2.11    On 16 November 2004, the author initiated a new (third) action dealing solely with the issue of her interest in and right to the leasehold title and possession of the property. In January 2005, a counsel for the respondent, the partner’s estate (hereinafter the ―Estate‖), brought a motion seeking summary judgment dismissing her action or security for costs in the alternative. The property in question had been sold by the Estate to third-party purchasers and a transfer of lease had been given to them in early November 2004. The author’s position was that the Estate still held her legal title and equitable interest, which she had acquired prior to the purchasers in question. On 27 May 2005, an affidavit from the then Tenant Relations officer of Rae-Edzo was submitted during the third court action, which stated that the minutes of the meeting of the Board of Directors of the Housing Authority of 1 November 1990, denied the deceased partner’s application for housing on the grounds that he did not belong to the community, however, the said minutes were missing. The affidavit also stated that the Tenant Relations officer was instructed by the Board of Directors to contact the author and advise her to apply for housing by listing her partner as her spouse. The affidavit further stated that after the signing of the Agreement of Purchase and Sale, the original copy of the document was sent to the main office of the Northwest Housing Corporation at Yellowknife, while a copy was retained by the Tenant Relations officer for record. However both copies of the Agreement were said to be missing and lost, and that there was no explanation for the situation.
2.12    On 21 July 2005, the Supreme Court of the Northwest Territories, while hearing the application for summary dismissal in the third court action, held that since the third action sought essentially the same relief as the previous two actions, the author had to pay the amount of the taxed bill of costs in court with respect to the previous court actions as well as post security for the respondent’s costs in this third action before continuing with the case. The Court ordered that the cost payments had to be made within 60 days of the filing of the memorandum and that the case was stayed till compliance was met. As the author could not comply with the time limit set by the Court for the payment of costs and the security, the case was dismissed on 26 April 2006 by the Supreme Court of the Northwest Territories.
2.13    The author contends that she has exhausted all domestic remedies. She explains that she had to represent herself in the third case because, as a single mother, she did not have the means to retain a private lawyer. Although the author had been represented by many lawyers from the Legal Services Board over a period of 10 years, the lawyers did not comply with her instructions. She submits that a settlement had been negotiated without her consent and contrary to her instructions. She believes that as a result of her refusal of the said settlement, she was denied further legal aid and was obliged to represent herself. ...."

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